IN THE SUPREME COURT OF FLORIDA CASE # _________
CASE No. 3D02-609
From THE CIRCUIT COURT OF THE 11THJUDICIAL CIRCUIT, IN AND FORMIAMI-DADE COUNTY, FLORIDA
PROBATE DIVISION[Old File No. 63 C 12778]
CASE NO. 91-5143 (03)& 92-4412(03)]In Re: The Trusts under the Will of Albert Pollak
PATRICIA POLLAK WEISS,Defendant/Respondent, Appellant, PETITIONER
vs.PHYLLIS POLLAK BERKETT,As the Successor Interim Trustee of the Trusts Under the Will of Albert Pollak, Deceased, and the Albert Pollak Inter Vivos Trusts,Plaintiff/Petitioner, Appellee, RESPONDENT /
PETITIONER PATRICIA POLLAK WEISS’ PETITIONFOR A WRIT OF PROHIBITION RESTRAINING THECIRCUIT COURT OF THE 11TH JUDICIAL CIRCUITFROM ENTERING ANY ORDERS RELATED TO EXECUTIONOF THE $1,693,181.73 “SURCHARGE JUDGMENT”AND/OR ANY DISCOVERY IN AID OF EXECUTION
PENDING APPELLATE REVIEW
The undersigned Petitioner, PATRICIA POLLAK WEISS (“WEISS”),
appearing pro se, pursuant to the Florida Rules of Appellate
Procedure including Rule 9.100,respectfully petitions the Court
for a writ of prohibition directed to a lower tribunal as
authorized by Article V, section 3(b)(7) of the Florida
2
Constitution, or such other appropriate writ, and shows the
Court as follows:
I. BASIS FOR INVOKING JURISDICTION
Under Article V, section 3(b)(7) of the Florida
Constitution, this Court has jurisdiction to issue a writ of
prohibition to a lower court in order to restrain that lower
tribunal from acting in excess of its jurisdiction. Under the
prior constitutional provision, the Supreme Court could only
issue writs of prohibition to a trial court if the final order
would have been directly reviewable by the Supreme Court.
However, with the 1980 amendment, the Supreme Court is now
constitutionally authorized to prohibit proceedings in any court
regardless of the question of ultimate reviewability. In Moffit
v. Willis, 459 So. 2d 1018 (Fla. 1984) it held that it had
jurisdiction to prohibit a proceeding in the circuit court
because it was likely that the circuit judge would have
construed a constitutional provision. In addition, under the All
Writs provision, this Court can issue such writs in this case
because there would be a threat to the exercise of this Court’s
ultimate jurisdiction and there is likely to be at least one
independent jurisdictional basis for review by this Court.
3
As explained infra, this Court’s rulings in 1996 and 2000
are logically inconsistent with the Third District’s denial of
the motions to stay enforcement and stay discovery in aid of
execution and have a direct bearing on the constitutional right
to meaningfully appeal as provided under Article V (4)(b)(1).
II. STATEMENT OF THE FACTS
This case now comes to the Supreme Court while an appeal of
two final orders in a Miami-Dade Probate Court adversary
proceeding is pending in the District Court of Appeal, Third
District, as set forth in the Notice of Appeal. [Appendix
(“A”)22-29].
Petitioner is the Appellant. The initial brief has not yet
been filed and an unopposed motion for extension of time until
June 4th has been requested. [A.114]. The record was purportedly
“certified” without any of the three volumes of the original
trial transcript of the September 20-21, 2000 trial which was
sent to and received by Deputy Clerk Peggy Guest [A. 88-99] in
December 2000 in connection with the interlocutory appeal by
WEISS that was decided in her favor. The volumes have since been
lost by the Clerk’s Office and so a motion to supplement the
record with photocopies has been made, citing case law [A.90-
4
91]. The original transcript of the October 15, 2001 post-trial
hearing was withheld from filing by BERKETT’s counsel but was
just supplied in May 2002.[A.100]
The motion to file the brief on June 4th and the motion to
supplement the record to include the transcripts (or copies
thereof whilst the originals are being located by the Clerk) are
still pending. Assuming that the motion to supplement the record
on appeal and to extend the time for filing the initial brief
are granted, the appeal should be fully briefed sometime in
August 2002. The facts and issues follow along the lines of the
interlocutory appeal. Weiss v. Berkett, 785 So. 2d 1248 (Fla. 3d
DCA 2001).
On April 4, 2002, Petitioner WEISS served a motion for a
stay of execution and a stay of discovery in aid of execution on
the “surcharge judgment” in an amount over $1.6 M, pending
appeal.
