IN THE SUPREME COURT OF FLORIDA. Supreme Court Case # SC Honorable Jacqueline Hogan Scola, v. Florida Bar File # , 455(11B)

Transcription

1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, Complainant/Appellee, Supreme Court Case # SC Honorable Jacqueline Hogan Scola, v. Florida Bar File # , 455(11B) ALAN I. KARTEN, Respondent/Appellant / ON PETITION FOR REVIEW OF THE AMENDED REPORT OF THE SUCCESSOR REFEREE DENYING RESPONDENT/APPELLANT AN EVIDENTIARY HEARING ON HIS MOTION FOR NEW TRIAL ALAN IRA KARTEN, pro se 1888 N.W. 7th Street Miami, Florida Tel: (305) Fax: (305) INITIAL BRIEF OF THE APPELLANT

2 TABLE OF CONTENTS Page TABLE OF CONTENTS. i TABLE OF AUTHORITIES... ii STATEMENT OF THE ISSUES...1 STATE OF THE CASE AND RELEVANT FACTS 1 STANDARD OF REVIEW.10 SUMMARY OF THE ARGUMENT.. 10 ARGUMENT...12 I. THE SUCCESSOR REFEREE INCORRECTLY RULED THAT THE EVIDENCE PRESENTED IN KARTEN S MOTION TO SUPPLEMENT THE RECORD AND FOR REHEARING (FEBRUARY 8, 2001) AND HIS MOTIONS TO RELINQUISH JURISDICTION IN ORDER TO PURSUE NEWLY DISCOVERED EVIDENCE FILED DURING HIS APPEAL WERE PRECLUDED FROM CONSIDERATION. II. THE SUCCESSOR REFEREE, IN A NON-JURY PROCEEDING, FAILED TO FOLLOW THE CORRECT PROCEDURE FOR REVIEWING A MOTION FOR NEW TRIAL FILED PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE III. ASSUMING THAT A NEW TRIAL IS NOT MANDATED THE SUCCESSOR REFEREE IS REQUIRED TO HOLD AN EVIDENTIARY HEARING. CONCLUSION.. 49 CERTIFICATE OF SERVICE..50 CERTIFICATE OF COMPLIANCE.50 i

3 Table of Authorities Cases Page Anderson v. City of Bessemer City NC, 470 U.S. 564 (1985)..16 Anderson v. Dewey, 350 P.2d 734(Idaho 1960) Austin v. United States, 113 S.Ct (1993) Canseco v. USA, 97 F.2d 1224 (9th Cir. 1996) Corporation v. Siraco, 174 F.2d 360 (2 nd Cir 1949) 16 Davenport v. Dimitrijevic, 857 So.2d 957 (4 th DCA 2003)...39 David E. Lever v. United States of America, 443 F.2d 350 (2 nd Cir 1971)...15 Dynasty Express Corp. v. Weiss, 675 So.2d 235 (4 th DCA 1996) , 39 The Florida Bar v. Alan Ira Karten, 829 So.2d 883 (Fla. 2002) 4 The Florida Bar v. Clement, 662 So.2d 690 (Fla. 1995)...10 The Florida Bar v. Weiss, 586 So.2d 1051 (Fla. 1991).10 ii

4 Federal Deposit Ins. Corporation v. Siraco, 174 F.2d 360 (2 nd Cir. 1949).. 20 Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001).. 13 Grudzina v. New Mexico Youth Diagnostic and Development Center, 725 P. 2d 255 (N.M. App 1986).. 21 Herwitt v. Caffee, 368 So.2d 1342 (3d DCA, 1979) Island Transp v. Ilman, 669 So.2d 298 (3 rd DCA 1996) Kline v. Belko, LTD, 480 So.2d 126 (3 rd DCA 1985) 42 Karten v. Karten, Case # (Cir. Ct. 17 th Jud. Circuit1999)...36, 38 Lashbrook v. Kennedy Motor Lines, Inc., 119 F. Supp. 716 (W.D. Pa. 1954)..18 Loynaz v. Karten, Case # CA 21 (Cir. Ct. 11 th Jud. Circuit 2002).7, 28, 32, 34, 45 Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)...19 McBride v. State, 801 So.2d 1019 (5 th DCA 2002).. 14 McDonald v. Pickens, M.D., 544 So.2d 261 (1 st DCA 1989) National Health Care v. Cascio, 725 So.2d 1190 (2 nd DCA 1998).. 17

5 Reaves v. Reaves, 546 So.2d 744 (2 nd DCA 1989) 19 Roberto v. Allstate Insurance Co., 457 So.2d 1148 (3rd DCA 1984)..42 Rose Hall LTD v. Chase Manhattan Overseas Banking, 576 F. Supp. 107 (D. Del. 1983) Ross v. Bandi 566 so.2d 55 (4 th DCA 1990) Smith v. Brown, 525 So.2d 868 (Fla. 1988)...28 Smith v. Silberman, 586 So. 2d 467 (3d DCA 1991)...18 State of Maine v. Ruybal v. Armstrong, 408 A.2d 1284 (Me. 1979)...20 Swafford v. State, 679 So.2d 736 (Fla. 1996) Teresa Marie Schiavo v. Michael Schiavo, 800 So. 2d 640 (2 nd DCA 2001) Tingle v. Dade County Board of County Commissioners, 245 So.2d 76 (Fla. 1971).. 14, 16 Topps v. State, 685 So.2d 1253 (Fla. 2004).. 11, 14 United States v. Fernandez, 136 F.3d 1434 (11 th Cir. 1998)...48 United States v. Martinez, 14 F.3d 543 (11 th Cir. 1994)... 48

