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1 IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
2 UCN: 522003CA006649XXCICI
REF: 03-006649-CI-13
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4
MELVIN SEMBLER
5 and BETTY SEMBLER,
6 Plaintiffs,
7 vs.
8 RICHARD BRADBURY,
9 Defendant.
___________________________/
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12 PROCEEDINGS: Hearing on Stipulations
13 BEFORE: The Honorable Mark I. Shames
Circuit Court Judge
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DATE: December 28, 2006, 9:37 a.m.
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PLACE: St. Petersburg Judicial Building
16 545 First Avenue North
St. Petersburg, FL 33701
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REPORTED BY: Lee Ann McIlravey, RPR, CRR
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1 APPEARANCES:
2 LEONARD S. ENGLANDER, ESQUIRE
TERRY L. HIRSCH, ESQUIRE
3 Englander & Fischer, P.A.
721 First Avenue North
4 St. Petersburg, FL 33701
Attorneys for Plaintiffs
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THOMAS H. MCGOWAN, ESQUIRE
6 Thomas H. McGowan, P.A.
150 2nd Avenue North
7 Suite 870
St. Petersburg, FL 33701
8 Attorney for Defendant
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1 P R O C E E D I N G S
2 THE COURT: Okay. Gentlemen, we're scheduled
3 this morning for multiple hearings on the Sembler
4 versus Bradbury case, 03-6649-CI-13.
5 And based on our discussions previously, my
6 understanding is there has been some resolution of a
7 majority of the matters and a resolution of the
8 remainder -- at least in terms of the process by
9 which we'll resolve the remainder of the issues.
10 And counsel, I trust that before we talk about
11 specifically what the terms are going to be, that
12 everyone has had the opportunity to consult with
13 their clients and determine that you have the
14 authority to make the representations that you're
15 going to make and to proceed along these lines.
16 Mr. McGowan?
17 MR. MCGOWAN: Thomas McGowan for the defendant,
18 Richard Bradbury.
19 I have discussed each of these issues with him
20 and he's in agreement.
21 THE COURT: Okay. And Mr. Englander?
22 MR. ENGLANDER: We have discussed these issues
23 with our clients and they are in agreement.
24 THE COURT: Okay. Very good. Thank you.
25 Who's going to take responsibility for the
0004
1 initial presentation?
2 MR. ENGLANDER: I will, your Honor.
3 THE COURT: Okay.
4 MR. ENGLANDER: If I may read this.
5 We'd ask that your Honor -- the parties have
6 stipulated and agreed to a number of points, and
7 we'd ask that your Honor ratify and confirm the
8 terms of the stipulations as well as some other
9 things when we get to the end.
10 In reading them, they are as follows:
11 Number 1, counts 2 and 3 of the complaint are
12 dismissed without prejudice.
13 Number 2, as reflected in the depositions and
14 other papers filed in conjunction with this cause,
15 the defendant does not challenge the factual
16 assertions giving rise to plaintiffs' relief under
17 the stalking statute; there is no factual issue for
18 the Court to resolve except for the
19 constitutionality of Florida stalking statute.
20 3, defendant does challenge the
21 constitutionality of Florida stalking statute, the
22 determination of which shall solely be through the
23 defendant's motion and memorandum in support of
24 summary judgment and the plaintiffs' memorandum in
25 opposition to Bradbury's motion for summary
0005
1 judgment.
2 Number 4, under the authority of Carpineta
3 versus Shields -- and I'll give the court reporters
4 that spelling in a moment if they need it -- 70
5 So.2d 573, Florida Supreme Court, 1954, Thomas
6 versus Thomas 882 So.2d 1037 --
7 MR. HIRSCH: Smith.
8 MR. ENGLANDER: Thomas versus Smith, 882 So.2d
9 1037, a Florida Second District Court of Appeals
10 decision in 2004, and Wizkowski versus Hillsborough
11 County, 651 So.2d 1223, another Florida Second
12 District Court of Appeals decision from 1995, the
13 Court shall treat the defendant's summary judgment
14 as a cross-motion such that if the defendant's
15 motion is denied, the plaintiffs shall prevail under
16 count 1 of the amended complaint.
