Filing # 122174494 E-Filed 02/26/2021 03:51:59 PM

IN THE THIRD DISTRICT COURT OF APPEAL

STATE OF FLORIDA

CASE NO. 3D20-1151

VICTOR LERNER, an individual, CITIGROUP REALTY, LLC, and

CITY REALTY GROUP, INTERNATIONAL LLC, Florida limited
liability companies,

Appellants,

v.

INO HALEGUA, an individual, ORESCO

ENTERPRISES, LLC.; EXCLUSIVE
ESCAPES, LLP, INC.; and NERVIA
ENTERPRISES, LLC, Florida limited liability
companies;

Appellees.

INITIAL BRIEF OF APPELLANTS

ON APPEAL FROM A JUDGMENT ENTERED IN THE ELEVENTH JUDICIAL

CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

David H. Charlip, B.C.S.

CHARLIP LAW GROUP, L.C.
999 Brickell Ave., Suite 840
Miami, Florida 33131
Telephone: (305) 354-9313
dcharlip@charliplawgroup.com
Counsel for Appellants
 TABLE OF CONTENTS
Page

TABLE OF CONTENTS .................................................................... i

TABLE OF CITATIONS ................................................................... iii

INTRODUCTION ............................................................................. 1

STATEMENT OF THE CASE AND FACTS ........................................ 3

I. THE FACTS. ................................................................... 3

II. THE LITIGATION. ........................................................... 7

III. THE JURY TRIAL. ........................................................ 11

IV. THE POST TRIAL MOTIONS. ........................................ 16

V. THE ACOUNTING BENCH TRIAL. ................................ 21

VI. THE PARTIAL FINAL JUDGMENT................................. 27

VII. POST-JUDGMENT ....................................................... 28

SUMMARY OF ARGUMENT .......................................................... 29

ARGUMENT ................................................................................. 29

I. STANDARD OF REVIEW. ............................................. 29

II. THE TRIAL COURT ERRED BY DENYING

LERNER’S MOTION FOR ADDITUR. ............................. 31

III. THE TRIAL COURT’S ADJUDICATION OF THE

ACCOUNTING COUNTERCLAIM WAS
PROCEDURALLY IMPROPER AND MUST BE
REVERSED. ................................................................. 44

i.
 TABLE OF CONTENTS
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Page

IV. THE TRIAL COURT’S JUDGMENT ON THE

ACCOUNTING COUNTERCLAIM IS NOT
SUPPORTED BY SUBSTANTIAL COMPETENT
EVIDENCE. ................................................................. 62

CONCLUSION .............................................................................. 65

CERTIFICATE OF SERVICE.......................................................... 66

CERTIFICATE OF COMPLIANCE .................................................. 66

ii.
 TABLE OF CITATIONS

Page

Cases

A-1 Truck Rentals, Inc. v. Vilberg,

222 So. 2d 442, 444, (Fla. 3d D.C.A. 1969) ......................... 44, 45

Allstate Ins. Co. v. Manasse,

707 So. 2d. 1110, 1111 (Fla.1998) ............................................ 29

Arena Parking, Inc. v. Lon Worth Crow Insurance Agency,

768 So. 2d 1107, 1110 (Fla. 3d DCA 2000) ............................... 42

ATLC, LTD. v. Eastman Kodak Company,

Case No. 6:11-cv-855-Orl-31GJK.(M.D. Fla. 2011) .................... 50

Beacon Theatres Inc. v. Westover,

608 F.Supp.2d 1313, 1329 (S.D. Fla. 2009) .............................. 52

Bernardele v. Bonorino,
608 F.Supp.2d 1313, 1329 (S.D. Fla. 2009) ........................ 47, 58

Billian v. Mobil Corp.,

710 So.2d 984, 992 (Fla. 4th DCA 1998), review denied, 725
So.2d 1109 (Fla.1998) ......................................................... 52, 57

Bradshaw v. Thompson,
454 F.2d 75 (6th Cir. 1972) ................................................. 51, 55

Brown v. Estate of Stuckey,

749 So. 2d 490, 498 (Fla. 1999) ................................................ 34

Cadle Co. v. G & G Assocs.,

757 So.2d 1278, 1279 n. 2 (Fla. 4th DCA 2000) ........................ 56

iii.
 TABLE OF CITATIONS
(Continued)

Page

Centrix HR, LLC v. On-Site Staff Mgmt., Inc.,

2008 WL 2265266, 2008 U.S. Dist. LEXIS 43629 (E.D.Pa. Jun. 3,
2008) ........................................................................................ 50

Cerrito v. Kovitch,
457 So.2d1021 (Fla.1984) ......................................................... 52

Coined v. Kar Kare Auto. Group, Inc.,

918 So.2d 431, 436 (Fla. 4th DCA 2006) ................................... 30

Current Builders of Florida, Inc. v. First Sealord Surety, Inc.,

984 So. 2d 526, 531 (Fla. 4th DCA 2008) ................ 32, 40, 41, 42

Dahlawi v. Ramlawi,
644 So.2d 523, 524 (Fla. 3d DCA 1994), rev. denied, 652 So.2d
817 (Fla.1995) ........................................................................... 45

Dairy Queen, Inc. v. Wood,

369 U.S. 469, 478 (1962) .............................................. 47, 50, 52

Deklyen v. Trucker’s World, Inc.,

867 So. 2d 1264 (Fla. 5th DCA 2004) ........................................ 44

Dolphin Cruise Line v. Stassinopoulos,

731 So. 2d 708, 709 (Fla. 3rd DCA 1999) ................................... 29

Doughty v. Sullivan,
661 A.2d 1112, 1123 (Me. 1995) ............................................... 12

Everett v. Ribicoff,
200 F.Supp. 103, 111 (N.D.Fla. 1961) ......................................... 3

F.A. Chastain Constr., Inc. v. Pratt,

146 So. 2d 910, 913 (Fla.3rd DCA 1962) .................................... 49

iv.
 TABLE OF CITATIONS
(Continued)

Page

Garrett v. Miami Transfer Co., Inc.,

964 So. 2d 286 (Fla. 4th DCA 2007) .......................................... 43

Goldfarb Novelty Co. of Fla., Inc. v. Vann,

94 So. 2d 845, 849 (Fla. 1957) .................................................. 59

Huff v. State,
569 So. 2d 1247, 1249 (Fla.1990) ............................................. 30

K.M.A. Associates, Inc. v. Meros,

452 So. 2d 580, 580–82 (Fla. 2d DCA 1984) .............................. 53

Kislak v. Kreedian,
95 So. 2d 510, 514-15 (Fla. 1957) ............................................. 48

Koros v. Doctor's Special Surgery Ctr. of Jacksonville, Ltd.,

717 So.2d 137, 138-39 (Fla. 1st DCA 1998) ......................... 45, 46

Larmoyeux v. Montgomery,
963 So. 2d 813 (Fla. 4th DCA 2007) ........................................... 46

Laskey v. Smith,
239 So.2d 13 (Fla.1970) ............................................................ 40

Laufer v. Norma Fashions, Inc.,

418 So.2d 437, 439 (Fla. 3d DCA 1982) .................................... 30

Laurence v. Soler,
706 So. 2d 896, 897 (Fla. 3d DCA 1998) ................................... 45

Lerner v. Halegua,
154 So. 3d 445 (Fla: 3rd DCA 2014) .......................................... 11

v.
 TABLE OF CITATIONS
(Continued)

Page

Levenger Co. v. Feldman,

516 F. Supp.2d 1272, 1293 (S.D.Fla.2007) ............................... 49

Managed Care Solutions, Inc., v. Essent Healthcare, Inc.,

09-60351-PAS (S.D. Fla. January 25, 2010) ........................ 51, 55

Managed Care Solutions, Inc. v. Essent Healthcare, Inc.,

694 F. Supp. 2d 1275, 1279 (11th Cir. 2010) ...................... 49, 50

Mary Dee's, Inc. v. Tartamella,

492 So. 2d 815, 816 (Fla. 4th DCA 1986) .................................. 49

Maxwell v. First United Bank,

782 So.2d 931, 932 (Fla. 4th DCA 2001) ................................... 48

Menashi v. American Home Mortgage Servicing, Inc.,

Case No. 8:11-cv-1346-T-23EAJ. (M.D. Fla. 2011) .................... 47

N.J. Willis Corp. v. Raskin,

430 So. 2d 996 (Fla.4th DCA 1983) ........................................... 53

Napolitano v. H.L. Robertson & Associates, Inc.,

311 So. 2d 757 (Fla.3d DCA 1975) ............................................ 53

National Union Fire Ins. Co. of Pittsburgh v. Blackmon,

754 So. 2d 840 (Fla. 1st DCA 2000) .......................................... 43

Novak v. O’Donnell,
211 So. 2d 855 (Fla. 3d D.C.A. 1968) ........................................ 59

Orlinsky v.Patraka,
971 So. 2d 796 (Fla. 3rd DCA 2008) ..................................... 48, 54

vi.
 TABLE OF CITATIONS
(Continued)

