IN THE SUPREME COURT OF FLORIDA CASE NO. SC 08-1659 JOHN RUIZ, ANTHONY DAVIDE, Petitioners, vs. AUSTRALIA MEJIA Respondent. ON DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL, CASE NO. 3D-07-2254 L.T. CASE NO. 03-11654 CA 11 RESPONDENT=S 2 nd AMENDED ANSWER BRIEF ON JURISDICTION ROBERT C. MEYER ROBERT C. MEYER, P.A. 2223 Coral Way Miami, Florida 33145 Phone: (305) 285-8838 Fax: (305) 285-8919 meyerrobertc@cs.com Counsel for Respondent
TABLE OF CONTENTS TABLE OF CITATIONS...ii SUMMARY OF THE ARGUMENT...1 ARGUMENT...1-9 I B GASS INVOLVES TRANSFERS PRIOR TO LAWSUIT...2-3 II B KIRK INVOLVES CASE WITH NO RECORD...3-5 III B APPLEGATE ADDRESSES DIFFERENT STATUTE AND LACKED A RECORD...5-6 IV B LOWER RECORD IS COMPLETE...6-7 V B ARGUMENTS ARE WAIVED OR BARRED...7-9 CONCLUSION...9 CERTIFICATE OF SERVICE...10 CERTIFICATE OF COMPLIANCE...10 i
TABLE OF CITATIONS CASES CITED Applegate v. Barnet Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979)...5, 6, 7 Archer v. State, 613 So. 2d 446 (Fla. 1993)...8 Gass v. Comreal Miami Incorporated, 653 So. 2d 1069 (Fla. 3rd DCA 1995)...2, 3, 5, 6, 7 Griffin v. State, 866 So. 2d 1 (Fla. 2003)...8 Glynn v. First Union Nat'l Bank, 912 So. 2d 357 (Fla. 4th DCA 2005)...8 Hajj-Mak v. Spencer, 747 So. 2d 464 (Fla. 5th DCA 1999)...8 Kirk v. Edinger, 380 So. 2d 1336 (Fla. 5th DCA 1980)..3, 4, 5, 7 Murphy v. Intern ational Robotics Systems, 766 So. 2d 1010 (Fla. 2000)...8 Treated Timber Prods. Inc. v. S&A Assocs., Inc., 488 So. 2d 159 (Fla. 1st DCA 1986)...1 STATUTES CITED Chapter 679, Fla. Stat...5 Chapter 726, Fla. Stat...7 Rule 9.210, Fla.R.App.P...10 Section 679.306(3)(b), Fla. Stat. (1977)...5 0 ii
SUMMARY OF THE ARGUMENT There is no express or direct conflict between the cases cited by Petitioners with the underlying decision of the Third District Court of Appeal. The cases cited avoid the issue of fraudulent transfer under extremely different factual circumstances. Most importantly, the facts below were not in dispute. In the case sub judice, the facts are all admitted to by Petitioners through their deposition testimony. The Third District Court of Appeal correctly held that, A[I]n sum, Mejia presented the trial court with a prima facie proof of evidence of several badges of fraud derived from the appellees= own testimony.@ The court further appropriately ruled that, after the delivery of proof of the badges of fraud, A[T]he burden shifted to appellees to show the transfer was made without intent to >delay, hinder or defraud creditors.= Treated Timber Prods. Inc. v. S & A Assocs., Inc., 488 So. 2d 159, 160 (Fla. 1st DCA 1986).@ Petitioners= failure to deliver evidence to rebut Respondent=s showing compelled the court=s ruling. Lastly, delivering arguments and cases to this court after briefing in the lower court, and never allowing the lower appellate or trial court to review the same until well after the rendition of the rulings, demands that the Afirst impression@ arguments be denied, 1
and, in turn, bar this court=s review. ARGUMENT Petitioners= entire argument involves an alleged conflict with three cases none previously argued or cited to the lower court. Petitioners seek to deliver two newly delivered dovetailing arguments after submitting their answer brief and after delivering oral argument to the appellate court: (1) the delivery of a record to the appellate court of the Circuit Court=s hearing was mandated, and (2) three cases compel reversal. The obvious attempt of Petitioners to create a Anew law argument@ after the lower courts= rulings is substantively and procedurally defective. Each issue is addressed below. I B GASS INVOLVES TRANSFERS PRIOR TO LAWSUIT There is no express and direct conflict with Gass v. Comreal Miami Incorporated, 653 So. 2d 1069 (Fla. 3rd DCA 1995). In Gass, money was tendered to Mr. Gass on a real estate transaction. Mr. Gass deposited the proceeds in a joint account. After eighteen months elapsed, a lawsuit was brought by Comreal against Mr. Gass for a real estate commission. Ultimately, a judgment was entered in favor for Comreal against Mr. Gass, after which Comreal sought post-judgment damages against his wife whose interest arose when the proceeds were deposited in a joint account. All of Comreal=s claims were not 2
brought to the attention of the Mr. or Mrs. Gass until more than a year and a half after the husband=s receipt of the transaction=s proceeds. The Court determined that the extensive amount of time existing between the time of transfer and first knowledge of any creditor relationship of Comreal would disprove the existence of badges of fraud. Unlike Gass, this case involves transfers after knowledge of the liability. In Gass, there was no attempt to conceal the transfer B while the underlying case involved legal gamesmanship with the exclusive purpose to conceal and delay. Very unlike Gass, this case involves money transfers to the parties after the lawsuit had been commenced. Gass is extremely dissimilar on the facts. II B KIRK INVOLVES CASE WITH NO RECORD There is no express and direct conflict with the lower court=s decision and the Fifth District Court of Appeal=s decision of Kirk v. Edinger, 380 So. 2d 1336 (Fla. 5th DCA 1980). Kirk is an innocuous decision as to substantive law. Kirk is a procedural decision holding that a lower court=s findings of fact must be followed when there are no findings delivered by the lower court. Kirk correctly asserted, AWhether fraud is present in a particular transaction is to be determined by the particular facts surrounding the conveyance.@ Kirk at 1337. The Kirk court continued to state, A... our review of this record 3