17 Number 5, in the event the plaintiffs prevail,
18 the temporary injunction entered on August 26th,
19 2003, together with the terms of the order on
20 emergency motion to extend temporary injunction
21 protection dated August 24th, 2006, shall be
22 incorporated into a permanent injunction as
23 plaintiffs' sole relief.
24 6, to the extent that the plaintiffs prevail on
25 count 1, they shall not pursue their motion for
0006
1 contempt or for order to show cause.
2 Number 7, to the extent that the plaintiffs do
3 not prevail and the defendant does prevail, it will
4 be without prejudice to an automatic injunction or
5 stay of the existing temporary injunction and order
6 on the motion to extend pending appeal.
7 MR. MCGOWAN: Right, subject to a hearing on a
8 bond or --
9 MR. ENGLANDER: Correct, subject to a hearing
10 on a bond.
11 MR. MCGOWAN: Right.
12 MR. ENGLANDER: The last two issues are, number
13 one, that the Dr. Cohen report is or should be
14 deemed a part of the record in this case, but the
15 original will be -- I am handing today to
16 Mr. McGowan, who has agreed to undertake the
17 necessary steps under the rules of procedure and
18 judicial administration to have it placed under seal
19 for the benefit of his client.
20 Finally, we leave to your Honor the question of
21 entitlement, if any, as to fees and costs under
22 counts 2 and 3.
23 And this is the stipulation of the parties. Am
24 I correct, Mr. McGowan?
25 MR. MCGOWAN: You're correct.
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1 THE COURT: Okay. So my understanding of your
2 agreement, gentlemen, is that I will make the
3 determination as to the constitutionality of the
4 Florida stalking statute.
5 Let's put a number in the record so it's clear
6 that everyone's talking about the exact same statute
7 number, because it seemed to me there was an errata
8 at some point --
9 MR. MCGOWAN: There was.
10 THE COURT: -- where the statute number was --
11 MR. ENGLANDER: It's under -- the stalking
12 statute is 784.048. The relief which is afforded as
13 a result of that statute is -- I've got a copy of it
14 here -- comes about as a result of 7 -- bear with
15 me -- can we go off the record for just a moment?
16 THE COURT: Sure.
17 MR. ENGLANDER: May we, Mr. McGowan?
18 MR. MCGOWAN: Of course.
19 (A discussion was held off the record.)
20 MR. ENGLANDER: So we're agreeing that the
21 Court, in effect, is going to rule on the
22 constitutionality of 784.048, the enforcement of
23 which, if it is deemed constitutional, is afforded
24 pursuant to the statutory mechanism that's in place.
25 THE COURT: And specifically, the temporary --
0008
1 by your agreement, as I understand it, the temporary
2 injunction that was previously entered by the Court
3 will become permanent --
4 MR. ENGLANDER: Correct.
5 THE COURT: -- according to its terms by virtue
6 of the authority of 784.048, if I deem it
7 constitutional.
8 MR. ENGLANDER: Correct.
9 THE COURT: If I deem it unconstitutional, then
10 certainly the issue will go somewhere from here, but
11 the plaintiff will have the right to come in and
12 seek to continue the temporary injunction in effect,
13 notwithstanding the ruling of the
14 unconstitutionality, pending review, and that the
15 issue of a stay and the issue of any applicable bond
16 would be addressed at hearing with notice
17 subsequent.
18 MR. ENGLANDER: Correct, your Honor.
19 MR. MCGOWAN: Correct.
20 MR. ENGLANDER: With one caveat. There are two
21 temporary injunctions in place. And I want to make
22 sure that when we talk about that, instead of just
23 saying it in the singular, there are two things out
24 there.
25 There is the temporary injunction which was
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1 entered on August 26th, 2003, and then the terms of
2 the order on the emergency motion to extend the
3 temporary injunction dated August 24th, 2006. Both
4 of those are the temporary injunction that we would
5 seek to be placed into a permanent injunction.
6 THE COURT: Okay. And because I wasn't
7 involved in those, notwithstanding the '06 date --
8 if memory serves, it was done in '06, when I took
9 over responsibility for this case. But in going
10 through the court file in preparation, I noticed
11 that Judge Rondolino did it. And I'm guessing,
12 since I never heard anything about it, was that he
13 had dealt with part of it and he agreed to finish
14 that up.
