SUPREME COURT OF FLORIDA SPENCER MCGUINNESS, Petitioner, v. PROSPECT ARAGON, LLC, Respondent. RESPONDENT S REPLY BRIEF LAW OFFICES OF BRIAN K. GOODKIND Brian K. Goodkind Fla. Bar No.: 347795 4121 La Playa Boulevard Coral Gables, FL 33133 Telephone: (305) 667-4811 Facsimile: (305) 666-0275 ADORNO & YOSS, LLP Christopher Bopst Fla. Bar No.: 0145114 2525 Ponce de Leon Blvd., #400 Miami, FL 33134 Telephone: (305) 460-1000 Facsimile: (305) 460-1422 Counsel for Respondent, PROSPECT ARAGON, LLC
TABLE OF CONTENTS Page TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE WITH RULE 9.210(A)(2)... 8 ii
TABLE OF AUTHORITIES Page(s) Cases Clone, Inc. v. Orr, 476 So. 2d 1300 (Fla. 5 th DCA 1985)... 2, 3, 4, 5, 6, 7 Greenstein v. Greenbrook, Ltd., 413 So. 2d 842 (Fla. 3d DCA 1982)... 3 McGuinness v. Prospect Aragon, LLC, 981 So. 2d 496 (Fla. 3d DCA 2008)... 2 Statutes Section 57.105, Florida Statutes... 6 Section 718.503, Florida Statutes... 2, 3, 4 Rules Rule 9.210(a)(2), Florida Rules of Appellate Procedure... 8 iii
STATEMENT OF THE CASE AND FACTS The statement of the case and facts contained in Petitioner s brief on jurisdiction is accurate, as far as it goes, but is incomplete in that it fails to advise this Court of the motions filed and not filed by Petitioner after the panel decision was issued by the Third District below. Specifically, Petitioner filed two separate motions, one seeking rehearing en banc and another requesting rehearing by the panel or certification as a question of great public importance. Interestingly, Petitioner did not seek certification of conflict from the Third District. All motions were summarily denied by the Third District. 1 1 Given the dictates of Rule 9.120(d), allowing an appendix to a jurisdictional brief to contain only the opinion for which review is sought, Respondent has not attached copies of these motions or the order denying same, but is happy to do so upon the Court s request. 1
SUMMARY OF THE ARGUMENT Petitioner s claim of conflict between the decision of the Third District in the instant case 2 and that of the Fifth District in Clone, Inc. v. Orr, 476 So. 2d 1300 (Fla. 5 th DCA 1985) is fabricated. The two decisions have nothing in common, other than the fact that they both happen to involve condominium projects. The instant case was a dispute over the interpretation of Section 718.503, Florida Statutes, regarding a contract purchaser s right to void a contract within 15 days of the time the buyer signed the document, while Clone did not involve Section 718.503 or any other statute. Rather, Clone was an analysis of the remedy clause in a condominium purchase and sale agreement, which the Fifth District interpreted in favor of the purchaser based on common law principles of mutuality, reasonableness and unconscionability. 2 That decision is reported at McGuinness v. Prospect Aragon, LLC, 981 So. 2d 496 (Fla. 3d DCA 2008) and a copy is appended to Petitioner s brief at Tab 1. 2
ARGUMENT Petitioner s assertion of an express and direct conflict stretches the bounds of credibility. There is NO conflict between the Third District s decision in the instant case and Clone, much less an express and direct conflict. Petitioner s effort to find conflict begins with a subtle mischaracterization of the holding in Clone. Specifically, Petitioner tells this Court that in Clone, the court held that a real estate contract s limitation on liability provision must be equivocal, mutual and reasonable to be enforced. 3 In fact, quoting from a 1982 Third District decision, the Fifth District in Clone said that, the courts of this state will uphold any limitation of remedy provision in a contract, which limitation is mutual, unequivocal and reasonable. Clone 476 So. 2d at 1303 quoting Greenstein v. Greenbrook, Ltd., 413 So. 2d 842 (Fla. 3d DCA 1982)(emphasis added). 4 After trying to convince the reader that Clone involved a limitation of liability rather than of remedy, Petitioner proceeds to step two by claiming that Section 718.503 and the issue of voidability addressed by the Third District in the instant case are likewise in the nature of a limitation on liability. 5 This is also a mischaracterization of the statute and the Third District s opinion, albeit not as subtle. After mischaracterized both decisions, Petitioner then summarily concludes 3 Petitioner s Brief, p. 5 (emphasis added). 4 The emphasis on the word remedy was added by the author of this brief. Other emphases are in the Clone opinion. 5 Petitioner s Brief, p. 5. 3
that a conflict exists. In contract, the true holdings of the Third District and Fifth are detailed in the paragraphs that follow, which demonstrate that no conflict exists. Clone is about remedies not a limitation on liability. In that case, the buyer entered into a pre-construction purchase agreement for a particular condominium unit and provided a deposit that was used to help the developer obtain financing. Once the condominium was completed, the developer sold the unit to someone else for more money, which was a breach of the contract at issue. When the buyer complained, the developer offered to refund the buyer s deposit, claiming this was the buyer s only remedy under the contract. The Fifth District disagreed, holding that the limitation of remedy clause in the contract was not mutual, reasonable or fair. Rather, the Fifth District held that the remedy clause was unconscionable and resulted in an illusory contract. The Clone court concluded by affirming the judgment on appeal, which awarded damages to the buyer equal to the developer s ill-gotten profit. Neither the arguments of the parties nor the rationale of the court in Clone were remotely related to or even mentioned the issue in the instant case, i.e., the 15 day cooling off period given buyers pursuant to Section 718.503, Florida Statutes. 4