Page

Ortlieb v. Butts,
849 So. 2d 1165, 1167 (Fla. 4th DCA 2003) .............................. 36

Paoli v. Natherson,
732 So.2d 486 (Fla. 2d DCA 1999) ...................................... 52, 57

Parliament Ins. Co. v. Hanson,

676 F.2d 1069, 1072 (5th Cir. Unit B 1982) ............................... 49

Peacock v. Carver,
315 So.2d 214 (Fla. 1st DCA 1975) ........................................... 30

Peele v. Hibiscus Realty, Inc.,

427 So. 2d 273 (Fla. 2d DCA 1983) ........................................... 44

Picerne Development Corp. of Florida v. Tasca & Rotelli,

635 So. 2d 149 (Fla. 4th DCA 1994) .......................................... 44

Poole v. Veterans Auto Sales and Leasing Company, Inc.,

668 So. 2d 189 (Fla. 1996) ........................................................ 39

Rafael J. Roca v. Lytal & Reiter, Clark,

856 So. 2d 1, 4-5 (Fla: 4th DCA 2003)......................................... 3

Ramey v. Winn Dixie Montgomery, Inc.,

710 So. 2d 191, 192 (Fla. 1st DCA 1998) .................................. 30

RBC I, Inc. v. AJAR I, Inc.,

519 So.2d 743, 744 (Fla. 3d DCA 1988) .................................... 45

Real Estate Value Co., Inc. v. Carnival Corp.,

92 So. 3d 255 (Fla. 3d DCA 2012) ............................................. 48

vii.
 TABLE OF CITATIONS
(Continued)

Page

Silverman v. Gockman,
714 So.2d 671 (Fla. 4th DCA 1998) ........................................... 41

Stone v. Stone,
657 So. 2d 1256, 1257 (Fla. 2d D.C.A 1995) ............................. 59

Sunbank, NA v. Retirement Facility at Palm Aire, Ltd.,

698 So. 2d 392, 393 (Fla: 4th DCA 1997) .................................. 52

Thomas B. Kee, Ctl Ins. Corp. v. National Reserve Life Ins. Co.,
918 F.2d 1538 (11th Cir. 1990) ................................................. 49

Validsa, Inc. v. PDVSA Services Inc.,

632 F. Supp. 2d 1219 (S.D. Fla. 2009) ...................................... 49

Westview Community Cemetery of Pompano Beach v. Lewis,

293 So. 2d 373 (Fla.4th DCA 1974) ........................................... 53

Wood v. Brackett,
266 So. 2d 398, 399 (Fla. 1st D.C.A. 1972) ............................... 45

Zaki Kulaibee Establishment v. McFlicker,

788 F.Supp.2d 1363, 1370 (S.D. Fla. 2011) ........................ 47, 51

Rules

Fla. R. Civ. P. Form 1.936 ......................................................... 12

Florida Administrative Code Rule 61H1-20.007 ......................... 60

Florida Rules of Appellate Procedure Rule 9.045 ....................... 66

Florida Rule of Judicial Administration 2.516 ........................... 66

viii.
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Page

Fed. R. Civ. P. 37 ...................................................................... 50

Statutes

Article I, section 22, Constitution of the State of Florida ............ 39

§90.956 ..................................................................................... 63

§620.665 ................................................................................... 45

§620.8202(1), Fla. Stat. ............................................................... 3

§620.8405(2), Fla. Stat. (1996 Supp.) ........................................ 46

§768.71(1), Fla. Stat. (2006) ...................................................... 41

§768.74, Fla. Stat. (1993) .......................................................... 40

§768.74, Fla. Stat. (2017) .......................................................... 35

§768.74, Fla. Stat........................................ 32, 35, 36, 39, 41, 42

§768.74(1), Fla. Stat. ........................................................... 32, 41

§768.74(4), Fla. Stat. ................................................................. 43

§768.74(5), Fla. Stat. ................................................................. 32

§768.74(5)(c), Fla. Stat. ............................................................. 43

§768.74(5)(d), Fla. Stat. ....................................................... 42, 43

ix.
 TABLE OF CITATIONS
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Page

§768.74(5)(a)-(e), Fla. Stat. ........................................................ 34

18 pt. 2, Fla. Stat. Ann. 287-88, cmt. 1 ....................................... 3

Chapter 620 .............................................................................. 46

Florida's Revised Uniform Partnership Act................................... 3

Florida’s Revised Uniform Partnership Act (rev. January 1,

1996) ........................................................................................ 45

Laws of Florida, ch. 95-242 § 13 ............................................... 45

Revised Uniform Partnership Act (1994) .............................. 45, 46

Section 405(b) of the Revised Uniform Partnership Act

(1994)(RUPA) ............................................................................. 46

Unif. Partnership Act § 405, comm. 2, 6 U.L.A. 64 (1994).......... 46

Other Authorities

42 C.J.S. IMPLIED CONTRACTS § 2 (2010) ............................... 12

66 Am. Jur. 2d RESTITUTION AND IMPLIED CONTRACTS § 171

(2010) ....................................................................................... 12

Accounting Principles Board Opinions Nos. 1 to 31 as published

by the American Institute of Certified Public Accountants ......... 60

BLACK’S LAW DICTIONARY 209 (6th ed.1990) .......................... 56

x.
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Page

Financial Accounting Standards Board (FASB), the Governmental

Accounting Standards Board (GASB)......................................... 60

Ho, Christine, The Most Efficient Way to Litigate A Dispute

Between Business Partners With Axes to Grind: Partnership
Accountings, 86 Fla.B.J. 22 (August 2012)................................ 59

John W. Larson, Florida’s New Partnership Law: The Revised

Uniform Partnership Act and Limited Liability Partnerships, 23
Fla. St. U.L.Rev. 201 (1995) ...................................................... 45

xi.
 INTRODUCTION
This case involves a commercial dispute between the

Plaintiffs/Appellants Victor Lerner, City Realty Group International,

LLC and Citigroup Realty, LLC and the Defendants/Appellees Ino

Halegua, Oresco Enterprises, LLC, Exclusive Escapes, LLLP, Ino, LLC

and Nervia Enterprises, LLC. The dispute involves monies claimed

between Lerner and Halegua concerning various real estate

businesses they both held interests in as well as various real estate

transactions that occurred over the course of the parties' business

relationship. (R. 160).

For ease of reference and brevity, Appellants will be collectively

referred to as “Lerner” and Appellees as “Halegua”. When making

reference to the companies, their names will be shortened to City

Realty Group, Citigroup Realty, Oresco, Exclusive Escapes, Ino and

Nervia. Any other companies referenced will be to a shortened version

of their name after initial identification. The Trial Court below will

just be referred to as “the Court.” All record citations will be made as

“(R.__)”. To the extent any exhibits have not been supplemented to

the Record on Appeal, such references to Plaintiffs’ exhibits will be

1.
made as (P.__, DE _, at ___) and to Defendants’ exhibits as (D.__, DE

_, at ___). Because the Circuit Court Clerk has been unable to locate

certain pleadings and to avoid further delay due to additional

supplementation of the record, the parties have agreed to an

Appendix, references to which will be designated as (A. __).

2.
 STATEMENT OF THE CASE AND FACTS

I. THE FACTS

Although not “partners” in a strict legal sense1 because they

each held either a membership or shareholder interest in the various

corporate entities involved, Halegua (a real estate investor)

“partnered” with Lerner (a real estate broker) to generate profits from

the purchase and sale of real estate in South Florida between

approximately a Six (6) year period spanning the years of 2004 and

2009.

Halegua was looking to invest in preconstruction properties in

Miami Beach and Lerner at that time had a real estate brokerage on

1As explained in Rafael J. Roca v. Lytal & Reiter, Clark, 856 So. 2d
1, 4-5 (Fla: 4th DCA 2003):
“Florida's Revised Uniform Partnership Act, which
became effective January 1, 1996, defines a "partnership"
as "the association of two or more persons to carry on as
coowners a business for profit" and specifically provides
that such an association results in a "partnership"
"whether or not the persons intend to form a partnership."
§ 620.8202(1), Fla. Stat. In other words, formation of a
partnership does not require a showing that the parties
subjectively intended to create a partnership, only that
they intended to do the things that constitute a
partnership. See 18 pt. 2, Fla. Stat. Ann. 287-88, cmt.1;
Everett v. Ribicoff, 200 F.Supp. 103, 111 (N.D.Fla. 1961).”
3.
Miami Beach - Sunset Harbor Realty, Inc. and Halegua approached

Lerner about buying into that business. (R. 992).

Their entry together into their joint business ventures originally

took the form of a purchase by Halegua of a Fifty (50) percent interest

in Lerner’s various real estate companies. Such purchase was

documented in a 2003 Letter of Intent (“2003 LOI”).2

Halegua had previously paid Lerner $50,000.00 of the

$150,000.00 purchase price so the 2003 LOI purchase price was

reduced to $100,000.00 (R. 1008) payable with a $10,000.00

deposit, $60,000.00 at signing (R. 471; R. 1008; P. 13, DE 238 at 69

and $10,000.00 per year payable over a three (3) year period

evidenced by a promissory note and guaranty from Halegua. (R.