15 MR. ENGLANDER: I believe so.
16 MR. MCGOWAN: I think we just agreed -- I think
17 we just stipulated to --
18 MR. ENGLANDER: We did.
19 MR. MCGOWAN: Basically what it did is it
20 extended the temporary injunction as to the Semblers
21 to Mr. Englander and to his office.
22 THE COURT: Right. Okay.
23 MR. ENGLANDER: And the way that happened, we
24 cued that up in the form of a motion and a hearing.
25 And at the hearing in front of Judge Rondolino,
0010
1 Mr. McGowan stipulated to it, Mr. Bradbury
2 stipulated to it. And then it was supposed to have
3 been ratified in a court order, and somehow I think
4 it just was not.
5 MR. MCGOWAN: Right.
6 MR. ENGLANDER: And I think both of us
7 realized, wait a minute, we need to embody this in
8 an order; it's never somehow administratively gotten
9 in the -- the judge has not executed it. And we got
10 it to him, and it's now been executed.
11 THE COURT: Okay. But at that point,
12 notwithstanding the case had passed to me, Judge
13 Rondolino did it because he's the one that dealt
14 with the initial issue.
15 MR. ENGLANDER: Correct.
16 MR. MCGOWAN: Correct.
17 THE COURT: Okay. Okay. I just want to make
18 sure the record's clear, primarily that we're
19 talking about both injunctions, which we've
20 confirmed as to what they are, the initial one
21 granted by Judge Logan, if memory serves, and then
22 the supplemental one that included Mr. Englander and
23 your law firm and --
24 MR. ENGLANDER: Correct.
25 THE COURT: -- family, et cetera, et cetera.
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1 Okay. So we've confirmed -- my first issue was
2 to make sure that we have the statute we're talking
3 about. Secondly, I want to make sure that I
4 understand what you're doing with Dr. Cohen's
5 report.
6 It's contemplated that the original will become
7 part of the record. My understanding is that you
8 appreciate that if there's going to be an effort to
9 seal it, which is contemplated, that the procedural
10 requirements and the substantive requirements of
11 applicable law rule and Supreme Court rule are met;
12 and we will have an opportunity for those things to
13 be addressed, notice and everything else; and when
14 you're ready, it will be put on my calendar.
15 MR. MCGOWAN: Right.
16 THE COURT: Okay. But, Mr. McGowan, you're
17 going to take the lead in setting that up.
18 MR. MCGOWAN: Correct.
19 THE COURT: Okay. The issue of the
20 constitutionality, I will confirm that I have
21 received the plaintiffs' motion -- I'm sorry, the
22 defendant's motion for summary judgment that was
23 going to be addressed today.
24 I've received the memorandum in terms of the --
25 I'm not so sure with regard to the defendant. It
0012
1 was a separate memorandum as opposed -- well, it was
2 part of the motion. There was a memorandum
3 contained in the motion. There's a loose-leaf
4 binder that I have here with all of that, as well as
5 the authorities cited. I have the memorandum of law
6 in opposition to Bradbury's motion for summary
7 judgment filed on behalf of the plaintiffs and I've
8 got the loose-leaf binder that has all the
9 authority.
10 Have I got everything that everyone wants to
11 submit to me for purposes of my making the analysis
12 and the decision?
13 MR. MCGOWAN: Yes, your Honor.
14 MR. ENGLANDER: Yes.
15 THE COURT: Okay. And we're agreeing that
16 we're going to waive any further oral argument, that
17 I've already got -- I don't need another hearing;
18 I've already got everything that you want me to
19 consider; I'll reserve; I'll review everything; I'll
20 make my decision.
21 And I do contemplate that I will notify both
22 attorneys of my decision and direct that one or the
23 other prepare an appropriate order, or I may choose
24 to do it myself, but I will certainly notify
25 everybody when I've made the decision and where we
0013
1 go from there.
2 But the salient point here is that there's
3 nothing more that I should expect from you all or
4 will expect from you all; I've got what I need to
5 make the decision that you all have agreed you want
6 me to make as dispositive.
7 MR. ENGLANDER: That is correct, Judge. The
8 only thing we'd ask you to do today is rule on the
9 issue of the entitlement, based upon the record and
10 the pleadings, of attorneys' fees and court costs as
11 to counts 2 and 3.
