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Shoreline Foundation, Inc. v. Brisk

Florida Court of Appeals, Fourth District

June 26, 2019


         Not final until disposition of timely filed motion for rehearing.

          Appeal 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).

          Steven 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.

          KLINGENSMITH, J.

         Appellant 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.[1] We agree on both issues and reverse. We affirm all other issues raised on appeal and cross-appeal without comment.

         In 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.

(Emphasis added).

         The 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 Partial Assignment.[2]

         Over the next five years, Brisk continued to invest in the project, making contributions toward his share[3] 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 software.

         Unfortunately 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 these mortgages.

         Soon 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.

         At 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 ...

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