1014-15).

2
The 2003 LOI pertained to the following companies owned by Lerner:
Sunset Harbour Realty, Inc., and Yacht Club Realty at Portofino as
well as those companies identified as the “Entities” (Aventura
Turnberry Realty, LLC, Hidden Bay Realty, LLC, Porto Vita Realty,
LLC, Real Estate Property Guide, LLC, Venetian Realty, LLC, Conti
uum_ Realty, LLC, Grand Venetia Realty, LLC and Murano Realty,
LLC (D. 316, DE 231 at 102-106).

4.
 During 2004, the parties did not finalize the closing on the 2003

LOI because there was an issue with closing out Citigroup Realty,

Sunset Harbour, Yacht Club and the Entities and opening a new

realty brokerage as well as moving to a new location. (R. 470).

Ultimately City Realty Group International, LLC was formed to

handle the day-to-day real estate brokerage operations and in

January 2005 a new LOI (the “2005 LOI”) was executed by Lerner

and Halegua which amended and supplemented the 2003 LOI. At

that time the purchase transaction was closed in the name of Oresco

(as opposed to Halegua personally) and the promissory note,

guaranty and operating agreement for City Realty Group were all

executed. (R. 474).

Before finalizing the 2005 LOI, Halegua requested and obtained

a full accounting of “Sunset Harbour, Yacht Club and The Entities”,

the business records of which were to be “reconciled and have a zero

($0.00) balance prior to Closing.” (R. 1012-1014). Halegua raised no

objection to said accounting. (R. 1012 – “we are going to do the

contract for me and Victor this week as the criteria I have required

5.
accounting wise have recently been completed.”); (D. 331, DE 230 at

21; D435, DE 236 at 8-10).

From and after 2005, there were basically two companies Lerner

and Halegua had that were active and operating - City Realty Group

and Reality Realty. (R. 883). Year-end accountings were done by the

accountant and everything went fine without any problems between

Halegua and Lerner until 2009. (R. 992; R. 1138-39). In fact, during

the early part of such relationship the main real estate company “was

making a lot of money” (R. 1153).3

In September 2009, Halegua decided to end his business

relationship with Lerner. He and Lerner agreed that Lerner would

retain all of his real estate brokerage companies including City Realty

and Reality Realty. (R. 1001). At the time, Reality Realty had

$104,899.97 in its bank account. (R. 521; P. 110, DE 238 at 84).

Nevertheless, Halegua withdrew all funds (P. 109, DE 238 at 83; P.

3 Nevertheless, for each of the years 2004-2009, Halegua reported

passive losses on his 1040 Federal Tax return flowing from his
investment in Lerner’s companies. (R. 1022; P. 64, DE 238 at 75-76).
6.
110, DE 238 at 84) from the Reality Realty bank account except for

$500.00. (R. 521, R. 1020-21; P. 110, DE 238 at 84).

II. THE LITIGATION

On or about May 26, 2010, Lerner commenced this action by

suing Halegua. (R. 42). After motions to dismiss and amended

pleadings (R. 40-42) were filed on or about August 8, 2011, Lerner

filed his Third Amended Complaint (A. 009-A. 078), which was his

operative pleading, containing counts for breach of oral and written

contract, unjust enrichment, breach of a promissory note and

guaranty, money lent and fraudulent transfer (R. 40). On or about

November 11, 2011, Halegua filed his Answer and Affirmative

Defenses to Lerner’s Third Amended Complaint and asserted a

Counterclaim containing counts for Breach of Written Contract (2003

LOI); Breach of Oral Contract; Accounting (based upon the 2003 LOI)

and to dissolve City Realty Group International, LLC. (R. 39; A. 078-

A. 106).

Specifically, Halegua’s claim for an Accounting alleges:

COUNT IV
(ACCOUNTING)

7.
 27. Counter-Plaintiffs (Dr. Halegua and Oresco) re-allege
and incorporate by reference the allegations contained in
paragraphs 1 through 8 above.
28. Counter-Plaintiff Dr. Halegua and Counter-Defendant
Victor Lerner executed a Letter of Intent (“LOI”) on
November 7, 2003. This LOI, as amended, requires Victor
Lerner through his companies to reimburse all payments
for rent or utilities from the profits any and all of the
companies controlled by Victor Lerner.
29. The contractual demands between the Parties, as set
forth in the 2003 LOI, with respect to what profits the
numerous entities earned between 2003 and 2009 involve
extensive and complicated accounts. See List of
Companies ¶12-14 of the Third Amended Complaint.

WHERFORE, Counter-Plaintiffs request that the Court

order an accounting; award Counter-Plaintiffs half of all of
the profits earned by the Counter-Defendants between
2003 and 2009; award half of all money misappropriated;
award Counter-Plaintiffs attorney’s fees and costs
pursuant to the 2003 LOI and grant such other relief the
Court deems just and appropriate.

In response to Halegua’s accounting claim, in 2013, Lerner

collected and paid for copies of all of the bank records of the

successor entities in which Lerner and Halegua each held 50%

interests - Citigroup Realty, City Realty Group, and Reality Realty

Group, LC and gave them to Halegua and Kim Marks, a CPA. (R.

1174-75). Halegua and his accountants had possession of these

records since 2013. (R. 1175).

8.
 Lerner’s expert C.P.A.’s performed an examination and

reconciliation of the books and records of Citigroup Realty, City

Realty Group, and Reality Realty. The result and conclusions of that

examination was presented both to Halegua prior to the jury trial as

well as to the jury at trial. At the jury trial, Halegua made no mention

of any unauthorized checks by Lerner.4 Indeed, prior to May 3, 2019,

the date of the accounting bench trial, Halegua neither objected to

such accountings nor to any of the expenditures revealed by such

accountings. (R. 1168).

On May 29, 2013, the Court entered the trial order in this case.

(A. 107). On April 3, 2018, Halegua’s counsel advised Lerner’s

counsel via email that they “plan to present Counts IV (Accounting)

and V (Judicial Dissolution) of the Counterclaim during a separate

hearing at the conclusion of trial outside the presence of the jury.”

(R. 421).

4 Halegua later justified such lack of cross examination of those

witnesses about any alleged unauthorized disbursements allegedly
because he “was not aware of them at that time”. (R. 1167-68).
9.
 Because any accounting could be materially different depending

upon how the following underlying contested facts were resolved,

Lerner objected to the proposed procedural method of dealing with

Halegua’s accounting claim and asserted that the equitable and legal

claims were inextricably intertwined such that they could not logically

be bifurcated for determination.

a. whether Halegua’s “advancements” were “loans” or

investments;

b. whether the 2003 LOI or the 2005 LOI was applicable;

c. what enforceable oral agreements existed between the

parties;

d. what contested lost or destroyed documents governed the

contractual relations between the parties. (R. 420-32; R. 701; R. 802-

03).

Based upon the foregoing facts, Lerner contended before the

commencement of trial that (1) Halegua was obligated to present the

facts underlying the equitable claims to the jury; and (2) by

unilaterally electing not to do so in contravention of the trial order,

10.
he waived or abandoned any such claims not otherwise so presented.

(R. 701).

Lerner further contended that because his legal claims were so

intertwined with the issues made by Halegua’s equitable claim for an

accounting, a jury trial should be afforded to him on all issues. In

this regard, it was incumbent upon Halegua to request bifurcation of

his accounting claim and that his failure to do so waived any such

eleventh-hour attempt to avail himself of such relief. (R. 701; 802-

804; 876-882).

The Court rejected those arguments. (R. 683-84; 876-882).

III. THE JURY TRIAL

On or about November 14, 2017, the trial of the action was

scheduled for the April 2018 jury trial docket. (R. 12).5 The action

was tried over the four (4) day period between April 9 and 12, 2018.

(R. 699-728, 625-647, 728-733, 733-735, 462-483, 735-737, 800-

805, 518-558, 805-820, 850-903, 990-1047, 661-666).

