THE SUPREME COURT OF FLORIDA OSCAR MINOSO, M.D. Defendant/Petitioner, vs. AYMAN BOUTROS, M.D. Plaintiff/Respondent. Case Number: SC07-199 Lower Tribunal Case Numbers: 3D05-1773, 3D05-1849 On Discretionary Review from the District Court of Appeal of Florida, Third District Respondents Jurisdictional Brief Ted C. Craig & Patricia Acosta Florida Bar Nos. 966878 & 614599 Hunton & Williams LLP Attorneys for Respondents Mellon Financial Center 1111 Brickell Avenue - Suite 2500 Miami, FL 33131 305.810.2516 Fax 2460 tcraig or pacosta@hunton.com
TABLE OF CONTENTS TABLE OF AUTHORITIES...iii INTRODUCTION...1 STATEMENT OF THE CASE AND THE FACTS...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...4 I. The Decision on the Merits Does Not Conflict with Weiner or Gepetto s...4 II. The Decision on the Merits Does Not Conflict with Any other Decision...6 III. The Order Granting Attorneys Fees Creates No Conflict...7 CONCLUSION...8 CERTIFICATE OF SERVICE...iv CERTIFICATE OF COMPLIANCE...iv ii
TABLE OF AUTHORITIES Cases Jollie v. State, 405 So. 2d 418, 421 (Fla. 1981)...7 Landmark First National Bank v. Gepetto s Tale O The Wale of Fort Lauderdale, 498 So. 2d 920, 922 (Fla. 1986)... 1, 4, 5 Reaves v. State of Florida, 485 So. 2d 829, 830 (Fla. 1986)...4 The Florida Star v. B.J.F., 530 So. 2d 286. 287 n.3 (Fla. 1988)...7 Tippens v. State, 897 So. 2d 1278, 1280 (Fla. 2005)...7 Weiner v. American Petrofina Marketing, 482 So. 2d 1362, 1365 (Fla. 1986)... 1, 4, 7 Rule Fla. R. App. P. 9.030(a)(2)(A)(iv)...4 iii
INTRODUCTION Miñoso contends that this Court should exercise discretionary review in this case because the Third District ruled on three issues that expressly and directly conflict with decisions from this Court and other district courts of appeal. His first argument that the Third District s decision on the merits conflicts with Weiner v. American Petrofina Marketing, 482 So. 2d 1362, 1365 (Fla. 1986) and Landmark First National Bank v. Gepetto s Tale O The Wale of Fort Lauderdale, 498 So. 2d 920, 922 (Fla. 1986) is frivolous because neither of these decisions involved the issues decided by Third District so as to create a direct and express conflict. Miñoso s second argument that the Third District s decision conflicts with other unspecified decisions was not addressed at all in the argument section of his brief and should therefore be disregarded. Miñoso s third argument that the Third District s order on attorneys fees conflicts with other decisions also is frivolous because that order contains no statement of the factual or legal basis for the ruling, and therefore cannot give rise to an express or direct conflict. STATEMENT OF THE CASE AND THE FACTS In determining whether to accept discretionary jurisdiction, the only relevant facts are those appearing on the four corners of the majority s decision. See Reaves v. State of Florida, 485 So. 2d 829, 830 (Fla. 1986). The Court should disregard Miñoso s statement of the case and the facts in this case because Miñoso
relies mostly on irrelevant information contained outside the four corners of the Third District s opinion. If the Court proceeds to determine whether it may exercise jurisdiction, it should rely only on the facts contained in the four corners of the Third District Court s decision issued on November 1, 2006. Those facts are summarized here. Ayman Boutros, M.D., an ophthalmic surgeon sued his former business partner Oscar Miñoso, M.D., following the demise of their medical practice known as New Vision. Opinion at 2. At the start of their business, Boutros and Miñoso obtained a loan from Wachovia Bank and entered into a lease agreement, which contained an early termination penalty. Opinion at 2. Both Bourtos and Miñoso personally guarantied the loan and the lease agreement. When New Vision ceased to operate, Boutros took possession of New Vision s equipment at Dr. Miñoso s suggestion. Opinion at 2-3. Boutros paid the loan owed to the bank in full and the early termination penalty owed to the landlord under the lease agreement. Opinion at 3. Boutros then received an assignment from the bank and the landlord, allowing him to recover Miñoso s share of these debts. Opinion at 3. Boutros then sued Miñoso and asserted various legal and equitable claims. Boutros legal claims were filed in his capacity as the assignee of the loan and the lease agreement that he satisfied to protect the company s assets. Opinion at 3-4. Boutros equitable claims were filed in his capacity as a co-guarantor of the loan 2
