Vivian Gonczi v. Countrywide Home Loans, Inc. , 271 F. App'x 928 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-10977 ELEVENTH CIRCUIT
March 31, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 06-61597-CV-CMA
VIVIAN GONCZI,
on behalf of herself and others similarly situated,
Plaintiff-Appellant,
versus
COUNTRYWIDE HOME LOANS, INC.,
d.b.a. America’s Wholesale Lender,
Defendant-Appellee.
----------------------------------------
No. 07-10981
Non-Argument Calendar
----------------------------------------
D. C. Docket No. 06-61593-CV-CMA
PAUL FABRE,
CLAIR MILIEN,
on behalf of themselves and all others similiarly
situated,
Plaintiffs-Appellants,
versus
COUNTRYWIDE HOME LOANS, INC.,
Defendant-Appellee.
-----------------------------------------
Appeals from the United States District Court
for the Southern District of Florida
-----------------------------------------
(March 31, 2008)
Before EDMONDSON, Chief Judge, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Plaintiffs-Appellants appeal the grant of Defendant-Appellee Countrywide
Home Loans, Inc’s motion to dismiss Plaintiffs complaint, brought pursuant to
Fed.R.Civ.P. 12(b)(1) and (6), based on Plaintiffs’ lack of standing to maintain
this suit. No reversible error has been shown; we affirm.
In the complaint, Plaintiffs sought to recover -- on behalf of themselves and
all others similarly situated -- document preparation fees charged by Defendant for
the services of clerical personnel in the preparation of documents for the issuance
of mortgage loans. According to the complaint, Florida law prohibits Defendant
from charging fees for document preparation services performed by clerical
personnel not licensed to practice law. Plaintiffs sought the return of document
preparation fees paid, along with other relief, in a two-count complaint for money
had and received and for unjust enrichment. The district court determined that
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Plaintiffs lacked standing to maintain this action: only the Florida Supreme Court
has jurisdiction to determine whether the alleged acts constitute the unauthorized
practice of law. We agree.
The important case on this issue is Dade-Commonwealth Title Insurance
Co. v. North Dade Bar Ass’n, 152 So.2d 723 (Fla. 1963). The plaintiffs in Dade-
Commonwealth alleged that defendants charged for the preparation by non-
lawyers of legal documents used in real estate transfers and mortgages; the
plaintiffs sought a declaration that such acts constituted practicing law without a
license. The Florida Supreme Court determined, id. at 726, that the Dade-
Commonwealth plaintiffs were not authorized to bring suit: the Florida
Constitution grants the Florida Supreme Court “exclusive jurisdiction to regulate
the admission of persons to the practice of law and the discipline of persons
admitted.” Fla. Const. art. V, § 15.1 Under the Florida Constitution, the Florida
Supreme Court is vested with exclusive jurisdiction over the admission to practice
law, the discipline of those admitted, and the prohibition of practice by persons not
members of the Florida Bar. Id. Dade-Commonwealth determined that allowing
other courts the power to prevent the unauthorized practice of law would “ignore
the word ‘exclusive’ in the relevant Constitutional provision.” 152 So.2d at 726.
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At the time of the Dade-Commonwealth decision, this language (with minor modification)
appeared in Fla. Const. art.V, § 23.
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Based on this exclusive jurisdiction, the Florida Supreme Court has
delegated its authority over the investigation and prohibition of the unlicensed
practice to the Florida Bar. See State v. Palmer, 791 So.2d 1181, 1186 (Fla. DCA
2001). Rule 10-1.2 of the Rules Regulating the Florida Bar empowers the Florida
Bar – acting as the official arm of the Florida Supreme Court – to initiate
proceedings on the unauthorized practice of law. No private right of action exists
for individuals to pursue an unauthorized-practice-of-law claim in the first
instance; persons are limited to calling an infraction or misdeed to the Supreme
Court’s attention through appropriate channels. Dade-Commonwealth, 152 So.2d
at 727.
As the district court set out, Florida courts have applied Dade-
Commonwealth consistently to preserve the exclusive jurisdiction of the Florida
Supreme Court to prevent the unauthorized practice of law. Plaintiffs seek to
distinguish Dade-Commonwealth and its progeny by observing that injunctive
relief is different than the disgorgement relief sought in their complaint.
Injunctive relief is a form of equitable relief other than the equitable relief sought
by Plaintiffs in this case. What we fail to see is how that distinction supports a
different result. Imposing an “injunctive relief” limitation on the exclusivity of the
Supreme Court’s jurisdiction over these matters is unsupported in the caselaw and
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would foster the very “confusion, if not chaos” from independent proceedings that
the Supreme Court eschewed in Dade-Commonwealth. Id. at 726.
Plaintiffs point to one Florida case and to language taken out of context
from Rule 10-7.1(d)(3) of the Rules Regulating the Florida Bar in Plaintiffs’
attempt to establish an exception to the dictates of Dade-Commonwealth. In Vista
Designs, Inc. v. Silverman, 774 So.2d 884, 887-88 (Fla. DCA 2001), the court
allowed – without addressing jurisdiction – a counterclaim to proceed for
restitution to recover fees paid to a lawyer unlicensed to practice law in Florida.
But no suggestion exists in Vista Designs that the court actually considered the
jurisdictional issue; we do not think the decision serves as much authority for the
exercise of jurisdiction in the instant case. See Pennhurst State School & Hosp. v.
Halderman, 104 S.Ct. 900, 918 (1984) (“‘when questions of jurisdiction have been
passed on in prior decisions sub silentio, this Court has never considered itself
bound when a subsequent case finally brings the jurisdictional issue before
us’”)(quoting Hagans v. Lavine, 94 S.Ct. 1372, 1377 n.5 (1974); Main Drug, Inc.
v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1231 (11th Cir. 2007) (“it is well-
established circuit law that we are not bound by a prior decision’s sub silentio
treatment of a jurisdictional question” (internal quotation omitted); State v.
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DuBose, 128 So. 4, 6 (Fla. 1930) (“no decision is authority on any question not
raised and considered, although it may be involved in the facts of the case”).
Plaintiffs’ Rule 10-7.1(d)(3) based argument – raised for the first time on
appeal – also fails to establish a general private right of action to sue for the
unauthorized practice of law. Rule10-7.1 addresses complaints for injunctive
relief filed by the Florida Bar; and Rule 10-7.1(c) addresses proceedings before a
referee in the context of the investigation and prosecution of the unlicensed
practice of law. Under Rule 10-7.1(d)(3), a referee in this kind of injunctive
proceeding is authorized to recommend that restitution be ordered. The language
which Plaintiffs seize out of context provides that “[n]othing in this section [10-
7.1(d)(3)] shall preclude an individual from seeking redress through civil
proceedings to recover fees or other damages.” This quoted language creates no
right of action; it merely affirms that the grant of authority to the referee to
recommend restitution in an injunction proceeding instituted by the Florida Bar
defeats no otherwise existing avenue of redress. Nothing in Rule 10-7.1 bars a
civil proceeding against an individual who has been found by the Supreme Court
to have engaged in the unauthorized practice of law.
Appellants’ complaint was due to be dismissed.
AFFIRMED.
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