IN THE THIRD DISTRICT COURT OF APPEALIN AND FOR THE STATE OF FLORIDA

CASE NO. 3D11-2115

JEAN IBRAHIM FEGHALI,

Appellant,

vs.

MELVINA FOUAD ABOU WAKED,

Appellee.

FINAL ORDER APPEALED FROM THE CIRCUIT COURTFOR THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

Lower Court Case No. 06-9158

ANSWER BRIEF OF APPELLEE WAKED

REX E. RUSSO, ESQ.2655 LeJeune Rd., PH 1-D

Coral Gables, FL 33134305-442-7393

TABLE OF CONTENTS

Table of Citations..................................................................................... 3

Introduction.............................................................................................. 5

Statement of the Facts.............................................................................. 6

Statement of the Case............................................................................... 7

Issue Presented for Review..................................................................... 9

Summary of Argument............................................................................ 10

Standard of Review.................................................................................. 10

Argument as to the Issue......................................................................... 11

Conclusion............................................................................................... 21

Signature of Attorney............................................................................... 22

Certificate of Service................................................................................ 22

Certificate of Font Requirement.............................................................. 22

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TABLE OF CITATIONS

CASES:

Connolly v. Connolly, 448 So. 2d 641 (Fla. 4th DCA 1984)................................ 13,14

Ellis v. Ellis, 242 So. 2d 745 (Fla. 4th DCA 1971)........................................... 12,13,14,16

Field v. Field, 68 So. 2d 376 (Fla. 1953)........................................................... 12,13,14,16

Kaplus v. First Cont'l Corp., 711 So. 2d 108 (Fla. 3d DCA 1998)....................... 13

Kaylor v. Kaylor, 466 So. 2d 1253 (Fla. 2d DCA 1985) ..................................... 16

Kaylor v. Kaylor, 500 So. 2d 530 (Fla. 1987)....................................................... 16

Lacker v. Zuern, 109 So. 2d 180 (Fla. 2d DCA 1953).......................................... 19,20

Lamers v. Lamers, 277 So. 2d 582 (Fla. 4th DCA 1973)...................................... 14

MEBA Med. & Benefits Plan v. Lago, 867 So. 2d 1184 (Fla. 4th DCA 2004).... 10

Miller v. Eatmon, 177 So. 2d 523 (Fla. 1st DCA 1965)........................................ 12,13,16

Mosley v. Mosley, 153 So. 2d 328 (Fla. 1st DCA 1963)...................................... 14

Pinkas v. Fiveash, 126 So. 2d 910 (Fla. 2d DCA 1961)........................................ 18

Swafford v. Schweitzer, 906 So. 2d 1194 (Fla. 5th DCA 2005)........................... 21

Wilson v. Wilson, 118 So. 215 (1928)................................................................... 15

STATUTES:

Florida Statutes §61.021 (1986)............................................................................. 11,13,21

Florida Statutes §95.11(3)(k) (1999)...................................................................... 21RULES:

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Rule 9.130(a)(3)(C)(i) of the Florida Rules of Appellate Procedure.................... 8

Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure............................. 22

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INTRODUCTION

This is an appeal from a final judgment of dismissal in which the trial court

determined that it lacks subject matter jurisdiction to consider the Appellant husband’s

claim of a marital interest in real property solely titled in the name of the Appellee

wife, both of whom are foreigners to the State of Florida.

(R?,¶?,L?) Shall refer to the Record on Appeal,followed by the page number, and insome instance by a numberedparagraph on that page (¶?), or linenumber on that page (L?).

Trial Court/Lower Court Shall refer to the 11 Circuit Court, inth

and for Dade County, Florida, the Honorable John Schlesinger presiding.

Wife Shall refer to Melvina Fouad AbouWaked, the Defendant below, and theAppellee herein.

Husband Shall refer to Jean Ibrahim Feghali, the,the Plaintiff below, and the Appellantherein.

Marital Domicile Shall refer to the Country of Lebanon.

Domiciliary Court Shall refer to the Denominational Courtfor the Maronite Church in Beirut,Lebanon

STATEMENT OF THE FACTS

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Husband is presently a resident of the country of Columbia [R67,¶3 ]. Wife is

and has been a resident of the country of Lebanon [R181,¶5]. They have been

separated from one another for many years [R69,¶6; R181,¶8; R182,¶9]. The only

present connection either of these parties has to the State of Florida is the wife’s sole

legal title ownership in three parcels of real estate in Miami-Dade County (i.e. “the

subject property”) [R67,¶¶4&5; R188,¶¶4&5].