6 United States v. Posner, 644 F. Supp. 885 (S.D. Fla. 1986)...49 United States v. Radatz, 447 U.S. 667 (1980) United States v. Robinson, 54 F.3d 564 (9 th Cir 1995)...5 Wiley v. Wiley, 546 So.2d 1149 (4 th DCA 1989). 48 Rules Rule (c)(5) The Rules Regulating the Florida Bar 10 Rule (c), The Rules Regulating the Florida Bar.. 2, 4, 37 Rule (b)(3), The Rules Regulating the Florida Bar Florida Rule of Civil Procedure Florida Rule of Civil Procedure , 14, 15, 16 Florida Rule of Civil Procedure , 5, 7, 10, 11, 12, 13, 14, 15 Florida Rule of Civil Procedure ( b)...7 Federal Rule of Civil Procedure , 17, 18

7 STATEMENT OF THE ISSUES I. WHETHER THE SUCCESSOR REFEREE INCORRECTLY RULED THAT THE EVIDENCE PRESENTED IN KARTEN S MOTION TO SUPPLEMENT THE RECORD AND FOR REHEARING (FEBRUARY 8, 2001) AND HIS MOTIONS TO RELINQUISH JURISDICTION IN ORDER TO PURSUE NEWLY DISCOVERED EVIDENCE FILED DURING HIS APPEAL WERE PRECLUDED FROM CONSIDERATION. II. WHETHER THE SUCCESSOR REFEREE, IN A NON-JURY PROCEEDING, FAILED TO FOLLOW THE CORRECT PROCEDURE FOR REVIEWING A MOTION FOR NEW TRIAL FILED PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE III. WHETHER, ASSUMING THAT A NEW TRIAL IS NOT MANDATED, THE SUCCESSOR REFEREE IS REQUIRED TO HOLD AN EVIDENTIARY HEARING. STATEMENT OF THE CASE AND RELEVANT FACTS In February of 2000, the Florida Bar filed a complaint against Appellant, Alan Ira Karten (herein referred to as Karten ). The complaint sought sanctions against Karten on two bases. First, the Complaint alleged that Karten violated the Criminal Justice Act ( CJA ) by taking four automobiles that the complainant, Nelson Loynaz (herein referred to as Loynaz ) allegedly owned and had forfeited to the United States in his criminal case as fees for services performed under his court appointment. Second, the Complaint alleged that Karten engaged in a scheme to defraud Loynaz out of the four automobiles by buying them back from the United 1

8 States, without Loynaz permission, and selling them for a profit. The Bar alleged that this conduct violated Rule 4-8.4(c) of the Rules Regulating the Florida Bar ( [a] lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). After hearings before referee, Judge Gerald Bagley, Karten was found guilty of violating Rule (c). According to the referee, Loynaz was more credible than Karten, because Loynaz allegedly had no discernible motive to testify untruthfully Karten filed a Motion to Supplement Record and for Rehearing. Karten sought to reopen the case and submitted affidavits of Dennis Bruce, Esq., Robert Ira Woltin, and Ira Baraz. Bruce s affidavit corroborated Karten s version of the events and contradicted Loynaz false hearing testimony that he never spoke to Karten. Woltin s affidavit also corroborated Karten s version of the events and confirmed that Karten was unaware that he was being credited with a $24,000 contribution by his partners from the sale of one Corvette to Duncan. Baraz affidavit confirmed the same. Karten also submitted the deposition of Robert Ira Woltin, dated November 30, 1999 in which Woltin, in 1999, before the hearing, testified that he did not have the faintest idea where Karten s contribution came 2

9 from (offered as proof of Woltin s perjury at the hearing) and proffered the testimony of Elena Garcia, Karten s former secretary. (Garcia corroborated Karten s version of the events, corroborated that Loynaz acknowledged the agreement with Karten and established another motive for Loynaz false testimony, i.e. his displeasure with Karten s inability to procure a sentence reduction for him.) Karten also produced his telephone records, which conclusively proved that Loynaz s hearing testimony was false. Karten requested that the referee reconsider his findings in light of the additional evidence and testimony that had been uncovered that showed that Loynaz and Woltin had testified falsely during the hearings. On February 27, 2001, Karten s motion was summarily denied. Karten appealed the referee s Report and Recommendation to the Florida Supreme Court. While the appeal was pending Karten filed a number of motions, including Appellant s Amended Motion To Supplement The Record Or To Take Judicial Notice Of Certain Documents, Respondent s Motion to Relinquish Jurisdiction in Order to Pursue Newly Discovered Evidence, Respondent s Motion to Supplement Motion To Relinquish Jurisdiction in Order to Pursue Newly 3

10 Discovered Evidence, Respondent s Motion To Supplement Motion To Relinquish Jurisdiction In Order To Pursue Newly Discovered Evidence and Respondent s Second Motion To Supplement Motion To Relinquish Jurisdiction In Order To Pursue Newly Discovered Evidence. In The Florida Bar v. Alan Ira Karten, 829 So.2d 883, 891 (Fla. 2002) this Court denied these motions in a footnote without discussion or a citation. This Court affirmed the Report and Recommendation of the referee holding that Karten violated Rule (c) of the Rules Regulating the Florida Bar. The Court, however, did not find that Karten violated the Criminal Justice Act by accepting an unauthorized fee under the act but that Karten made an unauthorized profit from the sale of the vehicles. For Karten to not have made an unauthorized fee under the CJA, this court, by logical inference, must have accepted Karten s assertion that Karten was permitted to charge Loynaz for any additional representation after his sentencing since then existing case law provided that Loynaz was not entitled to court appointed counsel to represent him in civil or criminal forfeiture matters. See, Austin v. U.S., 113 S.Ct (1993); U.S. v. Robinson, 54 F.3d 564 (9 th Cir 1995). 4