and the lease agreement. Opinion at 3. At trial, Boutros prevailed on all of his claims. The jury awarded Boutros $186,779 in damages, but the trial court reduced that amount to $8,840.33, based on the finding that Miñoso had a valid defense at law under Article 9 of the UCC because the jury found that Boutros had not proven the amount of the collateral in his possession. Opinion at 4-5 On appeal, the Third District concluded that the UCC defense was not applicable to Boutros equitable claims because those claims were separate and distinct from the legal claims. The Court found that the UCC defense, even if proven, could not defeat the equitable claims because the equitable claims were filed by Boutros in his capacity as Miñoso s co-guarantor, while the legal claims were filed by him as a secured party based on the assignments he received from the bank and the landlord. Opinion at 7. By separate order without a written opinion, the Court awarded Boutros his attorneys fees as the prevailing party on appeal. See Nov. 20, 2006, Order on Motions for Attorneys Fees. SUMMARY OF THE ARGUMENT Point I The Third District s decision on the merits creates no express and direct conflict with Weiner or Gepetto s because these decisions are not applicable to cases involving equitable claims brought by co-guarantors. Point II The Third District s holding that Boutros can recover the full 3
extent of his damages under his equitable claims creates no express or direct conflict with any decision from this Court or a district court of appeals. Point III The Third District s order on attorneys fees contains no written opinion and can therefore create no express or direct conflict with any decision from this Court or any district court of appeals. ARGUMENT Conflict jurisdiction exists only when a question of law decided within the four corners of a decision expressly and directly conflicts with a decision of this Court or another district court of appeals. Fla. R. App. P. 9.030(a)(2)(A)(iv); Reaves v. State, 485 So. 2d 829 (Fla. 1986). In his brief, Miñoso argues that the Third District ruled on three issues that expressly and directly conflict with decisions from this Court. An examination of the cases cited in his brief demonstrates that no such direct conflict exists. I. The Decision on the Merits Does Not Conflict with Weiner or Gepetto s Miñoso contends that the panel s decision on the merits conflicts with Weiner v. American Petrofina Marketing, 482 So. 2d 1362, 1365 (Fla. 1986) and Landmark First National Bank v. Gepetto s Tale O The Wale of Fort Lauderdale, 498 So. 2d 920, 922 (Fla. 1986). In those cases, this Court discussed the ability of secured creditors under the UCC to collect deficiency judgments from debtors even when it is shown that a creditor has disposed of security collateral in a 4
commercially unreasonable manner. In Weiner, a secured creditor was seeking a deficiency judgment against a debtor after the proceeds from the sale of the collateral that secured the debt were insufficient to satisfy the entire debt. The trial court found that the creditor could not obtain a deficiency judgment against the debtor because the creditor had not disposed of the collateral in a commercially reasonable manner as required by the UCC. This Court held that even though the UCC imposes an obligation on creditors to dispose of collateral in a commercially reasonable manner, a creditor does not automatically lose his right to a deficiency judgment when collateral is disposed of in a commercially unreasonable manner. See Weiner 482 So. 2d at 1364. Instead, disposal of collateral in that manner gives rise to a presumption that the debt has been satisfied by the sale, and the creditor may rebut that presumption by showing that the fair market value of the disposed collateral was in fact less than the outstanding debt. Similarly, in Gepetto s, this Court applied Weiner to hold that the sale of certain collateral without prior notice to the debtor as required by law rendered the sale commercially unreasonable, but the creditor could still recover a deficiency by establishing that the fair market value of the sold collateral was less than the outstanding debt. Gepetto s 498 So. 2d 922. Neither Weiner nor Gepetto s can be in conflict with the Third District s 5
