ROBERT TUCKER,
v.
ALI EBADIAN, ET AL.,
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Robert Tucker appealed a trial court's dismissal of a shareholder derivative suit against officers of Phiston Technologies under a now-repealed Florida statute. The appellate court reversed and remanded because the statute governing the dismissal was repealed before the trial court's final order, requiring reconsideration under the new statutory framework.
The court reversed and remanded the case because the statute under which dismissal was ordered was repealed before the final order was rendered. The appellate court declined to make initial factual determinations required under the new statute section 607.0744 in the first instance.
[1] A court cannot apply a repealed statute to dismiss a derivative suit.
[2] Appellate courts should not make initial factual determinations that have not been ruled on by the trial court.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“where a statute has been repealed and substantially re-enacted by a statute which contains additions to or changes in the original statute, the re-enacted provisions are deemed to have been in operation continuously from the original enactment whereas the additions or changes are treated as amendments effective from the time the new statute goes into effect”
Establishes the governing principle that changes to repealed and re-enacted statutes take effect from the time of the new statute's enactment, requiring reconsideration under the amended law.
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Join FLexlaw to unlock all legal intelligenceRobert Tucker filed a derivative suit on behalf of Phiston Technologies against Ali Ebadian (CEO) and Shahrouz Ebadian (CIO). The trial court dismisse…
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PER CURIAM.
In this appeal, appellant, Robert Tucker, challenges a final order dismissing his derivative suit filed on behalf of Phiston Technologies against Ali Ebadian, Chief Executive Officer of Phiston, and his son, Shahrouz Ebadian, Chief Information Officer of Phiston.
Relying upon section 607.07401(3), Florida Statutes (2019) (repealed 2019), the trial court discretionarily dismissed the case, finding that a committee of two or more independent directors “made a determination in good faith after conducting a reasonable investigation upon which its conclusions [were] based that the maintenance of the derivative suit [was] not in the best interests of the corporation.”
Because the statute was repealed prior to both the evidentiary hearings yielding this conclusion and the rendition of the final order under review, and we decline, as we must, to decide in the first instance the additional factual considerations implicated under newly promulgated statute section 607.0744, Florida Statutes (2020), we are constrained to reverse and remand for further consideration.
See McKibben v. Mallory, 293 So. 2d 48, 53 (Fla. 1974) (“[W]here a statute has been repealed and substantially re-enacted by a statute which contains additions to or changes in the original statute, the re-enacted provisions are deemed to have been in operation continuously from the original enactment whereas the additions or changes are treated as amendments effective from the time the new statute goes into effect.”); see also Scudder v. Scudder, 228 So. 3d 703, 707 (Fla. 2d DCA 2017) (“[A]s an appellate court we cannot render the initial factual determinations that still need to be made.”); Stark v. State Farm Fla. Ins. Co., 95 So. 3d 285, 289 n.4 (Fla. 4th DCA 2012) (quoting Akers v. City of Miami Beach, 745 So. 2d 532, 532 (Fla. 3d DCA 1999)) (“An appellate court ‘should not ordinarily decide issues not ruled on by the trial court in the first instance.’”).
Reversed and remanded.
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Authorities Cited
- McKIBBEN v. Mallory, 293 So. 2d 48 (Fla. 1974)
- Stark v. State Farm Fla. Ins. Co., 95 So. 3d 285 (Fla. 4th DCA 2012)
- Williams v. Fla. Parole Comm'n, 745 So. 2d 532 (Fla. 1st DCA 1999)
- Freeda Mary Scudder v. Rahul Scudder, 228 So. 3d 703 (Fla. 2d DCA 2017)