DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

DANIEL DRISCOLL,

Petitioner,

v.

ERIC KNELLINGER and U.S. FEDERAL CONTRACTOR REGISTRATION, 

INC., a Florida corporation,

Respondents.

No. 2D23-459

January 26, 2024

Petition for Writ of Certiorari to the Circuit Court for Pinellas County; 

Patricia Ann Muscarella, Judge.

Craig L. Berman of Berman Law Firm, P.A., St. Petersburg, for Petitioner.

Jonathan A. Stimler, Kevin E. Hyde, Wesley J. Martinez, and Caroline C. 

Dunkle, of Foley & Lardner, LLP, Jacksonville, for Respondents.

KHOUZAM, Judge.

Petitioner/Defendant Daniel Driscoll timely seeks certiorari review 

of an order denying his motion for judgment on the pleadings in this 

pending suit by Respondents/Plaintiffs U.S. Federal Contractor 

Registration, Inc. (USFCR), and Eric Knellinger. Mr. Driscoll asserts the 

order should be quashed because he has absolute immunity from this 
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lawsuit by virtue of the litigation privilege. But because the complaint 

addresses and seeks liability for Mr. Driscoll's alleged acts taken before 

and outside of the context of any litigation, we deny the petition. 

ALLEGATIONS OF THE COMPLAINT

The complaint alleges the following facts.

Mr. Knellinger started USFCR in 2010, hired Mr. Driscoll, and 

granted him a fifty percent interest in the entity. Both individuals 

received substantial regular and other distributions from USFCR. 

Mr. Knellinger fell ill from cancer in 2017, and "[a]s a result, he had 

to step away from running the day-to-day operations of USFCR to receive 

treatment. This intense course of treatment lasted throughout 2017 and 

2018." During this period of Mr. Knellinger's absence, Mr. Driscoll 

"attempted to secure permanent control over USFCR, and his actions 

caused direct or indirect harm to the company." 

Upon his recovery and return to business, Mr. Knellinger 

recognized what Mr. Driscoll had done in his absence "and decided that 

[Mr. Driscoll]'s continued involvement in USFCR, in any capacity, was 

untenable. Therefore, beginning in mid to late 2019, Mr. Knellinger 

attempted to negotiate with [Mr. Driscoll] to purchase his shares of the 

company, but these negotiations failed." 

After the failed buyout negotiations, Mr. Knellinger sought to limit 

Mr. Driscoll's influence in the company. In response, Mr. Driscoll 

produced "copies of apparent corporate documents, with stated dates in 

March 2018, which purportedly made [Mr. Driscoll] a director of USFCR." 

Mr. Driscoll "represented the corporate documents to be authentic and to 

accurately reflect actions taken on behalf of USFCR" and, based thereon, 

challenged Mr. Knellinger's authority to act unilaterally for USFCR. 
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Although Mr. Driscoll's documents reflect that Mr. Knellinger voted 

to make Mr. Driscoll a director of USFCR in March 2018, Mr. Knellinger 

was in fact undergoing intense cancer treatment at that time and denied 

that any such meeting had occurred, much less that he had ever elevated 

Mr. Driscoll. But the existence of the documents complicated and 

delayed any actions Mr. Knellinger could take to oust Mr. Driscoll. 

After all of this transpired, "[w]ith no other options available, 

USFCR filed a lawsuit against [Mr. Driscoll] on August 18, 2020, with the 

goals of removing [Mr. Driscoll] from his purported roles in USFCR and 

recovering damages for the harm" he caused. Thereafter, Mr. Driscoll 

"continued to represent . . . that the documents that purported to make 

him a director of USFCR were genuine" and denied any fraud. 

Ultimately, Mr. Knellinger, USFCR, and Mr. Driscoll reached terms 

for a Stock Purchase Agreement (SPA) in December 2020. The SPA 

included a general release from Mr. Knellinger and USFCR to Mr. 

