Atlantic Coast Conference v. Florida State University Board of Trustees

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2024-1429

_____________________________

ATLANTIC COAST CONFERENCE,

Petitioner,

v.

FLORIDA STATE UNIVERSITY

BOARD OF TRUSTEES,

Respondent.

_____________________________

Petition for Writ of Certiorari—Original Jurisdiction.

November 4, 2024

LEWIS, J.

Petitioner, the Atlantic Coast Conference (“ACC”), petitions

for a writ of certiorari and asks this court to quash the trial court’s

denial of its motion to stay the case filed in Leon County by

Respondent, the Florida State University Board of Trustees (“FSU

Board”). The ACC argues that under the principle of priority, the

trial court should have stayed the FSU Board’s action pending the

disposition of the ACC’s suit filed in North Carolina, which

involves the same parties and the same issues. Because the trial

court did not depart from the essential requirements of the law in

denying the ACC’s motion to stay, we deny its certiorari petition

on the merits.

Factual Background

Florida State University (“Florida State”) joined the ACC, a

collegiate athletic conference headquartered in North Carolina, in

1991. In 2013 and 2016, Florida State executed Grant of Rights

agreements in which it transferred to the ACC the media rights to

its home games through 2036. The ACC in turn entered into media

contracts with ESPN. As the chair of the ACC’s Board of Directors,

Dr. James E. Ryan, explained in a March 2024 declaration, the

ACC became aware in August 2023 that Florida State “appeared

to be either considering a withdrawal from the ACC, a challenge

to the Grant of Rights agreements, or both.” According to Ryan, “a

decision was made that the [ACC] would not bring any litigation

against FSU until and only if breach of an agreement with the

[ACC] was believed to be imminent.” Ryan was notified on

December 21, 2023, that the FSU Board scheduled an emergency

meeting for the following day. After he conferred with ACC

management, Ryan authorized the filing of the ACC’s lawsuit in

North Carolina on the 21st of December. The ACC sought a

declaration that the Grant of Rights agreements were valid and

enforceable and that the FSU Board was equitably estopped from

challenging their validity or enforceability.

On December 22, 2023, the FSU Board filed a declaratory

judgment complaint in Leon County to obtain a “definitive

understanding of the financial consequences” of its withdrawal

from the ACC. The FSU Board sought a declaration on whether

the ACC’s withdrawal penalty was legally enforceable against it,

whether the ACC’s penalties were unenforceable, whether the

ACC materially breached its contractual obligations, whether the

ACC breached its fiduciary relationship, whether the Grant of

Rights agreements were unenforceable due to frustration of

purpose, and whether the ACC’s punishments violated Florida

public policy and were unconscionable. In January 2024, the ACC

filed a first amended complaint in the North Carolina suit, adding

breach of contract and breach of fiduciary duty claims against the

FSU Board. Soon after, the FSU Board filed an amended

complaint against the ACC in Leon County.

The ACC subsequently filed a motion to dismiss or,

alternatively, to stay in the FSU Board’s action. Therein, the ACC

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claimed that “it acted to protect itself and its other members by

suing FSU’s Board of Trustees in North Carolina state court.” The

ACC asserted that while dismissal of the Florida action was the

right result, a stay was an alternative remedy “because the North

Carolina case has priority over this one.” The ACC argued that a

stay was required because the same parties were litigating over

the same contracts, North Carolina had priority as jurisdiction

first attached there, and the FSU Board could not establish any

exceptional circumstances that would justify the denial of a stay.

In its response to the ACC’s motion, the FSU Board argued that a

stay was not warranted because the ACC’s North Carolina action

was an anticipatory filing. Following the North Carolina court’s

denial of the FSU Board’s motion to stay the action there, the trial

court held a hearing on the ACC’s motion in Leon County.

In the Order Denying ACC’s Motion to Stay, the trial court set

forth in part:

The ACC argues this action should be stayed in favor

of its earlier-filed action in North Carolina against the

FSU Board pursuant to the principle of priority. “In

general, when courts within one sovereignty have

concurrent jurisdiction, the court which first exercises its

jurisdiction acquires exclusive jurisdiction to proceed

with that case. This is called the ‘principle of

priority.’” . . . The Florida Supreme Court “has

determined that the application of the principle of

priority as between courts of sovereign jurisdictions is

based upon comity and thus a discretionary decision of

the trial court[.]” . . . As Siegel explained, the principle of

priority is “not applicable between sovereign jurisdictions

as a matter of duty. As a matter of comity, however, a

court of one state may, in its discretion, stay a

proceeding” in deference to another state’s proceeding.

