IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA ROBERT HARRIS, Counter-Defendant/Petitioner, Supreme Court Case No.: SC09-280 vs. Lower Tribunal No.: 4D07-2926 SCHICKEDANZ BROS.-RIVIERA LTD, ETC., ET AL., Counter-Plaintiffs/Respondants. / PETITIONER=S AMENDED BRIEF ON JURISDICTION MICHAEL J. RYAN, ESQUIRE P.O. Box 14909 North Palm Beach, FL 33408 Tel:(561) 626-3179 Fax(:561) 630-6912 Fla. Bar No.: 0120754

TABLE OF CONTENTS Table of Contents Table of Citations Statement of the Case and of the Facts Summary of Argument Argument Conclusion Certificate of Service Certificate of Font PAGE i ii 1 2 3 9 10 10 i

CASES: TABLE OF CITATIONS PAGES Bockar v. Sakolsky, 592 So.2d 251 (Fla. 3 rd DCA 1991) Cooper v. Paris, 413 So.2d 772 (Fla. 1 st DCA 1982) Dep=t of Bus. Reg., Div. of Fla. Land Sales & Condos. v. Smith, 471 So.2d 138 (Fla. 1 st DCA 1985) Erfman v. Dep=t of Prof=l Regulation, 577 So. 2d 710 (Fla. 5 th DCA 1991) Florida Department of Agriculture v. Go Bungee, Inc., 678 So. 2d 920 (Fla. App. 5 th Dist., 1996) Ganot Corp. v. J.M.G. Constr. Corp, 560 So.2d 804 (Fla. 4 th DCA 1990) Harris v. Schickedanz Bros.-Riviera Ltd., 746 So. 2d 1152 (Fla. 4 th DCA, 1999) Meteor Motors, Inc. v. Thompson Halbach & Assocs., 914 So.2d 479 (Fla. 4 th DCA 2005) Panton & Co. Realty v. Wood, 958 So.2d 541 (Fla. 4 th DCA 2007) Schickedanz Bros.-Riviera Ltd. v. Harris, 800 So. 2d 608 (Fla. 2001) Smith v. Barrett, 564 So. 2d 582 (Fla. App. 4 th Dist., 1990) Vista Designs, Inc. v. Melvin K. Silverman, P.C., 774 So.2d 884 (Fla. 4 th DCA 201) ii STATUTES: 2, 4, 5, 6, 7 7, 8 8 8 3, 7 8 1, 8 8 8 1, 8 2, 3, 7 8 PAGES

Chapter 475, Florida Statutes 3, 5 F.S. '475.001(2) 4 F.S. '475.01 5 F.S. '475.42(1)(b) 6 F.S. '475.42(1)(d) 9 OTHER Florida Real Estate Commission Handbook, 1989 Edition 5 iii STATEMENT OF THE CASE AND OF THE FACTS

Petitioner, Robert Harris (hereinafter AHarris@), worked for Respondants (hereinafter ASchickedanz@), a real estate developer on, inter alia, a project known as Woodbine in Riviera Beach, Florida. Harris was a licensed Florida real estate salesperson. Initially, Harris was partners with a Florida broker, Mr. Palin. There was a written contract. Schickedanz terminated the contract on August 4, 1995 and Schickedanz asked Harris to stay on in charge of, inter alia, sales as an independant contractor. Harris did and Schickedanz eventually had its lawyer prepare a written contract. On March 12, 1997 Schickedanz terminated Harris. Harris sued for money lent; an accounting; a marketing fee on a separate written contract having to do with other projects not related to Woodbine; and, a bonus for marketing Woodbine. The case was dismissed and Harris appealed to the 4 th DCA and prevailed on three counts, Harris v. Schickedanz Bros.-Riviera Ltd., 746 So. 2d 1152 (Fla. 4 th DCA, 1999). Schickedanz went to the Florida Supreme Court. Harris prevailed, Schickedanz Bros.-Riviera Ltd. v. Harris, 800 So. 2d 608 (Fla. 2001). Then, back at the trial court, Schickedanz answered and filed a counter-claim. On June 28, 2007 Judge French, who heard the case without a jury, denied Harris relief on two counts; but, granted judgement on the money lent count. As to the counter-claim, Judge French denied relief to Schickedanz. Schickedanz appealed to the Fourth District Court of Appeals as related to the counter-claim; Page 1 and, Harris cross appealed as to the count on a marketing contract for projects not