decision in this case because those cases dealt with the rights of secured parties in legal actions for deficiency and had nothing to do with the rights or defenses available to unsecured parties in equitable actions. The main issue decided by the Third District in this case was whether Miñoso s UCC defense, applicable to Boutros legal claims as a secured party, could also be applied to Boutros separate equitable claims as co-guarantor and bar him from recovering the full extent of his damages. The Third District concluded that: In pursuing his action against Dr. Miñoso, Dr. Boutros had the option of pursuing both equitable or legal claims. As his equitable claims were filed in his capacity as a co-guarantor, not as the assignee of the security agreement or as a secured party. Article 9 of the UCC, which pertains to secured transactions, is not applicable to his equitable claims. Moreover, section 679.504, Florida Statutes (2000), the provision that Dr. Miñoso relies upon, clearly indicates that it applies to a secured party. In reaching this conclusion, the Third District did not rely on Weiner or Gepetto s and did not apply any of the points of law or facts decided in those cases. Accordingly, the decision below does not directly or expressly conflict with either Weiner or Gepetto s. II. The Decision on the Merits Does Not Conflict with Any Other Decision In the statement of the case, Miñoso argues under Issue #2 that the Third District s decision is in express and direct conflict with a line of decisions from this Court holding that a party may not recover in equity if he has an adequate remedy at law. Miñoso, however, does not cite to the page of the opinion in which 6
the Third District rules that a party may recover in equity when the party has an adequate remedy at law and he never discusses the issue at all in the argument section of his brief. The Third District, of course, did not rule in that way and the rulings made below do not conflict with any decision from this Court. III. The Order Granting Attorneys Fees Creates No Conflict Miñoso argues that the Court may review the Third District s order on attorney s fees because that order conflicts with other decisions. Miñoso himself acknowledges, however, that a ruling on a motion without a written opinion cannot create a direct or express conflict. This is now a well-settled principle under Florida law. Tippens v. State, 897 So. 2d 1278, 1280 (Fla. 2005)(finding no subject-matter jurisdiction over district court decision with no statement of the factual or legal basis for the ruling ); The Florida Star v. B.J.F., 530 So. 2d 286. 288 (Fla. 1988) (The Court lacks subject-matter jurisdiction over a district court opinion that fails to expressly address a question of law, such as [a decision] without opinion or citation ); Jollie v. State, 405 So. 2d 418, 421 (Fla. 1981) (a district court decision issued without opinion is only reviewable if it cites as controlling authority a decision that is pending review in or has been reversed by the Florida Supreme Court). This Court s November 20, 2006, order granting Boutros attorneys fees contains no statement of the factual or legal basis for the ruling. Accordingly, the order cannot create any conflict and is not reviewable by 7
this Court. CONCLUSION The Court should deny the petition for discretionary review. Respectfully submitted, Hunton & Williams, LLP Attorneys for Ayman Boutros, M.D By Ted C. Craig & Patricia Acosta Fla. Bar No. 0966878 & 614599 1111 Brickell Avenue, Suite 2500 Miami, Florida 33131 8
305.810.2516 Fax 2460 tcraig or pacosta@hunton.com Case No. SC07-199 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by facsimile and U.S. Mail this 13th day of March, 2007 to: Max R. Price, Esq. Max R. Price, P.A. 6701 Sunset Drive Suite 104 Miami, Florida 33143 CERTIFICATE OF COMPLIANCE In accordance with Florida Rule of Appellate Procedure 9.210(a), undersigned counsel certifies that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210. Ted C. Craig 60332.000004 MIAMI 397723v1 iv