Charles E. GITHLER, III, and Githler Development, Inc., a Florida corporation, Appellants,
Philip J. GRANDE; Marta A. Grande, and Spot Link, LLC, formerly known as Spot Link, Inc., a Florida Corporation, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Diana L.
M. Samson of Samson Appellate Law, Miami; W. Andrew Clayton,
Jr., and Worth S. Graham of Icard, Merrill, Cullis, Timm,
Furen & Ginsburg, P.A., Sarasota; and Jeremy Roth of Roth
Legal, Sarasota, for Appellants.
Geraghty Price of Cohen & Grigsby, P.C., Naples; and
Thomas Avrutis of Hodges, Avrutis & Preschner, P.A.,
Sarasota, for Appellees Philip J. Grande and Marta A. Grande.
appearance for remaining Appellee.
E. Githler, III, and Githler Development, Inc., the
plaintiffs in the civil action below, appeal from a final
judgment in favor of defendants Philip J. Grande (Grande),
Marta A. Grande (Marta), and Spot Link, LLC, on all claims in
the plaintiffs' complaint and on both counts of
Marta's counterclaim. On appeal, the plaintiffs challenge
the judgment on Count III of the complaint (sale of
unregistered securities) and the judgment on the
counterclaim. For the reasons set forth below, we reverse the
final judgment as to Count III and the final judgment on the
doing so, we recede from our opinions in Greater
Ministries International, Inc. v. State, 689 So.2d 328
(Fla. 2d DCA 1997), and Mortellite v. American Tower,
L.P., 819 So.2d 928, 933 (Fla. 2d DCA 2002), to the
limited extent that those opinions articulate or rely upon an
erroneous definition of "security." We also certify
conflict with Rudd v. State, 386 So.2d 1216 (Fla.
5th DCA 1980), and Levine v. I.R.E. Properties,
Inc., 344 So.2d 938 (Fla. 3d DCA 1977), to the extent
that those opinions articulate or rely upon the same
2007, Grande and his wife, Marta, incorporated Spot Link,
Inc. (d/b/a Phil's Gang Radio Show). Through the radio
show and its related Phil's Gang website, Grande offers
investment advice to his listeners. The listeners can become
"members" of Phil's Gang for a subscription
price and can purchase stock-trading software from the
website. When Spot Link was incorporated, Marta reportedly
owned 100% of it (1000 shares at $1.00 par value).
2009, the Grandes decided they wanted to retire and began
looking for someone to take over the business. They informed
their friend/employee/software developer, Don Cogswell, of
their decision, and Cogswell told another mutual friend,
Peter Wish. Wish found a potential investor in Githler,
founder of "The Money Show" and similar entities
that offered a variety of investment-related products.
October 18, 2013, Githler entered into a stock sale and
purchase agreement with Spot Link in which he agreed to buy
811 shares; Cogswell would buy 29 shares, Marta would retain
60 shares, and Grande would "retain" 100 shares.
The agreement provided that Githler would pay Marta for 303
of the shares and give her a promissory note securing the
other 508 shares. The agreement provided further that if
Githler defaulted, he would have to sell his 303 shares back
to Spot Link at the original purchase price. The agreement
also included a contingent provision requiring Marta to sell
her 60 shares to Wish in exchange for a "working capital
loan" of $100,000.
to a separate agreement executed on the same date, Githler
sold 391 shares of his stock (88 shares of which appear to
have still been hypothecated to Marta) to Cogswell, but
Githler did not get any money; instead he took back a
promissory note for $1,389,790. Pursuant to two employment
agreements, also executed on the same date, Grande would
continue to be employed by Spot Link as the voice/face of
"Phil's Gang" and Githler would serve as both
chairman of the board and vice president of Spot Link. In May
2014, Githler and Cogswell changed the business form of Spot
Link from an S-Corporation to a limited liability company
(LLC), with each of them as managers.
promised rapid growth, syndication of the radio show,
procurement of sponsors, and other events that purportedly
induced Githler to get involved in Spot Link in the first
place did not ...