Driscoll. It also required Mr. Driscoll to surrender the original corporate 

documents upon which he had relied in claiming he was a director. 

After the deal closed, Mr. Driscoll initially resisted but eventually 

surrendered the documents. Mr. Knellinger determined the documents 

were falsified in order to fraudulently increase Mr. Driscoll's bargaining 

leverage in the stock negotiations and ultimately to enrich himself. 

The complaint frames two counts. The first count is for fraud in 

the inducement, alleging that Mr. Driscoll falsified corporate documents 

to obstruct his removal from the company and thereby obtain more 

distributions from it. The second count is a civil action for criminal 

practices, alleging that Mr. Driscoll's fraud in maintaining his interest in 

and control of the entity amounted to a pattern of criminal activity. 
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ANALYSIS

Mr. Driscoll seeks a writ of certiorari to quash the trial court's order 

denying his motion for judgment on the pleadings. He contends that he 

is absolutely immune from this lawsuit by virtue of the litigation 

privilege. But because the complaint plainly addresses considerable 

conduct taken outside of any litigation, the litigation privilege does not 

apply. Accordingly, the trial court did not err, much less depart from the 

essential requirements of the law, and we deny the petition. 

In order to be entitled to certiorari relief, "the petitioner must 

establish the following three elements: '(1) a departure from the essential 

requirements of the law, (2) resulting in material injury for the remainder 

of the case (3) that cannot be corrected on postjudgment appeal.' " 

Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. 

Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)). 

"Certiorari is not a writ of expediency and cannot be used to 

circumvent the non-final appeal rule." Champaign Nat'l Bank & Tr. v. 

SOS Indus., 847 So. 2d 1164, 1165 (Fla. 5th DCA 2003). Thus, 

"[c]ertiorari is not generally available to review non-final interlocutory 

orders denying motions to dismiss or equivalent motions for judgment on 

the pleadings because the aggrieved party has a remedy on appeal." Id. 

Even so, 

[w]hen the trial court denies a motion to dismiss on immunity 

grounds, certiorari review of the non-final order is proper 

because absolute immunity protects a party from having to 

defend a lawsuit at all and waiting until final appeal would 

render such immunity meaningless if the lower court denied 

dismissal in error. 

James v. Leigh, 145 So. 3d 1006, 1008 (Fla. 1st DCA 2014); see also 

Baird v. Mason Classical Acad., Inc., 317 So. 3d 264, 268 (Fla. 2d DCA 

2021) (explaining that where a party has "expressly invoked a statutory 
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right to protection from this lawsuit . . . we have jurisdiction to consider 

his timely certiorari petition challenging the order denying relief").

"It is well settled that in ruling on a defendant's motion for 

judgment on the pleadings, all the allegations set forth in the complaint 

must be taken as true and all the allegations in the answer, which are 

automatically denied, must be accepted as false." Tanglewood Mobile 

Sales, Inc. v. Hachem, 805 So. 2d 54, 55 (Fla. 2d DCA 2001). "Whether 

to grant a motion for judgment on the pleadings must be decided wholly 

on the pleadings, without the aid of outside matters." Id. Judgment on 

the pleadings is appropriate "only if the moving party is clearly entitled to 

judgment as a matter of law." Id. "It is improper to enter a judgment on 

the pleadings if factual questions remain to be resolved." Id. 

"The general rule concerning the litigation privilege is that litigation 

participants should be absolutely exempted from liability for conduct 'in 

the course of judicial proceedings' so long as the conduct has 'some 

relation to or connection with the subject of inquiry.' " AGM Invs., LLC v. 

Bus. L. Grp., P.A., 219 So. 3d 920, 924 (Fla. 2d DCA 2017) (quoting 

DelMonico v. Traynor, 116 So. 3d 1205, 1211 (Fla. 2013)). 

Although qualifying conduct generally involves that taken "while 

litigation is ongoing," certain prelitigation conduct can qualify as well, so 

long as it is " 'necessarily preliminary' to judicial proceedings." Id.

