CASE NO.: 4D JOHN TAGLIERI, an individual, Appellant, Appellees. REPLY BRIEF

Transcription

1 DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT CASE NO.: 4D JOHN TAGLIERI, an individual, RECEIVED, 9/8/2015 1:38 PM, Clerk, Fourth District Court of Appeal Appellant, V. DONALD J. TRUMP, THE TRUMP ORGANIZATION, LLC, and TRUMP FLORIDA MANAGEMENT, LLC, Appellees. REPLY BRIEF BILLBROUGH & MARKS, P.A. Geoffrey B. Marks 100 Almeria Avenue, Suite 320 Coral Gables, Florida Tel: (305) Fax: (305) Attorneys for Appellant BILOROUGH & MARKS, PA, IOU ALMERIAAVENUE SUITE32O CURALGAUIES,FLOIUUA TELEPHONF FAX

2 TABLE OF CONTENTS Page Table of Contents. Table of Authorities ii Argument 1 I. THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF MARKET CRASH EVIDENCE AND THEN ALLOWING THE DEFENDANTS TO ARGUE THAT THE PLAINTIFF DID NOT SUSTAIN ANY DAMAGES 1 II. III. IV. THE TRIAL COURT ERRED BY REFUSING TO ALLOW PLAINTIFF FROM INTRODUCING EVIDENCE CHALLENGING THE CREDIBILITY OF A DEFENSE WITNESS 4 THE TRIAL COURT ERRED IN DIRECTING A VERDICT FOR TRUMP FLORIDA MANAGEMENT... 5 THE TRIAL COURT ERRED IN DENYING PLAINTIFF S MOTION TO AMEND TO AS SERT A CLAIM FOR PUNITIVE DAMAGES 6 Conclusion 7 Certificate of Service 8 Certificate of Compliance 9 BILLBROUGH & MARKS, PA. 00 ALMERIA AVENUE SUITE 320 COII.ALGABIEs, FLORIDA TELEI 110NE FAX

3 TABLE OF AUTHORITIES Cases Page New Jerusalem Church of God, Inc. v. Sneads Community Church, Inc., 147 So.3d 26 (FIa. 1st DCA 2013) 5 Wayne Frier Home Ctr. ofpensacola, Inc. V Cadlerock Joint Venture, L.P., 16 So.3d 1006 (Fla. 1st DCA 2009) 6 Il. BILLEROUGH & MARKS, PA. IOOALMERIAAVENUE SU1T5320 CORALGABLES. FLORIDA TELEPIIONE3O FAX

4 ARGUMENT I. THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF MARKET CRASH EVIDENCE AND THEN ALLOWING THE DEFENDANTS TO ARGUE THAT THE PLAINTIFF DID NOT SUSTAIN ANY DAMAGES Contrary to the arguments advanced in the answer brief, the plaintiffs claims are based on misrepresentations or omissions in materials provided to plaintiff when he paid his deposit and signed a contract in The closing letter and ensuing market crash evidence and testimony, which are the corner stones of the appellees arguments, are not the basis of the defendants liability. For the closing letter, the relevance is merely the triggering document or event that reveals the misrepresentations made by the defendants. The closing letter was introduced into evidence to show when the plaintiff learned he had been deceived, For the market crash testimony, there is no relevance to any issue in this case. The appellees suggest that the motivation, or in their words causation, for plaintiff filing suit is somehow relevant to a determination of liability, causation and damages, and therefore the market crash evidence was relevant and admissible. The motivation for plaintiff filing suit is irrelevant to the primary issue: whether the misrepresentations by the defendants was a legal cause of the plaintiff paying a non refundable deposit. Moreover, the appellees argument that the market crash BLL8RQUGH & 1ARRS, PA, 100 ALMERIA AVENUE SU1TE320 C0RALGABLES, FLORIDA TELEPIJONE3O5.442,2701 FAX