Siegel at 1272.

Discretion is not abused where “additional factors or

circumstances which would also warrant a denial of stay

by the trial court” are present. Id. The ACC argues that

under [] Roche v. Cyrulnik, 337 So. 3d 86 (Fla. 3d DCA

2021), “extraordinary” circumstances must be found.

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Under Siegel, however, “additional,” rather than

“extraordinary,” circumstances must be shown.

Regardless of the terminology, the key is whether the

circumstances warrant denial of a stay. . . .

I find based on the record and within the Court’s

discretion that there are additional (and in fact

extraordinary) circumstances warranting denial of the

requested stay. Specifically, I find the North Carolina

action to be an “anticipatory filing” done in express

anticipation of the FSU Board’s lawsuit in Florida . . . .

In addition, the North Carolina action was brought in a

foreign state against a Florida sovereign entity—another

additional (and in fact extraordinary) circumstance.

Finally, I find that other factors, such as locations of

witnesses and evidence and applicable law, do not tip the

balance in favor of a stay.

....

Typically, the issue in “anticipatory suit” cases is

whether the competing case was in fact filed in

anticipation of the challenged case. . . . In the instant

case, the evidence shows that the ACC filed its

declaratory judgment suit in North Carolina in

anticipation of a next-morning filing in Florida by the

FSU Board. . . . President Ryan’s Declaration describes

the ACC learning on December 21, 2023 of the FSU

Board’s public notice of a meeting for the next day, and

the ACC’s becoming aware that the meeting was likely

for purpose of initiating litigation against the ACC.

President Ryan describes that the ACC filed its own

lawsuit in North Carolina on December 21, 2023

expressly in anticipation of the FSU Board’s to-be-filed

Florida lawsuit – the instant suit, which the ACC seeks

to stay upon the principle of priority. Although the ACC

argued they had an obligation to file their suit, they could

have done so long before learning of the to-be-filed action

and only did so after learning of the impending action in

Florida.

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President Ryan’s Declaration describes

circumstances very similar to some of the factual

scenarios set forth in the cases describing other examples

of anticipatory filings, above. On balance, I find the

record evidence in this proceeding, including the

complaints and the judicially-noticed matters, shows a

virtual classic case of anticipatory filing.

....

The FSU Board argues that the ACC’s initiation of

material litigation without the Required Vote renders the

ACC’s December 21, 2023 filing of its lawsuit in North

Carolina an ultra vires act, and therefore a nullity under

both Florida and North Carolina law. The court makes

no finding at this time as to whether that filing was an

ultra vires act, but does find that the lack of the Required

Vote (along with the Declaration of President Ryan and

other matters) is further evidence supporting the

conclusion that the ACC filing was an anticipatory suit

aimed at trying to head off the FSU Board from filing in

its chosen forum (and, indeed, exclusive forum, under

Florida law).

I also find that factors other than the priority rule

support the denial of a stay in the case. For instance,

there are significant questions about whether a sovereign

Florida entity can be sued for breach of contract and

damages in another state, and whether the sovereign

immunity can be deemed waived under the state’s

law. . . .

The FSU Board has raised issues about whether the

ACC’s claim of ownership of FSU’s media rights to its

home games post-exit from the ACC would involve a

taking by the ACC of property owned by a sovereign

Florida entity. Similarly, there are significant state

interests as to whether that subject matter constitutes

property of the State of Florida. I find that those issues

directly affect Florida more than North Carolina because

potential Florida, not North Carolina, property and

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monies are at issue. FSU is a Florida state entity, and is

directly funded by the State of Florida. I take judicial

notice that the Florida legislature provides state funds to

state universities in Florida.

....

There is also an issue of whether the subject matter

of this case constitutes property of the State of Florida

and whether certain documents (particularly ACC-ESPN

contracts) are Florida public records. As discussed at the

hearing, Florida law provides significant public access to

documents with state entities.

....

On balance, none of the cases cited by the ACC as

supporting application of the principle of priority come

anywhere close to the facts alleged here and the record,

including the ACC’s own sworn affidavit, showing a

night-before filing, in express sudden knowledge of an

impending lawsuit (consequent to the other party’s

obligation to provide public notice), for only declaratory

relief aimed at maintaining the “status quo,” relying on a

purported waiver of sovereign immunity of an admittedly

sovereign entity in a way that would mean every ACC

member has waived immunity for virtually any claim in

North Carolina.