5The case was originally tried commencing on February 26, 2014 but
a mistrial was declared (R. 26) that was subsequently reversed on
appeal. Lerner v. Halegua, 154 So. 3d 445 (Fla: 3rd DCA 2014).
11.
 At trial, Lerner presented evidence on City Realty’s claims

against Halegua for a $100,000.00 unpaid sales commission; an

$18,000.00 unpaid rental commission and a total of $245,000.00 in

three (3) preconstruction real estate commissions that Halegua

diverted to himself. Lerner also presented evidence, including expert

testimony, establishing $174,300.70 due him from Halegua under

the 2005 LOI and City Realty’s Operating Agreement; as well as the

$30,000.00 due him from Halegua under the Promissory Note and

Guaranty; and about the $104,899.97 withdrawn from the bank

account of Reality Realty by Halegua before he transferred that

company to Lerner. (R. 521, 1021; P. 109, DE 238 at 83; P. 110, DE

238 at 84). Halegua presented only his Counterclaim count for

money lent (a legal cause of action)6, abandoning his counts for

6
“An action for money lent is an action at law which lies whenever
there has been a payment of money from the plaintiff to the defendant
as a loan.” 42 C.J.S. IMPLIED CONTRACTS § 2 (2010). In order to
state a claim for money lent, a plaintiff must allege: (1) money was
delivered to the defendant, (2) the money was intended as a loan, and
(3) the loan has not been repaid. See 66 Am. Jur. 2d RESTITUTION
AND IMPLIED CONTRACTS § 171 (2010) (citing Doughty v. Sullivan,
661 A.2d 1112, 1123 (Me. 1995)); cf. Fla. R. Civ. P. Form 1.936
(implying the three elements in the pleading form).
12.
Breach of Written Contract (2003 LOI); and Breach of Oral Contract.7

(R. 701).

An issue for the jury to hear and determine was whether the

combined capital accounts for Citigroup Realty, City Realty Group

and Reality Realty were disproportionate in favor of Lerner because,

as Halegua testified, he received no distributions whatsoever, or, as

Lerner contended, whether the capital account was disproportionate

in favor of Halegua. Based upon the expert accounting work and

testimony of Kim Marks and Harold Benjamin, the jury determined

that Lerner was owed money from Halegua. (R. 313-318).

Accounting analysis was only presented to the jury by Lerner

and it was only Lerner who presented expert accounting testimony.

Halegua neither elicited any of his own expert testimony nor

challenged the conclusions of Lerner’s expert accountants. (R. 813-

20; 1033).

7 Count V of the Counterclaim for Judicial Dissolution was later

abandoned by Halegua.
13.
 The accounting conducted by Harold Benjamin credited

Halegua with Thirty-Five (35%) percent of the credit card charges

utilized by Lerner as being personal; reclassified Lerner’s personal

items recorded in City Realty Group as business expenses; and took

into account Lerner’s contractually stipulated expense allowance as

well as the rent & utilities reimbursement due from Halegua and

credited back unauthorized commissions. The foregoing items totaled

$388,719.79.8 (R. 806-13; P. 216, DE 249 at 449).

Lerner’s accounting expert testified that money was due to

Lerner and not to Halegua. Lerner’s expert testified that he analyzed

the books and records of Citigroup Realty, City Realty Group and

Reality Realty to determine the capital accounts for both Lerner and

Halegua from the execution of the 2005 Letter of Intent through

2009. He opined that in order to equalize their capital accounts,

Halegua would have to pay Lerner $52,887.78. (R. 813; P. 216, DE

249 at 446).

8$57,877.76+$42,508.01+$96,000.00+$140,334.02+$52,000.00=

$388,719.79.
14.
 On April 13, 2018, the jury rendered its verdict finding:

a. as to Count I in favor of City Realty Group on its breach of

oral brokerage contract claim against Halegua in the amount of

$50,000.

b. as to Count II in favor of City Realty Group on its breach

of brokerage contract claim for a leasing commission against Nervia

in the amount of $9,000.

c. as to Count III in favor of Citigroup Realty and City Realty

Group on their breach of contract claim against Halegua and Oresco

in the amount of $200,575.

d. as to Count IV in favor of City Realty Group on its unjust

enrichment claim against Oresco and Halegua awarding it $0.

e. as to Count V in favor of Lerner on his breach of oral

contract claim against Halegua and Exclusive Escapes in the amount

of $12,500.

f. as to Count VI and VII in favor of Lerner on his claim for

breach of the Promissory Note and Guaranty against Oresco and

Halegua in the amount of $30,000.

15.
 g. as to Count VIII in favor of Halegua on Lerner’s fraudulent

transfer claim;

h. as to Count IX in favor of Lerner on his claim for money

lent against Oresco and Halegua awarding him $0.

i. as to Halegua’s counterclaim for money lent in favor of

Lerner, against Halegua.

(R. 313-318). In response to an ore tenus motion by Halegua, the

Court granted a judgment notwithstanding the verdict to Halegua on

Lerner’s Count I award of $50,000. (R. 664).

IV. THE POST TRIAL MOTIONS.

A. Lerner’s Motion for Additur

The jury awarded only one-half the damages proven by Lerner

as to his Counts I and II, obviously on the mistaken belief that Lerner

and Halegua’s equal ownership of City Realty Group somehow

changed the revenue due to that entity under the 2005 LOI and

Operating Agreement. The evidence was clear and undisputed that

16.
all (100%) of such brokerage commission income was both legally9

and contractually required to be paid directly to City Realty Group.

Similarly, as to Lerner’s Count V, it appears that the jury

determined that Lerner was entitled to the $25,399.97 in the Reality

Realty bank account (P. 104, DE 238 at 82; P.110 DE 238 at 84) at

the time of settlement, but erroneously awarded approximately one-

half of that amount - $12,500.00. The jury only awarded one-half

(1/2) of the $25,399.97 that was in Reality Realty’s bank account

before $80,000.00 was wired into that account by John Font.

However by virtue of finding in favor of Lerner on liability as to Count

V, the jury’s damage award was inconsistent with the liability

determination that Halegua breached his agreement with Lerner to

transfer him the Reality Realty company and all of its then assets,

including the entire $104,899.97 in its bank account.

9Halegua held no real estate brokerage or salesperson licensure. (R.

479; 1006).
17.
 A comparison of the record evidence of the damages admitted

into evidence in support of Lerner’s counts, compared to the jury’s

actual awards explains the above referenced discrepancies:

RECORD DAMAGE EVIDENCE VS JURY AWARD

COUNT DAMAGES DAMAGE EVIDENCE JURY ADDITUR
PLEAD VERDICT REQUESTED
I $100,000.0 $100,000.00 (R. 475- $50,000.00 $50,000.00
80).

II $18,000.00 $18,000.00 $9,000.00 $9,000.00

(R. 476- 77; D. 402,
DE 236 at 2; P.101,
DE 238 at 80; P.162,
DE 238 at 99-102)

III $419,300.70 $245,000 of “pre- $200,575.00 $218,725.7

construction” real
estate brokerage
commissions (R.
518-19, P. 1, DE 238
at 65-66):
$60,000.00 Bath
Club (R. 479-80; P.
22, DE 238 at 72; P.
172B, DE 244 at
357-58, DE 238 at
72);
$50,000.00 Aqua
Penthouse (R. 480-
82; 518 P. 216, DE
249 at 449; P. 65,
DE 238 at 77-78); &
$135,000.00 Aqua
Townhouse

18.
 (R. 482; P. 64, DE
238 at 75-76, P. 66,
DE 238 at 79);
plus $121,412.92 of
rent and utilities and
$52,887.78 to
equalize capital
accounts (R. 519-20;
808-13; P. 65, DE
238 at 77-78; P. 216,
DE 249 at 448-50)
IV $118,000.00 $118,000.00 $00.00 $118,000.00
(R. 475-80)
V $104,899.97 $25,399.97 in plus $12,500.00 $92,399.97
$80,000.00 wire in
minus $104,899.97
wired out (R. 521-22;
P. 104, DE 238 at 82;
P. 109, DE 238 at 83;
P. 110, DE 238 at 84)
VI & VII $30,000.00 $30,000.00 (R.520- $30,000.00 $00.00
21; P. 163, DE 238 at
106-108)
VIII N/A N/A
IX $30,000.00 $30,000.00 (R.520- $00.00 $30,000.00
21; P. 14, DE 238 at
70; P.163, DE 238 at
106-108)

On April 26, 2018, Lerner filed his Motion for Additur or for a

New Trial on Damages which incorporated the foregoing arguments.

(R. 397-405). On October 9, 2018, the Court denied Lerner’s motion,

but invited re-briefing and rehearing on the issue. (R. 681-82). On

19.
October 31, 2018 Lerner filed his Supplemental Memorandum on

Motion for Additur or for New Trial on Damages. (A. 111). On January

28, 2019, the Court again denied Lerner’s request for additur or a

new trial on damages. (R. 685).

B. Lerner’s Motion for Reconsideration of the Court’s

JNOV on Count I Breach of Oral Contract Claim.

On April 26, 2018, Lerner moved for reconsideration of his prior

motion for judgment notwithstanding the verdict as to Count I (R.

406-14). On October 9, 2018, the Court granted Lerner’s motion for

reconsideration and restored the jury’s verdict as to that count. (R.

679-80).

C. Lerner’s Motion to Deny Entitlement to Halegua’s

Counterclaim in Equity for Accounting.

On May 11, 2018, Lerner filed his Motion to Deny Entitlement

to Halegua’s Counterclaim in Equity for Accounting, arguing that: (i)

the court had yet to determine Halegua’s entitlement to an

accounting; (ii) that Halegua had no legal entitlement to an

accounting; and (iii) that even if Halegua had a legal entitlement to

an accounting, the jury has already decided that as between Lerner

and Halegua, it was Lerner who was due money from Halegua. (R.

