IN THE SUPREME COURT FOR THE STATE OF FLORIDA CASE NO. SC

Transcription

1 IN THE SUPREME COURT FOR THE STATE OF FLORIDA CASE NO. SC RENEE HELD, Petitioner, L. T. CASE NO. 4D and KENNETH HELD Respondent. AMENDED JURISDICTIONAL ANSWER BRIEF OF RESPONDENT TERRENCE P. O CONNOR Florida Bar no MORGAN, CARRATT AND O CONNOR, P.A. Attorneys for Respondent 111 S. E. 12 th Street, Suite C Ft. Lauderdale, FL Telephone No: (954)

2 Renee Held v. Kenneth Held Case No. SC TABLE OF CONTENTS Table of Authorities...iii Summary of Argument...1 Argument...2 Issue I: This Court lacks jurisdiction to consider the petition for review as there is no direct and express conflict with this Court s opinion in Thompson v. Thompson, 576 So.2d 267 (Fla. 1991)... 2 Issue II: There is no express and direct conflict with decisions of the Fifth District Court of Appeal Conclusion...7 Certificate of Service...7 Certificate of Compliance with Rules 9.100(l) and 9.210(a)(2)...8 2

3 Renee Held v. Kenneth Held Case No. SC Cases TABLE OF AUTHORITIES Blue Cross and Blue Shield of Florida, Inc. v. Steck, 818 So.2d 465 (Fla. 2002)... 2 Christians v. Christians, 732 So.2d 47 (Fla. 4th DCA 1999)... 5 Held v. Held, 912 So.2d 637 (Fla. 4th DCA 2005)...1, 2, 3, 5, 6, 7 Persuad v. State, 838 So.2d 529 (Fla. 2003)...1, 2 Reaves v. State, 485 So.2d 829 (Fla. 1986)...1, 2 Thompson v. Thompson, 576 So.2d 267 (Fla. 1991)...1, 2, 3, 4, 5, 6, 7 Walton v. Walton, 657 So. 2d 1214 (Fla. 4th DCA 1995)... 4 Weinstock v. Weinstock, 634 So.2d 775 (Fla. 5th DCA 1994)...1, 6, 7 Young v. Young, 600 So.2d 1140 (Fla. 5th DCA 1992)...1, 6, 7 3

4 Supplemental Statement of the Case and Facts The Fourth District Court of Appeal, in properly applying the teachings of Thompson v. Thompson, 576 So.2d 267 (Fla. 1991), reversed the trial Court s decision and held:...the trial Court erroneously included aspects of the husband s personal goodwill in its valuation of the business as enterprise goodwill, contrary to the requirements of Thompson v. Thompson, 576 So.2d 267 (Fla. 1991). Summary of Argument This Court lacks jurisdiction to consider Petitioner s request for discretionary review as there is no conflict with Thompson. This Court s discretionary review jurisdiction can be invoked only from a district court decision which expressly and directly conflicts with a decision of this Court. Persuad v. State, 838 So.2d 529 (Fla. 2003); Reaves v. State, 485 So.2d 829 (Fla. 1986). The Fourth District s opinion in Held v. Held, 912 So.2d 637 (Fla. 4th DCA 2005) rigidly tracks this Court s holding in Thompson v. Thompson, 576 So.2d 267 (Fla. 1991). The Held opinion does not conflict with Weinstock v. Weinstock, 634 So.2d 775 (Fla. 5th DCA 1994) or Young v. Young, 600 So.2d 1140 (Fla. 5th DCA 1992). 4

5 Standard of Review This Court s discretionary review jurisdiction can only be invoked from a district court decision that directly and expressly conflicts with the decision of this Court or the decision of another district court. Reaves v. State, 458 So.2d 829 (Fla. 1986). This Court has no jurisdiction where no conflict exists between district court of appeals decisions or a decision of a district court of appeals with a decision of this Court. Blue Cross and Blue Shield of Florida, Inc. v. Steck, 818 So.2d 465 (Fla. 2002). Argument Issue I: This Court lacks jurisdiction to consider the petition for review as there is no direct and express conflict with this Court s opinion in Thompson v. Thompson, 576 So.2d 267 (Fla. 1991). The Fourth District Court s decision in Held v. Held, 912 So.2d 637 (Fla. 4th DCA 2005) does not conflict with this Court s decision in Thompson v. Thompson, 576 So.2d 267 (Fla. 1991). The Petitioner s brief failed to pinpoint any express and direct conflict with the Thompson decision, which conflict is an essential prerequisite for this Court to exercise its discretionary review. The direct and express conflict must be contained within the four corners of the opinion. Persuad v. State, 838 So.2d 529 (Fla. 2003). A simple reading of Held establishes that the Fourth District Court studiously adhered to this Court s teachings in Thompson. 5

6 In Thompson, this Court explained the difference between enterprise goodwill, which is a marital asset, and personal goodwill, which is not a marital asset. Goodwill, to be a marital asset, must exist separate and apart from the reputation or continued presence of the marital litigant. If the goodwill is personal, it must be excluded from the marital estate. Personal goodwill cannot be included in the value of a professional practice for purposes of equitable distribution. Id. at 270. In Held, the Fourth District Court meticulously and correctly applied this Court s ruling in Thompson. Based on the undisputed evidence at trial, the Fourth District concluded that husband s personal relationship with his client allowed him to obtain the repeat business. Held, at 640 (Emphasis added.) The Fourth District Court, following the clear-cut Thompson directive, correctly determined that the trial Court erroneously included aspects of the Husband s personal goodwill in its valuation of the business s enterprise goodwill. The Fourth District Court s decision did not hinge on the misapplication of Thompson, as erroneously suggested by Petitioner. The trial Court decision was reversed because the record was completely devoid of any competent and substantial evidence of comparable sales, as mandated by Thompson and its progeny, to establish the goodwill valuation. The Fourth District Court, after thoroughly scrutinizing the record, noted the absence of a competent and 6