12 THE COURT: Okay. Counts 2 and 3 are being
13 voluntarily dismissed by the plaintiff --
14 MR. ENGLANDER: Correct.
15 THE COURT: -- as part of this resolution.
16 Okay. Mr. McGowan, there was no counterclaim
17 filed on behalf of the defendant?
18 MR. MCGOWAN: There was not.
19 THE COURT: Were there any affirmative defenses
20 addressed to attorneys' fees?
21 MR. MCGOWAN: There were not.
22 THE COURT: Is there any pending motion
23 relating to attorneys' fees under any basis
24 whatsoever?
25 MR. MCGOWAN: There is a claim for fees in the
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1 sum section of the complaint by the plaintiff --
2 MR. ENGLANDER: By the plaintiff, but not by
3 the defendant.
4 MR. MCGOWAN: -- which I believe they
5 acknowledge they are not entitled to by statute or
6 the contract. We have made no claim in our
7 pleadings for any fees.
8 There was talk in -- and I have a sketchy
9 recollection of some sanction of fees in discovery,
10 and frankly, I'm not even sure against which party,
11 or it could have gone both ways. I would say that
12 that is de minimis.
13 THE COURT: Okay. I believe, if memory serves,
14 today is my first substantive involvement with this
15 case, notwithstanding that it's been around for
16 three years and notwithstanding that I'm scheduled
17 to try it in February.
18 So I'm going to rely on you gentlemen, and I
19 have no reason not to, but under the circumstances,
20 it sounds as if there is no pending substantive
21 basis for fees that I should consider or consider
22 deferring ruling with regard to.
23 So at this point, based on the fact that we
24 contemplate a voluntary dismissal of counts 2 and 3,
25 given the fact that there would be no statutory
0015
1 basis for fees under count 1 of the injunction
2 action, and given the fact that there is no
3 counterclaim, affirmative defense or other pending
4 motion on behalf of the defendant with regard to the
5 fees, I will order that each side will be
6 responsible for its own fees and costs in this
7 matter, regardless of the outcome of my decision on
8 count 1.
9 As I said, if it's just about the statutory
10 authority for the injunction, I'm not aware of any
11 statutory basis for fees that would accrue to one or
12 the other of the parties under that statute. So
13 that will be my ruling at this point.
14 Is there anything that we've left unaddressed,
15 anything that you all want me to address today that
16 I haven't, either because you set it and I didn't
17 address it or anything additional that you feel
18 would be appropriate or necessary to bring up?
19 Mr. Englander?
20 MR. ENGLANDER: None, your Honor.
21 THE COURT: Mr. McGowan?
22 MR. MCGOWAN: Nothing, your Honor.
23 THE COURT: Okay. Let me go over the schedule
24 for today and confirm what we're doing.
25 We had a bunch of things set. The defendant's
0016
1 motion for summary judgment is not made moot but is
2 left solely for consideration of the
3 constitutionality of the statute.
4 MR. MCGOWAN: Correct.
5 THE COURT: And while I'm thinking of that, let
6 me confirm also my understanding of your agreement,
7 that notwithstanding that there is no cross-motion
8 for summary judgment filed on behalf of the
9 plaintiffs, which the case authority suggests would
10 be the better way to address this, the parties have
11 agreed that under the circumstances, the issue to be
12 decided, the constitutionality, notwithstanding that
13 it was raised by the defendant in the negative, that
14 is, that the statute is not constitutional, that the
15 parties agree that in making that decision I will
16 have the authority, pursuant to the case law, to
17 find as another alternative -- notwithstanding the
18 lack of an affirmative motion for summary judgment
19 on behalf of the plaintiffs if the statute is
20 constitutional, then I'll have the authority to make
21 that decision either way under the authority of
22 Carpineta versus Shields, which is 70 So.2d 573.
23 The other cases you've cited are Thomas versus
24 Smith, cited as 882 So.2d 1037. And the final
25 authority that you've presented to me is Wizkowski
0017
1 versus Hillsborough County, cited at 651 So.2d 1223.
2 MR. ENGLANDER: I've given a copy of that to
3 the court reporter, Judge.