It seemed that for reasons of judicial economy, a stay
should be entered and that is why WEISS requested a stay once
WEISS received correspondence from Mrs. BERKETT’s counsel that
threatened to move forward with execution of the $1.6M
5
“surcharge judgment” that includes, inter alia, all of the trust
expenses paid by the predecessor trustee Coconut Grove Bank
during the entire term of its sole trusteeship which began on
May 30th, 1983 and officially ended in the Fall of 1984. [A.43]
On April 8, 2002, the motion arrived at the Third District
and that same day the panel sitting denied it without
explanation or reason. [A.82]
After denial of the stay, BERKETT’s counsel escalated their
propounding of discovery requests in aid of execution.[A.120-
146]
On April 17, 2002, the Third District granted Petitioner
WEISS’ petition for a writ of prohibition in a related adversary
proceeding, finding that Judge Maria M. Korvick should have
granted the motion for her disqualification as it was legally
sufficient and timely. [A.83].
Following the Third District’s order granting the petition
for a writ of prohibition, Appellant-Petitioner WEISS timely
requested rehearing/rehearing en banc/clarification on the
denial of the requested stay of execution (and stay of discovery
6
in aid of execution) [A.66] and also timely filed a verified
motion in this case for disqualification of Judge Korvick in the
lower tribunal. Both of those motions are still pending.
Judge Korvick ultimately signed an “Order of Recusal” dated
April 30, 2002 in the related case [A. 87] with the words
General Jurisdiction atop although BERKETT had filed it in the
Probate Division. Judge Korvick’s Order of Recusal does not show
any adversary proceeding caption but only has the phrase
referencing the “Estate” of Albert Pollak, which is closed.
Albert Pollak died on December 30, 1962. Judge Korvick’s Order
of Recusal has a “cc:” to most attorneys who appeared for
BERKETT in both proceedings (four law firms serve as co-
counsel).
III. THE NATURE OF THE RELIEF SOUGHT
Petitioner WEISS wants a writ of prohibition that restrains
the Circuit Court of the 11th Judicial Circuit from entering any
orders related to execution of the $1,693,181.73 “surcharge
judgment” pending appeal and/or such other writs as will
meaningfully stay or limit the lower tribunal from further
proceeding and complicating matters any further in light of the
7
fact that BERKETT’s legal team is already taking steps of
enforcement by propounding an enormous amount of post-judgment
discovery [A.120-146] that is burdensome and unauthorized and
will immediately require an enormous amount of judicial
attention.
In accordance with Fla. R. App. P. 9.300(d), the undersigned
advises that she has received written communication from Mr.
Hirschhorn that essentially says that he will take legal steps
to execute on the judgment unless a stay is judicially ordered
or a bond posted. [A.34,40]. On March 25, 2002, Appellee
BERKETT’s counsel Joel Hirschhorn wrote a letter to WEISS
telling her that: “While you have filed a Notice of Appeal to
the Third District Court of Appeal, you have not posted a bond,
hence we are free to seek to execute on that surcharge.” Mr.
Hirschhorn also threatened WEISS that unless a bond is posted
she should “be prepared to suffer the consequences of execution
on the surcharge”. [A. 40].
IV. LEGAL ARGUMENTS
POINT ONE:
THE THIRD DISTRICT’S DENIAL OF A STAY OF EXECUTION (AND STAY OF
8
DISCOVERY IN AID OF ENFORCEMENT) THWARTS PETITIONER”S RIGHT TO
A MEANINGFUL APPEAL UNDER FLORIDA CONSTITUTION ARTICLE V, §
4(b)(1)
BECAUSE THE ORDER GRANTING SUMMARY JUDGMENT ON THE POTENTIALLY
OFF-SETTING COUNTERCLAIM IS ENTITLED TO A DE NOVO REVIEW AND NO
ENFORCEMENT OF A $1,693,181.73 “SURCHARGE JUDGMENT” IS
APPROPRIATE UNTIL THE CASE IS FULLY ADJUDICATED AT THE APPELLATE
STAGE.
The lower tribunal signed two final orders [A.25-28] on the
same day rather than create a single Final Judgment. (The date
of November 8, 2001 [A.29] is likely incorrect as the website
docket shows entry on the same date in February 2002. [A.101].)
Isn’t enforcement of the judgment on BERKETT’s claim for a
“surcharge” logically and fundamentally premature inasmuch as
the appellate court is required to undertake a de novo review of
the potentially off-setting counterclaims that were interrelated
and were adversely decided against WEISS by oral ruling on the
morning of the first day of trial?
