Case No. SC DCA Case No. 2D On Requested Discretionary Review from the District Court of Appeal of Florida, Second District

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1 Case No. SC DCA Case No. 2D On Requested Discretionary Review from the District Court of Appeal of Florida, Second District IN THE SUPREME COURT OF THE STATE OF FLORIDA KARL E. WIEDAMANN Petitioner vs. JAN L. MURLEY Respondent PETITIONER'S JURISDICTIONAL BRIEF SILVERIO & HALL, P.A. 400 Fifth Avenue South, Suite 301 Naples, Florida ROTH, BLAIR, ROBERTS, STRASFELD & LODGE, LPA 100 Federal Plaza East, Suite 600 Youngstown, Ohio LAW OFFICES GREENE SMITH & ASSOCIATES, P.A S.W. 61 st Court Miami, Florida Dated: March 1, 2010

2 TABLE OF CONTENTS Page Table of Citations iii Introduction Statement of the Case and Facts Summary of the Argument Argument: THE DISTRICT COURT'S DECISION HEREIN CONFLICTS WITH THE FOLLOWING DECISIONS SUCH THAT THIS COURT'S REVIEW IS NECESSARY TO RESOLVE THE CLEAR CONFLICT BETWEEN THESE OPINIONS: Aerothrust Corp. v. Granada Ins. Co., 904 So.2d 470 (Fla. 3rd DCA 2005); Quarantello v. Leroy, 977 So.2d 648 (Fla. 5th DCA 2008); Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000) and Hand v. Grow Construction, 983 So.2d 684 (Fla. 1st DCA 2008) Conclusion Certificate of Service Statement of Compliance with Rule 9.210(a)(2) ii

3 TABLE OF CITATIONS 14 th & Heinberg, L.L.C. v. Henricksen & Co. 877 So.2d 34, 37 (Fla. 1st DCA 2004) Page Aerothrust Corp. v. Granada Ins. Co. 904 So.2d 470 (Fla. 3rd DCA 2005) , 5 Hand v. Grow Construction 983 So.2d 684 (Fla. 1st DCA 2008) Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A. 771 So.2d 628 (Fla. 4th DCA 2000) Nielsen v. City of Sarasota 117 So.2d 731 (Fla. 1960) Planes v. Planes 432 So.2d 105 (Fla. 3rd DCA 1983) Quarantello v. Leroy 977 So.2d 648 (Fla. 5th DCA 2008) , 5 Ross v. Ross 20 So.3d 396 (Fla. 4th DCA 2009) Williams v. Duggan 153 So.2d 726 (Fla. 1963) iii

4 INTRODUCTION The Petitioner, KARL E. WIEDAMANN, was the Appellee in the District Court of Appeal, Second District and the Husband in the dissolution of marriage proceedings at the trial level. The Respondent, JAN L. MURLEY, was the Appellant in the District Court and the Wife in the trial court proceedings. The parties shall be referred to herein as "the Husband" and "the Wife." References to the Appendix shall be indicated by the abbreviation "App." All emphasis is supplied unless otherwise noted. STATEMENT OF THE CASE AND FACTS Prior to their marriage in January, 1989, the Husband and Wife entered into a prenuptial agreement in Cincinnati, Ohio. (App. 2). The provisions of the Agreement relevant to the proceedings at the trial and appellate level were the following: All rights and interests of Jan and Karl now or hereafter vested in their respective participant's account under the Procter & Gamble Company Employees Profit Sharing Plan or under any other Profit Sharing, Pension or Employee Benefit Plan of any other employer together with all additional employer contributions thereto made after their marriage as well as all earnings thereon and appreciation shall be regarded as such party's separate non-marital property. All rights and interests of Jan and Karl now existing or hereafter acquired or arising under any other Employee Benefit Plan of any current or future employer (such as, by way of illustration only, stock options, restricted stock grants or flexible benefit plans) shall be regarded as such party's non-marital property. (Emphasis in District Court's opinion). 1

