IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA BRUCE BERNSTEIN, Petitioner, v. CASE NO. SC HARVEY GOLDMAN, Respondent. / RESPONDENT S BRIEF ON JURISDICTION On Petition To Invoke Discretionary Review Of A Decision Of The Fourth District Court Of Appeal RICHARD A. KUPFER, P.A Corporate Way Suite 106 West Palm Beach, FL (561) Counsel for Respondent and Mark R. Osherow, Esq. Boca Raton, Florida Co-counsel for Respondent i

2 TABLE OF CONTENTS Page Table of Citations... ii Question Presented: WHETHER THE WRITTEN OPINION OF THE FOURTH DCA CREATES EXPRESS AND DIRECT CONFLICT WITH THE OPINIONS CITED BY PETITIONER FROM THE SECOND AND THIRD DCA?...1 Statement of the Case and Facts Summary of Argument... 3 Argument Conclusion... 8 Certificate of Service... 9 Certificate of Compliance... 9 Appendix...Attached i

3 TABLE OF CITATIONS Cases Page Dept. of HRS v. Nat l Adoption Counseling Service, Inc., 498 So2d 888 (Fla. 1986)... 5 Kyle v. Kyle, 139 So2d 885 (Fla. 1962)... 5 Surety Mtg. v. Equitable Mtg. Resources, Inc., 534 So2d 780 (Fla. 2d DCA 1988)... 5 Vine v. Scarborough, 517 So2d 726 (Fla. 3d DCA 1987)... 5 Other Authorities: , Fla. Stat. (2005)... 3, 8 Fla. R. App. P (b)... 7 ii

4 QUESTION PRESENTED WHETHER THE WRITTEN OPINION OF THE FOURTH DCA CREATES EXPRESS AND DIRECT CONFLICT WITH THE OPINIONS CITED BY PETITIONER FROM THE SECOND AND THIRD DCA? STATEMENT OF THE CASE AND FACTS We totally disagree with the facts stated in Petitioner s jurisdictional brief, which not only contains statements of fact outside the four corners of the Fourth DCA s written opinion, but which even alleges facts that find no support anywhere in the underlying record on appeal. We rely entirely on the facts stated within the Fourth DCA s written opinion, just as the Petitioner is supposed to do in a jurisdictional brief alleging an express and direct conflict. However, we need to respond to certain inaccurate statements made in Petitioner s jurisdictional brief. Petitioner (Bernstein) states at page 1 of his brief that the investment he convinced Bernstein to make ran out of money and no one was paid including the actor, Martin Sheen, who then left the venture to portray the President in The West 1

5 Wing television series. Not only is that statement outside the written opinion of the Fourth DCA, but there is absolutely no evidence in the underlying record or trial transcript regarding Martin Sheen or The West Wing television series whatsoever. As mentioned in the Fourth DCA s opinion below, Bernstein s trial counsel elected to present no evidence or testimony at all at trial. Although not mentioned in the Fourth DCA s opinion, Goldman testified at trial that when he demanded repayment of his loan from the other principles they told him they returned his $55,000 investment to Bernstein but Bernstein claimed this was a return of his own investment and he refused to return it to Goldman. That testimony was never rebutted at trial. In fact, over $176,000 had been paid back to Bernstein when the project failed, according to Bernstein s own admission at trial when he was called by Goldman as an adverse witness. Bernstein claimed at trial that none of this $176,000 was Goldman s money. The other co-venturers claimed that sum was intended to be repaid to the lenders that Bernstein had solicited to advance loans to the project. The jury found Bernstein guilty of breaching his fiduciary duty. Bernstein states in his brief (p.1) that he was not in charge of the venture, but he told Goldman he was the CEO of one of the companies involved and that he was in charge of the deal and would personally see to it that Goldman was paid back with interest before any other investor was paid back. An independent 2

6 witness heard and corroborated that statement at trial. The Fourth DCA s written opinion refers to this venture as a Bernstein project, which it was. Although we feel compelled to correct the false factual statements contained in Bernstein s brief on jurisdiction, we respectfully reiterate that it is only the facts stated within the four corners of the Fourth DCA s written opinion that can arguably create an express and direct conflict for purposes of this court s jurisdiction. SUMMARY OF ARGUMENT There is not even a semblance of conflict jurisdiction in this case. For that reason, we are separately filing a motion for appellate attorney s fees under section , Florida Statutes. Bernstein s conflict argument is premised on a clear misrepresentation of the Fourth DCA s holding in this case. Normally, we would say a misreading of the Fourth DCA s opinion, but it is so obvious here that we do not believe we are over-dramatizing by calling it a misrepresentation and moving for attorney s fees under section

7 ARGUMENT The Petitioner s (Bernstein s) entire conflict argument is based on his opening sentence which asserts that the Fourth DCA has just held that Damages must be awarded if there is a finding of a breach of fiduciary duty regardless of whether there has been proof of damages proximately caused by that breach. Bernstein then argues that this conflicts with other cases holding that damages must be incurred as a proximate result of the breach of fiduciary duty in order to state a cause of action. With all due respect, that argument is a fabrication because the Fourth DCA never said anything even close to that. The Fourth DCA s opinion (App. A ) notes that Bernstein s only defense at trial was that there were no damages incurred because Goldman used his mother s money to make the investment, and that defense does not legally support a finding that no damages were incurred. The Fourth DCA never said or intimated that proof of damages or proximate cause is no longer an element of the cause of action. Accordingly, the cases relied on by Bernstein which hold damages and proximate cause to be a necessary element are in no way contrary to anything the Fourth DCA stated in this case. The Fourth DCA s opinion expressly notes that zero damage verdicts are not always improper, but that the only explanation for it here was Bernstein s argument to the jury which does not constitute a legal defense to Goldman s claim. 4

