final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Sandra Perlman, Judge; L.T. Case Nos. CACE
14-020494 (02), CACE 14-020793 (04).
H. Osber of Conrad & Scherer LLP, Fort Lauderdale and
Elliot B. Kula, W. Aaron Daniel, and Ashley P. Singrossi of
Kula & Associates, P.A., Miami, for appellant.
Jeffrey A. Rynor and Loren H. Cohen of Mitrani, Rynor,
Adamsky & Toland, P.A., Miami Beach, for appellee.
Shoreline Foundation, Inc., ("Shoreline") appeals
an Amended Final Judgment entered following a jury verdict in
favor of appellee Victor Brisk. Brisk brought several claims
against Shoreline, his former employer, but prevailed only on
his count alleging breach of fiduciary duty stemming from
what he claims was a joint venture with Shoreline to develop
property in the Bahamas. Shoreline contends that the evidence
was insufficient to establish that a joint venture existed,
and also challenges the trial court's order denying
entitlement to attorneys' fees under Florida's Blue
Sky Law. We agree on both issues and reverse. We
affirm all other issues raised on appeal and cross-appeal
October 2003, one of Shoreline's principals approached
Brisk with an opportunity to invest in Hidden Hills, a
townhome development in the Bahamas. Shoreline was developing
Hidden Hills in conjunction with a Bahamian entity called
P&P. Brisk was given the opportunity to purchase: (1) a
15% ownership interest in seven of the townhome units
Shoreline would own; and (2) 15% ownership interest in the
50% of P&P's shares in the Hidden Hills Project that
Shoreline would own. The parties entered into a written
agreement called a "Partial Assignment" that
assigned Brisk the above ownership interests. Brisk was not a
party to the Hidden Hills Contract between Shoreline and
P&P, but the Partial Assignment established Brisk knew
about the Hidden Hills Contract:
5. Acknowledgement. Brisk acknowledges that he is fully
acquainted with the condominium project which is the subject
of this agreement and that he will actively
participate in the development of the project.
record shows Brisk was indeed aware of the Hidden Hills
Project's status because he was employed by Shoreline as
its Controller. There is no mention of Brisk's duties or
authority, nor is there any mention of a joint venture or
partnership between Brisk and Shoreline contained in the
the next five years, Brisk continued to invest in the
project, making contributions toward his share totaling $219,
600 while remaining employed as Shoreline's Controller.
However, Brisk never controlled the Hidden Hills Project, and
never met with the P&P principals. According to the
evidence, Brisk's involvement in the project, aside from
his financial investment, was limited to occasionally
performing accounting duties, verifying and paying invoices,
and entering those expense allocations into the accounting
for the parties, the Hidden Hills Project fell victim to the
2008 recession. P&P's construction went into
foreclosure, and the development went unfinished and unsold.
While Shoreline continued to make payments on the various
mortgages to which Shoreline's principals remained
obligated, Brisk was under no such personal obligation for
after, the relationship between Brisk and Shoreline soured,
and Brisk was terminated from his position as Controller.
When Brisk correspondingly stopped making payments toward his
15% interest and requested a refund of his investment in the
Hidden Hills Project, Shoreline refused. Brisk then filed a
multi-count suit against Shoreline and the Shoreline
principals (collectively "defendants") alleging
breach of contract, fraud, misrepresentation in violation of
section 517.301(1), Florida Statutes (2015), (the "Blue
Sky Law"), breach of fiduciary duty, and civil theft,
among other claims. Shoreline filed a separate declaratory
judgment claim to establish Brisk's continuing duty to
make payments under the terms of the Partial Assignment.
Shoreline's declaratory judgment claim was consolidated
with Brisk's suit for trial.
trial Brisk alleged the defendants owed him a fiduciary duty,
stemming from what he claimed was his role as a joint
venturer, to develop the Hidden Hills Project. Brisk claimed
a joint venture existed because he was a "partner"
with Shoreline in the Hidden Hills Project and stipulated
that the only basis for his breach of fiduciary duty claim
stemmed from this alleged joint venture. Shoreline asserted
they did not owe Brisk a fiduciary duty because he was not a
joint venturer in the Hidden Hills Project since the parties
merely entered into an ...