SC11- 1582 Fourth DCA Case No.: 4D09-4795 17

IN THE SUPREME COURT OF FLORIDA

CASE NUMBER: SC11- 1582

Fourth DCA Case No.: 4D09-4795

(813) 843-7200

Circuit Case No.: 07-000612(25)

GREAT DIVIDE INSURANCE

COMPANY, a North Dakota company,

Petitioner,

vs.

CENTRAL SQUARE TARRAGON LLC,

A Florida limited liability company, for

itself and as assignee of AGU Entertainment

Corporation, n/k/a The Tube Media Corp.,

Respondent.

__________________________________________________________________

Amended Jurisdictional Brief

__________________________________________________________________

Counsel For Petitioner

David J. Salmon, Esq.

Florida Bar No.: 12912

Kimberly A. Salmon, Esq.

Florida Bar No.: 64450

Groelle & Salmon, P.A.

7650 W. Courtney Campbell Causeway

Suite 800

Tampa, Florida 33609

TABLE OF CONTENTS

Table of Citations .................................................................................................... ii

Statement of the Case and Facts ............................................................................. 1

Summary of Argument ........................................................................................ 1-2

Argument............................................................................................................ 3-10

I. The Fourth District’s decision to apply the rule of law in

Broche v. Cohn, 987 So. Ed 124, 127 (Fla. 4th DCA 2008)

expressly and directly conflicts with this Court’s holding in

Esch v. Forster, 168 So. 229 (Fla. 1936).

II. The Fourth District’s decision to apply the rule of law in Brown

v. State, 940 So. 2d (Fla. 4th DCA 2006) expressly and directly

conflicts with this Court’s opinion in Brown v. State, 719 So. 2d

882 (Fla. 1998) and the First District’s opinion in Johnson v.

State, 842 So. 2d 228 (Fla. 1st DCA 2003).

III. The Fourth District’s holding that the trial court erred expressly

and directly conflicts with the Supreme Court of Florida and

other Districts.

a. Std. Jury Instructions in Civ. Cases, 888 So. 2d 618 (Fla.

2004).

b. Arrington v. State, 233 So.2d 634 (Fla. 1970).

c. Ruiz v. Cold Storage & Insulation Contractors, Inc., 306

So.2d 153 (Fla. 2d DCA 1975); Tampa Electric Co. v.

Bazemore, 96 So. 297 (Fla. 1923).

IV. The Fourth District’s decision to reverse the trial court

expressly and directly conflicts with this Court’s decision in

White v. State, 446 So. 2d 1031 (Fla. 1984) and the Third

Districts decision in Williams v. State, 687 So. 2d 858 (Fla. 3rd

DCA 1997).

Conclusion……………………………………………………………………….10

Certificate of Service.…………………………………………………….………iii

Certificate of Compliance…………………………………………………………iv

Appendix…………………………………………………………………………v

TABLE OF CITATIONS

Constitutional Provisions

Art. V, §3(b)(3), Fla. Const ..................................................................................... 2

Cases

Arrington v. State, 233 So.2d 634 (Fla. 1970) ........................................................ 7

Broche v. Cohn, 987 So. Ed 124, 127 (Fla. 4th DCA 2008) .................................. 2

Brown v. State, 719 So.2d 882 (Fla. 1998) ......................................................... 3, 5

Brown v. State, 940 So.2d (Fla. 4th DCA 2006) ............................................... 3, 4

Esch v. Forster, 168 So. 229 (Fla. 1936) ............................................................ 2, 3

Johnson v. State, 842 So.2d 228 (Fla. 1st DCA 2003) ....................................... 3, 6

Ruiz v. Cold Storage & Ins. Cont., Inc., 306 So.2d 153 (Fla. 2nd DCA 1975) ...... 9

Std. Jury Instructions in Civ. Cases, 888 So.2d 618 (Fla. 2004) ............................ 7

Tampa Electric Co. v. Bazemore, 96 So. 297 (Fla. 1923) ...................................... 9

United States v. Pratt, 568 F.3d 11(U.S. 1st Cir. 2009) ......................................... 6

