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Filing # 43562731 E-Filed 07/05/2016 04:35:17 PM
IN THE CIRCUIT COURT
SEVENTEENTH JUDICIAL CIRCUIT
BROWARD COUNTY, FLORIDA
SUZANNE WILKIE,
Petitioner,
v. CASE NO.: 12-033063-14-O
GENERAL JURISDICTION
JUDGE KEVIN CARROLL OF LEON
COUNTY CIRCUIT COURT JUDGE
AND FLORIDA DEPARTMENT OF
FINANCIAL SERVICES, JEFF
ATWATER, AS CHIEF FINANCIAL
OFFICER,
Respondents.
/
RENEWED MOTION OF DEFENDANT KEVIN J. CARROLL, CIRCUIT JUDGE OF
THE SECOND JUDICIAL CIRCUIT, TO DISMISS FIRST AMENDED COMPLAINT
Respondent Kevin J. Carroll, Circuit Judge of the Second Judicial Circuit, State of
Florida (“Judge Carroll”), hereby moves this Court, pursuant to Rule 1.140(b), Fla. R. Civ. P., to
enter an order granting this Motion to Dismiss and dismissing the First Amended Complaint of
Plaintiff (“Motion to Dismiss”), and states:
The First Amended Complaint seeks relief against Judge Carroll (plainly acting in his
official capacity only), the Florida Department of Financial Services (“DFS”), and Jeff Atwater,
as Chief Financial Officer of Florida (“CFO”). It is clear from face and the allegations of the
First Amended Complaint and attachments thereto that this action is integrally related to the
delinquency/receivership proceeding concerning Armor Insurance Company (“Armor”), brought
in In re Receivership of Armor Ins. Co., Leon County Circuit Court, Case No.: 97-CA-2 (Fla.
Cir. Ct. 2d Jud. Cir. 1997) (“Leon County proceeding”), in which the Court entered a stay of all
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 7/5/2016 4:35:16 PM.****related proceedings (see First Amended Complaint, Exh. 4). A notice of that stay was filed in
this action on or about January 16, 1997.
As the First Amended Complaint and attachments show, Petitioner nevertheless pursued
litigation against Armor in Broward County Circuit Court. On June 18, 1999, this court
purported to vacate the stay despite having no jurisdiction to do so (see First Amended
Complaint, Exh. 7). In September 1999, Petitioner obtained final judgment in her favor and
against Armor in this Court in the amount of $700,000 (see First Amended Complaint, Exh. 8).
Petitioner then sought to assert rights under that final judgment in the receivership
proceeding pending in Leon County, thereby submitting to the jurisdiction of the Second Judicial
Circuit. Much of the pertinent history of Petitioner’s pursuit of a remedy in the Leon County
proceeding is recounted by Judge Carroll in his “Order Granting Receiver’s Motion to Strike and
Denying Claimant’s Motion for Summary Judgment with Prejudice,” dated May 11, 2011 (see
First Amended Complaint, Exh. 11).
In August 2009, Petitioner objected to the Receiver’s recommendation for her claim in
the Leon County proceeding. Following hearings in the Leon County proceeding, on August 31,
2010, Judge Jackie Fulford ruled that the Leon County Circuit Court has exclusive jurisdiction,
the automatic stay and Court Order prohibits proceedings against Armor, that stay may only be
lifted by that court, Ms. Willkie failed to comply with the requirements to lift the stay, denied her
objection, and disallowed her claim valued in the amount of $0.00 (see First Amended
Complaint, Exh. 10). Petitioner appealed that Order in Wilkie v. Receivership of Armor Ins.
Co., 57 So. 3d 853, 1D10-5049 (Fla. 1st DCA Mar. 22, 2011). The First District Court of
Appeal (“First District”) affirmed (see First Amended Complaint, Exh. 11 at §1.b). Petitioner
appealed that affirmance in Wilkie v. Receivership of Armor Ins. Co., 61 So. 3d 1114, SC11-805(Fla. Apr. 27, 2011), and the Florida Supreme Court dismissed that appeal (see First Amended
Complaint, Exh. 11 at { 1.b).