5 * * * Any of Jan's present or future rights to retirement benefits, profit sharing or other forms of retirement plans and/or pensions from her being duly employed shall be her separate non-marital property. The parties were married for eighteen years during which, as the District Court recited, "the Wife received stock options from her employment with Procter & Gamble and stock options, deferred stock units, and director's fees from her service as an independent member of the Board of Directors of the Clorox Corporation." (App. 3). 1 The issue before the trial court was thus whether the Wife's stock and stock options received from Procter & Gamble constituted marital property under the terms of the Agreement which issue, in turn, should have been dependent upon the meaning of the term "Employee Benefit Plan" as used in the parties' Agreement. The trial court found that the language of the Agreement was "ambiguous or ill defined as it relates to 'Employee Benefit Plan'" and after considering extrinsic evidence, concluded that the stock and stock options received by the Wife from Procter & Gamble and from Clorox were marital assets. (App. 4). The District Court held that the "plain language" of the parties' Agreement excluded "stock options from marital property" because "the prenuptial agreement 1 Thus, the distinction between the Wife's employment with Procter & Gamble and her service as "an independent member" of the Clorox Corporation's Board of Directors (thus not as an "employee") was clearly noted by the District Court. This distinction is critical because stock options granted to the Wife as a director, in lieu of salary, would clearly not fall within the "Employee Benefit Plan" exclusion of the Agreement. 2

6 provides no specific definition of 'any other Employee Benefit Plan,' but uses stock options as an example of a right or interest acquired under an Employee Benefit Plan to be treated as non-marital property." The District Court also held that the Wife's Clorox stock options and deferred stock fell within the provision of the Agreement excluding "retirement benefits, profit sharing or other forms of retirement plans and/or pensions from her being duly employed " (App. 4). SUMMARY OF THE ARGUMENT The Second District herein focused a laser beam on words ("stock options") utilized by the parties in their Agreement intended simply to provide examples ("by way of illustration only") of the types of benefits which might comprise a part of an "Employee Benefit Plan" and by so doing held that any and all stock options received by the Wife during the marriage were her separate property without regard to whether such were received as part of what is the customary, usual and understood meaning of the words "Employee Benefit Plan." As such, the opinion herein directly conflicts with the commonly accepted doctrine of contract interpretation that a word is known by the company it keeps, and one must examine the other words used in a string of concepts to derive the drafters' intent. Aerothrust Corp. v. Granada Ins. Co., 904 So.2d 470 (Fla. 3rd DCA 2005). It also conflicts with the doctrine of interpretation that where an enumeration of specific things is followed by some more general word or phrase, such general word or 3

7 phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated. Quarantello v. Leroy, 977 So.2d 648 (Fla. 5th DCA 2008). The opinion is irreconcilable with the overall rule of contract interpretation based on the "plain language" or "plain meaning" of contract terms. ARGUMENT THE DISTRICT COURT'S DECISION HEREIN CONFLICTS WITH THE FOLLOWING DECISIONS SUCH THAT THIS COURT'S REVIEW IS NECESSARY TO RESOLVE THE CLEAR CONFLICT BETWEEN THESE OPINIONS: Aerothrust Corp. v. Granada Ins. Co., 904 So.2d 470 (Fla. 3rd DCA 2005); Quarantello v. Leroy, 977 So.2d 648 (Fla. 5th DCA 2008); Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000) and Hand v. Grow Construction, 983 So.2d 684 (Fla. 1st DCA 2008). 2 The principal situations justifying the invocation of the jurisdiction of this Court are, (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2) the application of a rule of law to produce a different result in a case which involves similar controlling facts as a prior case thus making the decisions irreconcilable. See Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960); Williams v. Duggan, 153 So.2d 726 (Fla. 1963). 2 Although the parties' Agreement specified that it was to be interpreted under Ohio law, the District Court relied upon both Florida and Ohio decisions, opining that "Ohio and Florida courts employ the same principles of contract interpretation." (App. 4). The Court cited as authority Ohio and Florida cases with respect to each portion of its ruling pertaining to the interpretation of the Agreement. (App. 4). As such, the conflict existing herein is between Florida decisions applying Florida law. 4

