THE SUPREME COURT OF THE STATE OF FLORIDA

THE SUPREME COURT OF THE STATE OF FLORIDA CASE #.: SC12-1278 LOWER TRIBUNAL NO(S)3D11-3323, 10-24472 Phyllis J. Gottlieb and Allen B. Gottlieb, Petitioner, vs. Renee Wagner, Et Al, Respondent. On Notice to Invoke Discretionary Jurisdiction Appeal From Order of the Circuit Court of the Eleventh District Case No. 10-24472 And Per Curium Response from Third District Court of Appeal Case No. 3D11-3323 PETITIONERS AMENDED ORIGINAL JURISDICTIONAL BRIEF Phyllis J. Gottlieb and Allen B. Gottlieb Pro Se 20533 Biscayne Blvd., #471 Aventura, Florida 33180 Telephone # 786-709-8858 1

TABLE OF CONTENTS PAGE Table ofauthorities... 2 Summary of Arguments... 4 Summary of Facts... 5 Argument......9 Conclusion... 12 Certificate of Service... 13 Certificate of Compliance... 13 TABLE OF AUTHORITIES Sparks v. Barnes, 755 So.2d 719 (F1 2d DCA 1999)... 10 Event Services America, Inc. Ragusa, 917 So. 2d 882 (Fla. 3'd DCA 2005)... 8 Eagleman V Eagleman, 673 So. 2d 946 (Fla. 4'h DCA 1996)... 8 Broad and Cassel v. Newport Motel, Inc., 636 So.2d 590 Fla. 3d DCA 1994... 12 Kurgan v. Morton D. Weiner/Ampac, Inc., 49 So.3d 342, 343 (Fla. 3d DCA 2010)... 11, 12 2

Whitten v Progressive Casualty Insurance Co., 410 So.2d 501 (Fla. 1982)... 10, 11 CONSTITUTION Art. V, 3(b)(3), Fla. Const... 11, 13 STATUTES 57.105, Fla. Stat. (2012)... 4, 7, 9, 10, 11, 12 FLORIDA RULES OF CIVIL PROCEDURE Fla. Rules 1.442... 4, 8 Fla, Rules 1.523... 4, 8 Fla. Rules 768.79... 4, 8 3

SUMMARY OF ARGUMENTS 1. Petitioner's Phyllis J. Gottlieb and Allen B. Gottlieb respectfully request the Supreme Court of Florida invoke their discretionary jurisdiction based upon the following direct conflicts: (A) The final judgment of the Circuit Court of the Eleventh District (Third District Court of Appeals Per Curium) awarding attorney's fees to the Respondent based upon Florida Statute 57.105; thus this award is directly in conflict with those statutory requirements and is in conflict with the decisions of the Supreme Court of Florida and of another District Court. (B) The final judgment of the Circuit Court for the Eleventh District when awarding attorney fees to Respondent is in conflict with and repugnant to the spirit of the Florida Civil Procedures for Settlement; Fla. Rules 1.442, Fla, Rules 1.523, Fla. Rules 768.79. (C) The final judgment of the Circuit Court ofthe Eleventh District is in conflict with the Due Process Clause ofthe Constitution of the United States of American and the Constitution of the State of Florida; specifically resulting in Petitioners being denied their rights to due process and a fair hearing on the merits of the case, which have resulted in irreparable harm to Petitioners. 4

SUMMARY OF FACTS Petitioner brought this action for Breach of Contract and Fraud as well as other significant causes of action. The intent of the contract was to show joint ownership of Nine race horses and to spell out responsibilities. Petitioner, Phyllis Gottlieb owned 51%. Her responsibility was to pay the bills which amount to over $40,000 over a Six Month period before the relationship ended. All receipts were furnished as part of the Complaint. In return Respondents, Rene Wagner and Dennis Fisher would furnish their training skills. As the relationship between the parties became unpleasant, Fisher violently attacked Allen at the stables. Broward Judge Steven Kaplan issued a stay away order for two years was against Fisher as a repeat offender. Very soon thereafter, Wagner and Fisher clandestinely transported the nine horses to a secret location in Indiantown, owed by Mo Williams, a licensed trainer and sold the horses to him. Petitioners applied for a temporary injunctive to protect the horses, which was denied. The complaint was then filled as a civil action and Judge Ely Cardonne was appointed, but was unavailable for more than six months. During that time, Petitioners voluntarily dropped the corporation as a party to the suit and voluntarily amended their complaint accordingly as the corporation had no money to retain a Florida counsel as statutorily required. 5