The parties were married to each other in Lebanon [R124,¶3]. Although they

had lived together in Miami-Dade County for a few years [R124,¶6], both eventually

returned to Lebanon which is the last jurisdiction wherein they resided together as

husband and wife [R182,¶9]. Although the husband filed dissolution of marriage

actions in Lebanon [R126,¶13,14] and later in Colombia [R126,¶15], no dissolution

has been granted [R208,L21-24] [R214,L3-9]. They remain married to this day.

There are no known pending actions for divorce in any jurisdiction.

The court should be cognizant of the many absent record references that should

have been noted in support of the facts stated by the husband in the Initial Brief.

Most notable are those unsupported statements commencing at the bottom of page 12

of the Initial Brief and continuing on to page 13.

STATEMENT OF THE CASE

The husband filed a series of complaints before the trial court, in which the

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earliest counts sought an equal ownership interest in the subject property titled in the

wife’s name alone, claiming that the subject property constitutes marital property

[R9,¶6] [R26,¶6] [R69,¶6]. The husband’s complaint is now in its third amended

form [R67-75, R165-170] . Following voluntary dismissal of the earliest counts1

[R210,L1-9] [R211,L7-11] [R201,¶1], the remaining counts at the time of dismissal

were for constructive trust, and alternatively for a resulting trust, seeking transfer of

title, and full equitable ownership of the alleged marital property, to the husband’s

name alone.

In repeated motions before the trial court, the wife sought dismissal of the

various iterations of the complaint asserting that the trial court lacked both subject

matter jurisdiction and in personam jurisdiction over the wife [R17-22; R37-41;

R100-106; R136-139; R171-180]. Despite attempts to address both issues of

jurisdiction, no orders were forthcoming at first on either [R23, R46] . Although the2

trial court appeared to express a concern over both issues, it seemed that the trial court

considered itself to have quasi pendent jurisdiction while the divorce action

commenced by the husband in Lebanon played out, followed by the subsequent

The amendment by addition of new counts to the second amendment1

complaint, actually constitutes a third amended complaint.

There was another Order dated May 29, 2008 denying a motion for2

summary judgment, but as shown by the clerk’s notes at the end of the index to therecord on appeal, it was lost. The content of the order is not significant enough tomerit inclusion as an Appendix item.

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divorce action commenced by the husband in Colombia . Both foreign actions were

dismissed without either a decree of divorce, separate maintenance, or property

division. No known action for divorce, separate maintenance, or property division is

known to be ongoing anywhere. There was not a lot of contention between the parties

before the lower court during these long delays while awaiting conclusion of the

foreign actions.

Eventually, the wife’s renewed motion for summary judgment [R171-180]

seeking dismissal because of the trial court’s lack of both subject matter jurisdiction

and jurisdiction over the person of the wife was heard. The motion proceeded only

as to the third amended complaint (i.e. amendment to second amended complaint, and

remaining counts IV and V) [R202-216]. The trial court denied the motion but for the

first time made a specific finding that the trial court had personal jurisdiction over the

wife [R201,¶2].

The wife filed an appeal before this court pursuant to Rule 9.130(a)(3)(C)(i)

challenging the trial court’s determination of long-arm jurisdiction over the wife. In

the course of briefing this court in the prior appeal in response to issues raised by the

husband, and at oral argument, it became apparent to the panel that subject matter

jurisdiction was the primary issue. Wife’s counsel beseeched the panel to then treat

the appeal, pursuant to Rule 9.040(c), as including a petition for certiorari, but the

panel declined while finding that the wife’s interlocutory appeal taken from the trial

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court’s declaration of in personam jurisdiction was not an authorized appeal. Instead,

the panel’s decision included a footnote stating:

We recommend that the lower court address the issue ofsubject matter jurisdiction before proceeding further in thiscase to determine interest in real property allegedlyacquired during the marriage between two foreignnationals.

The wife then proceeded before the trial court with a motion to dismiss for lack

of subject matter jurisdiction [R225-227]. A hearing was held at which time the judge

of the court gave the husband’s counsel time to file a response to the motion to

dismiss for lack of subject matter jurisdiction. The husband’s counsel complied by

filing a memorandum in opposition to the motion [R228-238]. Wife’s counsel filed

a reply thereto [R239-244] following which the trial court entered a final order

dismissing the action for lack of subject matter jurisdiction [R274].