White v. State, 446 So.2d 1031 (Fla. 1984) ............................................................ 9

Williams v. State, 687 So.2d 858 (Fla. 3rd DCA 1997).................................... 9, 10

Other Authorities

Fla. R. App. P. 9.030(a)(2)(A)(iv) .......................................................................... 2

Fla. R. Civ. P. 1.470(b) ........................................................................................... 9

Fla. R. Evid. 90.403 ................................................................................................ 4

STATEMENT OF THE CASE AND FACTS

This appeal derives from a trial on breach of contract. One of the parties to

the lawsuit was not a party to the contract. As an essential element of its case, the

Respondent was required to demonstrate a valid contract between the parties and

duty flowing from the Petitioner. The Respondent had the opportunity to use

pleadings, discovery, a stipulation or traditional evidence to satisfy its burden. The

jury was instructed on the elements and was provided with questions to determine

whether the Respondent met its burden. The jury determined it did not and

returned a verdict in favor of the Petitioner. The trial court denied a Motion for

New Trial. On appeal, the Fourth District reversed the denial, finding that the trial

court erred by instructing the jury on the elements of the case and by approving the

verdict form based on the elements.

The Respondent inadvertently failed to put evidence of a contract in the

record. The Respondent was made aware of the error and despite legal remedies

available at the time, failed to correct the error. This opinion conflicts with the

mandatory precedent of this Court and the decisions in other districts.

SUMMARY OF ARGUMENT

The Florida Supreme Court has discretionary jurisdiction to review this

decision of the district court that expressly and directly conflicts with seven (7)

separate decisions of the Florida Supreme Court and at least three (3) district

courts of appeal. Article V, § 3(b)(3), Fla. Const; Fla. R.App.P.

9.030(a)(2)(A)(iv). The lower court held that the party bearing the burden of proof

did not have to put any evidence of an essential element in the trial record and that

the trial court erred by instructing the jury on all the elements of breach of contract.

This decision will result in judicial waste, insufficient records on appeal, and case

law reports that are missing elements of proof.

ARGUMENT

I. THE FOURTH DISTRICT’S DECISION TO APPLY THE RULE OF

LAW IN BROCHE V. COHN, 987 SO. ED 124, 127 (FLA. 4TH DCA 2008)

EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT’S

HOLDING IN ESCH V. FORSTER, 168 SO. 229 (FLA. 1936).

The Fourth District misapplied the rule of law governing stipulated issues to

stipulated facts. It based its decision on the following rule of law:

“A stipulation that limits the issues to be tried amounts to a binding waiver

and elimination of all issues not included.” Broche v. Cohn, 987 So. Ed 124,

127 (Fla. 4th DCA 2008).

This rule governs stipulations of issues to be tried and not stipulations of fact that

are necessary to prove the elements of the agreed issues. The parties in Broche, as

in this case, entered into a Pretrial Stipulation containing a stipulation of issues to

be tried and stipulated facts to ease the presentation of evidence at trial. In Broche,

the Fourth District followed the mandatory precedent set out by The Supreme

Court of Florida and properly applied that rule of law to a dispute over the scope of

legal issues at trial. Esch v. Forster, 168 So. 229 (Fla. 1936). However, in the case

at bar, the Fourth District has misapplied the rule of law to a dispute over a

stipulated fact, creating a conflict with the Supreme Court of Florida. In Esch, the

Supreme Court expressly stated that the rule applies to “issues on which the case is

to be tried” and not other types of stipulations:

“Where parties by stipulation prescribe the issues on which the case is

to be tried, they are estopped from thereafter asserting that the case

was submitted on the wrong theory; and a stipulation restricting the

issues of trial to certain issues, unlike a stipulation which merely

eliminates a single issue, amounts to a binding waiver and

elimination of all issues not included.”

In this case, the parties stipulated that breach of the insurance contract was

among the issues to be tried. The parties did not go beyond the scope of the

elements of breach of contract during trial. The Fourth District’s decision

broadens the rule, holding that because the parties stipulated to facts (the existence

of the insurance contract and the assignment of benefits), they created a binding

waiver, eliminating the obligation to present essential elements of proof at trial and

in the record. The Fourth District’s decision conflicts with the Supreme Court of

Florida. Further, this new rule will have a disastrous effect on the sufficiency of

record evidence and legal precedent.