Prior to the appointment of any judge, additional vital information was uncovered through Petitioners investigations, such as Respondents selling horses and racing them out of state under fictitious trainer names. With this new information in hand, Petitioners amended their complaint voluntarily to include the newest of findings just to keep the court current. These voluntary amendments were not made to "cure deficiencies" as it was erroneously described in the court's order. These amendments were completely voluntary during a six month period as NO Judge was yet been appointed to the case. The amendments where more in the nature of informational updates for the courts benefit. After waiting several months, Petitioners filed a request for a hearing for a temporary injunction which hearing was granted and scheduled for the next day in court room 14-2 at 1:30. However, Mo's attorney called it off due to short notice. The Same Complaint was not a problem for that judge from the same circuit. He found the complaint to be acceptable. From that point forward the case was active, scheduled and in play. It was an error for another judge to dismiss with prejudice on the basis of the Same Complaint being incomprehensible. The January 13, 2011 order erroneously stated that Petitioners had SIX opportunities to cure alleged deficiencies, however only ONE opportunity was given to Petitioners, not SIX. The court never ordered Petitioners to amend its complaint, except for the Seventh Amendment. Here Petitioners made a good 6

faith effort to comply by with the court's request by severely shortening their complaint by over 20 pages and even eliminated several of the more complicated causes of action in a good faith attempt to comply with the courts request. Respondent moved to dismiss the complaint on the basis that the Seventh Amended Complaint was incomprehensible and therefore could not be answered. The court agreed with Respondent and dismissed the entire complaint with prejudice. Nevertheless, the circuit court erroneously granted attorney fees without specifying the reasons they award attorney fees. As such, the court order was in direct conflict with the statutory requirements of section 57.105. It never bothered to adjudication on the merits and never provided any specifics as to how or why the Complaint failed and so Petitioners in good faith did the best they could. Respondents made a disingenuous settlement offer to Petitioners of a nominal $10.00 for a General Release. However, just prior to making this offer, Respondent explained to the open court that the horses were worth Two Hundred and Fifty Thousand Dollars ($250,000). Additionally, Respondents admitted in their submission of the Agreement that Petitioners owned 50% of the horses. Clearly, Respondents absurd offer was made just to set the stage for a later request for Attorney fees. Unfortunately, it is reasonable to assume that the court accepted this bad faith proposal in its reasoning, when it awarded attorney fees. This award is repugnant to and in conflict with Section 57.105, which provides that reasonable 7

attorney's fees to the prevailing party, where the losing party knew or should have known that his/her claim or defense was not supported by the facts and/or the law. Clearly Petitioners are not required to accept a nominal offer made in bad faith. Section 768.79. Bad Faith Proposals. A reasonable basis for a nominal offer exhibits only where the undisputed record strongly indicates that the defendant had no exposure. Florida Rules of Civil Procedure, Rules #768.79, #1.442, and #1.523; and Eagleman v. Eagleman and in Event Services America, Inc. v. Ragusa fortify this same doctrine. Nominal Offers of Judgment suggests that it does not constitute a good faith offer in most cases, "was not based on any reasonable foundation, but was made merely to set the predicate for the future award of attorney's fees and costs." Also the Forth District concurred, "trial courts should view with considerable skepticism nominal offers which bear no reasonable relationship to damages and which are not founded upon a reasonable and realistic assessment of liability". On appeal, the Florida Court of Appeals instructed the Circuit Court to correct their ruling to reflect that there was no verdict and there was no trial. Respondent requested attorney's fees for Appeal, but the Court of Appeals rejected this request and responded "Per Curium" on the balance of the issues presented. Petitioners requested a rehearing and/or a written opinion, upon which Petitioners could defend its appeal, but nothing was forthcoming. Petitioners 8

therefore filed their initial jurisdictional brief with the Supreme Court of Florida, however it was stricken and the court directed Petitioners to file an original of an amended jurisdictional initial brief of less than 10 pages in length. The order of the court does not provide a clear adjudication of the reason for the dismissal of the complaint, nor for the award of attorney fees. Stating only that Petitioners "cannot comply", "does not intend to comply" with the courts instructions. Clearly, Petitioners in good faith did comply with the courts ONE and only instruction, not SIX as stated in the order. Therefore, the enunciated basis upon which the order to dismiss was granted was erroneous and in conflict with the Statutes on this point. ARGUMENT The determination of the Circuit Court awarding fees to the respondent expressly and directly conflicts with the statutory requirements of Sec. 57.105 and a decision of the Florida Supreme Court and decisions from the Third District Court of Appeals. Here, the circuit court failed to make explicit findings that petitioner's claims were totally unsupported by material facts or the law applicable to those facts. To the contrary, Petitioners brief which contained numerous documents to support several positions, claims, issues and causes of action; while Respondents produced only a fraudulently altered agreement solely to trick the court into believing that Respondents owned 50%, instead of 49% in the original 9