The husband then appealed from the final order to this court.

ISSUE PRESENTED

When spouses are foreigners to the State of Florida, do Florida courts have

subject matter jurisdiction to determine one spouse’s marital claim to real property

located in Florida that is titled solely in the name of the other spouse?

SUMMARY OF ARGUMENT

Florida courts lack subject matter jurisdiction to resolve disputes between

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foreign residing spouses concerning marital property located in Florida and titled in

the name of one spouse alone.

The subject property was first labeled as “marital property” by the husband in

his pleadings [R69,¶6; R181,¶8; R182,¶9], and then later in his affidavit [R127,¶7]

wherein he stated that the parties purchased the subject property with “marital funds”.

However, since that classification did not support the husband’s pursuit he seeks to

reclassify the subject property as non-marital property in order to pursue his claim as

the sole equitable owner despite title in his wife’s name alone. Oddly, if the property,

which is titled in the wife’s name alone is not marital property, then the husband has

no claim at all. But, as avowed marital property, no interest therein can be awarded

to the husband in the absence of a divorce, which the courts of Florida are powerless

to grant when both husband and wife are non-residents.

STANDARD OF REVIEW

Dismissal orders for lack of subject matter jurisdiction are subject to de novo

review. MEBA Med. & Benefits Plan v. Lago, 867 So. 2d 1184 (Fla. 4th DCA

2004).

ARGUMENT ON THE ISSUE

A. DISMISSAL WAS PROPER BECAUSE FLORIDA COURTS LACK

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SUBJECT MATTER JURISDICTION TO ADJUDICATE MARITAL

PROPERTY DISPUTES BETWEEN A MARRIED COUPLE LIVING

OUTSIDE FLORIDA, EVEN THOUGH THE PROPERTY IS WITHIN

FLORIDA.

Although this court in the prior appeal could have exercised its discretionary

jurisdiction to treat that appeal as a petition for certiorari on the question of subject

matter jurisdiction, it chose instead to suggest that the trail court first rule on the issue.

That was not a rejection of the wife’s position regarding the lack of subject matter

jurisdiction, as supposed by the husband. Accordingly, it is inappropriate for the

husband to characterize the argument and case law previously submitted in

furtherance of the request for certiorari consideration as “rejected” by the court [see

page 12 of the Initial Brief]. The wife’s arguments were not rejected, they were

simply not considered at that time as was the court’s discretion.

The husband’s mincing of the words used in the footnote of the prior appellate

decision fails to recognize the obvious. If the parties were not foreigners to the state

of Florida, and otherwise met the six month jurisdictional requirement of Florida

Statutes §61.021, then the courts of Florida would have jurisdiction to decree a

divorce, following which a property division could occur. The fact that the parties are

not only non-residents of Florida, but “foreign nationals,” only serves to underscore

why the trial court lacks subject matter jurisdiction. So, the husband is correct, those

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words were not merely gratuitous, they were emphatic.

The husband’s responses to the wife’s defenses throughout this action have

been akin to moving ducks in an arcade game. As prior counts were picked off, new

counts arose, until the final two remained. This game is continued by the husband

turning time and again to form rather than substance. Husband now argues that the

trial court has jurisdiction because the remaining counts (Counts IV and V) were

worded as recognizable equitable actions, while continually ignoring his affidavit

[R125,¶7] and the allegations of his complaint [R69,¶6; R181,¶8; R182,¶9] stating

that the subject property constitutes a marital asset.

Husband’s remaining counts (Counts IV and V) each seek to have the trial court

declare a resulting trust or constructive trust finding the husband to be the sole

equitable owner of the properties legally titled in the name of his wife alone [R195-

200]. Essentially, the husband wanted the trial court to act like a divorce court and

grant him a special equity in the alleged marital assets. Florida courts do not decide

equitable interests in marital property unless there is a divorce proceeding before it.

Field, Ellis, Miller infra. But, if the husband had commenced his action in the family

division of the circuit court seeking a dissolution of the marriage prerequisite to an

award of a special equity in the Florida property, the action would have been subjected

to immediate dismissal because the husband does not meet Florida’s six-month

residency requirement necessary to invoke the jurisdiction of the Circuit Court for a

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divorce decree . Accordingly, any further amendment of the pleadings by the husband3

would have been futile.