20.
420-32). Lerner additionally objected to the manner in which the

accounting bench trial was handled on due process grounds. (R.

431). On November14, 2018, the Court denied Lerner’s motion (R.

683-84). Halegua’s accounting bench trial was subsequently

scheduled for May 3, 2019 (A. 109).

V. THE ACCOUNTING BENCH TRIAL.

Halegua’s accounting counterclaim was predicated upon the

2003 LOI that accorded Halegua, a shareholder or member interest

in certain corporations and LLC’s, (Sunset Harbour and Yacht Club

), neither of which companies were joined as parties to the action. (R.

1167; A. 078).

Moreover, because the 2003 LOI was superseded by the 2005

LOI and because the parties ceased doing business through the

entities whose stock was transferred pursuant to the 2003 LOI, the

entitlement portion of the accounting claim made by Halegua was

both legally and practically untenable. The uncontradicted evidence

confirmed that before finalizing the 2005 LOI, Halegua requested and

obtained a full accounting of “Sunset Harbour, Yacht Club and The

Entities”, the business records of which were to be “reconciled and

21.
have a zero ($0.00) balance prior to Closing (R. 1012-13; 1130; D.

331, DE 230 at 21) “we are going to do the contract for me and Victor

this week as the criteria I have required accounting wise have

recently been completed.”)] (D. 435, DE 236 at 11).

The facts and arguments together with the objections to the

expenditures raised as evidence in the accounting trial, were only

raised for the first time on May 3, 2019, at the accounting trial. (R.

1163; 1168). Notwithstanding that such contentions constitute an

attempt to sandbag Lerner by Halegua, Lerner provided Halegua with

accountings years before May 3, 2019 pursuant to both the 2003

Letter of Intent (“2003 LOI”) and 2005 LOI (“2005 LOI”). (R. 1174-75).

In response to Halegua’s accounting counterclaim, in 2013,

Lerner collected and paid for copies of all of the bank records of the

successor entities in which Lerner and Halegua each held 50%

interests - Citigroup Realty, City Realty Group and Reality Realty and

gave them to Halegua and Kim Marks, a CPA. (R. 1174-75). Halegua

and his accountants had possession of these records since 2013. (R.

1175).

22.
 The books and records of Citigroup Realty, City Realty Group

and Reality Realty were all produced in discovery; examined and

reconciled by Lerner’s C.P.A. expert; effectively performing the

accounting sought by Halegua. That accounting was presented both

to Halegua as well as to the jury. At the jury trial, no mention was

made of any unauthorized checks by Halegua in the cross

examination of those witnesses allegedly because Halegua allegedly

“was not aware of them at that time”. (R. 1167-68).

Prior to the May 3, 2019 bench trial on Halegua’s claim for an

accounting, Halegua neither objected to Lerner’s accounting nor to

any of the expenditures detailed in the accounting. (R. 1168). In his

testimony at the accounting trial, Halegua culled certain isolated

checks from only certain of the jointly owned companies’ business

records, claiming same to have been “unauthorized”. (R. 1157-58).

Significantly, none of such allegedly “unauthorized” disbursements

were raised or addressed by Halegua during the jury trial and

presented to the jury for determination, either as part of his

counterclaims or as impeachment of Lerner’s experts. (R. 1167).

23.
 In fact, Halegua affirmatively testified that he did not examine

the banking records until after the jury trial, notwithstanding the fact

that the records had been in his possession since 2013. Halegua

testified referring to a spreadsheet that he created and only first

produced the day of the accounting trial. Moreover, Halegua never

previously confronted Lerner about any of the checks he claimed to

have been unauthorized. (R. 1162-63).

The sum and substance of Halegua’s testimony was to

randomly identify a representative sample of checks he claimed not

to have authorized, followed by his testimony as to the sum total of

an unidentified collection of allegedly unauthorized checks, never

completely identifying the full universe of such checks, other than to

state that “there are a couple of thousands of them in that box over

there”. Thus, there is no exhibit in evidence or otherwise of record

identifying the alleged thousands of unauthorized checks, and

Halegua confirmed that he had not shown anyone except his

attorneys such documents. (R. 1168). This, in and of itself, taints and

prejudices the reliability and probative value of such evidence as

supporting a correct determination of the proposed accounting.

24.
 More importantly, the “accounting” evidence presented by

Halegua was incomplete and failed to address how any of the

identified or unidentified checks or disbursements were booked or

otherwise characterized for accounting, general ledger or profit and

loss purposes.10 No such evidence was otherwise introduced by

Halegua or are otherwise in evidence to supply or support any of the

contentions made by him. (R. 1173).

During the time that the parties were in business together,

Halegua conceded that year-end accountings were done by the

companies’ accountant and everything went fine without any

problems between himself and Lerner until 2009. (R. 1138).

Lerner’s testimony that to his knowledge all of the expenses

objected to at the hearing by Halegua were properly entered and

posted in the books and records of the companies by his accountants

was uncontroverted. (R. 1183). Likewise, Lerner’s testimony was

undisputed that certain checks directly payable for his living

10 Significantly, Halegua’s accounting evidence was limited to only

disbursements. (R. 1164)
25.
expenses such as his apartment were to be booked as distributions

to him. (R. 1180-81). Similarly, no evidence of reimbursements or

deposits to the companies by Lerner were introduced by Halegua

even though documentary evidence of such deposited

reimbursements plainly existed. (R. 1157; 1179-80).

Lerner also testified that the samplings of checks that Halegua

claimed were unauthorized disbursements were in fact authorized by

Halegua who was contemporaneously aware of such disbursements

through the receipt of reports and his review of the company

computer. He never objected to same. In fact, in the very few

instances where Halegua had an issue with any personal

disbursement, the matter was treated as a loan and a written

promissory note was created and signed by Lerner memorializing

same. (R. 1171-73).

Conversely, Halegua failed to account for disbursements he

received from Reality Realty, a company he owned 50%-50% with

Lerner, but for which Halegua had sole check-writing authority, even

though there was evidence that Halegua both deposited and received

26.
the exclusive benefit of funds otherwise due in part to Lerner. (R.

1163-64; 1172-73).

Halegua admitted that Reality Realty paid a credit card of his

and made payments to himself which he characterized as a

reimbursement of his expenses. Halegua also admitted that his solely

owned company, Nervia received a $28,000.00 check from Reality

Realty. (R. 1135; 1164).

Such evidence also directly contradicted and controverted

Halegua’s testimony that “he received not even a dime” during the

entire six (6) year “partnership” relationship with Lerner. It defies

logic and credulity that Halegua would stay in a business

relationship for six (6) years where he was receiving absolutely no

financial benefits and where during the early part of such

relationship the main real estate company “was making a lot of

money”. (R. 1153).

VI. THE PARTIAL FINAL JUDGMENT.

On July 14, 2020, the trial court entered the Partial Final

Judgment (R. 1312-16) which was largely duplicative of the proposed

final judgment submitted by Halegua. Therein, the Court made

27.
certain findings of fact not otherwise premised upon substantial

competent evidence11 to conclude that $194,120.77 was due to

Halegua on his accounting claim, resulting in a net judgment to

Lerner of $107,954.23 after offsetting his jury verdict award of

$302,075.00. (R. 1296).

Significantly, in order to reach the total amount of cumulative

“unauthorized expenditures” of $503,441.51 (R. 1315) the Court

included $108,457.59 in allegedly unauthorized expenditures for the

year 2004 (R. 1158), notwithstanding the fact that the 2005 LOI

stipulates that the accounting records for Sunset Harbor and the

Entities were zeroed out and reconciled prior to closing (R. 1014, P.

129 DE 238 at 91).

VII. POST-JUDGMENT

On August 12, 2020, Lerner filed his Notice of Appeal directed

to the Partial Final Judgment. (R.1290-97). On August 14, 2020,

Halegua filed his Notice of Cross-Appeal directed to the Partial Final

Judgment. (A. 119).

11 See Section IV infra.

28.
 SUMMARY OF ARGUMENT

Lerner contends that the Court abused its discretion by

unreasonably denying his Motion for Additur or new trial on damages

because the damages he claimed were supported by record evidence

and testimony and were otherwise undisputed as to the amount

being claimed.

Lerner also contends that the Court’s adjudication of Halegua’s

accounting counterclaim was procedurally improper, violated his due

process rights and right to a jury trial and was otherwise not based

upon substantial competent evidence.

ARGUMENT

I. STANDARD OF REVIEW.

A motion for additur or a new damage trial is directed to the

sound discretion of the trial court and a presumption exists that the

trial court exercised its discretion properly in this regard. See Allstate

Ins. Co. v. Manasse, 707 So. 2d 1110, 1111 (Fla.1998); Dolphin Cruise

Line v. Stassinopoulos, 731 So. 2d 708, 709 (Fla. 3rd DCA 1999). In

Manasse, the supreme court concluded that an appellate court

should apply the test of reasonableness in its determination of

whether a trial court abused its discretion, to wit, "`discretion is

29.
abused only where no reasonable [person] would take the view

adopted by the trial court.'" Id. (citing Huff v. State, 569 So. 2d 1247,

1249 (Fla.1990)); Ramey v. Winn Dixie Montgomery, Inc., 710 So. 2d

191, 192 (Fla. 1st DCA 1998).