7 substantial evidentiary basis in the record to support Petitioner s claim that the goodwill was marital, rather than personal, in nature. Although there are thousands of insurance agencies which are obviously sold at various times, Petitioner failed to provide the Court with a single comparable sale. Any valuation that does not comply with the Thompson valuation methodology is sheer speculation. Walton v. Walton, 657 So. 2d 1214 (Fla. 4th DCA 1995). Petitioner does not dispute that the Fourth District Court exactly aligned with this Court s directive in Thompson by utilizing the fair market value approach to measure goodwill. In Thompson, this Court unequivocally set forth the standard for valuing goodwill: The clearest method would be the fair market value approach, which is best described as what would a willing buyer pay, and what would a willing seller accept, neither acting under duress for a sale of the business. The excess over assets would represent goodwill. We prefer this method and direct that it be the exclusive method of measuring the goodwill of a professional association. Thompson v. Thompson, 576 So.2d 267, 270 (Fla. 1991). (Emphasis added.) Comparable sales are the best and most reliable indicator of value, since comparable sales specify the fair market value for a similar entity or business. The rationale behind comparable sales is to exclude speculative valuations based on unreliable formulas and concocted equations. The lack of competent and 7

8 substantial evidence required the Fourth District Court to reverse the speculative goodwill valuation. Petitioner erroneously suggested that Held conflicts with Thompson because Held included a discussion about covenants not to compete and non-solicitation agreements. The Fourth District Court determined that the most telling evidence of the existence of personal goodwill, or the lack of marital goodwill, was the requirement in any sale that the selling spouse sign a covenant not to compete or a non-solicitation agreement to close the transaction. If the business only has value over and above its assets if the Husband refrained from competing within the area that he has traditionally worked, then it is clear that the value is attributable to the personal reputation of the husband. Christians v. Christians, 732 So.2d 47 (Fla. 4th DCA 1999) In the Held decision, the Fourth District Court correctly found: The trial Court s valuation of enterprise goodwill turned on the assumption that in any sale of enterprise goodwill, the husband would be precluded from doing business with the company s 60 existing clients. For the purpose of distinguishing enterprise goodwill from personal goodwill evaluation of a business, there is no distinction between a non-solicitation/non-piracy agreement and a covenant not to compete. Both limit a putative seller s ability to do business with existing clients of the business. In this case, the husband s personal relationship with his clients allowed him to obtain their repeat business. Held, supra, at 640. (Emphasis added.) 8

9 The Held Court simply determined that restrictive covenants are evidence of the existence of personal, not enterprise, goodwill. Thompson contains no discussion about covenants not to compete or non-solicitation agreements. The Held ruling did not preclude an evidentiary presentation that included a sale which required a covenant not to compete. Clearly, a transaction involving a restrictive covenant could be analyzed and dissected to determine the value of the restrictive covenant. The value of the covenant could then be integrated into the overall comparable sale. The Fourth District Court s opinion in Held does not conflict with Thompson. There is no basis for this Court to invoke its discretionary review jurisdiction. Issue II: There is no conflict with decisions of the Fifth District Court of Appeal. The Fourth District Court of Appeal s decision does not conflict with the Fifth District s rulings in Weinstock v. Weinstock, 634 So.2d 775 (Fla. 5th DCA 1994) or Young v. Young, 600 So.2d 1140 (Fla. 5th DCA 1992). Petitioner failed to provide this Court with any express or direct conflict with either Weinstock or Young. In fact, the Held decision is consistent with Weinstock, and actually cites the decision as a supporting authority. 9

10 Conclusion This Court lacks jurisdiction to consider the petition for review, as there is no express and direct conflict with this Court s Thompson decision. The Held opinion does not conflict with Weinstock or Young. This Court should deny the petition for review. Certificate of Service I hereby certify that a true and correct copy of the foregoing has been furnished by U. S. Mail to Roberta G. Stanley, Esq., 200 East Las Olas Blvd., Suite 1900, Fort Lauderdale, FL and Jonathan M. Streisfeld, Esq., 200 East Las Olas Blvd., Suite 1900, Fort Lauderdale, FL this day of January, MORGAN, CARRATT AND O CONNOR, P.A. Attorneys for Respondent 111 S. E. 12 th Street, Suite C Ft. Lauderdale, FL Telephone No: (954) By: Terrence P. O Connor Fla. Bar no

11 Certificate of Compliance with Rule 9.100(l) and Rule 9.210(a)(2) I hereby certify that I have complied with Rule 9.100(l) and Rule 9.210(a)(2) in that the font size is Times New Roman 14 point. MORGAN, CARRATT AND O CONNOR, P.A. Attorneys for Respondent 111 S. E. 12 th Street, Suite C Ft. Lauderdale, FL Tel. (954) By: Terrence P. O Connor Fla. Bar no Certificate of Compliance with Administrative Order AO04-84 I hereby certify that I have complied with Administrative Order AO04-84 in that a copy of Respondent s Jurisdictional Answer Brief has been electronically submitted this day of January, MORGAN, CARRATT AND O CONNOR, P.A. Attorneys for Respondent 111 S. E. 12 th Street, Suite C Ft. Lauderdale, FL Tel. (954) By: Terrence P. O Connor Fla. Bar no