IN THE SUPREME COURT OF THE STATE OF FLORIDA PETITIONERS/APPELLANTS CORRECTED JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA Supreme Court Case No. SC th DCA Case Nos.: 5D , 5D , 5D , 5D & 5D GREAT AMERICAN RESTAURANTS, INC., et al., v. Petitioners/Appellants, C.L. DINKINS, JR., ETC., ET AL., Respondents/Appellees. / PETITIONERS/APPELLANTS CORRECTED JURISDICTIONAL BRIEF Gary M. Farmer, Jr., Esq. Fla. Bar No Gillespie, Goldman, Kronengold & Farmer, P.A N. Federal Hwy., STE 511 Ft. Lauderdale, FL (954) ph (954) fax

2 Counsel for Petitioners/Appellants

3 TABLE OF CONTENTS Table of Contents... Table of Citations... i ii Statement of the Case and Facts... 1 Summary of the Argument... 4 Legal Argument... 4 Conclusion... 9 Certificate of Service i-

4 TABLE OF CITATIONS Case Law Alternative Networking, Inc. v. Solid Waste Authority of Palm Beach County, 758 So.2d 1209 (Fla. 4 th DCA 2000)... 8 Blanchard v. Commonwealth Oil Co., 294 F.2d 834 (5 th Cir. 1961)... 7 Brevard County v. Ramsey, 658 So.2d 1190 (Fla. 5 th DCA 1995)... 6, 7 Brevard County v. Canaveral Properties, Inc., 658 So.2d 590 (Fla. 5 th DCA 1995)... 6, 9 Caulk v. Orange County, 661 So.2d 932 (Fla. 5 th DCA 1995)... 6, 7 Corporate Management Advisors, Inc. v. Boghos, 756 So. 2d 246 (Fla. 5 th DCA 2000)... 8 Cruising World, Inc. v. Westermeyer, 351 So.2d 371 (Fla. 2 nd DCA 1977)... 9 Department of Transportation v. Ben Hill Griffin, Inc., 636 So.2d 825 (Fla. 2d DCA 1994)... 8 Division of Administration v. Ely, 351 So.2d 66 (Fla. 3 rd DCA 1977)... 8 Ford Motor Company v. Starling, 721 So. 2d 335 (Fla. 5 th DCA 1998)... 8 In Re Miner, 177 B.R. 104 (N.D. Fla. 1994)... 7 Lee County v. Charlotte County, -ii-

5 174 So.2d 108 (Fla. 2 nd DCA 1965)... 5 North Dade Water Co. v. Florida State Turnpike Authority, 114 So.2d 458 (Fla. 3 rd DCA 1959)... 8 Palm Beach County v. Cove Club Investors LTD., 734 So.2d 379 (Fla. 1999)... 6, 7 Patrick v. Christian Radio, 745 So.3d 587 (Fla. 5 th DCA 1999)... 4, 8 Polizzi v. Polizzi, 600 So. 2d 490 (Fla. 5 th DCA 1992)... 8 Rich v. State, 663 So.2d 1321 (Fla. 1995)... 5 Seminole County v. N.G. Investments of Orlando, Inc., 714 So.2d 1066 (Fla. 5 th DCA 1998)... 8 Shavers v. Duval County, 73 So.2d 684, 687 (Fla. 1954)... 8 Tampa Suburban Utilities Corp. v. Hillsborough County Aviation Authority, 195 So.2d 568 (Fla. 2 nd DCA 1967)... 5 Wattles v. Wattles, 631 So. 2d 349 (Fla. 5 th DCA 1994)... 8 White v. White, 686 So. 2d 762 (Fla. 5 th DCA 1997)... 8 Other Authority Rule 1.230, Fla.R.Civ.P iii-

6 STATEMENT OF THE CASE AND FACTS This case arises from various agreements between William H. Tuck, Jr., Ralph W. Pressley, Jr., and Great American Restaurants, Inc. (hereinafter collectively Kwik King ), as buyers, and C.L. Dinkins, Jr., as trustee under Trust Agreement dated August 21, 1986, Bradford L. Dinkins, and Dinkins and Dinkins, Inc., as sellers (hereinafter collectively Dinkins ). In 1999, Petitioners purchased from Dinkins all shares of the corporation known as Kwik King Food Stores, Inc. (later assigned to Hebico, Inc.), thereby making Petitioners the owner of forty-nine (49) Kwik King convenience stores. Included were several stores operated on land which was condemned. All of the convenience stores were and are now owned by Kwik King Foods Stores, Inc., nor is there any dispute that Petitioners own Kwik King Food Stores, Inc. 1 Dinkins sued Kwik King, claiming in part that Kwik King had assigned to Dinkins the right to proceeds, or the actual causes of action, from three pending eminent domain cases. Dinkins claims derive from the sale agreements. All three contracts between Dinkins and Kwik King - the Stock Purchase Agreement and the two separate Real Estate Purchase Agreements - are related to Kwik King stores which were purchased by Appellants and located on land subject to the condemnations (T. 11). The Stock Purchase Agreement contains a representation by Appellees that there are 1. All emphasis supplied is that of undersigned counsel, unless otherwise indicated. -1-