8 The District Court's opinion herein is precisely so "irreconcilable" with the decisions of the Third District Court of Appeal in Aerothrust Corp. v. Granada Ins. Co., 904 So.2d 470 (Fla. 3rd DCA 2005) and the Fifth District Court of Appeal in Quarantello v. Leroy, 977 So.2d 648 (Fla. 5th DCA 2008) by virtue of its holding that because the parties' Agreement used the words "stock options" as an example of the type of right or interest that one might acquire as part of an "Employee Benefit Plan," then any and all stock options, however received by a party, would be subject to that language without regard to the commonly understood meaning of the term "Employee Benefit Plan" and, in the case of the Wife's Clorox stock, without regard to whether the Wife was even an employee of the company. 3 As such, the opinion herein directly conflicts with the commonly accepted doctrine of contract interpretation known as noscitur a sociis, which means that a word is known by the company it keeps, and one must examine the other words used in a string of concepts to derive the drafters' intent. Aerothrust, supra. It also conflicts with the doctrine of interpretation known as ejusdem generis, which means that where an enumeration of specific things is followed by some more general word or 3 The problem with the District Court's analysis herein was that the parties' Agreement specifically excludes from marital assets only stock options or other stock grants made under a "Profit Sharing, Pension or Employee Benefit Plan," and not stock options/grants made in any other fashion as, for example, as a form of compensation in lieu of salary. 5

9 phrase, such general word or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated. Quarantello, supra. In Aerothrust, supra, the issue was the interpretation of the language of an insurance policy with an exclusion entitled "professional services exclusion" which excluded coverage for property damage that occurs "due to rendering or failing to render any professional services or treatments." The professional services exclusion also included a "non-exclusive list of services which are included in the definition." The list was "including legal, accounting, or advertising services; engineering, drafting, surveying, or architectural services; supervisory, inspection or appraisal services; medical services; cosmetic services; testing or consulting services; and data processing or computer programming services." The insurance company argued that the inspection, or lack of inspection, of a piece of equipment fell within the professional services exclusion because the word "inspection" was included in the list. Based upon the doctrine of noscitur a sociis, the Third District disagreed: It is apparent from the types of services listed that the services which are meant to be excluded as professional are those which require specialized training. This is consistent with the general definition of 'professional.' See Black's Law Dictionary 1246 (8 th ed 2004) (Defining 'professional' as 'a person who belongs to a learned profession or whose occupation requires a high level of training and proficiency.') Therefore, in accordance with the doctrine of noscitur a sociis, although the exclusionary list includes inspection services, only those inspection services which require specialized training should be considered professional services. (Id. at 472). 6

10 Thus, the Third District did not allow the list of examples to change the common meaning of the words making up the applicable term "professional services." Here, however, the Second District held that the fact that the words "stock options" were included in the list of examples of the type of benefits that might be part of an "Employee Benefit Plan," somehow altered the common meaning of the words making up the applicable term "Employee Benefit Plan." 4 In Quarantello, supra, the Fifth District applied the doctrines of ejusdem generis and noscitur a sociis in statutory construction relating to Section (3), Florida Statutes, which provides "the failure to provide and use a child 4 We point out that the words "Employee Benefit Plan" were capitalized in the pertinent section of parties' Agreement, to wit: "All rights and interests of Jan and Karl now or hereafter vested in their respective participant's account under the Procter & Gamble Company Employees Profit Sharing Plan or under any other Profit Sharing, Pension or Employee Benefit Plan of any other employer together with all additional employer contributions thereto made after their marriage as well as all earnings thereon and appreciation shall be regarded as such party's separate non-marital property. All rights and interests of Jan and Karl now existing or hereafter acquired or arising under any other Employee Benefit Plan of any current or future employer (such as, by way of illustration only, stock options, restricted stock grants or flexible benefit plans) shall be regarded as such party's non-marital property." A reasonable reading of the last two sentences is that the reference in the second sentence to "Employee Benefit Plan" had to relate to and have the same meaning as the "Plans" capitalized in the first sentence. Otherwise, the drafter would have used smaller case letters to describe an employee benefit plan as something different in the second sentence. The second sentence gives examples of what type of assets (such as stock options) may be in another or future Employee Benefit Plan, other than the existing P&G Employees Profit Sharing Plan. 7

11 passenger restraint shall not be considered comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence." The Court determined that the latter use of the word "negligence" referred to the former words "comparative negligence" and, therefore, only evidence of comparative negligence was excluded by the statute. In a footnote, the Court noted: "The doctrine of ejusdem generis is actually an application of the broader maxim of noscitur a sociis which means that general and specific words capable of analogous meaning when associated together take color from each other so that the general words are restricted to a sense analogous to the specific words." (Id. at 653). Thus, in the instant case the specific list "by way of illustration only" of the terms "stock options, restricted stock grants or flexible benefit plans" was meant only to provide a sense of the specific phrase, "Employee Benefit Plan." It should not have altered the phrase itself. A further example of the foregoing appears in Planes v. Planes, 432 So.2d 105 (Fla. 3rd DCA 1983) in which the Third District construed the following language in a settlement agreement: "Court Costs: Husband shall pay within thirty (30) days hereof $4, according to statement to be furnished to Husband to reimburse them for costs advanced in the above referenced cause. Wife represents to Husband that said costs are for Court Reporters, filing fees, Sheriff's service, process service, and only matters relating to the Wife's costs and does not 8