(quoting Fridovich v. Fridovich, 598 So. 2d 65, 66 (Fla. 1992)). By 

"[r]equiring that conduct preceding the institution of litigation be 

necessarily preliminary to judicial proceedings," this narrow exception 

"ensures that the conduct shielded from liability is really of a kind that 

can be regarded as having been undertaken in the course of a judicial 

proceeding and not conduct undertaken separately from it." Id. (citing 

Ball v. D'Lites Enters., 65 So. 3d 637, 641 (Fla. 4th DCA 2011), as 
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"describing conduct as necessarily preliminary to judicial proceedings 

where it was a prerequisite to the judicial process").

Here, the court correctly denied the motion for judgment on the 

pleadings on the basis that the complaint fails to show that Mr. Driscoll 

is immune from suit. The complaint expressly alleges and seeks liability 

for conduct that did not arise while any relevant litigation was ongoing 

and which was not necessarily preliminary or a prerequisite to it.

Specifically, the complaint alleges that Mr. Driscoll took actions in 

2017 and 2018 to harm USFCR. It alleges that in 2019 after these 

actions came to Mr. Knellinger's attention, the parties attempted to 

negotiate a buyout of Mr. Driscoll's shares in the entity. 

After those 2019 negotiations failed, Mr. Knellinger attempted to 

limit Mr. Driscoll's influence in the entity. In response, Mr. Driscoll 

produced copies of allegedly false and fraudulent documents reflecting 

that he was a director. The documents were dated March 2018.

After all of this transpired, USFCR filed a lawsuit against Mr. 

Driscoll in August 2020. In December of that year, the parties reached 

terms on the SPA and closed the same month. When Mr. Driscoll 

eventually surrendered the corporate documents dated March 2018, Mr. 

Knellinger determined they were falsified and fraudulent. 

Thus, the complaint alleges and concerns considerable conduct 

asserted to have occurred before and without connection to any 

litigation. The original damaging actions were alleged to have occurred 

in 2017-2018, the stock purchase negotiations began in 2019, and they 

fell apart before the filing of the 2020 action based on allegedly 

fraudulent documents dated and addressing actions as of March 2018. 

Those documents were created and relied upon, and Mr. Driscoll 

produced copies of them to Mr. Knellinger, before the litigation began. 
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Despite these allegations, Mr. Driscoll argues that he is nonetheless 

immune from this lawsuit because the "disagreement about the truth or 

falsity of [his] representations was not only relevant to but the genesis of 

the 2020 Lawsuit." We reject this contention. 

The litigation privilege does not immunize allegedly fraudulent 

conduct merely because a lawsuit is later filed about it. Nor does the fact 

Mr. Driscoll continues to deny that the documents were falsified 

immunize him from suit for his prelitigation conduct; defendants 

routinely maintain their prelitigation positions throughout the course of 

the proceedings. Indeed, Mr. Driscoll's characterization that his 

representations were "the genesis" of the earlier suit appears to operate 

as an admission that they spawned the suit—not the other way around. 

To the extent Mr. Driscoll suggests that the release in the SPA 

immunizes him from this lawsuit, he is mistaken. A release of liability is 

an affirmative defense. See Fla. R. Civ. P. 1.110(d) (listing "release" as an 

affirmative defense); see also, e.g., Give Kids the World, Inc. v. Sanislo, 98 

So. 3d 759, 760-61 (Fla. 5th DCA 2012) (reversing for entry of summary 

judgment on "affirmative defense of release"), approved, 157 So. 3d 256, 

271 (Fla. 2015). Although Mr. Driscoll may have valid defenses to the 

lawsuit by virtue of the release in the SPA, it does not render him 

immune from suit. 

Because Mr. Driscoll has not established a departure from the 

essential requirements of the law, we deny his petition. 

Denied.

LaROSE and SMITH, JJ., Concur.

__________________________

Opinion subject to revision prior to official publication.