7 no...existing, pending, or threatened condemnation proceedings affecting the property... The Real Estate Purchase Agreements provided that if at or before the closing any portion of the property is condemned or taken pursuant to the power of eminent domain, the purchasers (Kwik King/Petitioners) had a choice: either terminate the contract or, by doing nothing, proceed with the closing at no reduction in the purchase price, in which case any condemnation award shall be paid over to and shall become the sole property of purchaser [Kwik King/Petitioners]. Despite the above language, Dinkins not only claimed the eminent domain proceeds, they also sought to intervene in all eminent domain cases - asking the trial court to not only allow Dinkins to intervene in the cases which had been filed against Kwik King Food Stores, Inc., but to also allow Dinkins (again, former shareholders of Kwik King Food Stores, Inc.) to usurp from Kwik King (the current shareholders, and therefore owners, of Kwik King Food Stores, Inc.) total control of the litigation in the eminent domain cases. The trial judge allowed Dinkins to intervene in the pending eminent domain litigation and take over control of said litigation. The trial court s order was not really an intervention order, but amounted to a substitution of parties. The order provided that Dinkins will be allowed to intervene in those cases [all eminent domain cases] in the following manner: (a) Dinkins will henceforth have the exclusive authority to control the condemnation litigation in the City case, DOT Case 140, and DOT Case 143. This includes, but is not -2-

8 limited to, the selection of counsel, and expert witnesses, negotiation, and completion of all settlements, the decision as to whether to go to trial, and whether to accept the final judgment in a contested case, or appeal; (b) the City, and the DOT in the cases specified above, will treat Dinkins as the exclusive authorized representative of Kwik King with full authority to finally conclude the City s case, the DOT 140 Case and the DOT 143 Case, in accordance with this Order; (c) paragraphs (a) and (b) above will not be construed to allow Dinkins to prevent entry of final judgment in the DOT 140 case, pursuant to the mediated settlement agreement dated September 13, 2000; (d) the final judgment in DOT Case 140, would provide that the proceeds to be paid by DOT, pursuant to the Mediated Settlement will be deposited in the Registry of the Court, as directed in this Order; (e) all money received by Kwik King in DOT Case 140, DOT Case 143, and the City case, will paid by the City, or the DOT, into the registry of the Court, and it will not be withdrawn, except upon the further Order of this Court; (f) the Court retains jurisdiction of each these actions to make such Orders are necessary to enforce its Order and to enter any other Orders that are necessary, including entry of Orders of final disposition; (g) except to the extent that is specifically granted in this Order, the motion to intervene is otherwise denied. Curiously, prior to signing the order, the trial court verbally ruled it would deny intervention but would instead substitute Dinkins for Kwik King Food Stores, Inc. as sole authorized representative for Kwik King Food Stores, Inc. (T ). After Dinkins were substituted as defendants in the eminent domain cases, Dinkins -3-

9 and the condemning authorities finalized settlements in the eminent domain cases; one settlement had been reached by a representative of Kwik King (not Dinkins) and the Department of Transportation ( DOT ) and provided that Kwik King would receive the settlement proceeds within thirty (30) days. Contrary to the terms of the settlement agreement, however, the trial judge ordered the funds to be held in the registry of the court pending consideration of Dinkins claim to said funds (in the separate business litigation between the parties). On appeal, the Fifth District rendered an opinion which is contrary to long-established precedent regarding the limited scope of intervention, the interest in condemned property necessary to allow a party to participate in a condemnation case, and applying an incorrect standard of review. Motions for rehearing, rehearing en banc and certification were denied. Because the Fifth District s decision is in conflict with established precedent, Kwik King has sought review before this honorable court. SUMMARY OF THE ARGUMENT The opinion below conflicts with precedent regarding the interest required to support intervention, and the standard for determining whether a person or entity (other than a landowner) possesses an interest in condemned land sufficient to support an award of compensation. Petitioner contends that the latter standard (compensable interest) determines whether intervention in an eminent domain case should be granted. LEGAL ARGUMENT -4-