In the present case, the Third District needed only one paragraph to address the issue that Petitioner alleges creates the conflict with Clone: 6 [Section 718.503] provides specified rights to the buyer of a condominium under specified circumstances. In all cases, it gives the buyer a 15-day cooling off period to consider whether to go forward with the sale. If the seller signs the contract anytime during that 15- day period, then the statute provides substantive rights to the buyer, since the buyer can rescind the contract even after it has been signed by the seller. In those circumstances in which the seller does not sign the contract within 15 days, the buyer receives no substantive rights, since it could exercise its common right to withdraw its offer any time during that 15-day period. However, simply because a statute does not provide substantive rights in all factual situations does not mean the statute is unenforceable according to its terms. It is clear from this quote that the Third District s holding is not in the nature of a limitation on liability as Petitioner claims. However, even if Petitioner is given the benefit of a very large doubt, and this Court were to accept his mischaracterizations and assume, arguendo, that both cases involved limitations of liability, there is still NO conflict. The limitation on liability in the present case was with regard to the BUYER S liability to proceed in accordance with the contract in the face of an attempted rescission under Section 718.503, while the limitation on liability in Clone was with regard to the SELLER S liability for 6 This quote is from the paragraph beginning at the bottom of page 3 of the opinion issued by the Third District, a copy of which is attached to Petitioner s brief on jurisdiction at Tab 1. The balance of the Third District s opinion addresses two other issues on which no conflict is alleged. 5
breach of contract by selling to another buyer for more money, as measured against common law principles of fairness, reasonableness and mutuality. Finally, Petitioner s argument before this Court (i.e., that there is an express and direct conflict between Clone and the instant case) is, itself, contradicted by positions taken by Petitioner before the Third District. Specifically, in both motions filed by Petitioner before the Third District after issuance of the panel decision, Petitioner not only conceded, but stressed the fact that, [t]he panel decision is of exceptional importance because it is a case of first impression. No other court has interpreted the condominium statute s recision [sic] right in a factual situation where the parties did not have a contract. 7 Rhetorically, one cannot help but wonder how the Third District s decision could have addressed an issue of first impression and, at the same time, resulted in an express and direct conflict with the decision of another district court. Similarly, one might also wonder why, if Petitioner truly believed there was conflict, he did not seek certification of the alleged conflict from the Third District at the same time he moved for certification as a question of great public importance. 8 7 Motion for Rehearing En Banc, pp. 1-2 (emphasis added). See also Motion for Rehearing and Motion for Certification, p. 4. Please see note 1 infra regarding copies of these motions. 8 Respondent was awarded attorney s fees by both of the lower courts based on a prevailing party provision in its contract with Petitioner, and would be similarly entitled if it prevails before this Court. In addition, Respondent likely has grounds to move for fees pursuant to Section 57.105, Florida Statutes, based on the total 6
CONCLUSION The alleged conflict is illusory, at best. The Third District s opinion in the instant case has nothing in common with the Fifth District s decision in Clone. Petitioner has failed to demonstrate an express and direct conflict, or any conflict at all for that matter. Accordingly, Respondent urges the Court to dismiss the petition before it for lack of jurisdiction. LAW OFFICES OF BRIAN K. GOODKIND ADORNO & YOSS, LLP By: Brian K. Goodkind Fla. Bar No.: 347795 4121 La Playa Boulevard Coral Gables, FL 33133 Telephone: (305) 667-4811 Facsimile: (305) 666-0275 Christopher Bopst Fla. Bar No.: 0145114 2525 Ponce de Leon Blvd., #400 Miami, FL 33134 Telephone: (305) 460-1000 Facsimile: (305) 460-1422 Counsel for Respondent, PROSPECT ARAGON, LLC lack of any conflict. However, given the fact that it took only a few hours to prepare this brief, Respondent has chosen not to bother this Court with a motion for fees under either the contract or Section 57.105. 7
CERTIFICATE OF SERVICE I CERTIFY that a copy hereof has been served on this 17th day of July, 2008, by U.S. Mail to: Geoffrey B. Marks, Esq., Billbrough & Marks, P.A., 100 Almeria Avenue, Suite 320, Coral Gables, FL 33134, Michael J. Schlesinger, Esq., 799 Brickell Plaza, Suite 700, Miami, FL 33131, and Gonzalo R. Dorta, Esq., 334 Minorca Avenue, Coral Gables, FL 33134, Brian K. Goodkind CERTIFICATE OF COMPLIANCE WITH RULE 9.210(A)(2) I certify that the foregoing Appellee s Answer Brief was prepared using Times New Roman 14-point font, in compliance with Florida Rule of Appellate Procedure 9.210(a)(2). Brian K. Goodkind 8