5 evidence goes to plaintiffs credibility, see answer brief at 12, is simply unfounded. As the appellees would have it, the identif of the developer only became important to the plaintiff after the market crashed and he then became motivated to claim that he was deceived and bring suit. The events of 2009 have nothing to do whatsoever with the credibility of the plaintiff who was deceived in The plaintiffs motivation in bringing a lawsuit is simply not relevant to any issue or element of his claim. If anything, it highlights the overwhelming prejudice of such evidence. The appellees argue that the market crash evidence is relevant to the issue of scienter. Answer brief at 19. What Mr. Trump knew is relevant at the time of the misrepresentations, not years later. Regarding the excluded testimony of plaintiffs rebuttal expert testimony, the appellees argue that they were surprised by an undisclosed opinion, that the expert s opinion was flawed in its analysis, and that the plaintiff did not proffer the testimony. These arguments do not support exclusion of the testimony. First, the plaintiff disclosed the rebuttal expert in response to an untimely disclosed defense expert who was providing testimony on an irrelevant issue, i.e. market crash. R15: The cry of surprise should ring hollow given the late disclosure by the defendants and the focus of their case on prejudicial and irrelevant market crash testimony. -2- BILLEROUCH & MARKS PA. ODALMERLA AVENUE SULTE32O CORALGAULES, FLORIDA FELEPHONE3O Fx

6 Second, appellees contend that Mr. Padron s report did not address the issue of improving market conditions since Answer brief at 21. Mr. Padron s report, under the section titled Income Stream, discusses an investor s exit strategy which is directly proportional to the return on investment. Cash flows are estimated based on the current rental market rates for condo hotels as well as percentage of occupancy during the year. R20: Mr. Padron s report demonstrates the inadequacies of the defense export report and the need to consider investment over a long term, or more aptly, consideration of the market after the market crash. Mr. Padron s opinion clearly discloses his consideration of long term market conditions and that he was prepared to testii, on that issue. Finally, Mr. Padron would have testified, and did testif3, although stricken by the trial court that we will have to evaluate the units per the income that they could have generated ifthey would have closed in the units and they had generated through these years income probably. Ri 1:996. However the trial court told the jury that it didn t happen. We have that as fact. The building is still empty. Ri 1:996. The defense, and the trial court, were fully aware of Mr. Padron s opinions, and it was error to exclude his testimony. -3-6LLEROUGH & MARKS, PA. TOO ALMERTAAVENUE SUITE 320 CORALGASLES, FLORIDA TELEPH0NE3O FAX

7 II. THE TRIAL COURT ERRED BY REFUSING TO ALLOW PLAINTIFF FROM INTRODUCING EVIDENCE CHALLENGING THE CREDIBILITY OF A DEFENSE WITNESS The appellees advance a very unusual, albeit creative, argument to support the trial court s limitation of cross examination of one of their four witnesses. The appellees first argue that Julian Schwarz s testimony repeated other witnesses testimony and was cumulative. Under this theory, the defendants were able to elicit favorable testimony that the marketing materials were not misleading, that the defendants had done no wrong, yet exclude testimony demonstrating that the witness was financially motivated to provide favorable testimony. The argument that the witness s testimony was cumulative and therefore cross examination should have been curtailed is novel, but ultimately completely unfair to the plaintiff If the evidence was truly cumulative then the witness should not have been permitted to testify in the first instance, not with limitation on the cross examination which clearly would have established bias. The jury was denied the opportunity to evaluate the credibility of this witnesses, and thereby evaluate the legitimacy of the defense argument that it had done no wrong. The plaintiffs counsel stated that her examination would be very limited and this is not a situation that would have required a mini-trial. T9: SRLDROUGH & MARKS, PA, IOU ALMERIA AVENUE SUITE 320 CORALGABLES, FLORIDA FELEPIIONE3O FAX ,2801

