SUPREME COURT OF FLORIDA CASE NO. SC th DCA CASE NO. 4D L.T. CASE NO. CACE (13)

Transcription

1 SUPREME COURT OF FLORIDA CASE NO. SC th DCA CASE NO. 4D L.T. CASE NO. CACE (13) ASAL PRODUCTS, INC., a Florida corporation, vs. Petitioner, OFFICE PAVILION SOUTH FLORIDA, INC., a Florida corporation, Respondent. / RESPONDENT OFFICE PAVILION SOUTH FLORIDA, INC. S BRIEF ON JURISDICTION MARK D. SOLOV, ESQ. Florida Bar No CHRISTOPHER L. BARNETT, ESQ. Florida Bar No STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Attorneys for Respondent Office Pavilion South Florida, Inc. 150 West Flagler Street Suite Museum Tower Miami, Florida 33130

2 (305) Telephone (305) Telefax

3 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...ii-iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 2 A. The Decision... 2 B. The Conflict Cases... 4 C. Discretion... 9 CONCLUSION... 9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF COMPLIANCE i-

4 TABLE OF AUTHORITIES Cases Page Clark v. State, 651 So.2d 1309 (Fla. 3d DCA 1995)... 6 Florida-Georgia Chemical Co. v. Nat l Labs., Inc., 153 So.2d 752 (Fla. 1st DCA 1963)... 6, 8, 9 Le Noir v. McDaniel, 86 So. 435 (Fla. 1920)... 6 Metropolitan Dade County v. Chase Federal Housing Corp., 737 So.2d 494 (Fla.1999)... 3 Murray v. Zynyx Marketing Communications, Inc., 774 So.2d 714 (Fla. 3d DCA 2000)... 6 Office Pavilion So. Fla., Inc. v. Asal Prods., Inc., 849 So.2d 367 (Fla. 4th DCA 2003) , 7, 9 Ponce Development Co. v. Espino, 449 So.2d 317 (Fla. 3d DCA 1984)... 6 Reaves v. State, 485 So.2d 829 (Fla. 1986)... 3 Rohlfing v. Tomorrow Realty & Auction Co., Inc., 528 So.2d 463 (Fla. 5th DCA 1988)...6, 7 Russell v. Martin, 88 So.2d 315 (Fla. 1956)... 5 Sanchez v. Crandon Wholesale Drug Co., 167 So.2d 640 (Fla. 3d DCA 1964), rev d, 173 So.2d 687 (Fla. 1965) Tampa Northern R. Co. v. City of Tampa, 140 So. 311 (Fla. 1932)...4, 5 Wainwright v. Taylor, 476 So.2d 669 (Fla. 1985)...2, 9 -ii-

5 TABLE OF AUTHORITIES - Cont d Rules and Statutes Rule 9.210(a)(2), Fla. R. App. P (2), Fla. Stat Other Authorities Art. V, 3(b)(3), Fla. Const iii-

6 PRELIMINARY STATEMENT In Office Pavilion So. Fla., Inc. v. Asal Prods., Inc., 849 So.2d 367 (Fla. 4th DCA 2003)( Decision ), the Fourth District Court of Appeal determined the contract for the purchase and sale of goods that Petitioner Asal Products, Inc. ( Asal ) sued upon was unenforceable for three independent reasons: (i) lack of consideration; (ii) lack of an essential term; and (iii) failure to satisfy the Statute of Frauds. However, only one of those reasons is the subject of this discretionary proceeding. Asal argues a conflict exists between the Decision s application of the law of consideration and a number of opinions from this Court, and other district courts. No conflict exists. Nevertheless, even if there were a conflict, the outcome of the underlying controversy would not change given the independence and sufficiency of the District Court s other two reasons for the outcome. Asal s Petition, therefore, should be summarily dismissed. STATEMENT OF THE CASE AND FACTS -1-