agreement. However, by so doing, Respondents admitted 50% Joint Ownership of $250,000 worth of horses, yet offered only $10.00, totally disingenuous and clearly indicating that the statutory requirement "knew or should have known" for awarding attorney fees was not present in the slightest and in fact the opposite position is supported by Respondents own admission of Joint Ownership. The court observed in Sparks V. Barnes, "a fee award is never justified absent a legal basis, contractual or statutory, to support it." This position is supported by Florida Statute 57.105; attorney fees are awarded to the prevailing party only "when the losing party knew or should have known that his/her claim or defense was not supported by the facts and/or the law." Certainly Petitioners complaint contained voluminous documentary exhibits sufficient to support Petitioners claim and overcome the burden established in the statute to award attorney fees. Both this court and the Third District Court of Appeals require such findings to be expressly stated by the court to justify the sanction of fees pursuant to 57.105, Fla. Stat. (2012). The district court's failure to make the express findings required by the statute is in direct and express conflict with the decisions of both the Supreme Court and the Third District Court thus justifying jurisdiction in the Supreme Court under Art. V, 3(b)(3), Fla. Const.3 In the present situation, the court made no findings that the requisites for an award pursuant to 57.105 had been satisfied. Since this is directly and expressly 10

contrary to the holdings of this court in Whitten v Progressive Casualty Insurance Co. 410 So.2d 501 (Fla. 1982) and the Third District Court of Appeal in Kurgan v. Morton D. and Weiner/Ampac, Inc., 49 So.3d 342, 343 (Fla. 3d DCA 2010), this court has jurisdiction over this appeal. In Whitten, the lower court granted defendant's motion for summary judgment and awarded fees pursuant to the original version of 57.105 enacted in 1979, in relevant part: The court shall award a reasonable attorney fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justifiable issue of either law or fact raised by the losing party which burden was not met in the instant matter. After discussing the intent and application of the statute, this court noted that the statute imposed "technical" requirements on the courts that impose fees: The statute provides that a party is entitled to an award of attorney's fees only when the court determines that there was a complete absence of a justifiable issue raised by the losing party. Without such a finding, an order assessing attorney's fees is technically deficient and must be reversed. Based upon the failure of the Circuit Court to explicitly state its findings, this court reversed the award of attorney's fees since the "statutory requirements of section 57.105 were not met." The standards for an award of sanctions are different in the current version of 57.105 but the requirement that the court make and state its f'mdings remains. The Third District Court of Appeals recently confirmed that the change in the standards 11

for awarding fees did not change the requirements that the court justify imposition of fees by explicitly stating its findings. Kurgan v. Morton D. Weiner/Ampac, Inc., 49 So.3d 342, 343 (Fla. 3d DCA 2010), " Because the order on appeal assesses attorney's fees without making the statutory findings required under section 57.105 to support the award, we are compelled to reverse." See also: Broad and Cassel v. Newport Motel, Inc., 636 So.2d 590 (Fla. 3d DCA 1994), " the subject order is defective in that it fails to make the requisite statutory finding under Section 57.105, Florida Statutes (1993)". The award of fees by the Eleventh District Court made no findings that petitioner's claim on the appeal was supported by material facts or that the claim was not supported by application of then existing law to those material facts. Additionally, the order awarding fees made no finding that petitioner or their attorney "know or should have known" the claim was not supported by material facts or applicable law. The holdings in Whitten and Kurgan place an affirmative duty on courts to make these statutory findings when a sanction under 57.105 is imposed. The absence of these findings is in express and direct conflict with the Supreme Court's decision in Whitten and the decision of Third District Court of Appeal in Kurgan. CONCLUSION The lower court awarded fees pursuant to 57.105, Fla. Stat. but did not comply with the statutory requirements to state the findings supporting the award. This 12

determination directly and expressly conflicts with the decision of the Supreme Court and with the decisions of the Third District Court of Appeal. Thus, this court has jurisdiction pursuant to Art. V, 3(b)(3) of the Florida Constitution. Respectfully submitted t 's "d day of August, 2012. Phyllis J. Gottlieb and Allen B. Gottlieb, Pro Se Petitioners 20533 Biscayne Blvd., #471 Aventura, Florida 33180. 786-709-8858. CERTIFICATE OF SERVICE Allen Bruce Gottlieb, Petitioner hereby certifies under penalty of perjury that he has mailed a true copy of this Amended Appeal in the above mentioned case by deposit into the U.S. Mail a true copy to Ms. Jennifer Kramer, Esq., 6111 Broken Sound Parkway, N.W., the Atrium, Suite 330, Boca Raton, Florida 34956 and to Ms. Renee Wagner and Dennis fisher 6529 S.W. 22"4 Street, Miramar, Florida 33033. Dat t 22, 2012, Aventura, Florida. Allen Bruce Gottlieb CERTICATE OF COMPLIANCE Petitioner, Allen B. Gottlieb hereby certifies that this above submission has been printed in Times New Roman, 14 point, double spaced and contains a total of 9 pages which are dedicated to the amended jurisdictional initial brief and excludes 1) Cover, 2) Table of Contents, 3) Table of Authorities, 4) Certificate of Service and Compliance. Dated: August 22, 2012, Aventura, Florida. Allen Bruce Gottlieb 13