11 On October 9, 2003, Karten filed a Motion for New Trial Based Upon Evidence that Arose or was Discovered after the Hearing Before the Referee along with an Appendix. The motion alleged newly discovered evidence, perjury and fraud. Judge Bagley refused to consider the motion and held that he was without jurisdiction. The motion was filed pursuant to Florida Rule of Civil Procedure The Bar mistakenly argued Rule This Court entered the following order: Respondent s petition for writ of mandamus is granted. The motion for rehearing filed before the trial judge, as referee, is treated by the Court as a motion filed pursuant to Florida Rule of Civil Procedure and is granted. The Court finds that the referee has jurisdiction over petitioner s motion to for new trial and should consider that motion on its merits. Karten filed a motion to recuse the referee. The motion alleged, in part, that the referee fabricated testimony and attributed it to Loynaz to support his conclusion that Karten was less credible than Loynaz. This Court in its opinion acknowledged that Karten s disbarment was based 5

12 upon the referee s conclusion that Loynaz had no discernible motive on his part to testify untruthfully irrespective of his several felony convictions This Court also quoted the referee s explanation of why, in part, the referee believed Loynaz over Karten: Mr. Karten presented testimony and other evidence in an attempt to show that Mr. Loynaz was not the lawful owner of the aforementioned vehicles, or in the alternative, even if he was the lawful owner, counsel was lawfully hired by Mr. Loynaz to handle this matter as an administrative forfeiture not covered by the Criminal Justice Act. The former assertion is belied by credible testimony by Mr. Loynaz that he purposefully masked the ownership in the vehicles to avoid their seizure and forfeiture in the event of an arrest on drug charges. The successor referee quoted this court s opinion which quoted the above referenced fabricated testimony cited by the first referee to rationalize why Loynaz admission in Loynaz v. Karten, Case # CA21 (Cir. Ct. 11 th Jud. Circuit 2002), that Tropikar Sales, Inc. was the owner of the vehicles in question, was not a repudiation of his bar testimony. This testimony of Loynaz does not exist. It was fabricated by the referee as alleged in Karten s motion for recusal. 6

13 The recusal motion was granted on May 13, Judge Jacqueline Hogan Scola was appointed as successor referee. The Florida Bar then moved for clarification the Court s order granting the Mandamus. The Bar sought clarification of that part of the Court s original order which stated that The motion for rehearing filed before the trial judge, as referee, is treated by the Court as a motion filed pursuant to Florida Rule of Civil Procedure and is granted. The Court entered the following clarification order: The Florida Bar s Motion for Clarification is granted. This Court s previous order dated April 21, 2004, granting Respondent s petition for writ of mandamus is clarified and amended by this order. Respondent s Motion for New Trial Based Upon Evidence that Arose or was Discovered After the Hearing Before the Referee, filed before the trial judge, as Referee, is treated by the Court as a motion filed pursuant to Florida Rule of Civil Procedure 1.540(b). The petition for writ of mandamus to require the referee to consider and rule on the merits of that motion is granted. The Court find s that the referee has jurisdiction over respondent s Motion for New Trial Based Upon Evidence That Arose or Was Discovered After The Hearing Before the referee. and the referee should consider that motion on its merits within (90) days of this order. On August 6, 2004, Karten filed a motion for issuance of a Subpoena Duces Tecum directed at the Federal Bureau of Prisons for 1997 visitation logs 7

14 (to prove dates of Kartent-Loynaz visits); motion to interview witness Horacio Alba Sardinas (who Karten located in prison in Italy. Sardinas, according to Loynaz testimony sold the cars in question to Loynaz) and a motion to subpoena FBI 302 Reports (to prove Loynaz perjury. Loynaz had filed an affidavit in his civil lawsuit against Karten, post trial, in which he claimed that the United States Attorney s office was informed by him that he purchased the automobiles with drug proceeds. If Loynaz claim is true it will be reflected in a 302 report, if not, Loynaz is a perjuror). A claim denied by FBI Special Agent Scott Wiegman. The referee held a status conference on August 16, Memorandums were filed at the request of the referee. Karten filed an Appendix to Response To Florida Bar s Reply and Position on Evidentiary Hearing With Incorporated Memorandum of Law. That Appendix, which is part of the Appendix submitted to this Court contained in excess of a hundred pages of newly discovered documents including new documents not submitted as part of the original Motion for New Trial. The documents included documentary proof that the testimony of both Carl Karmin and Robert Woltin was perjurious and the redacted ledger submitted by Karmin and introduced by the Bar was a falsified document. Among the new allegations supported by newly discovered documents were the following: 8

15 the unredacted ledger did not reflect a $9,000 cash contribution of Karten to the corporation. Woltin applied the $24,000 (credited to Karten) from the Duncan sale in his submission to the Bureau of Alcohol Tobacco and Beverages when he applied for a liquor license for 201 East Atlantic Investments, Inc. The documents used by Karmin to substantiate the falsified ledger had been eaten by rats according to Karmin and therefore could not be produced. Woltin forged Karten s signature on sale documents for the other corvette and crated a fraudulent bill of sale for the vehicle as well as creating a fraudulent sales document. Karten moved the successor referee to permit supplementation of the record pursuant to Florida Rule of Civil Procedure The referee issued her Amended Report and Recommendation November 8, In her report, the successor referee incorrectly stated that The Respondent has alleged twelve (12) facts or items which he claims are new and would have, if known at the time of the trial, resulted in a different outcome. The successor referee s analysis was premised upon inapplicable case law and ignored scores of additional documents and facts. Karten moved for a rehearing pointing out that the successor referee had not ruled upon his Motion to Amended or Supplement his motion for new trial. The successor referee stated, I think it s granted. 9