7 Pavilion relies on the facts stated within the four corners of the Decision and objects to Asal s reference to facts not recited by the Decision s text. SUMMARY OF THE ARGUMENT Asal does not argue the Decision misstates a rule of law (i.e., holding conflict ). Rather, it argues the District Court applied the law inconsistently with the purported conflict decisions (i.e., erroneous use ). Specifically, Asal argues the Decision conflicts with certain cases which apply the rule that bi-lateral executory contracts, lacking in consideration, may become enforceable through performance. Asal fails to recognize, however, that each of the conflict cases requires that such performance to be of a bargained for act. Thus, the Decision presents no conflict. Rather, it invokes and applies the same rule a number of the conflict cases apply, but the Decision recognizes that Asal did not perform any bargained for act. 849 So.2d at The remainder of the cited conflict cases are so dissimilar from the Decision as to have no meaningful application at all. Consequently, the Decision does not create a direct and express conflict within the meaning of Art. V, 3(b)(3), Fla. Const. However, even assuming arguendo jurisdiction exists, the Court should refrain from exercising it in accordance with -2-

8 Wainwright v. Taylor, 476 So.2d 669 (Fla. 1985). Even remedying the purported conflict would not change the outcome because the contract was found to be unenforceable for independent reasons Asal does not challenge. ARGUMENT A. The Decision The District Court concluded the contract for the purchase and sale of office chairs was unenforceable because the consideration Asal gave was illusory. The Decision acknowledges, however, that the illusory contract could have been cured had Asal supplied some alternative form of consideration. 849 So.2d at 370. Accordingly, the District Court duly considered, but rejected each of Asal s three proffered theories of curative consideration: (i) an express promise, the court rejected as illusory ; (ii) independent marketing efforts, the court rejected as unbargained for; and -3-

9 (iii) an implied promise, the court also rejected as illusory So.2d at Asal now argues that the Decision s rejection of the second theory of curative consideration conflicts with the cited conflict opinions because the District Court required Asal s conduct to relate to the parties bargain. See Petitioner s Brief on Jurisdiction, at 8 ( Contract law does not tie consideration to a specific covenant in the contract... ). All of the cited conflict cases, however, either recognize that consideration must be bargained for, or they are silent on the point and have no application to facts of this case. 1 Below, Asal proffered three (and only three) theories of curative consideration. 849 So.2d at (identifying the three). Now, Asal for the first time suggests other theories supplied the curative consideration. Even assuming this untimely argument is not waived, see generally Metropolitan Dade County v. Chase Federal Housing Corp., 737 So.2d 494, 499 n.7 (Fla.1999) (argument not raised in the District Court is not preserved for appellate review), the new theories will not support conflict jurisdiction. Asal s pre-contract purchase of sample chairs and the delivery of forecasts of potential orders are not acts linked to the bargain identified within the Decision s four-corners. See Reaves v. State, 485 So.2d 829, 830, n. 3 (Fla. 1986)( The only facts relevant to our decision to accept or reject [conflict] petitions are those facts contained within the four corners of the decisions allegedly in conflict. ). And, the Decision makes clear that the sales orders Asal attempted to make were contractually defective. 849 So.2d at (no deposit or model numbers, deposit check returned for insufficient funds ). -4-

10 B. The Conflict Cases Tampa Northern R. Co. v. City of Tampa, 140 So. 311 (Fla. 1932), best illustrates the flaw in Asal s conflict theory. Tampa Northern recognizes that consideration must be linked to the parties bargain; or put differently, consideration must be at the consent... of the defendant. Id. at 313. In Tampa Northern, the City of Tampa ( City ) contracted to convey certain real property to a railroad if it promised to fill the submerged lands and make other improvements to the property. Id. at 312 (the City promised to convey real property on condition that said property be used... for [commercial purposes]. ). When the railroad sought to reform the City s deed because of a vague legal description, the City argued the contract to convey the property lacked consideration. This Court noted the railroad had in compliance with the contract filled in said lands and that they are now occupied and being used for commercial purposes. Id. at 313 (emphasis added). Thus, this Court found consideration existed where the performance was an act specifically required by the contract as it was written. Compare Petitioner s Brief on Jurisdiction at 5 (asserting conflict because District Court linked consideration to the Contract, as it was written ). The Tampa -5-