was made more difficult by the fact that the final judgment herein contains no findings of fact by the trial judge.@ Kirk at 1337. Based upon the lack of a record, and based upon the court=s decision to follow the findings of fact with a Apresumption of correctness,@ the Kirk court determined that it would affirm the judgment as there is no proof to do otherwise. Kirk at 1337. Unlike Kirk, this case has a substantial record. Deposition testimony of the Petitioners delivered a complete factual record to the Circuit Court and the Third District Court of Appeal about the issue of the transfers, timing of the same, and the handling of Respondent=s claim during the liquidation process of the corporation. The record of this case included, but not to the exclusion of, the following badges of fraud: (a) delivering the corporation to insolvency; (b) actively engaging in trickery in order to deny Mejia collection; (c) improper liquidation of the corporation without noticing Mejia; (d) selling the property to personally take the sale=s proceeds after Mejia s lawsuit had been filed; and (e) behaving in a reprehensible manner. Kirk involves a record very different from that provided to the court in the case below. Another misconstrued argument presented in the Petitioners= 4
Amended Jurisdictional Initial Brief is the allegation that Kirk agrees with Petitioners= concept of Atransfer.@ The appeal and argument herein continue to make recurring errors about the concept of Atransfer.@ The concept of Atransfer@ focuses only upon the delivery of money from the corporation to the individuals B not upon the execution of a contract for sale when neither money nor titles were Atransferred.@ Petitioners= error on the concept of Atransfer@ is continually argued in their attempt to assert error by the appellate court. Respondent points out that Kirk agrees with the underlying opinion in regard to the duty to deliver a defense in order to prohibit an otherwise fraudulent Atransfer.@ Petitioners either ignore or fail to acknowledge their duty to provide a defense. The appellate court sub judice stated, A[A]fter receipt of this evidence (badges of fraud), the burden shifted to appellees to show the transfer was made without intent to >delay, hinder or defraud.=@ The grantee in Kirk met this burden. Petitioners did not. Because the facts regarding time of transfer and presentation of a defense in this case are diametrically different than the facts in Kirk, the opposite conclusion was reached. III B APPLEGATE ADDRESSES DIFFERENT STATUTE AND LACKED A RECORD The case sub judice does not deliver any express or direct 5
conflict with Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1980). In Applegate, a constructive trust was delivered to the Applegates and, by such placement, the lien held by the Applegates was deemed superior to that of Barnett Bank. Applegate does not cite the Florida statute which is presented in this case. Appelegate deals almost exclusively with competing lien interests under section 679.306(3)(b), Fla. Stat. (1977). Chapter 679 is not at issue in the case at hand. And, like Gass, the Florida Supreme Court in Applegate affirmed the lower court upon an empty record (no court reporter existed in the trial) as the court determined that, AWithout knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require a reversal.@ Applegate at 1152. The case sub judice has a substantial record demonstrated by the entry of the depositions of both Petitioners. There are admissions to numerous badges of fraud in those depositions. These depositions provided a record which well exceeded what either the Gass court or the Applegate court received, and the same delivered ample facts for the Third District Court of Appeal to properly determine that there were frauds committed by Petitioners. Very unlike the Applegate case, the record clearly establishes facts to support the legal conclusions by 6