16 I addressed it in there (referring to her Amended Report and Recommendation) it is in there and that request was granted, but refused to enter a written order in conformity. A transcript is provided in the Appendix. STANDARD OF REVIEW A lawyer seeking to review of a Referee s Report must demonstrate that the report is erroneous, unlawful or unjustified. Rule 3-7.7(c)(5) of The Rules Regulating the Florida Bar. To be upheld, a Referee s findings of fact must be supported by competent, substantial evidence, The Florida Bar v. Clement, 662 So.2d 690, 696 (Fla. 1995), and will be reversed if clearly erroneous. The Florida Bar v. Weiss, 586 So.2d 1051, 1053 (Fla. 1991). SUMMARY OF THE ARGUMENT I. The sucessor referee s report and recommendation should not be approved by the Court as the sucessor referee failed to consider all of the evidence presented by the Appellant in support of his motion for new trial filed pursuant to Florida Rule of Civil Proceedure The successor referee incorrectly held that this Court s denial of Karten s motions to temporarily relinquish jurisdiction during his direct appeal precluded the successor 10

17 referee from considering the information presented in those motions because this Court s denial constituted law of the case. The successor referee also incorrectly ruled that she could not consider any evidence presented before the original referee as an appendix to Karten s Motion to Supplement and for Re- Hearing. The successor referee should have considered all of the evidence, as the law of the case doctrine did not apply since there was no decision on the merits. Topps v. State, 685 So.2d 1253 (Fla. 2004). II. The successor referee, in a non-jury proceeding, failed to follow the correct procedure for reviewing a Florida Rule of Civil Procedure motion. This Court should adopt a procedure similar to Federal Rule of Civil Procedure 63. The Federal Rule requires that a successor referee must hear the testimony of witnesses where credibility is an issue. Other jurisdictions have adopted this procedure and support the principle that a successor judge in a non-jury proceeding must hear the testimony of witnesses. Further, where the successor referee is required to resolve conflicting evidence or pass on the credibility of witnesses a new trial should be ordered. III. The successor referee was required to hear Karten s motion on its merits 11

18 pursuant to this Court s clarification order on the merits requires an evidentiary hearing. Assuming that a new trail is not required and that the Court did not order an evidentiary hearing, the pleadings were sufficient to mandate an evidentiary hearing. Karten proffered sufficient evidence that constituted more than a colorable entitlement to relief. ARGUMENT I. THE SUCCESSOR REFEREE INCORRECTLY RULED THAT THE EVIDENCE PRESENTED IN KARTEN S MOTION TO SUPPLEMENT THE RECORD AND FOR REHEARING (FEBRUARY 8, 2001) AND HIS MOTIONS TO RELINQUISH JURIDSDICTION IN ORDER TO PURSUE NEWLY DISCOVERED EVIDENCE FILED DURING HIS APPEAL WERE PRECLUDED FROM CONSIDERATION. This successor referee s recommendation is reversible because she failed to consider all of the evidence. Not only did the successor referee fail to consider all the evidence she excluded evidence from consideration by incorrectly apply the doctrine of law of the case. The successor referee dismissed Manny Mesa s affidavit (points 6,7 and 8 of her report) as not new information. But Mesa s affidavit was obtained after the 12

19 original hearing in The successor referee held that Karten s motions to the Supreme Court, denied, without citation, in Footnote 7 of the opinion was law of the case and therefore were precluded from consideration. Additionally, the successor referee failed to address any of the testimony, proffers or documents submitted to the first referee in Karten s Motion to Supplement the Record and for Re-Hearing. In support of the successor referee s conclusion that the motions to the Supreme Court and the rehearing motion addressed to the first referee the successor referee cited Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001). Never the less the successor referee acknowledged: It is unclear whether the Supreme Court reviewed and denied these motions on their merits or simply declined to consider them at all because of their untimeliness. The newly discovered evidence presented to the original referee in Karten s Motion to Supplement the Record and for Re-Hearing and all of the newly discovered evidence presented to the Supreme Court by way of motion should have been considered by the successor referee. The denial of the rehearing motion (Florida rule of Civil Procedure 1.530) and denial of the motions addressed to the 13

20 Supreme Court does not constitute law of the case. The newly discovered evidence previously presented may be considered when incorporated in a motion for new trial under Florida Rule of Civil Procedure A ruling on a motion does not, in any event, preclude admissible evidence from being introduced in support of another motion. In Juliano, supra, this court held that the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court through all subsequent proceedings. This Court added: Further, where a previous appellate court has given no explanation for its decision, a subsequent appellate court is not bound by the law of the case The doctrine of law of the case does not apply if a prior a appeal or motion was decided on procedural grounds. McBride v. State, 810 So.2d 1019 (5 th DCA 2002). A prior per curium, affirmed is not law of the case. Recently this Court readdressed the doctrine in Topps v. State, 685 So.2d 1253 (Fla. 2004), reaffirmed that a ruling must be on the merits to be decided. A judgment rendered on any grounds which do not involve the merits of the action may not be used as a basis for the operation of the doctrine of res judicata. The 14

21 Court clarified that this holds true for appellate rulings on specific writs. Court s reasoning logically applies to motions for new trial pursuant to Florida Rule of Civil Procedure 1.530, which were summarily denied without opinion or citation and to motions to relinquish jurisdiction to pursue newly discovered evidence during an appeal. As this court stated: Writs may be denied in the appellate courts for many other reasons besides an adjudication on the merits. Where the denial is to a Writ or as in this case where a motion is discretionary and not an absolute right it is not law of the case. When a court intends to deny an extraordinary writ, the court need only to include a simple phrase with prejudice or on the merits to indicate that the merits of the case have been determined and that the denial is on the merits. Neither referee Bagley nor this Court noted any thing that would support a finding that there was an adjudication on the merits. This Court ruled: To insure that litigants and the courts alike are clear as to the legal effect of unelaborated denial orders, henceforth, if a Florida court denies a writ petition with the intent that the denial be on the merits, language to that effect must be included in the order. Finally, a denial of a Florida Rule of Civil Procedure motion does 15

22 not as a matter of law preclude inclusion or admission of the same evidence in a motion filed pursuant to Florida Rule Civil Procedure The successor referee incorrectly applied the doctrine of law of the case and confused the difference between a ruling on a motion and the admissibility of evidence supporting the motion in another hearing. The newly discovered evidence presented to referee Bagley and to this court by way of motion, during the pendency of Karten s appeal, should have been considered by the successor referee. II. THE SUCCESSOR REFEREE, IN A NON-JURY PROCEEDING, FAILED TO FOLLOW THE CORRECT PROCEDURE FOR REVIEWING A MOTION FOR NEW TRIAL FILED PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE Florida has no rule of procedure comparable to Federal Rule of Civil Procedure 63. Appellant suggests that the Federal Rule should be adopted by the Court to insure due process of law. The Florida Supreme Court has expressly indicated that a successor judge is entitled to entertain a Florida Rule of Civil Procedure motion, Tingle v. Dade County Board of County Commissioners, 16

23 245 So. 2d 76 (Fla. 1971), but the Court has not lent guidance as to how a successor judge, after a jury or non-jury trial or hearing, is to conduct that task. Federal Rule of Civil Procedure 63 provides as follows: If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undo burden. The successor judge may also recall any other witness. As of the writing of this brief there are no Florida appellate court opinions that outline the procedure a successor judge must follow in determining the merits of a motion for new trial filed pursuant to Florida Rule of Civil Procedure where the hearing or trial was without a jury. Only one Florida appellate court has suggested a methodology after a jury trial. In National Health Care v. Cascio, 725 So.2d 1190 (2 nd DCA 1998) the court outlined the procedure for a successor judge to follow in reviewing a motion for new trial based upon manifest weight of the evidence after a jury trial. The court recognized that even after a jury trial a successor judge may still grant a new trial on the ground that he cannot fairly rule upon the specific motion for new trial in light of particular credibility issues in the record. 17

24 Federal Rule 63 also recognizes that the procedure a successor judge must follow is different depending on whether the trial or hearing is with or without a jury and whether credibility assessments will have to be made by a successor judge. Federal Rule of Civil Procedure 63 always permitted a successor judge to decide postrial motions in a case in which finding of fact and conclusions of law had been filed. See, e.g. David E. Lever v. United States of America, 443 F.2d 350,351 (2 nd Cir 1971); Rose Hall LTD v. Chase Manhattan Overseas Banking, 576 F. Supp. 107,125 (D.Del. 1983) aff d without opinion 740 F.2d 956 (3 rd Cir. 1984) cert. denied 469 U.S (1985) (applying Federal Rule of Civil Procedure 63 to allow a successor judge who did not preside at trial to decide a motion notwithstanding verdict, so long as the successor judge is not required to evaluate credibility of witnesses) Lashbrook v. Kennedy Motor Lines, Inc., 119 F. Supp. 716 (W.D. Pa. 1954). Canseco v. USA, 97 F (9 th Cir. 1996). Emphasis added. In Smith v. Silberman, 586 So. 2d 467 (3d DCA 1991) the court was presented with a situation where, in a prior appeal it had ordered the trial court to hear the testimony of a previously excluded witness. In the interim, the original trial judge recused himself. The successor judge only heard the testimony of the previously excluded witness. The successor judge considered the record but heard only the one witness. The Court ruled that absent a stipulation to the contrary a successor judge may not weigh and compare evidence heard before a prior judge. A successor judge who does not hear all the evidence may not enter a judgment. 18

25 e.g. Reaves v. Reaves, 546 So.2d 744 (2d DCA 1989). When the successor judge became responsible for the completion of the case, it required that he not only hear and evaluate the surviving wife s testimony, but the estate s evidence as well which, when properly evaluated, might change the result. The successor judge necessarily had to hear and evaluate all of this testimony directed to the issue of the gift in order to perform the quintessence of the function of the trier of fact in assessing not only the credibility of the testimony but the weight which it was accorded. The Reaves case is important because like this case it was non-jury. The Federal Rule recognizes that when a successor judge is called upon to rule upon a motion for new trial which necessarily requires a credibility finding a successor judge must rehear the witness whose credibility is at issue. See, Federal Rule of Civil Procedure 63. See also, Advisory Committee Notes to 1991 Amendment to Rule 63 ( The court would, however, risk error to determine the credibility of a witness not seen or heard who is available to be recalled. Cf. Anderson v. City of Bessemer City NC, 470 U.S. 564, 575 (1985); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). See also, United States v. Radatz, 447 U.S. 667 (1980). The courts are uniform that a successor judge may rule on a motion for new trial unless there are credibility issues. The court in National Healthcorp Limited Partnership, supra, recognized this rule. We caution that this holding does not rule out the possibility that the successor judge may still grant a new trial on the ground that he cannot fairly rule upon the specific motion for new trial in light of particular credibility issues in the 19

26 record.[t]hus the type of credibility issue that mandate a new trial, as a matter of law, would normally occur only when the first judge could have granted a new trial because of a witness s demeanor while testifying of perhaps due to the impeachment of a witness. See, State of Maine v. Ruybal v. Armstrong, 408 A.2d 1284 (Me. 1979) (new trial may be granted where it is clear that newly discovered impeachment evidence would have resulted in a different verdict.) Although the successor referee applied the wrong law in assessing whether Karten was entitled to an evidentiary hearing, (See, infra,) she recognized that she would have to assess credibility in her determination as to whether the newly discovered evidence would probably change the result if a new trial is granted. In a hearing which was determined upon a credibility finding the successor referee cannot determine if the newly discovered evidence would probably result in a different credibility finding by reading a cold record. The successor referee s determination, without hearing testimony, that credibility evidence would not change the outcome is flawed The successor judge would have to evaluate each witness. See, e.g. Anderson v. Dewey, 350 P.2d 734 (Idaho 1960)(In a case where the successor judge, after a non jury trial, in resolving the issues raised by a motion for new trial is required to resolve conflicting evidence or pass upon the credibility of witness a new trial should be ordered) In Federal Deposit Ins. Corporation v. Siraco, 174 F.2d 360 (2 nd Cir 1949) The Court held that where the testimony of the defendant and his witness was sufficient to support finding for the defendant, but facts raised a suspicion as to verity of their testimony, and judge to whom case was referred after death of judge 20

27 who heard testimony, and who made finding in favor of defendant, did not see witnesses, the case should be reversed and a new trial ordered before a judge who could decide after seeing witnesses. Accord; Grudzina v. New Mexico Youth Diagnostic and Development Center, 725 P. 2d 255 (N.M.App 1986)(credibility of a witness may be so vital that a new trial is required even when the parties have stipulated to the successor judge s authority to decide case after former judge is disabled, in which case successor judge has discretion to order new trial) This importance of the newly discovered evidence is underscored by the referee s finding that Karten was not credible and that Loynaz was. With regard to Mr. Loynaz credibility, no discernible motive on his part to testify untruthfully has been established from the evidence, irrespective of his several felony convictions. (The referee made this statement despite the Bar s seeking restitution.) This Court also acknowledged, in its opinion, that this original bar proceeding was decided on credibility. The referee in the instant case assessed Karten s credibility and chose to credit the testimony of other witnesses over Karten s testimony. The successor referee, in her report, dismissed the fact that Loynaz filed a civil lawsuit against Karten and that his wife sought a one half interest in any monetary judgment in her divorce proceeding, because either had a vested interest in any lawsuit which might be filed (as would any married couple) and was argued before the referee as bias or motive. If it was discernable motive to lie (financial stake in the proceedings) than the finding of the referee was wrong. If it was not a discernible motive according to the first referee the successor referee missed the significance of the evidence. 21

28 The successor referee, to rule on Karten s motion for new trial, has to resolve conflicting evidence and determine the credibility of witnesses and therefore the Court should remand this cause and order a new trial. III. ASSUMING THAT A NEW TRIAL IS NOT MANDATED THE SUCCESSOR REFEREE IS REQUIRED TO HOLD AN EVIDENTIARY HEARING This court, in two different orders referred this matter to the referee to be heard on its merits. The plain meaning of on its merits mandated that the successor referee hold an evidentiary hearing. The Court de facto found that Karten met the necessary threshold, on the pleadings, when it ordered the new trial motion to be heard on its merits. In the order clarifying its first order the Court stated: The Court finds that the referee has jurisdiction over Respondent s Motion for New Trial and should consider that motion on its merits within ninety (90) days of this order. Blacks Law Dictionary defines on the merits as follows: on the merits: (of a judgment) delivered after the court has heard and investigated the substantive arguments of the parties. [vs.] on the pleadings: (of a judgment) rendered without hearing or evaluating the full arguments of the parties. The Third District has clearly defined the legal requirements mandated for 22

29 hearing a matter on the merits. In Herwitt vs. Caffee, 368 So.2d 1342 (3d DCA, 1979), the claimant alleged that the judicial referee failed to give her a hearing on the merits of her motion. The judge allowed only the introduction of medical records at the hearing without receiving further evidence. The reviewing court found this process insufficient in meeting the legal requirements of hearing a case on the merits. THE PLEADINGS SUPPORT AN EVIDENTIARY HEARING The evidence presented to the successor referee established a colorable showing that fraud was committed and that witnesses testified falsely. Karten s allegation of fraud and false testimony by Nelson Loynaz, as well as the discovery of the fraudulent nature of the vehicle documents, falsified records of 201 East Atlantic Investments, Inc and the presentation of unexpected false testimony raised more than a colorable entitlement to relief and required an evidentiary hearing. See, Dynasty Express Corp. vs. Weiss, 675 So.2d 235 (4 th DCA 1996) (if the allegations in the moving party s motion for relief from judgment raise a colorable entitlement to Rule 1.540(b)(3) relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing is required). See also, In re Guardianship of Teresa Marie Schiavo v. Michael Schiavo, 800 So. 2d 640, (2 nd DCA 2001). 23

30 After discovering that his cooperation with the United States was not going to result in a significant sentence reduction, Nelson Loynaz did what numerous clients do - turned on his attorney and filed a bar complaint against him. Loynaz testified that he entered into an agreement with the United States whereby he was to receive four vehicles in exchange for the sum of $30, that his friend Manny Mesa was to provide. Mesa was to sell the vehicles and split the proceeds. (Coincidentally, the same agreement Karten testified he had with Loynaz). He was unable to sell the vehicles because Karten, he testified, picked up and sold the vehicles without his authorization or agreement. The first referee primarily relied upon the testimony of Loynaz and his wife, Mary for corroboration. They testified that Loynaz friend, Manny Mesa had a $30, check to be deposited in Karten s trust account to be used to satisfy the agreement with the government. Nelson Loynaz committed fraud by falsely testifying that he had no agreement with Karten to sell the four forfeited vehicles and that Manny Mesa had the funds to purchase the vehicles. The referee found that Karten made a profit from the sale of a corvette to Thomas Duncan. This was corroborated, according to the referee, by Karten s business partner, Karl Carmin who submitted a redacted and falsified exhibit indicating that Karten received the benefit of $24,000 from the sale of the Duncan 24