10 The panel s opinion in this case affirm[s] the order allowing a limited intervention by the appellees in the proceedings below because it is supported by competent substantial evidence. See e.g., Patrick v. Christian Radio, 745 So.2d 578 (Fla. 5 th DCA 1999). This single sentence shows that the panel misapprehended the facts of this case, and further shows that the opinion is in conflict with well-established precedent. There was no limited intervention by Dinkins in this case; rather, Dinkins were, in reality, substituted as party defendants in the three eminent domain cases. The trial judge went so far as to state that he was deny[ing] intervention. No need to intervene. We just have a new spokesman for Kwik King Food Stores, Inc. (T. 351). Dinkins were not only allowed to intervene in the case, but were given full and total control over the litigation. Clearly this is not a limited intervention. Rule 1.230, Fla.R.Civ.P., which governs intervention, provides that intervention will be in recognition of, and in subordination to, the main proceeding. For a person or entity to be entitled to intervene in an eminent domain case, the intervenor s interest in the property condemned must be of such direct and immediate character that the intervenor will either gain or lose by direct legal operation and effect of the judgment of compensation for the specific property named in the petition. Tampa Suburban Utilities Corp. v. Hillsborough County Aviation Authority, 195 So.2d 568 (Fla. 2 nd DCA 1967), cited with -5-

11 approval in Rich v. State, 663 So.2d 1321, 1323 (Fla. 1995); and Lee County v. Charlotte County, 174 So.2d 108 (Fla. 2 nd DCA 1965). Thus, the standard for intervention is closely tied into the determination as to whether the person or entity making a claim possesses a compensable interest in the land condemned. The interest claimed by Dinkins which entitled them to intervene was their claim that they had received an assignment of the proceeds from the eminent domain litigation. An assignment of proceeds is a contractual claim which does not create a compensable claim in eminent domain and therefore is insufficient to support intervention. Palm Beach County v. Cove Club Investors LTD., 734 So.2d 379, 389 (Fla. 1999) (frustration of a contractual claim to money is not a compensable interest in condemned land, except where covenant runs with the land); Caulk v. Orange County, 661 So.2d 932 (Fla. 5 th DCA 1995) (Caulk s reservation of the right to the eminent domain proceeds constitute a personal covenant which was collateral to and not immediately concerned with the property condemned; although the covenant concerned the land, it did so only tangentially and the covenant had no effect whatever on the land; The only thing the covenant in the instant case really touches and concerns is the intangible personal property, namely cash, that may be paid by a condemnor; compensation denied). Since Dinkins claimed assignment of the right to proceeds is not a compensable claim, Dinkins do not stand to gain or lose by direct effect of the -6-

12 judgment in this case, they should not have been allowed to intervene, and the opinion below conflicts with Caulk. In Brevard County v. Ramsey, 658 So.2d 1190 (Fla. 5 th DCA 1995), the court held that where a condemned property is owned in trust, the beneficiary of the trust does not have an ownership interest in the land sufficient to make it an indispensable party. Ramsey, 658 So.2d at The court also discussed the distinction between the Ramseys as shareholders and the corporation as a party owning the property condemned, noting that it is It is basic horn book law that corporate property is vested in the corporation itself, and not in the individual stockholders, who have neither legal nor equitable title in the corporate property. Id., citing In Re Miner, 177 B.R. 104 (N.D. Fla. 1994); Brown v. Florida S. Ry. Co., 19 Fla. 472 (1882); and Blanchard v. Commonwealth Oil Co., 294 F.2d 834 (5 th Cir. 1961). The court then held that the Ramseys had failed to show why the corporate structure or corporate veil should be discarded, and ruled that the shareholders were not entitled to compensation for property owned by the corporation. The opinion here conflicts with Ramsey. Dinkins claim of an assignment to the right of the proceeds from the eminent domain litigation is a personal covenant which is collateral to and not immediately concerned with the property condemned. It relates to the land, but only tangentially. It is nothing more than a contractual claim personal to Dinkins, and the only thing that the purported assignment touches and concerns is the intangible personal property (money) -7-

13 that may be paid by the condemning authorities to Kwik King Food Stores, Inc. Like Cove Club, Caulk and Ramsey, Dinkins holds a claim which is collateral to the property condemned and is not immediately concerned with that property. Because the claim is not immediately concerned with that property, it cannot be said that Dinkins possess a claim of such direct and immediate character that they will either gain or lose by direct legal operation and effect of the condemnation judgments. Given the foregoing, the opinion below also conflicts with: Seminole County v. N.G. Investments of Orlando, Inc., 714 So.2d 1066 (Fla. 5 th DCA 1998), citing Shavers v. Duval County, 73 So.2d 684, 687 (Fla. 1954); Alternative Networking, Inc. v. Solid Waste Authority of Palm Beach County, 758 So.2d 1209 (Fla. 4 th DCA 2000); Department of Transportation v. Ben Hill Griffin, Inc., 636 So.2d 825 (Fla. 2d DCA 1994); Division of Administration v. Ely, 351 So.2d 66 (Fla. 3 rd DCA 1977); and North Dade Water Co. v. Florida State Turnpike Authority, 114 So.2d 458 (Fla. 3 rd DCA 1959). Eminent domain proceeds belong to the owner of the property at the time the petition has been filed and the good faith deposit has been made. There is no dispute that, at all times material to this case, the property condemned was owned by Kwik King Food Stores, Inc. Even Dinkins conceded this point when they drafted the order which the trial judge signed without change. 2 Shares of stock constitute personal property, and 2. Patrick, cited below, holds that where a trial court makes specific findings of fact, those findings will come to the appellate court clothed with a presumption of correctness. The intervention order, however, does not contain findings of fact made by the trial judge. Rather, the trial judge signed an order drafted by -8-