8 The jury was left with an improper view of this witness and denied the opportunity to evaluate the real credibility of this extremely biased witness. III. THE TRIAL COURT ERRED IN DIRECTING A VERDICT FOR TRUMP FLORIDA MANAGEMENT With all due respect to our colleagues, the standard of review of an order granting a motion for directed verdict is not whether there is substantial competent evidence to support the ruling, see answer brief at 28, but rather [i]f there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law, New Jerusalem Church of God, Inc. v. Sneads Community Church, Inc., 147 So.3d 26, 28 (Fla. 1st DCA 2013). In this case, the trial court erred in granting a directed verdict for Trump Florida Management because Donald Trump, in his capacity as president of Trump Florida Management and through his agents, approved the misleading marketing and offering materials. These documents neglected to disclose that Trump was not a developer. A753, 757; T7: There is both a conflict in the evidence and the entirely reasonable inference that can be drawn that the condominium documents made various misrepresentations and omissions. Moreover, Trump s company, Trump Florida Management, stood to gain from the sale of the units through its -5- BILLOROUGH & MARKS, PA. IUDALMERIAAVENUE SUITII32O CORALGAI1LES, FLoRIDA TELEPII0NE3O FAx

9 approval of these defective documents. Accordingly, the trial court erred in directing a verdict for this defendant. IV. THE TRIAL COURT ERRED IN DENYING PLAINTIFF S MOTION TO AMEND TO ASSERT A CLAIM FOR PUNITIVE DAMAGES The entire argument in the answer brief never addresses the standard of review or the evidence proffered by appellant in support of its motion to amend to add a claim for punitive damages. ln evaluating the sufficiency of the evidence proffered in support of a punitive damage claim, the evidence is viewed in a light favorable to the moving party. Wayne Fr/er Home Ctr. ofpensacola, Inc. V C adlerock Joint Venture, L.P., 16 So,3d 1006, 1009 (Fla. 1st DCA 2009), In this case there was sufficient evidence to allow punitive damages to be determined by the jury. There was a sufficient proffer, as set forth in the amended initial brief and there was sufficient evidence adduced at trial to allow the jury to resolve the damage claim. -6- B&LBROUSH & MARKS, PA, 100 ALMERIAAVENUE S01TE320 COALGAI3LFS.FLORIDA TELEI HONE3OS,442,2701 FAx

10 CONCLUSION Based on the foregoing argument and authority, the Court should reverse the final judgments and remand the case for a new trial on all issues. BILLBROUGH & MARKS, P.A. Attorneys for appellant 100 Almeria Avenue, Suite 320 Coral Gables, Florida Tel: (305) Fax: (305) By: s/geoffrey B. Marks Geoffrey B. Marks Florida Bar No.: BLLLnROUGH & MARKS, PA IOOAI.MLRIAAVENUE Surrr32O CORALGARLES, FLoRIDA TFLEPII0NE3O FAX3OS

11 CERTIFICATE OF SERVICE I certify that a copy hereof has been thrnished to Elizabeth L. Beck, Esq., Jared H. Beck, Esq., Beck & Lee Trial Lawyers, Corporate Park at Kendall, SW 137th Aye, Suite 205, Miami, FL 33186, e1izabeth@beckandlee.com, service@beckandlee.com, beckandlee@gmail.com, and Herman J. Russomanno, Esq., Robert J. Borrello, Esq., Herman J. Russomanno III, Esq., Russomanno & Borrello, P.A., Museum Tower, Penthouse 2800, 150 West Flagler Street, Miami, FL 33130, herman2@russomanno.com, rborrello@russomanno.com, hrussomanno@russomanno.com, by on September 8, By: _s/geoffrey B. Marks Geoffrey B. Marks -8- BLL2ROUGH & MARKS, PA. IODALMERIAAvENUE Su1TE320 COLLGADLES, FLORIDA TEL.EPIIONE3OS FAX

12 CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing initial brief was typed in Times New Roman l4pt. By: s/geoffrey B. Marks Geoffrey B. Marks L5OI8-(H274)O\B\Repy Bricf.w1,d -9- BILLaRCUGH & MARKS, PA. OOALMERIAAVENUE Sui1t320 CORALGABLEsFLORIOA TELEPHONE3OS FAX3O