It is both bold and blind for the husband to cast Field v. Field, 68 So. 2d 376,

378 (Fla. 1953) (“in the absence of ... a dissolution of the marriage relationship, there

is no occasion to undertake to adjudicate the respective rights of the spouses to

property in which both have an interest”), Ellis v. Ellis, 242 So. 2d 745, 747 (Fla. 4th

DCA 1971) (“power to adjudicate property rights as between husband and wife can

be exercised only where the court grants a divorce”), and Miller v. Eatmon, 177 So.

2d 523, 526 (Fla. 1st DCA 1965) (“courts have no jurisdiction to award a wife an

interest in property owned by her husband during the continuance of their marriage”)

as standing for something other than that “it is error to adjudicate the parties' property

rights without dissolving the marriage”. Not only because of the specific wording of

the holdings therein, but also because those cases have been cited to in opinions by

other courts for that very premise. See for example, Kaplus v. First Cont'l Corp., 711

So. 2d 108, 111 (Fla. 3d DCA 1998) (citing to all three cases - “judicial authority to

adjudicate property rights between a husband and a wife can only be exercised where

the marriage is dissolved”); review denied, 725 So. 2d 1107 (Fla. 1998); Connolly v.

Connolly, 448 So. 2d 641, 643 (Fla. 4th DCA 1984) (citing to Field - “ a court should

not intrude into the marriage relationship and adjudicate their marital disputes unless

Florida Statutes §61.021.3

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and until such time as there is a proceeding instituted to terminate the marriage”);

Mosley v. Mosley, 153 So. 2d 328, 329 (Fla. 1st DCA 1963) (citing to Field - “so long

as the marriage relationship exists between a husband and wife, a court of equity is

without power to adjudicate or dispose of the respective interests which the parties

hold in real property”); Lamers v. Lamers, 277 So. 2d 582, 583 (Fla. 4th DCA 1973)

(citing to Ellis - “correct sequence is to first or at least contemporaneously, determine

if a divorce is to be awarded and then proceed to adjudicate property rights”).

Throughout this portion of the husband’s argument, he is actually arguing his

wife’s case that only when property ownership is clearly divisible from marital

interests may a court, in the absence of a divorce, intervene with an order affecting

title. Returning to the prior analogy of the arcade game, in this latest version of that

game the ducks are upside-down, apparently because that is suppose to make them

harder to hit. In other words, the husband’s affidavit [R125,¶7] stating that the subject

property was purchased with marital funds is to be ignored, as are his pleadings that

the subject property constitutes “marital property” [R69,¶6; R181,¶8; R182,¶9], and

we are suppose to focus only on his allegation that “all or substantially all [oops -

these word don’t help him so let’s strike them as if they don’t exist either] of the

consideration used to purchase said property was provided by [the husband]”

[R195,¶22] [bracketed words added].

It seems like the only argument of possible merit cited by the husband is that

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regarding a spouse’s ability to sue their mate in equity. Wilson v. Wilson, 118 So.

215 (1928). However, a close reading of Wilson lends no support to the husband’s

argument where he claims equity in the subject property. Although Mr. Wilson

sought to reclaim title to land he deeded to Mrs. Wilson, his complaint alleged that the

deed was given for security of a loan that Mrs. Wilson never funded. The appellate

court merely decided that Mr. Wilson’s claim should not have been dismissed. Taking

the allegations of Mr. Wilson’s complaint as true, the money loaned, or to be loaned,

was Mrs. Wilson’s alone and the property prior to transfer was Mr. Wilson’s alone.

The dispute between the estranged Wilsons was clearly not over marital property. But

herein, taking the allegations of the husband’s complaint as true, the dispute is over

marital property to which the husband has never had title.

There are strong policy reasons as to why Florida courts in the absence of a

divorce proceeding, especially when Florida is not the domicile of the parties, refrain

from deciding disputes over alleged marital property within its boundaries. A

subsequent divorce court, especially the domiciliary court in a far off country, might

arrive at an equitable distribution for the property that is very different. In fact, the

decision might be so different as to conclude that the husband has no equitable claim

whatsoever in the subject property. This policy consideration is close to the reasoning

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stated by Justice Boyd in his dissent in Kaylor v. Kaylor, 500 So. 2d 530 (Fla. 1987),4

wherein he remarked that “property dispositions prior to dissolution are a bad idea

because until the marriage is finally dissolved, such dispositions are premature

because the situation between the parties could change.” The policy reason is also5

touched upon in Ellis v. Ellis, 242 So. 2d 745, 747 (Fla. 4th DCA 1971) when the

court states that “the correct sequence is to first, or at least contemporaneously,

determine if a divorce is to be awarded and then proceed to adjudicate property rights.