Following the entry of the foregoing order, the North Carolina

court entered an Order and Opinion Staying Action Pending

Appeal. The court stayed all proceedings pending the North

Carolina Supreme Court’s final resolution of the FSU Board’s

appeal in the case from the North Carolina trial court’s denial of

its motion to dismiss for lack of personal jurisdiction based on

sovereign immunity. This proceeding followed.

Analysis

The common law writ of certiorari is an extraordinary remedy

that gives a higher court the prerogative to reach down and halt a

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miscarriage of justice. Univ. of Fla. Bd. of Trs. v. Carmody, 372

So. 3d 246, 251–52 (Fla. 2023). Certiorari review is not a

substitute for an appeal and is intended to be used only in very

limited circumstances. Id. at 252. The scope of certiorari is more

constrained than the review provided in a direct appeal because

the writ was not intended to redress mere legal error. Id.

Certiorari review is appropriate where (1) there was a departure

from the essential requirements of the law (2) that resulted in

material injury for the remainder of the case (3) that cannot be

corrected on post-judgment appeal. Id. The last two prongs of the

test are referred to as irreparable harm, and because they are

jurisdictional in nature, they must be analyzed before a court may

consider the first prong. Id.

In this case, the issue as framed by the ACC is “whether

Florida law requires the trial court to issue a priority-based stay

of this case pending disposition of the North Carolina case.” The

principle of priority is a matter of comity in which a court in its

discretion may stay a pending matter if a substantially similar

case is pending in another state’s court that first acquired

jurisdiction. Spacebox Dover, LLC v. LSREF2 Baron LLC, 112 So.

3d 751, 752 (Fla. 2d DCA 2013); see also Siegel v. Siegel, 575 So. 2d

1267, 1272 (Fla. 1991) (“Admittedly, this principle is not applicable

between sovereign jurisdictions as a matter of duty. As a matter

of comity, however, a court of one state may, in its discretion, stay

a proceeding pending before it on the grounds that a case involving

the same subject matter and parties is pending in the court of

another state.”); OPKO Health, Inc. v. Lipsius, 279 So. 3d 787, 793

(Fla. 3d DCA 2019) (“The ‘principle of priority’ dictates that the

first court to exercise jurisdiction retains the exclusive right to

hear the questions and issues arising from the case.”). The

rationale for the principle’s application is the avoidance of wasting

judicial resources in unnecessary and duplicative proceedings and

the risk of inconsistent judgments regarding the application of law

to the same factual dispute. Inphynet Contracting Servs., Inc. v.

Matthews, 196 So. 3d 449, 464 (Fla. 4th DCA 2016). The complete

identity of parties or causes of action is not required for a stay.

Spacebox Dover, LLC, 112 So. 3d at 752. It is sufficient that the

two actions involve a single set of facts and that the resolution of

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one case will resolve many of the issues involved in the later filed

case. ∗ Id.

Taking first the jurisdictional elements of whether any

departure from the essential requirements of the law would result

in material injury for the remainder of the case and whether any

departure could not be corrected on post-judgment appeal, both

elements are satisfied in this case. Indeed, in Reliable Restoration,

LLC v. Panama Commons, L.P., 313 So. 3d 1207, 1209 (Fla. 1st

DCA 2021), we held that the “possibility of inconsistent rulings

amongst different courts adjudicating related lawsuits is the

primary danger created by allowing the lawsuits to proceed

simultaneously” and that “[t]hat is a harm which is material to the

suit, and there is no possibility of remedying inconsistent rulings

on appeal.” See also Toth v. Toth, 359 So. 3d 352, 355 (Fla. 4th

DCA 2023) (finding that the irreparable harm element was

satisfied because “the relief the respondents sought in the Florida

action, if granted, would conflict with one or more orders already

entered in the earlier filed Pennsylvania action”).

We now turn to whether the trial court’s denial of the motion

to stay constitutes a departure from the essential requirements of

the law. In Siegel, the Florida Supreme Court discussed the

principle of priority and explained:

This does not mean that a trial court must always stay

proceedings when prior proceedings involving the same

issues and parties are pending before a court in another

state, but only that ordinarily this should be the result.

“There may well be circumstances under which the denial

of a stay could be justified upon a showing of the

prospects for undue delay in the disposition of a prior

action.” Schwartz v. DeLoach, 453 So. 2d 454, 455 (Fla.

2d DCA 1984). There may be additional factors or

∗

As the ACC and the FSU Board acknowledge, there is no

dispute that the Florida action and the North Carolina action are

substantially similar as both arise out of a dispute over the

interpretation of the Grant of Rights agreements.

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circumstances which would also warrant a denial

of stay by the trial court.