11 Northern decision alone should be sufficient to discredit Asal s assertion of conflict jurisdiction. Likewise, Russell v. Martin, 88 So.2d 315 (Fla. 1956), involved curative consideration expressly linked to the parties bargain. Id. at 317. In Russell, a railroad gave Russell a licence to use its crossing in exchange for Russell s promise to indemnify and hold the railroad harmless from any claims of injury arising from Russell s use. Russell later sued the railroad when his minor son was killed on the crossing. When the railroad sought to enforce the indemnity provision as a defense to Russell s claim for negligence, Russell asserted the contract was unenforceable for lack of mutuality. This Court found: There is... no basis for the contention that the agreement is void for lack of mutuality.... it had been in effect for seven years and the Railroad had performed its part. The consideration running to the Railroad was Russell s agreement not to hold it liable for any accident on the crossing. Id. A more explicit expression of bargain-linked consideration can scarcely be conceived. Like the foregoing, Le Noir v. McDaniel, 86 So. 435 (Fla. 1920), Murray v. Zynyx Marketing Communications, Inc., 774 So.2d 714 (Fla. 3d DCA 2000), Clark v. State, 651 So.2d 1309 (Fla. 3d DCA 1995), Ponce Development Co. v. Espino, 449 So.2d -6-

12 317 (Fla. 3d DCA 1984), and Florida-Georgia Chemical Co. v. Nat l Labs., Inc., 153 So.2d 752 (Fla. 1st DCA 1963) all involve conduct, i.e. performance, which was bargained for by the parties. See Le Noir, 86 So. at 437 (employment agreement where the employee had discharged her part of the obligation )(emphasis added); Murray, 774 So.2d at 716 ( the contract has been performed by both sides )(emphasis added); Clark, 651 So.2d at 1310 ( the state and the court...in fact fulfilled their part of the bargain )(emphasis added); Ponce, 449 So.2d at 319 ( the contract became executed by the promisor s full performance according to the terms of the contract )(emphasis added); and Florida-Georgia, 153 So.2d at 754 (... pursuant to said agreement the plaintiff... spent large sums of money to advertise National s products. )(emphasis added). Asal s remaining conflict cases involve facts and holdings so disconnected from this case as to have no meaningful application. For example, Asal cites Rohlfing v. Tomorrow Realty & Auction Co., Inc., 528 So.2d 463 (Fla. 5th DCA 1988), an opinion which expressly limited itself to its own admittedly unique subject matter: auction sales of real estate. In holding auction sales contracts enforceable, the Fifth District Court of -7-

13 Appeal explicitly noted the uniqueness of the circumstances and the ruling: An auction sale is an ancient and legitimate method of selling land but is relatively unique and its peculiarity has caused the evolution of novel applications of several basic legal principles. Id. at 466 (emphasis added). In fact, so as not to understate the uniqueness of auction sales, the court further limited its holding by noting that auction sales are unlike the ordinary sale agreement in the form of a negotiated written, signed document, which is completed when the second party signs the agreement. Id. at 466. At issue here is the enforceability of an ordinary sale agreement. 849 So.2d at 368 ( [Asal s representative] contacted Pavilion s sales manager... to negotiate a contract for the sale of [goods]. ). Rohlfing does not expressly and directly conflict with the Decision. Likewise, Petitioner s final conflict case, Sanchez v. Crandon Wholesale Drug Co., 173 So.2d 687 (Fla. 1965), presents no express and direct conflict. Sanchez involved an agency agreement whereby Sanchez agreed to act as a wholesaler s sales agent in exchange for a percentage of his sales. Sanchez v. Crandon Wholesale Drug Co., 167 So.2d 640 (Fla. 3d DCA 1964), rev d, 173 So.2d 687 (Fla. 1965). The agency agreement, however, was purposefully terminable at will. Soon after Sanchez -8-