the court. Unlike Applegate, this case involves a substantial record from which determinations of fact could be made. IV B LOWER RECORD IS COMPLETE The focus of the Petitioners= Amended Jurisdictional Initial Brief seeks to review an alleged trial transcript B even though Petitioners conceded there were no disputed facts. The argument about a lack of record is factually wrong. Numerous references to the depositions have already been discussed, and the existence of the same in the court=s record rebuts Petitioners= argument alleging a Alack of record.@ The other error of this argument is about the standard of review. Petitioners= recited cases either delve with the clearly erroneous standard or an abuse of discretion standard. In this case, the Circuit Court=s presentation was akin to Summary Judgment B a ruling was made based upon the deposition testimony of Petitioners and review of filed memoranda to determine if fraudulent transfers arose B as identified under Chapter 726, Fla. Stat. The lower appellate court correctly acknowledged from the briefs that AThe parties agree that our standard of review is de novo...@ The lower appellate court=s ability to review from a de novo standard is clearly different from the standard held by the courts in Gass or Appelegate. And, the court=s review of the deposition testimony of 7
Petitioners satisfied its de novo review of the facts B from which the Third District Court of Appeal was capable of determining that Respondent proved no less than five badges of fraud. After such proof, the burden shifted to Petitioners who B as shown by the record B provided no evidence to rebut the prima facie proof of a presumptively fraudulent transfer. V B ARGUMENTS ARE WAIVED OR BARRED The inappropriately late delivery of Petitioners= argument prohibits appellate review. Petitioners= Amended Jurisdictional Initial Brief cited only three cases alleging direct conflict: Kirk, Applegate and Gass. Petitioners=s never cited those three cases in their answer brief presented to the Third District Court of Appeal. And, more importantly, Petitioners= argument in the answer brief as well as their oral argument did not include any arguments from these cases. In short, the arguments presented in the Petitioners= Amended Jurisdictional Initial Brief are unique as none were previously submitted to the lower appellate court. The Florida Supreme Court and some other Florida appellate courts have stated that arguments initially raised on appeal are barred. Murphy v. International Robotics Systems, Inc. 766 So. 2d 1010, 1027 (Fla. 2000) (unobjected-to closing arguments cannot be appealed unless subjected to certain criteria); 8
Griffin v. State, 866 So. 2d 1, 11 n.5 (Fla. 2003) (a postconviction claim raised for the first time on appeal was procedurally barred; Glynn v. First Union Nat'l Bank, 912 So. 2d 357, 358 (Fla. 4th DCA 2005) (stating argument may not be raised for first time on appeal); Hajj-Mak v. Spencer, 747 So. 2d 464, 464 (Fla. 5th DCA 1999) (citing Archer v. State, 613 So. 2d 446, 448 (Fla. 1993) (for an issue to be preserved for appeal, it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved). Analogously, arguments delivered to the Florida Supreme Court for Adiscretionary review@ should require that arguments not be of first impression. The jurisdictional brief must argue what was previously submitted to the Third District Court of Appeal. In order for any Aconflict of law@ error to have been committed by the Third District Court of Appeal, it is imperative that the conflict of law issue be previously submitted to the lower court so as to allow that court to understand the issue, to review the issue, and to be able to make a ruling on such issue. Petitioners= failure to deliver these arguments to the Third District Court of Appeal effectively seeks to deliver a record to the Florida Supreme Court which was not addressed by the appellate court. The Third District Court of Appeal=s 9
incognizance of the conflict of law issue denied it an opportunity to rule upon the presented jurisdictional issue(s). Clearly, this request of initial review by this court is inappropriate. Petitioners are estopped or barred from delivering arguments to this court which they either intentionally or negligently failed to deliver to the Third District Court of Appeal. CONCLUSION For the foregoing reasons, the court should decline to exercise its express and direct conflict jurisdiction in this case because no express and direct conflict exists; and, because Petitioners failed to deliver said arguments to the lower appellate court, the discretionary review request should be barred. Respectfully submitted: ROBERT C. MEYER ROBERT C. MEYER, P.A. 2223 Coral Way Miami, FL 33145 Ph: (305) 285-8838 Fax:(305) 285-8919 Robert C. Meyer Fla. Bar No. 436062 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the parties named bellow by U.S. 10
mail this 16th day of October, 2008: John Ruiz, Esq.B for Ruiz and Davide, John H. Ruiz, P.A., 5040 N.W. 7 St., Suite 920, Miami, FL 33126; Eli Kaplan, Esq., 999 Ponce De Leon Blvd., Ste 20, Coral Gables, FL 33134; and Andrew T. Trailor, P.A., Regions Bank Building, 8603 South Dixie Hwy, Ste 303, Miami, FL 33143. ROBERT C. MEYER, P.A. 2223 Coral Way Miami, FL 33145 Ph: (305) 285-8838 Fax:(305) 285-8919 ROBERT C. MEYER Fla. Bar No. 436062 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this answer brief is in compliance with Rule 9.210, Fla.R.App.P., and is prepared in Courier New 12-point font. Y:\Clients\12059\Appeal 4\BRIEF.wpd ROBERT C. MEYER Fla. Bar No. 436062 11