575 So. 2d at 1272 (emphasis added). The supreme court did not

elaborate on what the “additional factors or circumstances” might

include.

Florida’s appellate courts, including our court, have also

recognized the existence of circumstances other than undue delay

that may justify the denial of a priority-based stay. For instance,

in Reliable Restoration, LLC, we addressed the principle of priority

and stated in part:

Because the cases are substantially similar, comity

requires that the latter case be stayed in favor of the case

where jurisdiction first attached. Because service was

perfected in the in personam Georgia action prior to the

filing of the Bay County case, jurisdiction first attached

there. The Georgia case has priority, and nothing in the

record indicates the possibility of delay in the earlier

action or any other possible exceptional

circumstances which would warrant denying the

stay. See Siegel, 575 So. 2d at 1271. Thus, the trial court’s

denial of the stay was a departure from the well-

established, essential requirements of the law of comity.

313 So. 3d at 1210–11 (emphasis added); see also Ocwen Loan

Servicing, LLC v. 21 Asset Mgmt. Holding, LLC, 307 So. 3d 923,

926 (Fla. 3d DCA 2020) (noting that absent extraordinary

circumstances, a trial court abuses its discretion when it fails to

respect the principle of priority); Perelman v. Est. of Perelman, 124

So. 3d 983, 986 (Fla. 4th DCA 2013) (“Absent extraordinary

circumstances, a trial court abuses its discretion when it fails to

respect the principle of priority.”); In re Guardianship of Morrison,

972 So. 2d 905, 910 (Fla. 2d DCA 2007) (“Although the principle of

priority is discretionary, a trial court should stay proceedings

when prior proceedings are pending in a court of another state

unless there are special circumstances that would justify a denial

of the stay. Thus, absent such special circumstances, a trial court

abuses its discretion in refusing to grant a stay based on the

principle of priority.”).

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Both the ACC and the FSU Board acknowledge that no

Florida court has held that an anticipatory filing constitutes an

exceptional, extraordinary, special, or additional circumstance

that justifies the denial of a priority-based stay. The trial court

acknowledged that as well and thus looked to federal cases for

guidance. The cases support the court’s determination that an

anticipatory filing may be considered when ruling on a motion for

a priority-based stay. For instance, in National Broom Company

of California, Inc. v. Brookstone Company, Inc., No. C 09-00959

JSW, 2009 WL 2365677, at *2 (N.D. Cal. July 30, 2009), the federal

district court explained that under the “‘first-to-file’ rule, a district

court may decline jurisdiction over an issue that is properly before

another district court.” The court noted that certain “[s]pecial

circumstances” may warrant granting an exception to the first-to-

file rule, including bad faith, an anticipatory suit, and forum

shopping. Id. It explained that an “action is anticipatory when

the plaintiff files it upon receipt of specific, concrete indications

that a suit by the defendant is imminent” and that such a suit is

disfavored. Id. at *3. In granting the stay, the court found that a

departure from the first-to-file rule was warranted where the

plaintiff “filed the action in this Court in anticipation of [the

defendant’s] lawsuit . . . .” Id.; see also In re: Amperex Tech. Ltd.,

No. 2022-105, 2022 WL 135431, at *1-2 (Fed. Cir. Jan. 14, 2022)

(explaining that the appellant unsuccessfully sought mandamus

relief from an order of the federal district court in New Jersey

transferring its complaint to the Western District of Texas based

upon its first-to-file analysis and concluding that the appellant had

not shown a right under the first-to-file rule to prevent transfer of

the case and that the district court made a reasonable finding that

the appellant’s “suit was anticipatory, given the sequence of

communications . . . .”); Manuel v. Convergys Corp., 430 F.3d 1132,

1137 (11th Cir. 2005) (“[O]ur precedent does not stand for the

proposition that the district court was required to dismiss a

declaratory judgment action when the action was filed in apparent

anticipation of another proceeding. . . . Instead, our precedent

stands for the proposition that the district court did not abuse its

discretion in relying on that fact to dismiss the action.”); Equal

Emp. Opportunity Comm’n v. Univ. of Pa., 850 F.2d 969, 974 (3rd

Cir. 1988) (“To be sure, this is the type of situation that prompted

the first-filed rule. . . . The potential conflict, however, is of the

University’s own making. Indeed, it must have anticipated this

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problem when it decided to preempt an inevitable subpoena

enforcement action by filing suit three days before expiration of the

EEOC grace period in what it perceived as a more favorable forum.