14 began his agency, the wholesaler exercised its right to terminate. Id. In response to his termination, Sanchez sued for his start-up costs. Id. The Third District Court of Appeal affirmed the trial court s dismissal of Sanchez s case, holding that the wholesaler was within its rights to terminate the agreement when it did, and that Sanchez unadvisedly rel[ied] on an agreement which could be terminated at any time. Id. This Court reversed, citing without commentary Florida-Georgia Chemical Co., Inc. v. Nat'l Labs., Inc., 153 So.2d 752 (Fla. 1st DCA 1963), and noting Judge Carroll s Sanchez dissent in which he argued that where a contract is terminable at will the law implies an obligation to pay damages for reasonably incurred preliminary expenses. Id.; see Sanchez, 167 So.2d at 641. Asal argues that the Sanchez Court adopted Florida-Georgia s discussion of mutuality of obligation. 2 See Petitioner s Brief on Jurisdiction at 7. Sanchez, however, never quotes that language, as Asal s misleading paragraph structure might suggest. In reality, Sanchez adopted Florida-Georgia s ruling 2 Florida-Georgia s discussion of mutuality does not conflict with the present case because, as discussed above, it too links curative consideration to the contract. See Florida- Georgia, 153 So.2d at 755 (... one party may be liable to the other... for the period during which the contract was performed. ) (Emphasis added). -9-

15 on the recovery of a sales agent s start-up costs after the termination of his at will agency agreement:... if it appears that the agent, induced by his appointment, has in good faith incurred expense, devoted time, and bestowed labor in the matter of the agency without having sufficient opportunity to recoup such outlays from the undertaking, the principal will be required to compensate him in that behalf.... See Florida-Georgia, 153 So.2d at 755. Thus, the Court revived Sanchez s claim for his start-up costs because, consistent with Judge Carroll s dissent, the law implies an obligation to pay damages for reasonably incurred preliminary expenses. The Decision does not involve an agency agreement or a suit for an agent s start-up costs. Sanchez presents no conflict. C. Discretion Even if jurisdiction exists, the Court should resist its exercise. See Wainwright v. Taylor, 476 So.2d 669 (Fla. 1985). The outcome is supported by two other unchallenged, independent and sufficient grounds. 849 So.2d at , at 4 ( contract is unenforceable for lack of an essential term ) and ( contract would be unenforceable under this section [ (2), Florida Statutes] ). Therefore, in the interests of judicial economy, the Court should find no reason to consider a remand for proceedings which uncontestedly would achieve the outcome already accomplished. Wainwright, 476 So.2d at

16 CONCLUSION The Decision of the Fourth District presents no express and direct conflict with any decision of this Court or any district court. This Court, therefore, does not have jurisdiction to review the Decision. Even if jurisdiction existed, the Court should refrain from exercising it because the Decision is supported by unchallenged, independent and sufficient grounds. Accordingly, the Petition should be dismissed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail to KEITH T. GRUMER, ESQ., Grumer & Levin, P.A., Attorneys for Petitioner, One East Broward Boulevard, Suite 1501, Fort Lauderdale, FL 33301, on this day of September MARK D. SOLOV, ESQ. Stearns Weaver Miller, et al. Attorneys for Respondent CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure, counsel for Respondent hereby certifies -11-

17 this Brief on Jurisdiction was typed in Courier New 12-point font. MARK D. SOLOV, ESQ. Stearns Weaver Miller, et al. Attorneys for Respondent T:\BRIEFS\Briefs pdf'd\ _jurisans.wpd -12-