at all related to Woodbine. On November 12, 2008 the Fourth District Court of Appeals upheld the trial judge=s decision as to Harris= cross appeal; but, reversed and ordered the trial court to assess damages on Schickedanz=s counter-claim (See Appendix). Harris sought rehearing en banc. This was denied on January 15, 2009. Harris filed his Notice to Invoke Discretionary Jurisdiction on February 12, 2009. SUMMARY OF ARGUMENT POINT ONE The decision of the Fourth District Court of Appeals is directly in conflict with the plain language of the Florida statute, the published position of FREC and Arnold Bockar v. Albert Sakolsky (3 rd DCA, 1991), 592 So. 2d 251. Harris, as a licensed Florida real estate salesperson was entitled to work for an exempt developer/broker selling its own product and to earn a commission. POINT TWO It was error for the Fourth District Court of Appeals to reverse and direct the trial court to award damages when the trial court did not address Harris= affirmative defenses because the decision of the trial court in favor of Harris made those issues superfluous. This procedure is contrary to the holdings in Smith v. Barrett, 564 So. 2d 582 (Fla. App. 4 th Dist., 1990); and, Florida Department of Page 2 Agriculture v. Go Bungee, Inc., 678 So. 2d 920 (Fla. App. 5 th Dist., 1996).

POINT THREE It was error for the Fourth District Court of Appeals to order disgorgement. Chapter 475, Florida Statutes, does not create a statutory cause of action as relates to licenced real estate salespersons or brokers. Violation of the statute might be the basis for a cause of action in common law fraud if a victim understood that the defendant was licensed; or, it may be deemed as a proper remedy based on the unauthorized practice of real estate sales; but, neither is the case at bar. Harris was a Florida licensed real estate salesperson. All of the cases relied on by Schickedanz were grounded in the need to protect the public from unlicensed person not subject to the jurisdiction of FREC. These cases will be identified in the Argument. ARGUMENT POINT ONE Harris was a licensed Florida real estate salesperson at all times material to this case; and, he worked for a real estate developer (Schickedanz) which was selling its own product at a project in Riviera Beach, Florida known as Woodbine. Even though Schickedanz was not licensed as a Florida real estate broker, Schickedanz did not need to be licensed because Schickedanz was exempt under Florida Statute 475.001(2). Schickedanz was selling its own product as Page 3 developer/broker and hired Harris as an independant contractor. Schickedanz had

its lawyer prepare the contract. Harris worked full time between August 4, 1995 and March 17, 1997 for 1% of the gross sales at the Woodbine project. Although the Fourth District Court of Appeals did not cite any cases in support of its decision, it was submitted to the court of Appeals by Schickedanz that Bockar v. Sakolsky, supra, held: A...Only salaried real estate salespersons who do not receive commissions for the sale or lease or real property may sue for compensation earned without being a licensed real estate broker@ (emphasis supplied) (Appellant=s Initial Brief at page 17); and, therefore, a licensed salesperson can not earn a commission from a developer/broker selling its own product. The Fourth District Court of Appeals agreed. However, in fact, the court in Bockar, supra, stated: A...Only salaried real estate salespersons who do not receive commissions for the sale or lease of real property may sue for compensation earned without being a licensed real estate salesperson or broker...@(emphasis supplied). This omission of the words A...salesperson or...@ changes the operative effect of the holding in Bockar 180E; and, renders the final decision under review herein Page 4 inapposite to the holding in Bockar.

That the holding in Bockar is the correct reading of the Florida Statutes, Chapter 475, is supported by the Florida Real Estate Commission Handbook published by FREC, 1989 Edition, which defines a licensed salesman and sets forth restrictions on the activities of salesmen thusly at page 2-24: ASALESMEN Statutory Definition According to the license law, a salesman is one who performs any act specified in the statutory definition of broker, but who performs such acts under the direction, control, or management of another person, usually a broker. A salesman is distinguished from a broker-salesman, one who is qualified to be issued a license as a broker but who operates as a salesman in the employ of an actively licensed broker or owner/employer (475.01 F.S.). Restrictions on Salesmen Because of the restrictions of the license law, an active salesman can neither legally operate as a broker, nor operate as a salesman for anyone other than his/her employer. A salesman who acts as a broker violates the license law [475.42(1)(b)], and his/her license may be suspended whether fraud is Page 5 proven or not. All commissions earned by a broker through the services of a

salesman belong primarily to the broker. If a salesman collects and uses such commissions personally without the consent of the broker, the salesman is guilty of fraudulent conversion. Note also that the salesman is prohibited from suing anyone but his/her employer to enforce payment of a commission...@ For these reasons this Court should resolve the conflict between Bockar and the case at bar. POINT TWO After this case came back from the Florida Supreme Court the Defendants (ASchickedanz@) answered and filed a counter-claim. Counter-Defendant (AHarris@) responded and asserted four affirmative defenses. At trial, the trial judge found for Harris on grounds that made it unnecessary to rule in the efficacy of the affirmative defenses pled by Harris. The Fourth District Court of Appeals did not pass in the affirmative defenses as these issues were questions of fact that were not before the Appellate Court. Instead the Fourth District Court of Appeals reversed and ordered the trial judge on remand to assess damages. Harris has been denied a ruling on his affirmative defenses that were properly raised at trial. Neither the trial judge nor the Fourth District Court of Appeals have ruled Page 6 on Harris= affirmative defenses. This is a procedural error that has the effect of