"To the extent the trial court's order is based on factual findings,

we will not reverse unless the trial court abused its discretion;

however, any legal conclusions are subject to de novo review." Coined

v. Kar Kare Auto. Group, Inc., 918 So.2d 431, 436 (Fla. 4th DCA

2006). Findings of fact by a trial judge in a nonjury proceeding will

not be set aside on review unless totally unsupported by competent

and substantial evidence. See Laufer v. Norma Fashions, Inc., 418

So.2d 437, 439 (Fla. 3d DCA 1982). See also Peacock v. Carver, 315

So.2d 214 (Fla. 1st DCA 1975) (final judgment of trial court reaches

district court of appeal with a presumption of correctness and may

not be reversed if there is competent evidence in the record to support

such judgment).

30.
II. THE TRIAL COURT ERRED BY DENYING LERNER’S
MOTION FOR ADDITUR.

Lerner’s claims, while contested by Halegua as to liability, were

not challenged by Halegua as to the amount of damage attributed to

each claim. Neither through competing evidence nor through

argument were the damage amounts claimed by Lerner disputed by

Halegua. After submission of the claims to the jury, the jury found

in Lerner’s favor on all but one of his claims, however as to certain

counts no damages were awarded, as to certain counts the damage

amounts bore no relationship to the damages claimed, nor can it be

discerned how the damages awarded could have been calculated by

the jury and as to other counts the damage amounts awarded

appeared to be reduced by one-half (1/2) from the amount supported

by the evidence, in what seems to be an impermissible adjustment

by the jury amounting to a compromise verdict. Because such

verdict impermissibly reduces the damages attributable to Lerner’s

claims based upon the substantially undisputed damage evidence

submitted by Lerner, the Court’s denial of Lerner’s Motion for Additur

was an unreasonable and erroneous abuse of discretion which

should be reversed by this Court.

31.
 The verdict in this action demonstrated the jury’s consistent

misapprehension of the uncontroverted damage evidence;

misconception of the merits of the case relating to the amounts of

damages recoverable; failure to return a verdict that bears a

reasonable relation to the amount of damages proved and the injury

suffered; and rendition of a verdict clearly not in an amount

supported by the evidence, such that it could be adduced in a logical

manner by reasonable persons. Moreover, the jury verdict in this

action directly contravenes four of the factors in § 768.74(5), Florida

Statutes (“Remittitur and additur”). Section 768.74 “directs” and

makes it “the responsibility of the court, upon proper motion, to

review the amount of such award.” Current Builders of Florida, Inc.

v. First Sealord Surety, Inc., 984 So. 2d 526, 531 (Fla. 4th DCA 2008);

§ 768.74(1).

The damage evidence presented by Lerner effectively removed

any subjective evaluation of actual damages by the jury. A reasonable

evaluation of the factors contained in § 768.74(5) reveals the jury’s

misconception of the manifest weight of Lerner’s damage evidence.

The claims advanced by the Third Amended Complaint specifically

32.
seek liquidated damages, the amount of which was supported by

uncontroverted testimony and documentary evidence. The nature of

these objective, unliquidated damages is significant because of the

overwhelming number of “additur” decisions of the Supreme Court

and District Courts of Appeal in Florida that grant additur to

subjective, unliquidated damages commonly sought in negligence

claims.

Specifically, Count I for Breach of Oral Agreement sought

damages in the specific amount of $100,000.00 (A. 014, ¶ 22); Count

II for Breach of Contract sought damages in the specific amount of

$18,000.00 (A. 015, ¶ 29); Count III sought damages in the specific

amount of $451,000.00 (A. 017- A018, ¶¶ 35 & 36); and Count V for

Breach of Oral Agreement sought damages in the specific amount of

$104,899.97 (A. 020, ¶ 48).

The jury’s verdict in this action found for Lerner on each of his

above referenced claims. Lerner specifically plead the liquidated

damages associated with each count and provided competent,

credible evidence supporting the full and complete amounts

demanded as damages in each count. Notwithstanding the foregoing,

33.
the jury awarded exactly 50% of Counts I and II, essentially 50% of

the damages in Count III, and essentially 50% of only a small portion

of the damages established by the manifest weight of the evidence in

Count V. It is readily apparent that the jury misconceived Lerner’s

claims, ignored the evidence presented, and failed to award the

amount of damage established by that evidence. The jury’s verdict is

plainly against the manifest weight of the evidence presented in this

case. “Regarding inadequate or excessive verdicts, this ground is a

corollary of the ground asserting that the verdict is contrary to the

manifest weight of the evidence.” Brown v. Estate of Stuckey, 749 So.

2d 490, 498 (Fla. 1999).

The Court’s review and analysis of the jury’s damage award

should have started with the claims plead and the evidence presented

at trial and, in light of those considerations, the legitimacy of the

jury’s verdict. From this initial determination, the Court was

required to apply the factors set out in § 768.74(5)(a)-(e) and

determine what portion or portions of the verdict, if any, are clearly

contrary to such evidence and therefore “legally inadequate”, i.e., not

adduced in a logical manner by reasonable persons.

34.
 A. STANDARD FOR ADDITUR/NEW TRIAL ON DAMAGES

The Court was mandated by the Florida Legislature to review

the damages awarded by the jury in this case pursuant to the

provisions of Section 768.74 Florida Statutes (2017) which provided:

768.74 Remittitur and additur.—

(1) In any action to which this part applies wherein the
trier of fact determines that liability exists on the part of
the defendant and a verdict is rendered which awards
money damages to the plaintiff, it shall be the
responsibility of the court, upon proper motion, to review
the amount of such award to determine if such amount is
excessive or inadequate in light of the facts and
circumstances which were presented to the trier of fact.
(2) If the court finds that the amount awarded is excessive
or inadequate, it shall order a remittitur or additur, as the
case may be.
(3) It is the intention of the Legislature that awards of
damages be subject to close scrutiny by the courts and
that all such awards be adequate and not excessive.
(4) If the party adversely affected by such remittitur or
additur does not agree, the court shall order a new trial in
the cause on the issue of damages only.
(5) In determining whether an award is excessive or
inadequate in light of the facts and circumstances
presented to the trier of fact and in determining the
amount, if any, that such award exceeds a reasonable
range of damages or is inadequate, the court shall consider
the following criteria:
(a) Whether the amount awarded is indicative of prejudice,
passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the
evidence in reaching a verdict or misconceived the merits
of the case relating to the amounts of damages
recoverable;

35.
 (c) Whether the trier of fact took improper elements of
damages into account or arrived at the amount of damages
by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable
relation to the amount of damages proved and the injury
suffered; and
(e) Whether the amount awarded is supported by the
evidence and is such that it could be adduced in a logical
manner by reasonable persons.
(6) It is the intent of the Legislature to vest the trial courts
of this state with the discretionary authority to review the
amounts of damages awarded by a trier of fact in light of a
standard of excessiveness or inadequacy. The Legislature
recognizes that the reasonable actions of a jury are a
fundamental precept of American jurisprudence and that
such actions should be disturbed or modified with caution
and discretion. However, it is further recognized that a
review by the courts in accordance with the standards set
forth in this section provides an additional element of
soundness and logic to our judicial system and is in the
best interests of the citizens of this state.

Where the “undisputed evidence” supports an award of

damages and the jury fails to make such an award, the trial court

must award additur. See Ortlieb v. Butts, 849 So. 2d 1165, 1167 (Fla.

4th DCA 2003). Here, Halegua neither disputed the damage evidence

offered and admitted into evidence by Lerner nor argued that the

damages claimed by Lerner were excessive or should have been in

amounts other than claimed by him. Looking at the five (5) factors

enumerated in Section 768.74, in seeking additur, Lerner contended

that the last four (4) of those factors compelled additur:

36.
 (b) Whether it appears that the trier of fact ignored the
evidence in reaching a verdict or misconceived the merits
of the case relating to the amounts of damages recoverable;

As to the damages awarded for Counts I, II and V, it appears as

though the jury awarded only one-half (1/2) of the damages proved

by Lerner under the mistaken belief that because Lerner and Halegua

had been 50/50 owners of City Reality Group, only one-half of the

brokerage commission revenue due it should be awarded. The

evidence was clear and undisputed that all (100%) of such brokerage

commission income was both legally and contractually required to be

paid directly to City Realty Group.

As to Count V, it is apparent that the jury only awarded one-

half (1/2) of the $25,399.97 that was in Reality Realty’s bank account

before the $80,000.00 was wired into the account by John Font.