14 not real estate, even where the property of the corporation consists wholly of real estate. Cruising World, Inc. v. Westermeyer, 351 So.2d 371 (Fla. 2 nd DCA 1977). Courts should respect the separate and distinct status of the corporation, as opposed to its shareholders, in the context of an eminent domain case, and landowner corporations should not be allowed to use the legal advantages of limited liability and tax advantages of a corporate form when it is convenient and ignore the corporate form when ignoring the corporation is more profitable. Brevard County v. Canaveral Properties, Inc., 658 So.2d 590 (Fla. 5 th DCA 1995). Finally, the appellate court also awarded attorney s fees to Dinkins and DOT, even though no one had prevailed on the merits of the case, and even though Dinkins had argued (in opposing Kwik King s request for fees) that no fees could be awarded in the appeal until it had been determined who prevailed on the merits of the underlying business litigation between Dinkins and Kwik King. If the intervention order is reversed by this Court, then so will the fee award, but even if this Court does not reverse the intervention order the fee award must nevertheless be reversed, or at least modified to provide that attorneys for Dinkins without a single modification or edit, and contrary to the court s ruling at the hearing. Despite the fact that the Fifth District has repeatedly admonished trial judges from rubber-stamping proposed orders submitted by lawyers which contain detailed findings of fact that were not actually made by the trial judge, the opinion in this case condones that exact procedure or behavior. Corporate Management Advisors, Inc. v. Boghos, 756 So. 2d 246 (Fla. 5 th DCA 2000); Ford Motor Company v. Starling, 721 So. 2d 335 (Fla. 5 th DCA 1998); White v. White, 686 So. 2d 762 (Fla. 5 th DCA 1997); Polizzi v. Polizzi, 600 So. 2d 490 (Fla. 5 th DCA 1992); and Wattles v. Wattles, 631 So. 2d 349 (Fla. 5 th DCA 1994). Thus, the opinion is not supported by Patrick. -9-

15 fees will be awarded only if Dinkins prevails on the merits. CONCLUSION The opinion below conflicts with the foregoing precedent, in that Dinkins does not own an interest in land which is compensable in an eminent domain action; as such, he does not possess an interest in the condemned property sufficient to support intervention - or, really, a substitution of parties. Moreover, the opinion ignores the fact that no one is getting any of the compensation any time soon - which negates the immediacy requirement for intervention. The mere fact that the trial court ruled that the condemnation proceeds would be placed in the Registry of the Court and would not be disbursed shows that Dinkins did not possess an interest in the property of such direct and immediate character that they would either gain or lose by direct legal operation and effect of a judgment of compensation. There is absolutely no urgency for intervention, let alone substitution of parties, and a critical element required for intervention, especially in an eminent domain case, was lacking. The opinion is therefore in conflict with established precedent, such that this Court should accept jurisdiction to resolve this conflict. This is clearly an area in need of clarification, as the eminent domain intervention statutes was abrogated and there exists very little in the way of fact-specific guidance with regard to intervention in eminent domain proceedings. Finally, the fee award must also be reviewed since no determination had been made as to the prevailing party on the merits of the action. -10-

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to: Michael G. Takac, Esq., 520 Southeast Fort King Street, Suite B3, Ocala FL 34471; Edwin C. Cluster, Esq., John B. Fuller, Esq. and Robert H. McLean, Esq., Ayres, Cluster, Curry, McCall, Collins and Fuller, P.A., 21 N.E. First Avenue, P.O. Box 1148, Ocala, FL 34478; and Pamela S. Leslie and Marianne A. Trussell, Esq., Haydon Burns Building MS 58, 605 Suwannee Street, Tallahassee, FL , this day of January, Gillespie, Goldman, Kronengold & Farmer, P.A. Co-counsel for Kwik King 6550 N. Federal Highway, Suite 511 Ft. Lauderdale, FL Telephone: Fax: (954) GARY M. FARMER, JR. Fla. Bar No CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY, in compliance with Rule 9.210(a)(2), Fla.R.App.P., that this brief has been prepared using Times New Roman 14 point font. Gary M. Farmer, Jr. Fla. Bar No.: