IN THE SUPREME COURT OF THE STATE OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA Case No. SC DCA Case No. 4D Martin County Circuit Court Case Nos CA, CA, CA CHARLES MASON, v. Petitioner E. SPEER & ASSOCIATES, INC. a Florida corporation, and ERLING D. SPEER Respondents / ON APPLICATION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT RESPONDENTS BRIEF ON JURISDICTION Edward A. Marod, Esq. Florida Bar No Counsel for Respondents EDWARD A. MAROD, P.A. Post Office Box 3606 West Palm Beach, FL (561)

2 TABLE OF CONTENTS ITEM PAGE Cover Page... i. Table of Contents... ii. Table of Cases & Other Authorities... iii. Statement of the Case and of the Facts Summary of Argument Argument ISSUES PRESENTED FOR REVIEW I. THIS COURT LACKS JURISDICTION TO REVIEW THE DECISION OF THE FOURTH DISTRICT COURT OF APPEALS, SUB JUDICE, BECAUSE IT NEITHER EXPRESSLY NOR DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT NOR ANY OF THE OTHER DISTRICT COURTS OF APPEALS Conclusion Certificate of Service Certificate of Font and Type Style

3 TABLE OF CITATIONS CASES PAGES Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145 (Fla. 4 th DCA 1995) In re Atchison, 101 B.R. 556 (S.D.Ill. 1989) Charles Wallace Co. v. Alternative Copier Concepts, Inc., 583 So. 2d 396 (Fla. 2d DCA 1991) Dania Jai Alai Palace, Inc., v. Sykes, 450 So. 2d 1114 (Fla. 1984) Estudios Proyectos e Inversiones de Centro America, S.A. (EPICA), v. Swiss Bank Corp. (Overseas) S.A., 507 So. 2d 1121 (Fla. 3 rd DCA 1987) rev. denied 518 So. 2d 1274 (Fla. 1988) Ethan Allen, Inc., v. Georgetown Manor, Inc., 647 So. 2d 812 (Fla. 1994).. 5. Laboratory Corp. of America v. Professional Recovery Network, 813 So. 2d 266 (Fla. 5 th DCA 2002) , 9. Landry v. Hornstein, 462 So. 2d 844 (Fla. 3 rd DCA 1985) Mason v. E. Speer & Associates, Inc., 28 Fla. L. Weekly D425 (Fla. 4 th DCA February 5, 2003), reh. denied (March 28, 2003)...passim. CASES (continued) PAGES Ocala Breeders Sales, Inc., v. Hialeah, Inc., 735 So. 2d 542 (Fla.3 rd DCA 1999) rev. denied 749 So. 2d 502 (Fla. 2000)

4 Orlando Light Bulb Service, Inc. v. Laser Lighting & Electrical Supply, Inc., 523 So. 2d 740 (Fla. 5 th DCA 1988) Southern Life Insurance & Trust Co. v. Lanier, 5 Fla. 110 (1853) United Yacht Brokers, Inc., v. Gillespie, 377 So. 2d 668 (Fla. 1979) OTHER AUTHORITIES PAGES Florida Constitution, Article V, Section 3(b)(3)... 9, 10. Florida Constitution, Article V, Section 3(b)(4) U.S.C Uniform Fraudulent Transfer Act

5 STATEMENT OF THE CASE AND OF THE FACTS This is an appeal of a decision rendered March 28, 2003, upon the denial by the District Court of Appeal of Florida, Fourth District, of Petitioner s motion for rehearing in Mason v. E. Speer & Associates, Inc., 28 Fla. L. Weekly (Fla. 4 th DCA February 5, 2003), reh. denied (March 28, 2003) (hereinafter Mason ). The only grounds asserted as a basis of jurisdiction relate to the imagined conflict between Mason and multiple decisions of this Court and the sister courts of the Fourth District. Because the facts as found by the trial court, and accepted on the face of its decision by the Fourth District, distinguish this case from all of the cases cited for conflict, the petition in this case should be denied. Mason does contain some of the language paraphrased by Petitioner in his Brief on Jurisdiction (hereinafter Brief on J ) and characterized as drawn entirely from the decision of the Fourth District Court of Appeal. Brief on J at 1, n.1. However, Mason also contains much language Petitioner decided not to draw that clearly establishes the differences between Mason and the decisions allegedly conflicting with it. For instance Mason explains the facts argued by Petitioner, Brief on J at 2, to be essentially undisputed in support of his continuation of business argument by saying: While all of these facts are essentially undisputed, the instant case is distinguishable... based on the "assets" that ESA Georgia allegedly transferred to ESA Florida. [Citation omitted at ellipsis.] 28 Fla. L. Weekly at *2. With respect to the two assets allegedly transferred that are so central to all of his arguments, Petitioner also fails to mention that the trial court

6 found and the Fourth District accepted that: The contract with Wintergreen [Asset #1] ended on its own terms and therefore was not an asset of ESA Georgia that could be transferred to ESA Florida. As for the agreement with Atlantic Gulf [Asset #2], ESA Georgia was never a party to the agreement and did not have rights in the agreement that could be transferred. In addition, both of the agreements in the instant case were personal service contracts that required performance by Speer. Id., at *3. Petitioner also fails to mention that Mason then went on to say: The instant case is also distinguishable..., in that ESA Georgia declared bankruptcy and transferred all of its remaining assets (a villa and some cash) to the bankruptcy estate. In addition, there was no real transfer of personnel or equipment from ESA Georgia to ESA Florida. When ESA Georgia declared bankruptcy, Speer was the only remaining employee. For the first two years of ESA Florida's existence Speer was the only salaried employee. The only connection between the companies was Speer. As for equipment, neither corporation had any real identifiable equipment. The nature of the services performed did not require any specific equipment or other assets. [Citation omitted at ellipsis; emphasis added.] Id., at *3. Likewise, on the piercing the corporate veil issue, after accurately describing Petitioner s burden of proof at trial, the Fourth District held: The trial court found that [Petitioner] had not satisfied this burden. Of the transactions that the trial court deemed to be improper, they were spread over a period of five years with two in 1991, two in 1994 and two in The transactions were isolated incidents and were not in response to any liability that the corporation had incurred. [Petitioner] simply did not carry his burden in establishing that these transactions were made with a deliberate intent to mislead creditors. Id., at *4. Finally, on the issue of property allegedly fraudulently transferred Petitioner fails to mention that the District Court held: Under the bankruptcy code, the concept of property of a debtor's estate is an expansive one and includes all legal or equitable interests of a debtor in property as of the commencement of the case, wherever located and by whomever held.... Despite this expansive definition, ESA Georgia did not have a sufficient interest in the management contracts with Wintergreen and Atlantic Gulf that could be transferred to ESA 2

7 Florida. The contract with Wintergreen expired by its own terms on December 1, 1996 and was not renewed. Therefore, after December 1, 1996, ESA Georgia no longer had an interest in the contract. As for Atlantic Gulf, the trial court determined that the relationship was an agreement with Speer personally and not a true asset of ESA Georgia. [Citation omitted at ellipsis; emphasis added.] Id. The facts left out by Petitioner clearly demonstrate the absence of conflict jurisdiction in this Court. SUMMARY OF ARGUMENT The Court s jurisdiction in this case depends upon a finding that the decision sought to be reviewed expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. None of the decisions cited by Petitioner as conflicting with the decision sought to be reviewed conflicts on the same question of law, or any question of law at all. Therefore, this Court should enter its order denying review. ARGUMENT I. THIS COURT LACKS JURISDICTION TO REVIEW THE DECISION OF THE FOURTH DISTRICT COURT OF APPEALS, SUB JUDICE, BECAUSE IT NEITHER EXPRESSLY NOR DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT NOR ANY OF THE OTHER DISTRICT COURTS OF APPEALS. Employing a throw everything against the wall and see what sticks approach to obtaining review by this Court, Petitioner claims conflict between the decision below and nine decisions of other district courts of appeal and this Court on six 3

8 different topics. 1 Each of the nine Florida decisions 2 cited for conflict 3 so differs from the decision below on the procedural posture in which it came to the appellate court, or on the facts, that none actually conflicts with the decision below on the same question of law. Laboratory Corp. of America v. Professional Recovery Network, 813 So. 2d 266 (Fla. 5 th DCA 2002) involved the reversal of an order granting a motion for summary judgment that had upheld claims of a judgment creditor similar to the claims made in the case at bar. The Fifth District Court of Appeals, after reciting the law, reversed the summary judgment order on the ground that the record reflected unresolved genuine issues of material fact concerning the actual intent of the defendant that could only be resolved at trial. By contrast, in the case at bar, the issues, including the issue of the actual intent of the defendants, were decided at trial, not on summary judgment, 4 and were decided adversely to the claims of Petitioner. Whether there were genuine issues of material fact was not an issue before the Fourth District in this case. Therefore, the decision sought to be reviewed does not conflict with the decision in Laboratory Corp. on the same question of law. 1 Mason also makes poorly veiled assertions that the decision below conflicts with another decision of the Fourth District Court of Appeals, Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145 (Fla. 4 th DCA 1995). See, e.g., Brief at 7-8, 10. Since this Court s jurisdiction cannot be based on conflict of decisions within the district from which the decision sought to be reviewed has issued, nothing more need be said about that particular case. 2 Mason also appears to cite one federal case for conflict. Brief on J at 9. 3 Although Charles Wallace Co. v. Alternative Copier Concepts, Inc., 583 So. 2d 396 (Fla. 2d DCA 1991) is listed in the table of citations, it does not appear in the brief and is therefore neither counted here nor discussed in this brief. 4 The statute of limitations as to certain claims was decided by summary judgment in this case, but that summary judgment order has never been challenged by Petitioner. 4

9 United Yacht Brokers, Inc., v. Gillespie, 377 So. 2d 668 (Fla. 1979), Ethan Allen, Inc., v. Georgetown Manor, Inc., 647 So. 2d 812 (Fla. 1994) and Landry v. Hornstein, 462 So. 2d 844 (Fla. 3 rd DCA 1985), apparently all are cited in support of Petitioner s argument that the trial court and Fourth District erred in their determinations that an expired contract and a contract to which the judgment debtor was never a party were not property of the debtor for purposes of the application of the Uniform Fraudulent Transfer Act, 11 U.S.C. 548, the continuation of business doctrine and the law of piercing the corporate veil. Unfortunately, none of the three cases talks about any of those areas of law. Instead, they were all decisions relating to claims of intentional interference with business relationships, an area of the law that is unique in its treatment of a party s interest in a contract. As this Court held in United Yacht, after first observing that it might seem odd to permit an action for tortious interference with an unenforceable contract to proceed: In this regard, Dean Prosser was quoted in Allen v. Leybourne, 190 So.2d 825, 828 (Fla. 3d DCA 1966), a case in which a suit for tortious interference with a contract to make a bequest was permitted, despite the unenforceability of the contract. We find his reasoning most persuasive: The agreement need not, however, be enforceable by the plaintiff as a contract.... The law of course does not object to the voluntary performance of agreements merely because it will not enforce them, and it indulges in the assumption that even unenforceable promises will be carried out if no third person interferes. Accordingly, it usually is held that contracts which are voidable by reason of the statute of frauds, formal defects, lack of consideration, lack of mutuality, or even uncertainty of terms, or harsh and unconscionable provisions, or conditions precedent to the existence of the obligation, can still afford a basis for a tort action when the defendant interferes with their performance. 5

10 W. Prosser, Handbook of the Law of Torts, s 129 at 932 (4th ed. 1971). In this case it is entirely reasonable to assume that absent the alleged interference, United would have been paid its commission regardless of the enforceability of its agreement with Johnson. 377 So. 2d at 672. Thus, these cases do not define unenforceable contracts as transferable property under Florida law. Instead, they describe a legal fiction, admittedly contrary to the law of property, used in the context of actions for tortious interference. Since tortious interference was not at issue in Mason, these decisions cannot form the basis of conflict jurisdiction here. Orlando Light Bulb Service, Inc. v. Laser Lighting & Electrical Supply, Inc., 523 So. 2d 740 (Fla. 5 th DCA 1988), like the case sub judice, involved a finding that the evidence presented at trial was insufficient to support either a claim of continuation of business, or a claim of piercing the corporate veil, or a claim of de facto merger. In that regard, it is noteworthy that Petitioner s citation of Orlando Light is a pinpoint citation to a footnote that contains nothing but a broad generalization about what a court is looking for in a continuation of business case. Petitioner s argument that a broad generality contained in a footnote can transform a case having the same result as the case sought to be reviewed into a case supporting conflict jurisdiction is sheer nonsense. Southern Life Insurance & Trust Co. v. Lanier, 5 Fla. 110 (1853) is still good law, notwithstanding the fact that it enforces a mortgage secured by an interest in the ownership of slaves. However, the decision is inapplicable here. Although Southern Trust does mention the principle that when a corporation becomes insolvent, the officers are trustees for creditors, it does so only in debunking a defense that claimed a loan could not be enforced because the officers acted without authority in making 6