Otherwise, the court may paint itself into a corner by dividing property, perhaps in a

way that cannot be remedied...”.

It is not as if the husband is without a venue to air his claim to an equity in the

property. When this action was commenced, the husband had a pending action in

Lebanon, which is the acknowledged marital domicile, seeking dissolution of the

In Kaylor, the parties were deeply into a divorce proceeding, wherein the4

court had “subject-matter jurisdiction to dissolve the marriage and settle theproperty rights.” Kaylor v. Kaylor, 466 So. 2d 1253, 1254 (Fla. 2d DCA 1985)(the case preceding the appeal to the Supreme Court). The only gripe Mr. Kaylorhad was that he believed that he should not be held in contempt for failing to divesthimself of title to entireties property, as had been ordered by the trial court, until adivorce was actually granted. Kaylor is distinguished from Field, Ellis, and Millerbecause the trial court in Kaylor had “subject-matter jurisdiction to dissolve themarriage and settle the property rights” and was in the process of doing just that. Kaylor is further distinguishable from the action herein because the property inKaylor was jointly titled as “tenants by the entirety.”

For instance, if Mr. Kaylor suddenly had a stoke necessitating long-term5

care, and the property transferred was no longer available to commit for his supportbecause Mrs. Kaylor had sold or encumbered it.

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marriage and division of the marital assets [R69,¶6]. That action [R49-66] was tossed

out by the court in Lebanon, because that court (i.e. the denominational court of the

Greek Orthodox Church of Lebanon) did not have jurisdiction [R96-99]. No case6

was then filed by the husband before the proper denominational court (i.e. the

denominational court for the Maronite Catholic Church of Lebanon), which is stated

to be the proper denominational court by the dismissal ruling of the denominational

court of the Greek Orthodox Church [R98 - see the last two paragraphs under the

“Therefore” heading]. For reasons unsupported by the record, but well known to the

husband, he has chosen not to proceed before the proper domiciliary court.

B. THE MARRIED WOMEN’S PROPERTY ACT HAS NO RELEVANCE TO

THE HUSBAND’S CLAIM IN EQUITY AGAINST HIS WIFE FOR A

SHARE OF THEIR ALLEGED MARITAL PROPERTY.

The husband undisputably stated under oath his contention that the subject

property held by his wife was marital property because it was, according to him,

purchased with marital funds [R125,¶7]. If anything, in the absence of the husband’s

contention that the subject property was “marital property,” the Married Women’s

Property Act would hold that the property of the wife is solely that of the wife. Either

In Lebanon, their civil code directs that certain legal issues, such as marital6

disputes, are to be resolved by established religious courts of the partiesdenomination. The general civil courts are open to such disputes only when theparties are not of the same faith.

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because she purchased it with her own funds, or funds received from a gift, which gift

may have been from the husband. “[A]ll real and personal property owned by a wife

before marriage or lawfully acquired subsequently by gift, devise, dequest, descent,

or purchase is her separate property.” Pinkas v. Fiveash, 126 So. 2d 910, 912 (Fla. 2d

DCA 1961).

All of the husband’s argument regarding the right of a married man to sue his

wife in contract is completely futile. The husband has never sued in contract, having

stated only actions in equity. Those actions in equity either arise from the marriage,

or are deeply entangled in the existence of the marriage. The actions clearly

proceeded on the husband’s sworn statement that the properties were marital assets

derived from marital funds. When the husband’s sworn statement [R125,¶7] turned

out to be the kill switch in the arcade game, he started to argue against his own

affidavit and pleadings, in the hope of shunning any characterization of the subject

property as “marital property”. Still, even these remaining pleadings of the husband’s

complaint state that the subject property is “marital property and equitable title

accrues to both” [R69,¶6].7

Suppose the husband had never sworn under oath that the subject property was

See paragraph 6 of the Second Amended Complaint. The Amendment to7

Second Amended Complaint [R195-200], which contains the only remainingcounts being IV and V, incorporates the prior allegations of paragraphs 1 through20 of the Second Amended Complaint [R67-75].

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“marital property,” had also never alleged as much, and proceeded with a legal as

opposed to equitable action, the husband’s claim to the subject property is so deeply

entangled in the existence of the marriage, that the parties relative interests could not

be determined without considering marital equities. Taking the allegations of

husband’s complaint as true, and considered them in the absence of the husband’s

allegations and affidavit stating the property to be “marital,” the court would be left

deciding whether to award title, and accordingly control of the property, to the

husband who is living in Colombia apart from his Lebanese wife who continues to

reside in the marital domicile. If divested of title under that scenario, and the property

were sold by the husband or his partial interest transferred, then the wife’s potential

claim to the property before the domiciliary court in Lebanon would be thwarted.

As before, the husband makes upside-down arguments that actually support the

wife’s position, which he does again by citing Lacker v. Zuern, 109 So. 2d 180 (Fla.

2d DCA 1953). In Lacker, 50% of the property interest was held as tenants by the

entireties by Mr. & Mrs. Lacker, with the other half owned by Mr. & Mrs. Zuern.

Thus both Mr. & Mrs. Lacker each had a legal title interest, unlike the case herein

where only the wife’s name is on the title to the subject property. Mrs. Lacker was

allowed to proceed with her claim for equitable relief against all other title holders,

including Mr. Lacker as her cotenant by the entireties, because Mr. Lacker was

allegedly colluding with the Zuerns and draining off profits arising from the property.

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Lacker at 182. Accordingly, Mrs. Lacker was allowed to seek equitable relief because

she already had a legal title interest in the property; she was not attempting to prove

her equitable interest in the property.

C. THE TRIAL COURT CORRECTLY, AND WITHIN ITS DISCRETION,

DISMISSED THE ACTION DESPITE THE HUSBAND’S LATEST

REQUEST TO AMEND.

The Second Amendment to the Second Amended Complaint (i.e. the fourth

amended complaint) [R262-263], which the husband filed subject to the trial court’s

approval, once again incorporated the allegations of the Second Amended Complaint,

including paragraph 6 thereof, which states that the subject property is “marital

property and equitable title accrues to both” [R69,¶6]. Seeking a money judgment

on a claim for unjust enrichment, which could then be used to levy against the marital

property to reach the same objective, begs the obvious question: If the subject

property is “marital property” acquired with marital funds, how was the wife unjustly

enriched? If it is because she claims rights to the entire property, denying any equity

to the husband, that is an issue for the domiciliary court (i.e. the court with jurisdiction

over the bonds of marriage) to adjudicate. In any event, a claim for unjust enrichment

is subject to a four year statute of limitations, which expired about 15 years before the

initial complaint was filed, and about 20 years before the Second Amendment to the

Second Amended Complaint was filed. Swafford v. Schweitzer, 906 So. 2d 1194

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(Fla. 5th DCA 2005) (statute of limitations on a claim for unjust enrichment is four

years); see also §95.11(3)(k), Fla. Stat. (1999).

The arcade game is broken. There are only sitting ducks left. It can not be

fixed. The requested amendment was just another futile attempt to prolong this stale

litigation.

CONCLUSION

Since neither husband nor wife meets the six month domiciliary requirement

necessary to invoke the subject matter jurisdiction of Florida’s divorce courts (Florida

Statutes §61.021), the trial court had no jurisdiction over the parties’ marital property

dispute commenced by the husband.

The lower court will continue to lack subject matter jurisdiction to consider the

husband’s present claims to the subject property unless an order is first entered by the

denominational court of the Maronite Church of Lebanon granting the husband an

equitable interest in the subject property, or similar order by such other court as may

be proven to have authority over the parties marital interests. If such interest is

awarded to the husband, he would then have a right to proceed with either a quiet title

action or partition action, as the situation might then require.

Like the manufacturer of an arcade game, this court should declare the game

irreparable and state — “GAME OVER!”

WHEREFORE, the order of the lower court dismissing the action for lack of

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subject matter jurisdiction must be affirmed.

REX E. RUSSO, ESQ.2655 LeJeune Road, PH 1-DCoral Gables, FL 33134(305) 442-7393

Rex E. RussoFlorida Bar #0331597

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed toRobert P. Lithman, attorney for Plaintiff, Orsha - Lithman - et al, 150 Alhambra Cir.,Suite #1150, Coral Gables, FL 33134; and to Eliot R. Weitzman, co-counsel forAppellant, 150 Alhambra Cir., Suite #1150, Coral Gables, FL 33134, this June 8,2012.

Rex E. Russo

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that this brief complies with the font requirements of Fla.R. App. P. 9.210(a)(2) and that the brief is in Times New Roman, 14 point.

Rex E. Russo

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