31 corvette as a capital contribution to the corporation. The documents supplied by Karten s ex-partner, Karl Carmin were fraudulent, the alleged supporting documents were eaten by rats and the supporting documents contained false information and forged signatures of Karten. According to Duncan, Woltin supplied a falsified bill of sale for the corvette. That document was never produced by Duncan or Woltin. Woltin s forging Karten s signature on that document would be consistent with Woltin s other forgery of Karten s signature. (Woltin s forgery of Karten s signature on an identical purchasing agreement to that of Duncan s and the actual title on a second corvette is presently under investigation by law enforcement and is part of the evidence presented to the successor referee.) 1. TWENTY (20) DAYS AFTER THE BAR HEARING MARY LOYNAZ FILES FOR DIVORCE ALLEGING AN INTEREST IN A CIVIL ACTION FILED BY HER THEN HUSBAND, NELSON LOYNAZ. The original referee relied heavily on the credibility of the witnesses in disbarring Karten. Clearly, the inclusion of the Karten civil lawsuit in her divorce action a mere twenty (20) days after the hearing is not a coincidence and is something that should have been disclosed during the course of the hearing. Although Mary Loynaz refers to a civil lawsuit filed by her husband no such 25

32 lawsuit was, filed at the time her petition for dissolution was filed. It is reasonable and logical to infer from that fact that Nelson and Mary had discussed filing a lawsuit against Karten. The successor referee states Mary Loynaz was previously impeached on her bias with regard to having a claim in any law suit which her husband might file for recovery. That is not what she said. What Mary Loynaz stated was: Q: Okay. Mrs. Loynaz, if your husband obtains these cars or any monies from this or other litigation, you will benefit by that, will you not? A: Yes. Mary Loynaz believed, at the time she testified, that her husband intended on filing a civil action - as was filed for $300, This $300, lawsuit and her planned interest in it, by way of divorce court, should have been disclosed. In her divorce complaint, filed 20 days after she testified, she alleged that her husband had filed a civil lawsuit against Karten. He had not. The lawsuit was filed 14 months later. This interest affects this witness credibility and was not considered as a motive for Loynaz to give false testimony by the first referee. The successor referee agrees that Loynaz had a motive to lie, a motive not recognized by the first referee. 2. NELSON LOYNAZ FILED A LAWSUIT AGAINST KARTEN FOR $300,000 AND FAILED TO DISCLOSE THAT HE HAD HIRED A LAWYER TO SUE KARTEN 26

33 PRIOR TO HIS BAR TESTIMONY. As evidenced above, Loynaz intended on filing this lawsuit against Karten prior to the time of the hearing. Loynaz retained counsel months before his bar testimony. Such a financial interest would affect any reasonable trier of facts judgment of the credibility of a witness. The intention to file is evidenced by Mary Loynaz divorce petition above. The successor referee dismisses these contentions as not likely to effect the outcome of the case. A conclusion that necessarily makes a credibility determination. The original referee in his report specifically stated that other than Loynaz 12 felony convictions he had no discernable motive to lie. There is no greater discernable motive to lie than having a financial stake in the outcome of a proceeding. Loynaz financial motive was not considered by the original referee. The successor referee dismisses this testimony as not newly discovered material. The evidence was discovered after the bar hearing. The successor referee also dismisses the evidence because the evidence in this case is overwhelming and compelling, it has not been shown to be likely that this evidence would have resulted in a different outcome. Again, the successor referee ignores that such a conclusion requires credibility assessments. See, Karten s prior argument regarding successor judge not making credibility determinations without 27

34 hearing testimony. The successor referee s comment on the weight of the evidence is remarkable in that the successor referee did not certify that she read the record nor did she hear any testimony. In evaluating the weight of the evidence a trier of fact must make credibility determinations. Smith v. Brown, 525 So.2d 868 (Fla 1988). 2. MARY LOYNAZ NOW SAYS THAT SHE NEVER SAW A $30,000 CHECK FROM MANNY MESA AND THAT ALL HER TESTIMONY CONCERNING ANY AGREEMENTS AS WELL AS ALL OTHER CORROBORATING TESTIMONY CAME FROM HER THEN HUSBAND - NELSON LOYNAZ. At the trial, Mary Loynaz testified that she and Manny Mesa attempted to tender a $30, check to Karten to pay for the cars - the heart of Loynaz allegation. In a civil deposition taken in Loynaz v. Karten, Case # CA21 (Cir. Ct. 11 th Jud. Circuit 2002) filed after the hearing, she states: Q. Is it fair to say that the source of your information concerning whatever arrangements, if any, there were between myself (Karten) and Nelson Loynaz, was Nelson Loynaz? A. Yes. Page 35 of Mary Loynaz deposition. The deposition continues and on redirect, she reaffirms the above statement: Q. And you have those understandings because that s what Nelson Loynaz told you. 28

35 A. As far as what? Q. All those questions about what your understanding was putting up the money, bringing money, the meaning of the agreement, all these understandings of what the agreement was were because Nelson told you that s what the agreement was? A. Correct. Q. You had no other outside source of information concerning the agreement, just what Nelson told you. A. Right. Page 47 (emphasis added) The successor referee ignored Mary Loynaz deposition testimony and concluded: Mary Loynaz does not ever say that she did not have personal knowledge. 4. MARY LOYNAZ NOW ADMITS THAT SHE ATTENDED A MEETING AT THE JAIL WHERE THE AGREEMENT BETWEEN KARTEN AND LOYNAZ WAS DISCUSSED. The successor referee stated: [A]fter review of Mary Loynaz testimony this Referee fails to find that the testimony referred to supports the conclusion that Mary Loynaz testimony corroborates the Respondent s testimony. All of the successor referee s citations to the record are only to the testimony of Mary Loynaz. The successor referee never certifies or even states that she read Karten s hearing testimony. However, Mary Loynaz post hearing deposition in the civil case reveals that she did in fact witness a meeting between Karten and Loynaz at 29