11 the loan in the first place. Moreover, the officer as trustee principle was obviously correctly applied here because the trial court and the district court found that the judgment debtor had no assets at the time it filed bankruptcy other than the assets that it turned over to the bankruptcy court in connection with its insolvency proceedings there. 28 Fla. L. Weekly at *3. If the officer of the debtor turned over all of the debtor s assets for the benefit of the debtor s creditors, the officer s duties as trustee were fulfilled, even if not separately discussed on the face of the decision. Thus, Southern Life cannot support conflict. Dania Jai Alai Palace, Inc., v. Sykes, 450 So. 2d 1114 (Fla. 1984), Ocala Breeders Sales, Inc., v. Hialeah, Inc., 735 So. 2d 542 (Fla.3 rd DCA 1999) rev. denied 749 So. 2d 502 (Fla. 2000), and Estudios Proyectos e Inversiones de Centro America, S.A. (EPICA), v. Swiss Bank Corp. (Overseas) S.A., 507 So. 2d 1121 (Fla. 3 rd DCA 1987) rev. denied 518 So. 2d 1274 (Fla. 1988) all stand for the proposition that piercing the corporate veil is dependent upon the facts of the particular case. Dania Jai Alai held that a verdict rendered in favor of a plaintiff had to be reversed because a showing of wrongdoing or fraud is essential to pierce the corporate veil. 450 So. 2d at As noted above, both the trial court and the district court of appeals found that Petitioner had failed to carry his burden of proof on this issue. 28 Fla. L. Weekly at *4. Whether a party did or did not carry his burden of proof on an issue is not something properly brought before this Court on conflict jurisdiction. Estudios Proyectos held that there was substantial record support to sustain the trial 7

12 court s decision piercing the EPICA s corporate veil, 507 So. 2d at 1121, while Ocala Breeders held that the undisputed facts show that the corporation whose veil was to be pierced had been used to mislead creditors or to perpetrate a fraud upon them. 738 So. 2d at 543. The only conflict between Estudios Proyectos, Ocala Breeders and Mason is that the trial court in Mason, on a complete record, found the evidence presented to have been insufficient. That conflict is a result of Petitioner s failure to prove a case; not the result of the district court s failure correctly to apply the law. Since this Court s review of the record proper in search of conflict jurisdiction ended long ago, conflict jurisdiction cannot be based on any of the piercing the corporate veil cases cited by Petitioner. In a jurisdictional tour de force, Petitioner seems to argue that Mason conflicts with In re Atchison, 101 B.R. 556 (S.D.Ill. 1989), a federal bankruptcy law decision. Brief on J at 9. Of course, conflict between the decision of a district court of appeals and a federal district court in Illinois sitting in its appellate capacity does not give rise to jurisdiction in this Court. Florida Constitution, Article V, Section 3(b)(3). To the extent the citation of the federal decision was solely to give context to an argument putting another spin on Laboratory Corp., supra, the simple fact of the matter is that Laboratory Corp. does not conflict with Mason at all. Instead, Laboratory Corp., while acknowledging in dicta the possibility that client relationships might constitute transferable property, reversed a summary judgment in favor of the judgment creditor. Mason, on the other hand, is an affirmance of a trial court determination that, under the facts developed at a full trial on the merits, an expired contract and a contract that the judgment debtor never had an interest in were not 8

13 transferable property. Petitioner s public policy argument is nothing but an attempt to leap the chasm between Florida Constitution Article V., 3(b)(3) and 3(b)(4), by encouraging this Court to certify great public importance where the Fourth District declined to do so. The issues in this case are not matters of great public importance. They are issues wholly dependent on the sufficiency vel non of the proofs presented at the trial court which not only need not be reviewed here, they should not be reviewed here. On the issues advanced by Petitioner, the trial court determined that the proofs presented were insufficient and the Fourth District sustained the trial court s determinations. This Court should not waste its precious time reviewing those determinations. CONCLUSION Because the decision below does not expressly or directly conflict with any decisions of this Court or other District Courts of Appeal on the same questions of law, this Court should enter an order denying Mason s Petition for Discretionary Review. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been served upon all parties on the attached service list by U.S. Mail this day of June CERTIFICATE OF TYPE SIZE AND STYLE The undersigned certifies that the type size and style of this brief is 14 point Times New Roman. 9

14 EDWARD A. MAROD, P.A. Counsel for Respondent Post Office Box 3606 West Palm Beach, FL (561) By: Edward A. Marod, Esq. Florida Bar No