II. THE FOURTH DISTRICT’S DECISION TO APPLY THE RULE OF

LAW IN BROWN V. STATE, 940 SO. 2D (FLA. 4TH DCA 2006) EXPRESSLY

AND DIRECTLY CONFLICTS WITH THIS COURT’S OPINION IN BROWN V.

STATE, 719 SO. 2D 882 (FLA. 1998) AND THE FIRST DISTRICT’S OPINION

IN JOHNSON V. STATE, 842 SO. 2D 228 (FLA. 1ST DCA 2003).

The Fourth District broadened a narrow legal exception to all cases. It

based its decision on the following rule of law:

“A party’s stipulation waives his or her right to contest the failure to

introduce any evidence on those stipulations, including a failure to

read those stipulations to the jury.” Brown v. State, 940 So. 2d (Fla.

4th DCA 2006).

In Brown, the Fourth District applied a narrow exception previously only used in

criminal cases to a civil commitment case. As a general rule, parties have the

option of whether or not to use a stipulated fact at trial. The Brown exception was

created after courts encouraged the government to accept an offer of a defendant to

stipulate to a criminal history when it is an essential element of proof to avoid the

moral force and prejudicial impact of prior convictions upon the jury. A

defendant’s criminal history, which is not normally admissible under Fla. R. Evid.

90.403, is admissible where it is an essential element of proof. When the

defendant enters into the stipulation, he benefits by the omission of formal proof of

prior convictions. Courts are encouraged, and in some districts, required to accept

a criminal defendant’s offer to stipulate to moral force evidence of an essential

element. In this narrow line of moral force cases, the courts have held that where

the government inadvertently fails to put evidence of the stipulated fact into the

record, because the defendant has actually benefitted from the stipulation by

avoiding the moral force of the prior convictions, he has waived the right to have

the stipulation put into evidence or read to the jury. In each case, the courts

identified factors that were considered to exercise discretion for the exception: (1)

the defendant was at risk of losing civil liberties; (2) the stipulated facts related to a

history of convictions; (3) the criminal history was an essential element of proof;

(4) the government was required or encouraged to accept the stipulation; (5) there

was an inadvertent failure by the government to introduce the stipulation into

evidence; (6) the jury was instructed on the stipulation; (7) the jury found

sufficient evidence of the essential elements of proof; and (8) the appellate court

refused to substitute its opinion for that of the jury.

The Fourth District issued the decision in Brown. Without recognition of the

underlying cases or even acknowledgment of the moral force exception, the Fourth

District has advanced its decision in Brown as the rule of law applicable to all

stipulations in civil cases. This decision expressly and directly conflicts with the

Supreme Court of Florida. Brown v. State, 719 So. 2d 882 (Fla. 1998). Not to be

confused with the 2006 civil case decided by the Fourth District of the same name,

the Supreme Court’s decision in Brown specifically instructs that when using a

stipulation as an “evidentiary alternative,” the stipulation will satisfy the burden of

proof on an essential element, and that the judge can instruct the jury that it can

consider that element of the crime as proven by agreement of the parties in the

form of a stipulation. Brown is mandatory precedent and is instructive on the use

of stipulations which creates an express and direct conflict of law.

The Fourth District’s decision also conflicts with the First District Court of

Appeals. Johnson v. State, 842 So. 2d 228 (Fla. 1st DCA 2003). In Johnson, the

First District, referring to the line of exceptional moral force cases where a

stipulation is used to satisfy an essential element of proof, observed that “none of

these cases hold that jury instructions stating proper elements of the law should be

‘sanitized’….The appellant, not surprisingly, cites no authority for such an

argument.” The First District’s opinion continues, “There is no contention by

appellant that the jury instructions as given do not properly state the legal

elements…the trial court is not precluded from giving a jury instruction that

properly sets forth the elements of the crime.”