4 THE COURT: All three cases?
5 MR. ENGLANDER: Yes.
6 THE COURT: Okay. Thank you. I don't need to
7 go through the spellings.
8 Okay. So that deals with summary judgment that
9 was on our plate today.
10 Plaintiffs' motion for order to show cause is
11 the contempt issue; that should I find the statute
12 constitutional, the plaintiffs have stipulated that
13 they will not be pursuing the issue of the order to
14 show cause. It will be subsumed, I believe, in the
15 temporary injunction being made permanent.
16 So let's link this through and make sure we
17 cover all the bases.
18 Should I find the statute unconstitutional, the
19 plaintiff would, at least by virtue of the terms of
20 the agreement, have the right to proceed on the
21 motion for order to show cause. But interestingly
22 enough, the substantive ruling of lack of
23 constitutionality might impede actually pursuing the
24 motion for contempt on a substantive basis.
25 MR. ENGLANDER: Correct.
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1 THE COURT: So it seems a little incongruous,
2 but I just want to make sure that we're all on the
3 same page as far as what we're talking about, what
4 we've done with what was on the record today.
5 MR. ENGLANDER: Correct.
6 THE COURT: Okay?
7 MR. MCGOWAN: Yes, sir.
8 THE COURT: Okay. Defendant's motion to take
9 deposition out of time would be deemed moot today
10 because the case is being resolved.
11 We're taking the pretrial off the calendar for
12 January 4th. We're taking the jury trial set to
13 start on the Court's two-week jury docket starting
14 February 12th, '07 off the calendar because no
15 matter what I rule on the constitutionality, it's
16 either going to be self-effectuating in terms of
17 constitutional, therefore temporary injunction gets
18 made permanent, therefore motion for contempt falls
19 by the wayside, everything else continues to be
20 moot, or if I find it unconstitutional, we'll set up
21 further appellate review, but none of it is factual,
22 none of it requires trial.
23 MR. ENGLANDER: Correct.
24 MR. MCGOWAN: Correct.
25 THE COURT: Okay. So those things are off the
0019
1 calendar.
2 The defendant's renewed motion for independent
3 psychological examination that was on the calendar
4 today is moot -- made moot by this agreement.
5 Defendant's supplemental motion for
6 psychological examination is made moot by what's
7 being done today.
8 There are no other pending motions that I'm
9 aware of, other than we might have reserved some
10 motions in limine for trial that obviously become
11 moot today.
12 Mr. Englander, anything else -- now that I've
13 covered that, anything else that we need to address?
14 MR. ENGLANDER: No, Judge. I just want to make
15 absolutely certain that somewhere in what we've said
16 here that your Honor has ratified and confirmed the
17 terms and conditions of our stipulation. You may
18 have said it, but I'm not sure --
19 THE COURT: I haven't said it, but I will say
20 it. I want to make sure we've got everything set so
21 I can comprehensively and globally address
22 everything with my confirmation and my approval.
23 Mr. McGowan, anything additional on behalf of
24 the defendant?
25 MR. MCGOWAN: No, nothing additional, your
0020
1 Honor.
2 THE COURT: Okay. Then, gentlemen, I commend
3 you for the obviously extensive time and effort
4 you've put into the resolution of an extremely
5 difficult situation on behalf of everybody.
6 I find that the proposed resolution is in the
7 best interest of everybody given the uncertainties
8 of litigation, given the difficulty of this
9 litigation, given the nature of this particular
10 litigation.
11 And because I do find it manifestly in the best
12 interest of not only the parties but the system as
13 well, I will approve it and I will confirm it; I
14 will reserve jurisdiction to address the executory
15 matters set out in the agreement that we've
16 addressed; and I will reserve to address any and all
17 matters that follow the settlement.
18 And I contemplate that we want to have an order
19 that sets forth the confirmation and approval of the
20 settlement, sets forth my ruling on the attorneys'
21 fees, sets forth my reservation.
22 And I guess we should talk about this. Can we
23 do this in two separate parts? Can we get the
24 preparation of an order that confirms all of this
25 and puts it in writing and reserves the executory
0021
1 matter -- as to the executory matters for purposes
2 of understanding and review?