denying Harris his day in Court. This procedure is in conflict with Smith v. Barrett, supra, and Florida Department of Agriculture v. Go Bungee, Inc., supra, which both recognize that a party is entitled to have his day in court. In this instance, there has been no ruling on the Petitioner=s affirmative defenses. POINT THREE The effect of the ruling of the Fourth District Court of Appeals is to create a statutory cause of action for disgorgement in the event of an Ainfraction@ (in this case a perceived infraction) of the FREC rules. That Harris was licensed in Florida as a registered real estate salesperson, and thus subject to the jurisdiction of FREC, is fact. Every single one of the cases cited for disgorgement deal with unlicensed persons selling real estate for a commission. This is not the situation in the case at bar. It is not known what cases the Fourth District Court of Appeals relied upon to support a remedy of disgorgement in this case because the Court did not cite any cases; but, we do know what cases were presented to the court by Schickedanz, to wit: Bockar v. Sakolsky, 592 So.2d 251 (Fla. 3 rd DCA 1991); Cooper v. Paris, 413 So.2d 772 (Fla. 1 st DCA 1982); Dep=t of Bus. Reg., Div. of Fla. Land Sales & Condos. v. Smith, 471 So.2d 138 (Fla. 1 st DCA 1985); Erfman v. Dep=t of Prof=l Regulation, 577 So. 2d 710 (Fla. 5 th DCA 1991); Ganot Corp. v. J.M.G. Constr. Page 7 Corp, 560 So.2d 804 (Fla. 4 th DCA 1990); Meteor Motors, Inc. v. Thompson

Halbach & Assocs., 914 So.2d 479 (Fla. 4 th DCA 2005); Panton & Co. Realty v. Wood, 958 So.2d 541 (Fla. 4 th DCA 2007); Vista Designs, Inc. v. Melvin K. Silverman, P.C., 774 So.2d 884 (Fla. 4 th DCA 201). Every single one of the foregoing addresses a situation where the person collecting the commission did not have a Florida real estate license. 1 In this case Harris was a licensed salesperson who worked diligently for Schickedanz for 19 months. He was being paid by his employer. He was not suing his employer for payment; but, if he had not been paid it is submitted that he could have quit or sued under F.S. '475.42(1)(d) which states, to wit: ANo salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of the employer and with the express consent of the employer; 1 Petitioner does not address the holdings in the previous appeals (Harris v. Schickedanz Bros.-Riviera Ltd., supra; and, Schickedanz Bros.-Riviera Ltd. v Harris, supra) as relates to the counter-claim since, for the purpose of those appeals, Harris conceded, solely for the sake of argument, that he was not licensed at all; and, because those appeals were taken in connection with the count for the Amarketing bonus@. The counter-claim had not yet been asserted at the time of those appeals. Harris has not made the same concessions for argument=s sake in this instance; and, it was stipulated at pretrial that Harris was licensed in Florida as a real estate salesperson. Page 8

and no real estate salesman, whether the holder of a valid and current license or not, shall commence or maintain any action for a commission or compensation in connection with a real estate brokerage transaction against any person except a person registered as his employer at the time the salesman performed the act or rendered the service for which the commission or compensation is due.@ So, if Harris could sue Schickedanz for a commission, a fortiori, it was legal for him to collect a commission. CONCLUSION The above described conflicts between the Fourth District Court of Appeals= opinion in this case and other District Courts of Appeals as well as the pronouncement of FREC on the subject of licensure demonstrates a clear conflict with far reaching effects on the real estate industry in Florida. For this reason, it is proper for the Supreme Court of Florida to take jurisdiction and review this Fourth District Court of Appeals= most recent opinion in this cause. Page 9 Respectfully Submitted, MICHAEL J. RYAN, ESQ. Counter-Defendant/ Petitioner P.O. Box 14909 North Palm Beach, FL 33408 Tel:(561) 626-3179 Fax:(561) 630-6912 Fla. Bar No.: 0120754 CERTIFICATE OF SERVICE

I CERTIFY that a true and correct copy of the foregoing has been sent by U.S. Mail this day of March, 2009, to: REBECCA MERCIER VARGAS, ESQ., Kreusler-Walsh, Compiani & Vargas, P.A., 501 South Flagler Drive, Ste. 503, West Palm Beach, FL 33401-5913, and ROD TENNYSON, ESQ., P.O. Box 3858, Lantana, FL 33465-3858. By: MICHAEL J. RYAN Florida Bar No. 0120754 CERTIFICATE OF FONT Robert Harris= Brief on Jurisdiction has been typed using the 14-point Times New Roman font. By: MICHAEL J. RYAN Florida Bar No. 0120754 Page 10