The stipulated fact simply operates to ease the presentation of evidence. The

stipulation does not eliminate the obligation to present the essential element to the

jury. In United States v. Pratt, the Court discussed the process, stating,

“Ordinarily…..district courts should ensure that a stipulation, or the content

thereof, is presented to the jurors prior to the close of evidence. This presentation

may take various forms: the presentation will often include an explanation by the

court that the stipulation means that the government and the defendant accept the

truth of a particular proposition of fact, and, hence, there is no need for evidence

apart from the stipulation itself.” 568 F.3d 11(U.S. 1st Cir. 2009). Here, the

Fourth District has ruled that a stipulation no longer needs to be presented or a part

of the trial record.

III. THE FOURTH DISTRICT’S HOLDING THAT THE TRIAL COURT

ERRED EXPRESSLY AND DIRECTLY CONFLICTS WITH THE SUPREME

COURT OF FLORIDA AND OTHER DISTRICTS.

a. The Fourth District’s Decision expressly and directly conflicts

with Std. Jury Instructions in Civ. Cases, 888 So. 2d 618 (Fla.

2004).

The Supreme Court of Florida approved a standard jury instruction for use in

civil cases for the specific purpose of publishing stipulations of fact to the jury and

instructing the jury on stipulations which bear on essential elements of proof. Std.

Jury Instructions in Civ. Cases (No. 04-01), 888 So. 2d 618 (Fla. 2004). Standard

Instruction 1.3(1)d, “Stipulations” is read when the jury is advised of factual

stipulations. The Fourth District’s holding that the trial court erred when it

instructed the jury and approved a jury question on the stipulated fact/essential

element expressly and directly conflicts with Standard Instruction 1.3(1)d that

instructs the jury as to the weight it should give the stipulated fact in deliberations.

If the party bearing the burden of proof is permitted to instruct the jury on the

evidentiary weight to be given to the stipulation of fact, then the Supreme Court of

Florida recognized that the jury must be instructed on stipulated facts. The Fourth

District’s decision expressly and directly conflicts with the instructions approved

by the Supreme Court of Florida.

b. The Fourth District’s Decision expressly and directly conflicts

with the Supreme Court of Florida in Arrington v. State, 233

So.2d 634 (Fla. 1970).

In Arrington, the Supreme Court held that a party is not bound to use a

stipulation. But where a party elects to introduce formal evidence into the record

to satisfy its elements of proof, it subjects itself to traditional evidentiary standards.

Arrington v. State, 233 So.2d 634 (Fla. 1970)(Stipulations may be employed as

tactical devices by a party who seeks to reduce the effect of his opponent's

procession of evidence.)(It has never been held that the state is barred from

proving a fact because the defendant offers to admit it.)(The submission of

evidence remains subject to the safeguard of objections raised on traditional

grounds)(While a court cannot force acceptance of an offer to stipulate upon the

declining party absent proof of prior acceptance or acquiescence, the court can

entertain objections to submission of evidence which are based upon traditional

grounds.) Here, Respondent failed to utilize the stipulations, and offered formal

evidence. That evidence was subject to traditional evidentiary standards. The

Fourth District’s opinion creates a conflict with the Supreme Court of Florida’s

holding that stipulations can be used strategically (meaning there is no effect if not

put into the record), and when a party decides not to use the stipulation, it is

subject to traditional evidentiary rules. These rules of law demonstrate that

regardless of the choice a party makes, it must put some evidence of an essential

element in the record. The trial court must instruct the jury on all essential

elements of proof.

c. The Fourth District’s decision expressly and directly conflicts

with the Supreme Court of Florida in Tampa Electric Co. v.

Bazemore, 96 So. 297 (Fla. 1923) and other Districts.

The Respondent’s presentation of traditional evidence raised a question of

fact for the jury, entitling Petitioner to a jury instruction on the issue of fact.

Litigants have a “right to have the court instruct the jury on the law applicable to

the evidence under the issues presented.” Ruiz v. Cold Storage & Insulation

Contractors, Inc., 306 So.2d 153, 154 (Fla. 2d DCA 1975). Here, it was

Respondent that presented evidence of duty to the jury in place of the stipulation.