Whether or not there is a meaningful procedural mechanism
to stop execution of a patently erroneous “surcharge judgment”
9
of over $1,600,000.00 is a matter of exceptional importance. It
goes to the very heart of the issue of the scope of the inherent
jurisdiction of the district courts of appeal. It also involves
Florida Constitution V, 4(b)(1) and the Florida Supreme Court’s
1996 Amendments which interpreted that constitutional provision
in a manner that places the Due Process Clause squarely at issue
here.
In addition to establishing the jurisdiction of the district
courts of appeal, Article V, section 4(b)(1) of Florida’s
Constitution creates a constitutional right to appeal. Receding
from an earlier opinion to the contrary, the Florida Supreme
Court has now held that section 4(b)(1) affords every citizen
the right to appeal a final order. See Amendments to the
Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1104
(Fla. 1996) Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999).
In denying BERKETT’s motion to strike the notice of appeal
[A.82], the Third District’s motion panel appeared to
acknowledge that both attached orders may now be appealed for
the reasons explained in WEISS’s memorandum of law in opposition
to the motion to strike notice. [A.105-113].
As the Florida Supreme Court has explained, “[t]he
10
legislature may implement this right and place reasonable
conditions upon it so long as they do not thwart the litigant’s
legitimate appellate rights.” Amendments at 1103-1104. And while
the legislature may place “reasonable” limits on the
constitutional right to appeal a final order, the enactment of
laws and rules that tend to thwart a litigant’s constitutional
right to appeal must be judicially examined to see that such
laws do not effectively deprive an appellant of a constitutional
right to a meaningful appeal.
Appellant-Petitioner PATRICIA POLLAK WEISS had four claims
for monetary damages that were dismissed through a separate
order granting BERKETT’s motion for partial summary judgment
without BERKETT’s (or anyone’s) factual affidavit in support.
That order is attached to the notice of appeal.[A.25]
The Florida Supreme Court has held, in Volusia County v.
Aberdeen at Ormand Beach, 760 So. 2d 12 (Fla. 2000), that the
correctness of a summary judgment is a matter of law which is
subject to the de novo standard of review, assuming there is no
disputed issue of fact. It is therefore logically and
constitutionally imprudent and inconsistent to allow BERKETT to
go ahead and take steps to collect on a “surcharge judgment”
11
where the entitlement to any such judgment would necessarily
have to be off-set by WEISS’s recovery on counterclaims at a
full trial if the Order granting adverse summary judgment on her
counterclaims were vacated and the case remanded.
Petitioner believes that the denial of WEISS’s motion to
stay execution is improper because the de novo standard of
appellate review applies. After Aberdeen at Ormand Beach is it
hard to see how a district court of appeal’s motion panel could
deny a stay of execution where the wisdom of the lower
tribunal’s dismissal of off-setting counterclaims must be
entirely re-evaluated using the de novo standard of review by
the panel determining the merits of the appeal, according to the
Florida Supreme Court.
While the issuance of a stay is not a legal prerequisite to
the right to appeal, as a practical matter, however, it may be
necessary to obtain a stay in order to prevent enforcement of
the order of the lower tribunal during the pendency of the
appeal. The purpose of a stay is to preserve or restore the
status quo, or to enjoin the execution of a judgment. Stays are
considered preventative in nature in that they suspend the right
of enforcement without undoing the order under review. If the
12
order is ultimately affirmed, the rights and liabilities of the
parties are governed in all respects as if the stay had not been
granted.
In other words, there is no logical reason why Petitioner
should now be subjected to answering dozens of questions and
production requests (in the very period in which Petitioner
should be concentrating on preparing her initial brief) in light
of the fact that a meaningful adjudication has not been
completed because the appellate panel has a responsibility for
an unfettered de novo review of the “Order Granting Motion For
Plaintiff’s Summary Judgment” (dismissing WEISS’ counterclaims),
which may result in a remand of the entire case notwithstanding
the lower tribunal’s usage of two separate orders to accomplish
its ultimate ruling.
Petitioner shouldn’t have to endure the burden of the
enormous post-judgment discovery demands BERKETT insists upon
[A.120-146], including the deposition BERKETT scheduled for June
19th. [A.145].
The denial of stay by the Third District has the effect of
thwarting a meaningful appeal because discovery in aid of
13
execution is burdensome and intrusive and may ultimately prove
to be completely unnecessary once this case is decided on the
merits of the appeal. For the reasons explained in Point Three,
it is also quite likely that BERKETT’s “surcharge judgment” will
be vacated.
POINT TWO:
IF THE DISTRICT COURT’S PANEL DENIED THE STAY ON THE BASIS THAT
SUCH A REQUEST IS MORE PROPERLY MADE TO THE LOWER TRIBUNAL
JUDGE, THEN THE DISTRICT COURT ERRED IN THIS CASE BECAUSE
PETITIONER IS NOT “REQUIRED” TO MAKE SUCH A REQUEST TO THE LOWER
COURT JUDGE AND SURELY NOT TO A JUDGE WHO SHOULD HAVE
DISQUALIFIED HERSELF FROM A RELATED PROCEEDING, ACCORDING TO
ANOTHER 3DCA PANEL.
The law does not require a person to perform a completely
futile act as a prerequisite for attaining relief. It would be
pointless for Petitioner to request a stay of execution
(enforcement) from the Miami-Dade trial court for several
reasons. First, under Third District precedent, a Miami-Dade
14
trial court has no authority whatsoever to grant a stay of
enforcement of a money judgment unless the appellant posts a
bond during the appeal.
If the judgment of the lower tribunal is solely for the
payment of money and may be bonded (as Mr. Hisrchhorn believes),
then the Third District precedent says that the trial judge does
not have independent authority to grant a stay of the judgment
without such a bond under this Court’s prior precedent. See
Campbell v. Jones, 648 So. 2d 208 (Fla. 3d DCA 1994) and Mellon
United National Bank v. Cochran, 776 So. 2d 964 (Fla. 3d DCA
2000).
On the other hand, if a “surcharge judgment” is judicially
deemed not to be a judgment solely for the payment of money, it
would fall outside the parameters of the automatic bond
procedures of Rule 9.310(b)(1) anyway, and it could not be
bonded at all, as precedent demonstrates. See Grabel v. Grabel,
425 So. 2d 1220 (Fla. 3d DCA 1983) (an order to pay accrued
child support); Zuckerman v. Hofrichter & Quiat, 622 So. 2d 1
(Fla. 3d DCA 1993) (an order directing the disbursement of a
specific fund); Florida Coast Bank of Pompano Beach v. Mayes,
433 So. 2d 1033 (Fla. 4th DCA 1983)(final judgment ordering
15
trustee to pay accumulated trust funds); Wilson v. Woodward, 602
So. 2d 545 (Fla. 2d DCA 1991) (an order directing clerk of the
court to disburse funds held in the registry of the court).
In this case, 4 of WEISS’ 5 counterclaims were dismissed on
summary judgment without a trial although there was no sworn
affidavit to support BERKETT’s motion for summary judgment and
neither BERKETT nor anyone else gave any testimony in support of
dismissal. That premature order of dismissal is also now being
appealed. Traditionally, a stay of execution is proper where the
opposing counterclaims have yet to be determined. See Atrio
Consol. Indus., Inc. v. Southeast Bank, 434 So. 2d 349, 350 n.1
(Fla. 3d DCA 1983)(affirming stay of final foreclosure judgment
under assumption that stay will remain in effect pending
determination of counterclaim); FBA Corp. v. General Air Serv.,
Inc., 479 So. 2d 321 (Fla.3d DCA 1985)(affirming summary
judgment and remanding to direct stay of execution until
disposition of set-off claim).
Undoubtedly, there was a truncated judicial process because
the summary judgment motion dismissing 4 of the 5 counterclaims
occurred on the morning of the first day of trial, September 20,
2000, right before the trial began.
16
This would be an ideal case for this Supreme Court or the
Third District to order a stay pending appeal, without the
necessity of a bond being posted, however it seems that the
motion panel swiftly denied the request, although there is
precedent for such a request under the state and federal
constitutions, as Petitioner explained to the Third District.
[A. 11-12].
The last paragraph of the Committee Notes associated with
the 1977 Amendment of Rule 9.310 provides authority for this
request by stating: “Although the normal and preferred procedure
is for the parties to seek the stay in the lower court, this
rule is not intended to limit the constitutional power of the
court to issue stay orders after its jurisdiction has been
invoked.
This Court undoubtedly has inherent authority to issue a
stay even if the issue has not been first presented in the trial
court under the procedure outlined in Rule 9.310(a). See Perez
v. Perez, 769 So. 2d 389 (Fla. 3d DCA 1999)(granting a stay
filed directly in the appellate court without mentioning the
motion and review process in Rules 9.310(a) and (f)). See also
Offerman v. Offerman, 643 So. 2d 1184 (Fla. 5th DCA 1994)
17
(granting a stay of temporary custody order entered by the trial
court without notice, where the appellate court cited rule
9.310(f) as authority in support of its jurisdiction to rule on
the motion for a stay where it does not appear from the opinion
that a motion to stay was filed in the trial court.) The stay
order in the interlocutory appeal of the same case, #3D00-3066
is also precedent. That stay order was decided by another panel
(Schwartz C.J., Cope and Ramirez JJ.); the interlocutory appeal
was ultimately decided in WEISS’s favor by a different panel as
well. (Schwartz, C.J., Jorgenson, Cope, JJ.)].
Apparently, however, there is not an overwhelmingly amount
of precedent on this point of law and so Petitioner now timely
seeks a writ here from this Supreme Court because the Third
District did not grant the requested relief and there is no
indication that WEISS can obtain the requested relief elsewhere
in a timely manner.
In light of the Third District’s agreement with WEISS that
Judge Korvick ought to have granted the Verified Motion for
Disqualification, WEISS filed a follow-up motion for
disqualification in this case in the lower tribunal. Judge
Korvick presently has under consideration PATRICIA POLLAK WEISS’
18
pending Petition for a writ of prohibition which seeks an order
that effectively will disqualify Judge Maria M. Korvick from
deciding any more issues. There is a firm basis for application
of the solidly well established reasoning that during the
pendency of a motion for disqualification, no other rulings
should be made by the lower court judge. It would be both
inappropriate and futile to present a motion to stay enforcement
to the trial judge, Judge Korvick. See, e.g., Loevinger v.
Northrup, 624 So. 2d 374 (Fla. 1 st DCA 1993), which held that the
trial judge’s power to rule on other motions is cut off at the
date of filing a motion for disqualification and not the date
the judge has been made aware of the fact that the motion is
pending); see also Fuster-Escalona v. Wisotsky, 781 So. 2d 1063
(Fla. 2000)(if the motion for disqualification is legally
sufficient, the trial judge must immediately enter the order of
disqualification).”
Petitioner WEISS cannot be certain as to whether the Third
District denied the motion for a stay because it had not been
first made to the lower court judge, who is Judge Korvick. The
order is silent as to the reasons for the denial. However, it
would be procedurally difficult for the undersigned to pursue
any requests concerning enforcement before Judge Korvick, who is
19
a judge that the Petitioner believes would not be fair to
Petitioner in light of everything that has transpired, not the
least of which is two reversals and the Orders under review
which do not make any sense.
Even if a new judge is assigned below, that new judge would
likely not be able to enter a stay of enforcement without a bond
being posted and Petitioner does not have the money to bond
$1.6M.
Nor should Petitioner have to do so, as explained in Point
Three.
Petitioner PATRICIA POLLAK WEISS lacks the financial
wherewithal to post a bond in such an excessively high amount
and could not therefore avoid enforcement without an appellate
court order. The judgment arose from the claim for a “surcharge”
against a “testamentary trustee” and the testator’s will
specifically stated that the trustee may serve without posting
a bond (which would likely have been charged to the testamentary
trusts had it been purchased). By taking the position that a
bond for $1.6M must be posted in order to stay enforcement
because the “surcharge judgment” in a probate adversary
proceedings is nevertheless a “monetary judgment” (if, indeed,
20
the Court took that position), the Court would be deliberately
disregarding the testator’s intent which made it clear to the
beneficiaries (and to BERKETT) that the (former) testamentary
trustee need not post a bond at all.
POINT THREE:
BECAUSE THE FACTS SHOW “GOOD CAUSE” FOR A VACATUR OF THE $1.6 M
“SURCHARGE JUDGMENT”, EXECUTION OF THE JUDGMENT AND RELATED
DISCOVERY SHOULD BE EFFECTIVELY STAYED DURING APPEAL AND THE
SUPREME COURT CAN DO SO BY GRANTING A WRIT THAT ORDERS
RESTRAINT.
A. Judge Korvick’s Order erroneously found that WEISS’
trusteeship began in June 1983, ignoring Judge Joseph Gersten’s
May 10, 1983 order appointing Coconut Grove Bank as trustee as
of May 30, 1983.
Judge Korvick “surcharged” PATRICIA POLLAK WEISS for the
checks written by WEISS’s predecessor (sole) trustee, Coconut
Grove Bank. Coconut Grove Bank served from June 1983 until Fall
1984. (The Order appointing PATRICIA POLLAK WEISS as trustee was
not even signed by Judge Joseph Gersten until 1984.) On May 10,
1983, Judge Joseph Gersten signed an Order Approving Joint
Petition of Trustees and Beneficiaries To Transfer Trusteeships
21
which became effective 10 days later. [A copy of that Order is
attached at A. 43.]
A copy of that May 10, 1983 Order was also submitted to the
lower court and timely mailed to BERKETT’s counsel as required
by the lower tribunal’s pre-trial order. Yet on February 8,
2002, Judge Korvick signed a final Order Granting Motion For
Surcharge Against Patricia Weiss stating “For which sums let
execution issue” for a $1.6 M sum that includes the checks
written during the entire term of the trusteeship of the
judicially appointed institutional fiduciary that preceded
WEISS.
Even assuming arguendo, but not agreeing, that the Third
District were to determine that a surcharge in some amount was
not an abuse of judicial discretion, the figure of $1,693,181.73
would be excessive and a substantially lesser amount would
likely have to be re-calculated to coincide with the actual
dates of WEISS’ trusteeship.
Accordingly, a stay of enforcement of the erroneous order
would be consistent with the rules for a just, speedy and
economical resolution of the issues before the Court, as
22
enforcement of a judgment that has patently been wrongfully
computed would be judicially uneconomical and lead to additional
litigation that is best avoided for now, as it would require
this Court’s review of lower court enforcement orders and denial
of protective orders. See Estate of Posner, 492 So. 2d 1093
(Fla. 3d DCA 1986) (granting certiorari to review, and quash, an
order denying petitioner’s motion for protective orders).
The determination of a “surcharge” in the amount of
$1,693,181.73 is self-evidently incorrect, as a matter of fact
and law, because the portions of the judgment refer at least
three times to “June 1983”. Judge Korvick found:
“A. The above surcharged amount is made up of the
following component assessments:
1. Trustee fees incurred for the time period of
June 1, 1983 through December 30, 1989 while Patricia
Pollak Weiss served as Trustee,...”
* * *
2. Legal fees on behalf of the trusts for the time
period of June 1, 1983 through October 1, 2001 ...
which fees were incurred ... Patricia Pollak Weiss as
trustee.
* * *
23
3. Legal fees paid by Phyllis Berkett individually
on behalf of the trusts ... for time period of June 1,
1983...”
Despite such findings, it is clear that Judge Korvick’s
determinations directly conflict with Judge Gersten’s order
appointing Coconut Grove Bank as sole trustee for the period
beginning May 30, 1983.
B. Judge Korvick’s Surcharge Order lacks any legal basis.
Furthermore, rather than giving any credence to the guidance
that WEISS received from her lawyers (who were [now Judge]Judith
Kreeger, Esq. and then Holland & Knight), Judge Korvick
essentially ignored the May 2001 interlocutory decision.
Although the “accounting” count should have been finally decided
in WEISS’ favor by dismissal by the lower tribunal, Judge
Korvick nevertheless steadfastly held to her initial decision to
impose a “surcharge” against WEISS upon remand.
BERKETT’s complaints had only two counts: (1) accounting and
(2) surcharge. There was no viable claim for the “surcharge”
because: (1) the Third DCA had previously determined that the
claim for an accounting was not legally viable and (2) BERKETT’s
24
counsel had already expressly withdrawn and disavowed all common
law and statutory claims saying that “Mrs. Weiss, we’re not here
on breach of trust. We’re here on a surcharge against you.” [See
A. 46, transcript 9/20/00 @ 167*, also provided with complete
transcript in Appendix for #3D00-3066]. The foregoing retraction
made it impossible as a matter of law for the Probate Court to
even consider a “surcharge” for the trust expenditures after
WEISS’ explanation of the 6 month statute of limitations. [See
A. 47, and see also Appendix for #3D00-3066 9/21/00 @15*].
Based upon Judge Korvick’s comments and the Order, it seems
that Judge Korvick totally confused the testamentary trustee’s
statutory rights to pay for services rendered without court
approval, as authorized under Fla. Stat. §§737.402(2)(y) and
(2)(z), with the personal representative’s duties under Fla.
Stat. §§737.617 and 733.6171(7) which requires pre-approval for
payment for services before a decedent’s estate has been closed.
See also Byrd v. Culver, 376 So. 2d 41 (Fla. 4th DCA 1979); Fla.
Stat. 737.402(1) and Ball v. Mills, 376 So. 2d 1174 (Fla. 1 st DCA
1979) (same). Interpretation of statutes are also reviewed de
novo.
In essence, Judge Korvick’s statement of her being “shocked”
25
makes no sense other than being made for the purpose of
gratuitously impugning WEISS’ character in an overly dramatic
way.
Apparently, the Third District agreed with WEISS’ legally
sufficient motion for disqualification based upon such
intemperate remarks.
Her Honor’s characterization of WEISS’ payment of trust
expenses as a “tragic rape” appears to be erroneously based upon
WEISS’ failure to obtain judicial pre-approval from the Probate
Court for the payment of each individual expense, including
federal taxes.
The settlement concerning WEISS’ resignation was ratified
by the General Jurisdiction Division in April 1990 and the
Probate Division should have never considered BERKETT’s waived
claims.
C. BERKETT’s claims were untimely brought under the 6 month
statute of limitations and the “surcharge judgment” is therefore
entirely inconsistent with the Third District’s 2001 decision
based upon a prior settlement.
26
The Order being appealed is based upon BERKETT’s claim for
a “surcharge” that is simply not legally viable. First, there
is the issue of the untimeliness of BERKETT’s belated claims
because Fla. Stat. §737.307 establishes a 6 month statute of
limitations to initiate an action against a former trustee, once
the annual
accounting data has been provided to a beneficiary.
Then, there is the fact that BERKETT’s counsel conceded that
during WEISS’ trusteeship, WEISS “filed accountings for every
year except 1989" [A.9/20/00 @30].[A. 48. See Composite Exhibit
4].
Finally, there is the law of the case doctrine that
appertains because the Third District Court of Appeal had
previously determined [#3DC00-3066] that BERKETT was not
entitled to any further accounting from WEISS because BERKETT
received an accounting from her own accountant, which was in
1990 according to the trial testimony of BERKETT’s accountant
[A.9/21/00 @ 68 & 9/21/00 @ 146*) [A. 49, 50]. See Weiss v.
Berkett, 785 So. 2d 1248 (Fla. 3d DCA 2001) [A. 30]
In reaching its earlier decision, the Third District Court
relied upon a settlement agreement that was placed on the record
27
before “Commissioner” Herbert S. Shapiro and later ratified by
Judge Tanksley. [#3D00-3066 Appendix 101-164] Copies of relevant
pages of that settlement agreement are attached. [A. 52-65].
The “surcharge” issue had also been thoroughly discussed and
disposed of by judicial elimination, as shown by the transcript
of the December 1989 hearing, at pages 53-54 [A.62-63], which
says:
“Mr. Hirschhorn: I am talking about surcharging
fees against the beneficiaries, not sanctions
individually for a pleading filed pro se...We agreed
not to surcharge the trustee. We never agreed not to
surcharge Mr. Pollak. ..
THE MASTER: What is it? Put your cards on the
table.
Mr. Hirschhorn: They are on the table. We agreed
not to seek a surcharge against Ms. Weiss.
* * *
THE MASTER: ...[Mr. Pollak] would be entitled to
same.
* * *
Mr. Hirschhorn: “If you don’t think it’s fair – I
28
will not do it.”
The “surcharge judgment”, as BERKETT calls it, followed
a trial held on September 20-21, 2000 and a trial/evidentiary
hearing(?) on October 15, 2001. It is also evident from a
portion of the October 15, 2001 hearing transcript (See 3D02-
618, Petition’s Appendix @ 64 et seq.), that Judge Korvick still
had not sufficiently familiarized herself with the meaning of
the December 1989 hearing before “Commissioner” Herbert S.
Shapiro that this Court carefully analyzed for the benefit of
the Her Honor in its May 2001 opinion in Case # 3D00-3066, which
preceded the published decision in Weiss v. Berkett, 785 So. 2d
1248 (Fla. 3d DCA 2001).
The purpose of this requested writ is to preserve the status
quo during an appellate proceeding, see Hirsch v. Hirsch, 309
So. 2d 47 (Fla. 3DCA 1975), and to enjoin the enforcement of the
judgment and discovery in aid of enforcement related thereto.
The last paragraph of the Committee Notes associated with
the 1977 Amendment of Rule 9.310 provides authority for this
request by stating: “Although the normal and preferred procedure
is for the parties to seek the stay in the lower court, this
29
rule is not intended to limit the constitutional power of the
court to issue stay orders after its jurisdiction has been
invoked.” The power also lies within the amended Constitution
Article V, since 1980.
This Court undoubtedly has inherent authority to issue a
stay even if the issue has not been first presented in the trial
court under the procedure outlined in Rule 9.310(a). See Perez
v. Perez, 769 So. 2d 389 (Fla. 3d DCA 1999)(granting a stay
filed directly in the appellate court without mentioning the
motion and review process in Rules 9.310(a) and (f)). See also
Offerman v. Offerman, 643 So. 2d 1184 (Fla. 5th DCA 1994)
(granting a stay of temporary custody order entered by the trial
court without notice, where the appellate court cited rule
9.310(f) as authority in support of its jurisdiction to rule on
the motion for a stay where it does not appear from the opinion
that a motion to stay was filed in the trial court.) The stay
order in #3D00-3066 is also precedent.
It is beyond cavil that this Court has the power to give
practical meaning to the Due Process Clause for the litigants
which appear in Florida courts. “Good cause” for a stay is
historically found in the context of execution on a judgment for
30
the payment of money in instances where there are fundamental
due process deficiencies. Fraud, mistake or surprise are
sufficient to warrant a permanent stay of execution. See Daytona
Enter., Inc. v. Wagner, 91 So. 2d 171, 173 (Fla. 1956) (citing
Kellerman v. Commercial Credit Co., 138 Fla. 133, 189 So. 689
(1939)).