36 which their agreement to sell the cars was discussed. At the Bar hearing, Mary Loynaz never testified that she witnessed a conversation between Loynaz and Karten about the cars. At the time, she was still married to Loynaz. She now admits that she did so at a time when she was at the jail at the same time as Karten. Records confirm that this meeting took place before the stipulation and settlement was executed. She states: Q. Do you recall what we talked about? A. I know the two of you were discussing about the cars and money, but don t recall exactly why. Q. Do you recall, when we discussed the cars, you were sort of listening to the two of us talk, basically? A. Yes. Deposition testimony pages (emphasis added) Karten testified about this meeting with Loynaz at the Federal Corrections Center at his bar hearing. (R ) Mary Loynaz s testimony corroborates Karten s testimony and is inconsistent with Loynaz bar hearing testimony. A reasonable trier of fact would find that this testimony is of some moment in judging the credibility of both Karten and Loynaz. 5. MANNY MESA SIGNED A SWORN POST HEARING STATEMENT THAT HE HAD NO AGREEMENT 30

37 WITH NELSON LOYNAZ TO SELL THE CARS FOR HIM AND NEVER HAD A $30, CHECK FOR KARTEN. HE FURTHER STATES THAT HE WAS NEVER ADVISED TO TALK TO THE UNITED STATES ATTORNEY AS STATED BY LOYNAZ IN HIS BAR TESTIMONY. This is the smoking gun. Mesa was unavailable to testify for the Bar (or Karten) at the time of the hearing. Yet, he is the witness who could have corroborated Loynaz testimony, since he is the one who had agreed to pick up and sell the cars for Loynaz and to talk to the United States Attorney. The successor referee s response is that Karten cannot present Mesa s testimony as it is precluded as law of the case. See, argument, supra. This posthearing document establishes that Nelson Loynaz lied at the hearing about having an agreement with Manny Mesa to sell the cars and to talk directly to the United States Attorney. A reasonable fact finder would find this significant in judging Loynaz credibility as well as the Bar s case in chief. Mesa s affidavit was offered to prove that Loynaz bar hearing testimony was false and unexpected. 6. LOYNAZ NOW ADMITS THAT THE VEHICLES WERE OWNED BY TROPIKAR SALES, INC., NOT HIM. 31

38 At the Bar hearing Loynaz told the referee that the cars were owned by him. In Loynaz v. Karten, Case # CA21 (Cir. Ct. 11 th Jud. Circuit 2002) filed in 2002, in an answer to a request to admit - Loynaz admits that the cars were owned by Tropikar Sales, Inc. The import of this is obvious, Loynaz testimony or statements at any time are not worthy of belief. The actual titles to the vehicles belie Loynaz testimony. The successor referee refers to the Court s opinion, which quotes the report and recommendation of the first referee. The original referee stated that Loynaz testified that he masked the ownership of the vehicles to avoid their seizure and forfeiture. While this is a common process employed by professional criminals, that statement is not in the record of the bar s proceedings. In fact, Karten, in his motion to recuse, alleged that the first referee fabricated this testimony to support his conclusion. The successor referee now parrots this false statement. Loynaz specifically testified that he kept the titles in their original names to protect their value. In fact, an examination of the titles, will, without any doubt, show that some of the titles were transferred to Tropikar Sales. Inc. years before Loynaz the date that Loynaz testified they were. The 1967 Corvette title was transferred by Quality Leasing, Inc. to Tropikar, Sales, Inc. in The Shelby title was never transferred to Tropikar, Sales, Inc. (contrary to Loynaz testimony). The affidavit 32

39 of Manuel Fernandez, owner of Tropikar Sales, Inc. indicates that in 1994 he owned the vehicles, not Loynaz. The newly discovered evidence is proof that the Bar presented false testimony at the original hearing. 7. LOYNAZ STATEMENTS IN HIS POST HEARING DEPOSITION SUPPORTS THAT KARTEN WAS TO PUT UP THE FUNDS FOR THE CAR. In his deposition in support of his civil lawsuit against Karten, Loynaz for the first time seems uncertain as to whether Karten actually was the person with whom he was going to sell the cars. Karten agrees that it is not a true admission. However, if Loynaz does not remember what was said at the meeting with the government than Karten testimony before the referee was uncontraverted. 8. LOYNAZ POST HEARING TESTIMONY AT DEPOSITION REGARDING STANDING CORROBORATES KARTEN AND LOGICALLY CONFLICTS WITH LOYNAZ BAR TESTIMONY In his post hearing testimony, Loynaz admits that there was a necessity to establish standing prior to discussions with the government regarding the forfeiture of the vehicles. The testimony supports Karten s testimony that he argued that Loynaz could argue standing under a mechanics lien theory. The successor referee states that she reviewed Loynaz deposition and Loynaz does not concede the point. 33

40 Loynaz deposition at page : Q: John Roth asked---- I remember that I told him that I did some work on the cars. Q: Right, and our argument was that we could have standing possibly file a challenge based upon a mechanic s lien on the vehicles because you had done some repairs to the vehicles --- tires, paint or body work. I don t remember what it is personally. Do you recall that? A: Yes. I remember something like that. See, Karten s hearing testimony at page 259. The referee also ignored Loynaz subsequent affidavit in Opposition to Defendant s Motion for Summary Judgment filed in Loynaz v. Karten, Case # CA21 (Cir. Ct. 11 th Jud. Circuit 2002) in which, under oath, Loynaz states that: 1. He informed the U.S. attorney s office that he owned the vehicles. (If so why was standing an issue) 2. He told prosecutors that he bought the cars will illegal drug money. 3. A prosecutor told him he had a 50/50 chance of getting the cars back. (Even though purchased with illegal drug money). 4. An assistant United States attorney told him they knew he would be unable to provide proof of income for the purchase of the vehicles. All of which is incredible and defies all common sense and reason. As a matter of 34