Nevertheless, by finding in favor of Lerner on liability as to that count,

such damage award is inconsistent with the liability determination

that Halegua breached his agreement with Lerner to transfer him the

Reality Realty company and all of its then assets, including the

$104,899.97 in its bank account.

37.
 As to Count VI, it is not clear how the jury arrived at the

damages awarded, nor does it appear that any calculation of the

various damage elements equal the damage amount awarded by the

jury.

(c) Whether the trier of fact took improper elements of

damages into account or arrived at the amount of damages
by speculation and conjecture;

As to Count VI, because it is not apparent how the jury could

have arrived at the damages awarded, it would have to be concluded

that the jury arrived at the damage award by speculation and

conjecture.

(d)Whether the amount awarded bears a reasonable relation to

the amount of damages proved and the injury suffered; and

For the reasons already stated, and because the damages were

not contested, the damages identified herein as being inadequate fail

to bear a reasonable relation to the damages proved and the injuries

suffered.

(e) Whether the amount awarded is supported by the evidence

and is such that it could be adduced in a logical manner by
reasonable persons.

Except for the apparent lack of readily discernable logic

attributable to the damages awarded for Count VI, the damages

38.
awarded could be adduced logically by reasonable persons, however

such deductions and logic are inconsistent with the liability

determinations, the uncontested evidence and the jury instructions.

Lerner’s analysis of the application of additur to this action is

supported by existing law. In Poole v. Veterans Auto Sales and

Leasing Company, Inc., 668 So. 2d 189 (Fla. 1996), the Florida

Supreme Court considered a question certified by the district court

of appeal stated as:

If section 768.74 permits a trial judge to order

a new trial unless the affected party agrees to
accept a remittitur or additur when a
reasonable person could agree that the record
supports the jury decision (assuming no trial
error or jury misconduct), does this section
violate article I, section 22, Constitution of the
State of Florida?

Id. at 190. The Florida Supreme Court declined to answer the

certified question because it was necessary to remand the case to the

trial court for specific findings as to the grounds for granting a new

trial. Notwithstanding the remand for specific findings, the Florida

Supreme Court stated:

We have chosen not to answer the certified

question because it appears to address an
abstract scenario which may not relate to the
39.
 instant case. However, we do not lightly dismiss
the concerns which prompted the question.
Section 768.74, Florida Statutes (1993),
provides that the trial judge shall grant a
remittitur or additur when the jury award is
excessive or inadequate. The statute lists
several criteria for the trial judge to consider
when determining whether the verdict is
excessive or inadequate. However, we do not
believe that the statute alters the longstanding
principles applicable to the granting of new
trials on damages. In deciding whether or not to
grant a new trial, the trial judge should not sit
as a “seventh juror,” thereby substituting his or
her resolution of the factual issues for that of
the jury. Laskey v. Smith, 239 So.2d 13
(Fla.1970).

Id. at 191 (emphasis added).

This principle was recognized and applied in Current Builders of

Florida, Inc. v. First Sealord Surety, Inc., 984 So. 2d 526 (Fla. 4th DCA

2008), where the Fourth District Court of Appeal found that a jury

verdict for damages in favor of a contractor against a subcontractor

“was legally inadequate.” The contractor had requested that the trial

court enter a judgment notwithstanding the verdict, enter an order

increasing the damage award or, in the alternative, order a new trial

40.
on the issue of damages.12 “Even though CB presented evidence of

damages between $600,000 and $800,000, the jury awarded only

$30,000 in damages.” Current Builders of Florida, Inc. v. First Sealord

Surety, Inc., 984 So. 2d at 531. In approving additur, the Fourth

District stated:

Section 768.74, Florida Statutes, governs

additur and applies “to any action for damages,
whether in tort or in contract.” § 768.71(1), Fla.
Stat. (2006). Section 768.74(1) provides that in
an action resulting in a verdict for money
damages to the plaintiff,

it shall be the responsibility of the

court, upon proper motion, to review
the amount of such award to
determine if such amount is ...
inadequate in light of the facts and
circumstances which were presented
to the trier of fact.

Id. In applying the provisions of § 768.74, the Fourth District cited

to its earlier decision in Silverman v. Gockman, 714 So.2d 671 (Fla.

4th DCA 1998). There, the Fourth District held that a jury verdict in

12 Similar to this case, in Current Builders the contractor was suing

for a liquidated amount of money representing the cost of completion
of the work required to be done under its contract with the
subcontractor. The overrun on the contract amounted to
$682,230.00.
41.
the amount of $500,000.00 in a medical malpractice case was

“inadequate” where the evidence proved $520,975.65 in damages.

The Court held that “the trial court had overlooked section

768.74(5)(d), which provides that the amount awarded should bear a

reasonable relation to the damages proved.” Current Builders of

Florida, Inc. v. First Sealord Surety, Inc., 984 So. 2d at 532 (emphasis

added). The Fourth District also cited to this Court’s decision in

Arena Parking, Inc. v. Lon Worth Crow Insurance Agency, 768 So.2d

1107, 1110 (Fla. 3d DCA 2000) holding:

where the evidence proved damages of

$170,000 but the jury awarded only $28,500 in
damages, the court determined:

The amount awarded could only have

been arrived at by speculation and
conjecture because it bears no
reasonable relation to the damages
proved. There is no logical
explanation as to how reasonable
persons ... ended up awarding only
16% of the damages claimed.

The court concluded that an additur should

have been granted, pursuant to section 768.74.

(emphasis added). Most significantly, the court in Current Builders

noted in a manner remarkably similar to the underlying proceedings

in this action:
42.
 Notwithstanding Morgado’s explanation, the
jury’s $30,000 damages award does not “bear[ ]
a reasonable relation to the amount of damages
proved and the injury suffered.” § 768.74(5)(d),
Fla. Stat. The jury awarded only 4% of that
proved by CB. In addition, the $30,000
damages award appears to have been “arrived
at ... by speculation and conjecture.” §
768.74(5)(c), Fla. Stat. There is no evidence in
the record to support this particular amount.
Therefore, the trial court abused its discretion
in failing to grant CB’s motion for additur or, in
the alternative, a new trial. We reverse for the
trial court to order an additur and, should
Morgado refuse to accept, for a new trial on
damages. See § 768.74(4), Fla. Stat.

(emphasis added) (footnote omitted).

Any question about the deference ordinarily given to a jury

verdict is clearly answered by the decisions of Florida courts of appeal

in cases approving additur where damages are unliquidated, i.e.,

cases that require a more subjective evaluation of a claim when

ascribing a dollar-amount to the non-economic damages resulting

from a personal injury. E.g., Garrett v. Miami Transfer Co., Inc., 964

So. 2d 286 (Fla. 4th DCA 2007) (Court abused discretion by not

granting additur where undisputed evidence revealed permanent

injury requiring future medical care); National Union Fire Ins. Co. of

Pittsburgh v. Blackmon, 754 So. 2d 840 (Fla. 1st DCA 2000) (No abuse

43.
of discretion to award additur to son of deceased worker, even though

jury recommended no damages); Deklyen v. Trucker’s World, Inc., 867

So. 2d 1264 (Fla. 5th DCA 2004) (Additur warranted where jury failed

to award damages for past and future pain and suffering where

uncontroverted evidence demonstrated that pain continued after

injury and would continue into the future).

It is apodictic that the failure of the Court to grant Lerner’s

requested additur was unreasonable and constitutes an abuse of

discretion which should be reversed by this Court.

III. THE TRIAL COURT’S ADJUDICATION OF THE

ACCOUNTING COUNTERCLAIM WAS PROCEDURALLY
IMPROPER AND MUST BE REVERSED.

A. ACCOUNTING CAUSE ACTION.

1. Two Triable Issues

In an action for accounting, two triable issues exist: 1) the

entitlement to an accounting, and 2) the accounting itself. The

proceedings are usually bifurcated. Peele v. Hibiscus Realty, Inc., 427

So. 2d 273 (Fla. 2d DCA 1983) citing A-1 Truck Rentals v. Vilberg, 222

So. 2d 442 (Fla. 3d DCA 1969); Picerne Development Corp. of Florida

v. Tasca & Rotelli, 635 So. 2d 149 (Fla. 4th DCA 1994). Before

determining the second issue, the first issue must be resolved in

44.
favor of the plaintiff. In other words, the court must determine the

plaintiff is entitled to an accounting before it will turn to the

accounting itself. See Wood v. Brackett, 266 So. 2d 398, 399 (Fla. 1st

DCA 1972); A-1 Truck Rentals, Inc. at 444.

2. No Longer Must An Accounting Precede Legal

Claims

Generally, prior to 1996, an accounting between partners or

joint venturers was a condition precedent to an action at law between

them because Section 620.665 (Right to an account.) accorded any

partner the right to a formal account of partnership affairs. See Koros

v. Doctor's Special Surgery Ctr. of Jacksonville, Ltd., 717 So.2d 137,

138-39 (Fla. 1st DCA 1998); Laurence v. Soler, 706 So.2d 896, 897

(Fla. 3d DCA 1998); Dahlawi v. Ramlawi, 644 So.2d 523, 524 (Fla.