Basically, “good cause” to vacate a judgment under Fla.
R.Civ.P. 1.540 is also legally sufficient “good cause” to stay
execution of a judgment. Here, the Court could vacate the
judgment for intrinsic fraud. False testimony in a court
proceeding is intrinsic fraud. See DeClaire v. Yohaman, 453 So.
2d 375, 377 (Fla. 1984). In response to the rehearsed questions
posed by BERKETT’s attorney Mr. Hirschhorn, BERKETT’s “expert
witness” accountant Ralph Maya, CPA undoubtedly presented false
and misleading testimony to the Court, by making it seem that
the accounting materials that he reviewed bore WEISS’ signature
on checks beginning in June 1983. Either Ralph Maya CPA relied
solely on check stubs rather than personally examining actual
checks (which bore the Bank Trust Department employees’
signatures) or something far more sinister occurred. In either
event, that false information led the lower tribunal to reach
31
conclusions that were incorrect as a matter of law. Such “good
cause” is also a basis for the writ.
While the trial court’s decision is entitled to a
presumption of its correctness and the burden is on the
appellant to demonstrate error, see Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979), the facial
incorrectness of the “surcharge judgment” is sufficiently
rebutted by the absence of any evidence that WEISS ever issued
any checks from trust funds whilst Coconut Grove Bank served a
trustee during its trusteeship which began in June 1983. Due
Process compels a stay under such circumstances. See Morris v.
American Banker’s Ins. Co., 184 So. 2d 906, 907 )Fla. 3d DCA
1966) (execution properly stayed where service used did not
amount to due process).
The undersigned believes that the foregoing factual
information is objectively sufficient for a vacatur of the
judgment under Fla. R. Civ. P. 1.540 and is therefore legally
sufficient for the requested writs, as well, that would stay
post-trial activity as the lower tribunal.
WHEREFORE, in light of the foregoing which sufficiently
32
demonstrates “good cause”, Petitioner WEISS petitions this Court
for a writ of prohibition restraining the Circuit Court of the
11th Judicial Circuit from entering any orders related to
execution or enforcement of the $1,693,181.73 “surcharge
judgment” and/or any discovery in aid of execution pending
appellate review.
Without the issuance of an extraordinary writ from this
Court to ensure that there is a stay of enforcement activity, an
extensive amount of post-judgment motion practice will also be
required in the lower tribunal. Common sense suggests a stay is
preferable. The balance of equities tips heavily in
Petitioner’s favor and Petitioner should not have to respond to
discovery or be deposed on June 19th. [A. 145-146] as that would
violate Petitioner’s most fundamental rights to due process.
Dated: May 7th, 2002
Sag Harbor, New York
Respectfully submitted,
PATRICIA POLLAK WEISS, pro se*P.O. Box 751Sag Harbor, New York 11963(631) 725-4486
33
Sworn to me this 7th day of May, 2002
________________________Notary Public
*admitted to practice in NY (active)
and CA (inactive)
CERTIFICATE OF MAILING
I, PATRICIA POLLAK WEISS, hereby certify that a true and
correct copy of the foregoing was sent via U.S. First Class mailon
May 7, 2002 to:
1. JONATHAN C. OSTER, ESQ. (Co-Counsel for PHYLLIS POLLAK BERKETT) Jacobs Chase Frick & Kelley, LLC Independence Plaza 1050 17th Street, Suite 1500 Denver, CO 80265
2. Joel Hirschhorn, Esq. (Co-Counsel for PHYLLIS POLLAK BERKETT)
34
Hirschhorn & Bieber, P.A. 2600 Douglas Road, PH One Coral Gables, FL 33134
3. Susan E. Durre’, Esq. (Co-Counsel for PHYLLIS POLLAK BERKETT) 4675 Ponce de Leon Blvd. Suite 302 Coral Gables, FL 33146
4. Michael A. Dribin, Esq. 201 S. Biscayne Blvd. Miami Center Suite 3000 Miami, FL 33131
5. Gail Pollak Baril 909 N. Roxbury Drive Beverly Hills, CA 90210
6. Judge Maria M. Korvick Circuit Court of the 11th Judicial Circuit, Miami-Dade County - Probate Division 73 West Flagler Street Miami, Fl 33130
PATRICIA POLLAK WEISSP.O. Box 751Sag Harbor, New York 11963(631) 725-4486
CERTIFICATE OF COMPLIANCE
I, PATRICIA POLLAK WEISS, hereby certify that this motion
complies with the font requirements of Rule 9.100(l) of theFlorida
Rules of Appellate Procedure. It is 12 point New Courier.
PATRICIA POLLAK WEISSP.O. Box 751Sag Harbor, New York 11963
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