8 That is a fact-specific holding and it does not conflict with other cases, based on other facts, where a court has held a zero damage verdict to be justifiable under the evidence presented. Both cases relied on now by Bernstein 1 are such a case and they do not even remotely create a conflict with this case. Bernstein also states in his Summary of Argument that The opinion of the Fourth DCA creates the rule that a jury award of zero damages for breach of fiduciary duty is patently inconsistent and requires a new trial. Once again, that is a complete distortion of what the Fourth DCA said in this case. The Second DCA case cited by Bernstein (the Surety Mtg. case) actually agrees with the Fourth DCA s opinion in the present case. In Surety Mtg., the Second DCA found that the jury s award of zero damages was contrary to the uncontradicted evidence in that case that damages were sustained. That is the same thing the Fourth DCA held here. There cannot be an express and direct conflict to support this court s limited jurisdiction if the case allegedly in conflict is based on different controlling facts. Kyle v. Kyle, 139 So2d 885 (Fla. 1962). There must be an actual conflict that creates discord in the decisional law of this state, and not just a hypothetical conflict perceived only in the eye of the petitioner. See Dept. of HRS v. Nat l 1 Vine v. Scarborough, 517 So2d 726 (Fla. 3d DCA 1987) and Surety Mtg. v. Equitable Mtg. Resources, Inc., 534 So2d 780 (Fla. 2d DCA 1988). 5

9 Adoption Counseling Service, Inc., 498 So2d 888 (Fla. 1986). The Fourth DCA s opinion in this case does not generate uncertainty in the decisional law of this state. Bernstein now also presents a new argument at page 4 of his jurisdictional brief when he suggests that the jury could have awarded zero damages because other previous defendants had default judgments entered against them since they never responded to the lawsuit. Not only is that something completely outside anything the Fourth DCA said in its written opinion, and not only was that never argued to the jury as a reason to find that no damages were sustained, and not only would it be another legally invalid reason to find that no damages were sustained, but in truth the jury did not even know that other parties had been previously sued and had default judgments entered against them. The jury did not know about any other defendants except the one at trial before them. Besides that, the undisputed evidence at trial was that Goldman never met or dealt with any other party involved in the venture. He dealt exclusively with Bernstein, just as the Fourth DCA s opinion suggests, and Bernstein s only defense at trial was that Goldman suffered no loss because he invested his mother s money rather than his own. Those are the facts stated in the Fourth DCA s opinion and they create no conflict with any other case. Accordingly, Bernstein has failed to demonstrate that this court has jurisdiction based on an express and direct conflict. It should also be noted that the 6

10 Petitioner s notice to invoke this court s jurisdiction was not timely filed with the Fourth DCA within 30 days after rendition of the Fourth DCA s opinion, as required by Fla. R. App. P (b). The Fourth DCA s opinion was rendered on July 27, (See App. A.) Petitioner s notice to invoke this court s jurisdiction was filed with the Fourth DCA on August 29, (See this court s Acknowledgment of New Case.) That provides an independent basis to deny jurisdiction. 7

11 CONCLUSION There is no express and direct conflict demonstrated in Bernstein s jurisdictional brief and his petition to invoke this court s discretionary jurisdiction should be denied. Moreover, Respondent s separately filed motion for appellate attorney s fees based on section , Florida Statutes (2005) should be granted. 2 Respectfully submitted, Richard A. Kupfer, P.A Corporate Way Suite 106 West Palm Beach, FL (561) Counsel for Respondent By: Richard A. Kupfer Fla. Bar No That motion will be filed at the expiration of the 21 day period provided for in the statute in order to give the Petitioner an opportunity to reconsider its frivolous attempt to invoke this court s jurisdiction. 8

12 CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that a true and correct copy of the foregoing document has been furnished by U.S. mail this 29 th day of September 2005 to: Patrick A.Moran, Esq., Ruden, McCloskey et al., P.O. Box 1900, Ft. Lauderdale, FL 33302, counsel for Petitioner; Mark R. Osherow, Esq., 7900 Glades Road, Suite 650, Boca Raton, FL 33434, co-counsel for Respondent. RICHARD A. KUPFER, P.A Corporate Way, Suite 106 West Palm Beach, FL (561) Counsel for Respondent By: Richard A. Kupfer Florida Bar. No CERTIFICATE OF COMPLIANCE The undersigned counsel for Respondent certifies that the size and style of type used in this document is 14 Point Times New Roman. RICHARD A. KUPFER, P.A Corporate Way, Suite 106 West Palm Beach, FL (561) Counsel for Respondent By: Richard A. Kupfer Florida Bar No

13 IN THE SUPREME COURT OF FLORIDA BRUCE BERNSTEIN, Petitioner, v. CASE NO. SC HARVEY GOLDMAN, Respondent. / APPENDIX INDEX TO APPENDIX Fourth DCA s opinion dated July 27,