The Court has a duty to charge the jury with proper instructions as to the law of the

case. Fla.R.Civ.P. 1.470(b). Tampa Electric Co. v. Bazemore, 96 So. 297 (Fla.

1923). The Fourth District’s decision expressly and directly conflicts with civil

procedure, the Supreme Court of Florida and the Second District.

IV. THE FOURTH DISTRICT’S DECISION TO REVERSE THE TRIAL

COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT’S

DECISION IN WHITE V. STATE, 446 SO. 2D 1031 (FLA. 1984) AND THE

THIRD DISTRICTS DECISION IN WILLIAMS V. STATE, 687 SO. 2D 858 (FLA.

3RD DCA 1997).

The Fourth District’s decision expressly and directly conflicts with the

doctrine of invited error. A litigant cannot create the very situation at trial which

he complains about on appeal. White v. State, 446 So. 2d 1031 (Fla. 1984). At

trial, Petitioner moved for a directed verdict on the failure to enter prima facie

evidence of an essential element of proof. The trial court reserved ruling, calling a

directed verdict the “ultimate sanction” for the inadvertent failure. Despite the

opportunity to cure, Respondent failed to request the court re-open evidence, failed

to request the standard jury instruction for presenting stipulations of facts to the

jury, and refused to put any evidence on in rebuttal. Under the invited error

doctrine, a party may not make or invite error at trial and then take advantage of

the error on appeal. Williams v. State, 687 So. 2d 858 (Fla. 3rd DCA 1997). It is

well-established law that where the trial judge has extended counsel an opportunity

to cure any error, and counsel fails to take advantage of the opportunity, such error,

if any, was invited and will not warrant reversal. Id.

CONCLUSION

This Court has discretionary jurisdiction to review the decision below and

should exercise that jurisdiction to review the numerous conflicts of law and in

light of the detrimental effect the lower court’s decision will have on record

evidence and legal precedent.

iii

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Initial

Jurisdictional Brief was served by U.S. Mail, this __________ 2011, on:

David C. Borucke

Post Office Box 1288

Tampa, Florida 33601-1288

Marie Lefere

Joshua R. Levenson

One East Broward Boulevard, Suite 1300

Fort Lauderdale, Florida 33302-4070

Gustavo A. Bravo

Salomon Bravo, FL

214 SE 13

Street

Fort Lauderdale, Florida 33316

Counsel For Petitioner

David J. Salmon, Esq.

Florida Bar No.: 12912

Kimberly A. Salmon, Esq.

Florida Bar No.: 64450

Groelle & Salmon, P.A.

7650 W. Courtney Campbell Causeway

Suite 800

Tampa, Florida 33609

(813) 843-7200

By:____________________

David J. Salmon

Florida Bar No: 12912

CERTIFICATE OF COMPLIANCE

IN ACCORDANCE WITH Fla. R. App. P. 9.210(a)(2), I HEREBY

CERTIFY that this computer generated brief complies with the requirements of

Fla. R. App. P. 9.210(a)(2) by preparation and submission in Times New Roman

14- point font.

By:____________________

Counsel For Petitioner

David J. Salmon, Esq.

Florida Bar No.: 12912

Kimberly A. Salmon, Esq.

Florida Bar No.: 64450

Groelle & Salmon, P.A.

7650 W. Courtney Campbell Causeway

Suite 800

Tampa, Florida 33609

(813) 843-7200

IN THE SUPREME COURT OF FLORIDA

CASE NUMBER: SC11- 1582

Fourth DCA Case No.: 4D09-4795

Circuit Case No.: 07-000612(25)

GREAT DIVIDE INSURANCE

COMPANY, a North Dakota company,

Petitioner,

vs.

CENTRAL SQUARE TARRAGON LLC,

A Florida limited liability company, for

itself and as assignee of AGU Entertainment

Corporation, n/k/a The Tube Media Corp.,

Respondent.

__________________________________________________________________

APPENDIX

__________________________________________________________________