. . . [V]iewing the totality of the circumstances, the district court

did not abuse its discretion by declining to dismiss the second-filed

suit.”); Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599,

602 (5th Circ. 1983) (affirming the dismissal of a declaratory

judgment action and finding that “[t]here is sufficient evidence

here to support the district court’s conclusion that Mission’s action

was in anticipation of Puritan’s California suit” and that “[t]he

district court therefore acted within its discretion in considering

the anticipatory nature of this suit”); Payne v. Kennedy Johnson

Gallagher LLC, No. CV-10-297-PHX-DGC, 2010 WL 2079928, at

*1 (D. Ariz. May 24, 2010) (“Because this action was brought before

KJG filed the New York action, strict application of the first-to-file

rule would cause the Court to retain, rather than dismiss, this suit.

. . . Indeed, the ‘most basic aspect of the first-to-file rule is that it

is discretionary[.]’ . . . Gallagher’s testimony establishes that this

action was filed only five days after KJG explicitly threatened

imminent suit against Payne and MPI. . . . The Court, on the basis

of that undisputed evidence, finds that this action constitutes an

anticipatory suit for purposes of the first-to-file rule.”).

The trial court also cited to a North Carolina case on the issue.

See Coca-Cola Bottling Co. Consol. v. Durham Coca-Cola Bottling

Co., 141 N.C. App. 569, 579 (N.C. App. 2000) (“We also note that

in situations in which two suits involving overlapping issues are

pending in separate jurisdictions, priority should not necessarily

be given to a declaratory suit simply because it was filed earlier.

Rather, if the plaintiff in the declaratory suit was on notice at the

time of filing that the defendant was planning to file suit, a court

should look beyond the filing days to determine whether the

declaratory suit is merely a strategic maneuver to achieve a

preferable forum.”).

In its appellate briefs, the ACC argued that an anticipatory

filing cannot constitute an exceptional circumstance that would

justify the denial of a priority-based stay. However, during oral

argument, the ACC abandoned this contention when it

acknowledged that an anticipatory filing may in fact constitute a

special, additional, exceptional, or extraordinary circumstance.

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Although no Florida appellate court has expressly addressed the

issue, the foregoing case law confirms the ACC’s acknowledgment

to be correct and leads us to conclude that the trial court did not

depart from the essential requirements of the law in its analysis.

See Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.

3d 712, 723 (Fla. 2012) (“[C]ertiorari jurisdiction cannot be used to

create new law where the decision below recognizes the correct

general law and applies the correct law to a new set of facts . . . .”).

The ACC’s primary assertion during oral argument was that

the trial court departed from the essential requirements of the law

in finding that its North Carolina action constituted an

anticipatory filing. Yet, this was not a situation where the trial

court merely implied from the timing of the ACC’s suit that it acted

in anticipation of the FSU Board’s suit. Cf. Diversified Metal

Prods., Inc. v. Odom Indus., Inc., No. 1:12-cv-00162-BLW, 2012

WL 2872772, at *4 (D. Idaho July 12, 2012) (“The only remaining

exception is anticipatory suit, which occurs where the filing

plaintiff has received specific, concrete indications that a suit by

the defendant is imminent. . . . Odom received no such ‘concrete

indications’ that a suit by DMP was imminent, so anticipatory suit

likewise does not apply.”). Instead, the trial court relied upon Dr.

Ryan’s declaration in which he represented that he authorized the

ACC’s lawsuit on the same day it came to his attention that the

FSU Board, which he knew was considering withdrawal from the

ACC, a challenge to the Grant of Rights agreements, or both, had

scheduled an emergency meeting for the following day. The trial

court did not depart from the essential requirements of the law in

basing its finding of an anticipatory filing on competent,

substantial evidence. It is important to consider as well that the

trial court did not rely only on the ACC’s anticipatory filing in

denying the motion to stay. The court also found that the ACC’s

action was brought “in a foreign state against a Florida sovereign

entity” and that there are “significant state interests as to whether

that subject matter constitutes property of the State of Florida.”

In conclusion, because the ACC has failed to establish an

entitlement to certiorari relief, we deny its petition on the merits.

DENIED on the merits.

BILBREY and M.K. THOMAS, JJ., concur.

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_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

Alan Lawson, Paul C. Huck, Jr., Jessica Slatten, Raymond F.

Treadwell, and Robert E. Minchin, III, of Lawson Huck Gonzalez,

PLLC, Tallahassee, for Petitioner.

Elliot H. Scherker of Greenberg Traurig, P.A., Miami; David C.

Ashburn and John K. Londot of Greenberg Traurig, P.A.,

Tallahassee; Peter G. Rush of Greenberg Traurig, P.A., West Palm

Beach, for Respondent.

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