12 relate to any investigatory fees that may have been incurred by Wife's counsel." The Court ordered the husband to pay the exact amount of $4,136.89, despite the fact that some of the costs adding up to such amount did not fall within the list of examples provided in the settlement agreement language. In other words, the Court relied upon the customary meaning of "$4,136.89," rather than the various examples that followed it. 5 The District Court's decision herein further conflicts with the established law of this State (and that of the State of Ohio as noted in the opinion) that "in construing a contract, the legal effect of its provisions should be determined from the words of the entire contract." Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 631 (Fla. 4th DCA 2000). As specifically held by the First District Court of Appeal in Hand v. Grow Construction, 983 So.2d 684, 687 (Fla. 1st DCA 2008): To give the proper meaning to a specific contract provision, a court must consider it in context of the entire contract. Stated another way, an isolated sentence of a contract should not be construed alone, but it should be construed in connection with other provisions to arrive at a reasonable construction to accomplish the intent and purposes of the parties. 5 See also 14 th & Heinberg, L.L.C. v. Henricksen & Co., 877 So.2d 34, 37 (Fla. 1st DCA 2004) ("We are also mindful of the doctrine of noscitur a sociis, under which a court examines the other words within a string of concepts to derive the Legislature's overall intent"). 9

13 Yet, in this case, the Second District focused a laser beam on words utilized by the parties in their Agreement clearly intended to provide examples ("by way of illustration only") of the types of benefits which might comprise a part of an "Employee Benefit Plan." By so doing, the Court abandoned the customary, usual and understood meaning of the words "Employee Benefit Plan." 6 CONCLUSION The decision of the District Court of Appeal in the instant case clearly and directly conflicts with the decisions of Aerothrust Corp. v. Granada Ins. Co., 904 So.2d 470 (Fla. 3rd DCA 2005); Quarantello v. Leroy, 977 So.2d 648 (Fla. 5th DCA 2008); Khosrow Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628 (Fla. 4th DCA 2000) and Hand v. Grow Construction, 983 So.2d 684 (Fla. 1st DCA 2008) and, therefore, this Court should grant discretionary review herein. 6 See also, Ross v. Ross, 20 So.3d 396, 399 (Fla. 4th DCA 2009), holding that life insurance proceeds received by a husband upon the death of his brother were not a marital asset within the meaning of the term "life insurance plan" as used in , Florida Statutes and opining that "the meaning of particular terms of a statute may be ascertained by reference to the words associated with it in the statute" and the "insurance plans or programs referred to in the statute are those which are intended to create value as an asset, such as whole life insurance involving cash surrender value purchased for retirement planning." 10

14 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a copy of the foregoing Jurisdictional Brief (and accompanying Appendix) was served by mail upon counsel for the Respondent, ANDREW S. BERMAN, ESQ., Young, Berman, Karpf & Gonzalez, P.A., W. Dixie Highway, North Miami Beach, Florida, 33160, this 1st day of March, SILVERIO & HALL, P.A. 400 Fifth Avenue South, Suite 301 Naples, Florida (239) (239) (Facsimile) ROTH, BLAIR, ROBERTS, STRASFELD & LODGE, LPA 100 Federal Plaza East, Suite 600 Youngstown, Ohio LAW OFFICES GREENE SMITH & ASSOCIATES, P.A S.W. 61 st Court Miami, Florida (786) (786) (Facsimile) By: CYNTHIA L. GREENE 11

15 STATEMENT OF COMPLIANCE WITH RULE 9.210(a)(2) WE HEREBY CERTIFY that this Jurisdictional Brief of Petitioner has been prepared in compliance with Rule 9.210(a)(2), Florida Rules of Appellate Procedure, using 14 point Times New Roman font. Law Offices of Greene Smith & Associates, P.A S.W. 61st Court Miami, Florida (786) By: CYNTHIA L. GREENE 12