3 MR. ENGLANDER: I'm happy to order, your Honor,
4 a copy of the transcript, pay for it and file it. I
5 mean, I'm happy to do that to make it easy. If not,
6 if your Honor prefers, I'll take the initiative and
7 draft the stipulation. I just hate having to do
8 that thinking that there's a possibility that
9 somebody changes their mind.
10 THE COURT: Well, I'm not talking about the
11 stipulation. Let me make it clear.
12 MR. ENGLANDER: Okay.
13 THE COURT: What we've done now is you all laid
14 everything out for me and I'm ordering that I
15 approve it, confirm it, ratify it, and I'm reserving
16 certain things that I'm going to do. I'm talking
17 about getting that reduced to an order, getting my
18 adjudication reduced to an order, not your
19 stipulation.
20 MR. ENGLANDER: Okay.
21 THE COURT: Other than a reference to the
22 stipulation --
23 MR. ENGLANDER: Okay.
24 THE COURT: -- or a reference to what you've
25 set out for --
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1 MR. MCGOWAN: Yeah. And I think if we do both,
2 if this gets -- if you have this ordered and put in
3 the file, the Court in its order can reference the
4 findings you made so there's nothing inconsistent.
5 THE COURT: Well, let me say this. We're
6 talking about doing this either in one part or two
7 parts. Maybe that's the confusion.
8 I mean, certainly there's got to be
9 something -- there's got to be some adjudication so
10 everyone can go forward from some point. All I'm
11 suggesting is maybe we do it in two parts, where we
12 memorialize what I've adjudicated today, which is
13 confirmation of a settlement and reserving what I'm
14 going to do, and then finishing it up with a final
15 order after I've made the determination as to the
16 constitutionality.
17 The alternative is to do one final
18 comprehensive order, but obviously somewhere there's
19 got to be some adjudication, because otherwise we
20 haven't resolved anything.
21 MR. ENGLANDER: Yeah, I think you're right.
22 And I'm happy just to prepare, for example, this
23 cause came on to be heard upon the joint stipulation
24 of the parties as reflected in the record, and the
25 Court, having -- you know, ratifies and confirms
0023
1 them.
2 THE COURT: Yeah.
3 MR. ENGLANDER: And we will make reference to
4 the fact that a transcript has been filed or will be
5 filed of the stipulation on the hearing --
6 THE COURT: That's fine.
7 MR. ENGLANDER: -- this morning.
8 THE COURT: I'm not trying to open up issues
9 that I think we resolved. All I'm trying to do is
10 make sure that we've memorialized what I'm doing.
11 MR. ENGLANDER: Yeah.
12 THE COURT: But I think it has to have a
13 reference to the authority I had --
14 MR. MCGOWAN: Of course.
15 THE COURT: -- to adjudicate it, which was the
16 representation from counsel that the clients have
17 agreed to this resolution.
18 But the rest of it, my concern is that I
19 adjudicate what you've asked me to adjudicate,
20 reserved what you've asked me to reserve, and that
21 there will be another order down the road. But
22 unless I adjudicate, we've got no basis for
23 appellate action or review.
24 MR. MCGOWAN: That's fine.
25 THE COURT: Okay. So, Mr. Englander, you
0024
1 volunteered to accept responsibility. Make sure
2 that whatever you prepare goes to Mr. McGowan --
3 MR. ENGLANDER: Yes.
4 THE COURT: -- before it comes to me. And when
5 it comes to me, if it's been approved and it
6 comports with my ruling and my understanding of my
7 ruling, I'll sign it, and it will contain a
8 reservation; and I will resolve this outstanding
9 matter as soon as I can, and then we'll go from
10 there.
11 MR. ENGLANDER: Thank you, your Honor. And
12 thanks for taking the time to do this with us this
13 morning.
14 THE COURT: Thank you all.
15 MR. MCGOWAN: Thank you very much.
16 (THE PROCEEDINGS WERE CONCLUDED)
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1 REPORTER'S CERTIFICATE
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3 STATE OF FLORIDA )
4 COUNTY OF PINELLAS )
5 I, Lee Ann McIlravey, RPR, CRR, certify that I was
authorized to and did stenographically report the
6 proceedings herein, and that the transcript is a true
and complete record of my stenographic notes.
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8 DATED this 29th day of December, 2006.
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10 ______________________________
LEE ANN MCILRAVEY, RPR, CRR
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