Petitioner further filed with the Leon County Circuit Court a motion to vacate the stay of
her Broward County case; her motion was denied (The Receivership of Armor Ins. Co., v.
Wilkie, 2011 WL 9160614 (Fla. Cir. Ct. June 15, 2011)) (see Exh. 11, at § 1.c, d). Petitioner
appealed in Wilkie v. The Receivership of Armor Ins. Co., 67 So. 3d 206, 1D11-2618 (Fla. Ist
DCA Aug. 11, 2011), and the First District dismissed that appeal (see Exh. 11, at {{ 1.d).
In March 2012, Petitioner filed additional motions with the Leon County Circuit Court,
including another motion to vacate the stay (see id. at J 1.e). DFS, the appointed receiver, filed a
motion to strike Petitioner’s additional motions (see id. at § 1.f). On May 11, 2012, the Court,
per Judge Carroll, granted DFS’s motion and denied Petitioner’s motions (see id. at J 2, 3). The
First District affirmed Judge Carroll’s Order. Wilkins v. Receivership of Armor Ins. Co., 104 So.
3d 1093, 2013 WL 105636, 1D12-2892, 1D12-2893 (Fla. Ist DCA Jan. 8, 2013).
Apparently dissatisfied with the decisions of the Leon County Circuit Court, the First
District, and the Florida Supreme Court, and despite those decisions being the law of the case,
Petitioner brings action against DFS and Judge Carroll. This Petition is a fourth bite at
essentially the same apple and should be dismissed.
Venue over the Armor receivership and claims relating thereto lies exclusively in the
Circuit Court of Leon County pursuant to Sections 631.021, 631.153, Florida Statutes. Relief
from the automatic stay under chapter 631 can only be obtained from the Leon County Circuit
Court. See § 631.041, Florida Statutes (referencing “the court,” which is defined in section
631.011(5) as “the circuit court in which the receivership proceeding is pending”). See Nova Ins.
Group, Inc., v. FDOI, 606 So. 2d 429 (Fla. Ist DCA 1992).Hence, the instant action must be dismissed for lack of venue.
Venue further is improper in the Broward County Circuit Court under Sections 47.011,
48.031, Florida Statutes, because all Respondents “reside” in Leon County and because any
putative cause of action for refusal to lift the automatic stay or otherwise to disallow petitioner’s
claim in the delinquency proceeding accrued in Leon County. See Dimono v. Farina, 572 So. 2d
$52, 554 (4th DCA 1990), disapproved in part on other grounds, 707 So. 2d 702, 705 n.7 (Fla.
1998).
Further, Judge Carroll joins in the “Department of Financial Services’ Motion to
Dismiss” filed on June 10, 2015 (# 28312589), and the grounds for dismissal therein stated.
WHEREFORE, Judge Carroll respectfully requests that the Court enter an order granting
this Motion to Dismiss and dismissing this cause with prejudice.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/_ Charles J_F. Schreiber, Jr.
Charles J. F. Schreiber, Jr.
Senior Assistant Attorney General
Fla. Bar No.: 0843075
E-Mail: Charles.Schreiber@myfloridalegal.com
Office of the Attorney General
The Capitol, Suite PL-01
Tallahassee, Florida 32399-1050
Telephone: (850) 414-3300
Telefacsimile: (850) 488-4872
Attorneys for Respondent Judge Kevin J. Carroll,
Circuit Judge of the Second Judicial CircuitCERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy hereof has been furnished this 5th day of
July 2016, via the Florida E-Portal System to:
Jesse A. Haskins Kenneth D. Cooper
Assistant General Counsel 400 S.E. 8" Street
Department of Financial Services Fort Lauderdale, Florida 33316-1124
200 East Gaines Street E-Mail: kcooper543@aol.com
Tallahassee, Florida 32399-4247
E-Mail: jesse.haskins@myfloridacfo.com
¢s/_ Charles J_F. Schreiber, Jr.
Attorney
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Filing # 43562731 E-Filed 07/05/2016 04:35:17 PM IN THE CIRCUIT COURT SEVENTEENTH JUDICIAL CIRCUIT BROWARD COUNTY, FLORIDA SUZANNE WILKIE, Petitioner, v. CASE NO.: 12-033063-14-O GENERAL JURISDICTION JUDGE KEVIN CARROLL OF LEON COUNTY CIRCUIT COURT JUDGE AND FLORIDA DEPARTMENT OF FINANCIAL SERVICES, JEFF ATWATER, AS CHIEF FINANCIAL OFFICER, Respondents. / RENEWED MOTION OF DEFENDANT KEVIN J. CARROLL, CIRCUIT JUDGE OF THE SECOND JUDICIAL CIRCUIT, TO DISMISS FIRST AMENDED COMPLAINT Respondent Kevin J. Carroll, Circuit Judge of the Second Judicial Circuit, State of Florida (“Judge Carroll”), hereby moves this Court, pursuant to Rule 1.140(b), Fla. R. Civ. P., to enter an order granting this Motion to Dismiss and dismissing the First Amended Complaint of Plaintiff (“Motion to Dismiss”), and states: The First Amended Complaint seeks relief against Judge Carroll (plainly acting in his official capacity only), the Florida Department of Financial Services (“DFS”), and Jeff Atwater, as Chief Financial Officer of Florida (“CFO”). It is clear from face and the allegations of the First Amended Complaint and attachments thereto that this action is integrally related to the delinquency/receivership proceeding concerning Armor Insurance Company (“Armor”), brought in In re Receivership of Armor Ins. Co., Leon County Circuit Court, Case No.: 97-CA-2 (Fla. Cir. Ct. 2d Jud. Cir. 1997) (“Leon County proceeding”), in which the Court entered a stay of all *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 7/5/2016 4:35:16 PM.****related proceedings (see First Amended Complaint, Exh. 4). A notice of that stay was filed in this action on or about January 16, 1997. As the First Amended Complaint and attachments show, Petitioner nevertheless pursued litigation against Armor in Broward County Circuit Court. On June 18, 1999, this court purported to vacate the stay despite having no jurisdiction to do so (see First Amended Complaint, Exh. 7). In September 1999, Petitioner obtained final judgment in her favor and against Armor in this Court in the amount of $700,000 (see First Amended Complaint, Exh. 8). Petitioner then sought to assert rights under that final judgment in the receivership proceeding pending in Leon County, thereby submitting to the jurisdiction of the Second Judicial Circuit. Much of the pertinent history of Petitioner’s pursuit of a remedy in the Leon County proceeding is recounted by Judge Carroll in his “Order Granting Receiver’s Motion to Strike and Denying Claimant’s Motion for Summary Judgment with Prejudice,” dated May 11, 2011 (see First Amended Complaint, Exh. 11). In August 2009, Petitioner objected to the Receiver’s recommendation for her claim in the Leon County proceeding. Following hearings in the Leon County proceeding, on August 31, 2010, Judge Jackie Fulford ruled that the Leon County Circuit Court has exclusive jurisdiction, the automatic stay and Court Order prohibits proceedings against Armor, that stay may only be lifted by that court, Ms. Willkie failed to comply with the requirements to lift the stay, denied her objection, and disallowed her claim valued in the amount of $0.00 (see First Amended Complaint, Exh. 10). Petitioner appealed that Order in Wilkie v. Receivership of Armor Ins. Co., 57 So. 3d 853, 1D10-5049 (Fla. 1st DCA Mar. 22, 2011). The First District Court of Appeal (“First District”) affirmed (see First Amended Complaint, Exh. 11 at §1.b). Petitioner appealed that affirmance in Wilkie v. Receivership of Armor Ins. Co., 61 So. 3d 1114, SC11-805(Fla. Apr. 27, 2011), and the Florida Supreme Court dismissed that appeal (see First Amended Complaint, Exh. 11 at { 1.b). Petitioner further filed with the Leon County Circuit Court a motion to vacate the stay of her Broward County case; her motion was denied (The Receivership of Armor Ins. Co., v. Wilkie, 2011 WL 9160614 (Fla. Cir. Ct. June 15, 2011)) (see Exh. 11, at § 1.c, d). Petitioner appealed in Wilkie v. The Receivership of Armor Ins. Co., 67 So. 3d 206, 1D11-2618 (Fla. Ist DCA Aug. 11, 2011), and the First District dismissed that appeal (see Exh. 11, at {{ 1.d). In March 2012, Petitioner filed additional motions with the Leon County Circuit Court, including another motion to vacate the stay (see id. at J 1.e). DFS, the appointed receiver, filed a motion to strike Petitioner’s additional motions (see id. at § 1.f). On May 11, 2012, the Court, per Judge Carroll, granted DFS’s motion and denied Petitioner’s motions (see id. at J 2, 3). The First District affirmed Judge Carroll’s Order. Wilkins v. Receivership of Armor Ins. Co., 104 So. 3d 1093, 2013 WL 105636, 1D12-2892, 1D12-2893 (Fla. Ist DCA Jan. 8, 2013). Apparently dissatisfied with the decisions of the Leon County Circuit Court, the First District, and the Florida Supreme Court, and despite those decisions being the law of the case, Petitioner brings action against DFS and Judge Carroll. This Petition is a fourth bite at essentially the same apple and should be dismissed. Venue over the Armor receivership and claims relating thereto lies exclusively in the Circuit Court of Leon County pursuant to Sections 631.021, 631.153, Florida Statutes. Relief from the automatic stay under chapter 631 can only be obtained from the Leon County Circuit Court. See § 631.041, Florida Statutes (referencing “the court,” which is defined in section 631.011(5) as “the circuit court in which the receivership proceeding is pending”). See Nova Ins. Group, Inc., v. FDOI, 606 So. 2d 429 (Fla. Ist DCA 1992).Hence, the instant action must be dismissed for lack of venue. Venue further is improper in the Broward County Circuit Court under Sections 47.011, 48.031, Florida Statutes, because all Respondents “reside” in Leon County and because any putative cause of action for refusal to lift the automatic stay or otherwise to disallow petitioner’s claim in the delinquency proceeding accrued in Leon County. See Dimono v. Farina, 572 So. 2d $52, 554 (4th DCA 1990), disapproved in part on other grounds, 707 So. 2d 702, 705 n.7 (Fla. 1998). Further, Judge Carroll joins in the “Department of Financial Services’ Motion to Dismiss” filed on June 10, 2015 (# 28312589), and the grounds for dismissal therein stated. WHEREFORE, Judge Carroll respectfully requests that the Court enter an order granting this Motion to Dismiss and dismissing this cause with prejudice. Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/_ Charles J_F. Schreiber, Jr. Charles J. F. Schreiber, Jr. Senior Assistant Attorney General Fla. Bar No.: 0843075 E-Mail: Charles.Schreiber@myfloridalegal.com Office of the Attorney General The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 Telephone: (850) 414-3300 Telefacsimile: (850) 488-4872 Attorneys for Respondent Judge Kevin J. Carroll, Circuit Judge of the Second Judicial CircuitCERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy hereof has been furnished this 5th day of July 2016, via the Florida E-Portal System to: Jesse A. Haskins Kenneth D. Cooper Assistant General Counsel 400 S.E. 8" Street Department of Financial Services Fort Lauderdale, Florida 33316-1124 200 East Gaines Street E-Mail: kcooper543@aol.com Tallahassee, Florida 32399-4247 E-Mail: jesse.haskins@myfloridacfo.com ¢s/_ Charles J_F. Schreiber, Jr. Attorney