3d DCA 1994), rev. denied, 652 So.2d 817 (Fla.1995); RBC I, Inc. v.

AJAR I, Inc., 519 So.2d 743, 744 (Fla. 3d DCA 1988).

As explained by the First District Court in Koros v. Doctor’s

Special Surgery Center, 717 So. 2d 137 ftn. 2 (Fla. 1st DCA 1998):

Effective January 1, 1996, the legislature amended Florida's

partnership law to adopt in substantial part the Revised
Uniform Partnership Act (1994). Laws of Florida, ch. 95-242, §
13; see John W. Larson, Florida's New Partnership Law: The
Revised Uniform Partnership Act and Limited Liability
45.
 Partnerships, 23 Fla. St. U.L.Rev. 201 (1995). Among other
things, the 1996 amendment authorizes a partner to maintain
an action against the partnership or another partner for legal
and equitable relief, "with or without an accounting as to
partnership business" to enforce a partner's rights under the
partnership agreement, Chapter 620, and to "otherwise protect
the interests of such partner, including rights and interests
arising independently of the partnership relationship." §
620.8405(2), Fla. Stat. (1996 Supp.). In this subsection, the
legislature adopted in substance section 405(b) of the Revised
Uniform Partnership Act (1994)(RUPA). The comments to
section 405 of RUPA explain the change in the law intended by
this section, in part as follows:

Under RUPA, an accounting is not a prerequisite to the

availability of the other remedies a partner may have against
the partnership or the other partners.... Under subsection (b), a
partner may bring a direct suit against the partnership or
another partner for almost any cause of action arising out of the
conduct of the partnership business. That eliminates the
present procedural barriers to suits between partners filed
independently of an accounting action. In addition to a formal
account, the court may grant any other appropriate legal or
equitable remedy.

Unif. Partnership Act § 405, comm. 2, 6 U.L.A. 64 (1994).

c.f., Koros, supra. See also, Larmoyeux v. Montgomery, 963 So. 2d 813

(Fla. 4th DCA 2007) (This state's adoption of RUPA also significantly

changed the law by eliminating the requirement that partners first

sue for an accounting before bringing other claims.

46.
 3. To Obtain the Exceptional Remedy of Accounting,
You Must Have Both a Fiduciary Relationship or
Complex Transaction and An Inadequate Remedy
at Law.

To successfully plead a claim for equitable accounting under

Florida law, a plaintiff must allege that (1) a fiduciary relationship or

complex transaction exists, and (2) a remedy at law would be

inadequate. An equitable accounting is an exceptional remedy only

available in rare cases. See Dairy Queen, Inc. v. Wood, 369 U.S. 469,

478 (1962) (explaining that a special master can unravel a complex

transaction for a jury in all but "a rare case"); Bernardele v. Bonorino,

608 F.Supp.2d 1313, 1329 (S.D. Fla. 2009) ("[a] complaint in equity

for an accounting must show that the plaintiff is entitled to the relief

sought . . ."); Menashi v. American Home Mortgage Servicing, Inc.,

Case No. 8:11-cv-1346-T-23EAJ. (M.D. Fla. 2011) (If Menashi can

recover fully on the claim against AHMSI for breach of contract, the

need for an equitable remedy vanishes.); Zaki Kulaibee Establishment

v. McFlicker, 788 F.Supp.2d 1363, 1370 (S.D. Fla. 2011) (finding an

equitable accounting unwarranted in an action involving thousands

of sales transactions).

47.
 a. Fiduciary Relationship

A fiduciary relationship may be either express or implied. Real

Estate Value Co., Inc. v. Carnival Corp., 92 So. 3d 255 (Fla. 3d DCA

2012). Express fiduciary relationships are created by contract, such

as principal/agent, or can be created by legal proceedings in the case

of a guardian/ward. A fiduciary relationship which is implied in law

is based on the circumstances surrounding the transaction and the

relationship of the parties and may be found when confidence is

reposed by one party and a trust accepted by the other. Maxwell v.

First United Bank, 782 So.2d 931, 932 (Fla. 4th DCA 2001).

A fiduciary relationship must be established by competent

evidence, and the burden of proving such a relationship is on the

party asserting it. Kislak v. Kreedian, 95 So. 2d 510, 514-15 (Fla.

1957). An oral agreement to share business opportunities between

shareholders does not create a fiduciary relationship. Orlinsky v.

Patraka, 971 So. 2d 796 (Fla. 3d DCA 2008).

Under Florida law, a party seeking an equitable accounting

must first prove the existence of a fiduciary relationship or a complex

transaction and must demonstrate that the remedy at law is

48.
inadequate. F.A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910, 913

(Fla.3d DCA 1962); Thomas B. Kee, Ctl Ins. Corp. v. National Reserve

Life Ins. Co., 918 F.2d 1538 (11th Cir. 1990) Parliament Ins. Co. v.

Hanson, 676 F.2d 1069, 1072 (5th Cir. Unit B 1982) (applying Florida

law); see also Levenger Co. v. Feldman, 516 F. Supp.2d 1272, 1293

(S.D.Fla.2007) (citing Florida state court cases). An equitable

accounting claim fails where there exists an adequate remedy at law.

Kee, 918 F.2d 1538 at 1541 ("When a judgment for breach of contract

is obtainable, the remedy at law is considered adequate, precluding

the need for the imposition of an equitable remedy.") (citing Mary

Dee's, Inc. v. Tartamella, 492 So. 2d 815, 816 (Fla. 4th DCA 1986));

see also Validsa, Inc. v. PDVSA Services Inc., 632 F. Supp. 2d 1219

(S.D. Fla. 2009); Managed Care Solutions, Inc. v. Essent Healthcare,

Inc., 694 F. Supp. 2d 1275, 1279 (11th Cir. 2010) (applying Florida

law).

b. Inadequate Remedy at Law/Complicated

Accounts

Where it is alleged that any remedy at law would be inadequate

because of the complexity of the calculations involved, there is no

reason to suggest that calculation of damages would be overly

49.
complicated just because business records would have to be

scrutinized. ATLC, LTD. v. Eastman Kodak Company, Case No. 6:11-

cv-855-Orl-31GJK (M.D. Fla. 2011). Here, the business records were

in the possession of all parties long before the entitlement to an

accounting was determined. Indeed, Halegua cannot credibly

contend that the accounts were too complex or that the calculation

of damages was overly complicated because his u

As the Supreme Court noted, "[t]he legal remedy cannot be

characterized as inadequate merely because the measure of damages

may necessitate a look into petitioner's business records." Dairy

Queen, Inc. v. Wood, 369 U.S. 469, 479 (1962); Managed Care

Solutions, 694 F. Supp. 2d at 1280 ("Where a party [has] the

opportunity to establish their damage claim through discovery, a

request for accounting is not appropriate." Centrix HR, LLC v. On-Site

Staff Mgmt., Inc., 2008 WL 2265266, 2008 U.S. Dist. LEXIS 43629

(E.D.Pa. Jun. 3, 2008). (“Even if MCS has difficulty ascertaining those

records during discovery, that does not justify taking the resolution

of MCS' damages away from the jury. An equitable accounting is not

a substitute for a motion to compel under Fed.R.Civ.P. 37.”).

50.
Moreover, through discovery all business records are usually

available and can be produced. See Zaki Kulaibee Establishment v.

Henry H. McFlicker, 788 F. Supp. 2d 1363, 1371 (S.D. Fla. 2011)

(dismissing an action for accounting because plaintiff could obtain

documents needed to calculate damages through discovery).

Here Halegua never proved the complexity of the accounts

entitled him to an accounting nor did he ever contend or prove that

his remedies at law were inadequate. To the contrary, he presented

his legal claim of money lent to the jury and he was unsuccessful on

that claim.

4. Where Legal and Equitable Claims are Combined.

Where claims are asserted for both a breach of contract and

equitable accounting, an action at law is essentially presented based

on the alleged breach of the contract claimed. See Managed Care

Solutions, Inc., v. Essent Healthcare, Inc., 09-60351-PAS (S.D. Fla.

January 25, 2010); Bradshaw v. Thompson, 454 F.2d 75 (6th Cir.

1972) (action in which plaintiff asserts a claim for accounting seeking

recovery for damages arising out of an alleged breach of contract is

"unmistakably legal").

51.
 When a jury has decided fact issues in an action at law, and the

issues are identical or sufficiently similar to the fact issues in a

related equitable claim, the trial court is bound by the jury's findings

of fact when it then rules on the equitable claim. See Billian v. Mobil

Corp., 710 So.2d 984, 992 (Fla. 4th DCA 1998), review denied, 725

So.2d 1109 (Fla.1998); Paoli v. Natherson, 732 So.2d 486 (Fla. 2d

DCA 1999). In terms of sequencing of such claims, the Fourth

District in Sunbank, NA v. Retirement Facility at Palm Aire, Ltd., 698

So. 2d 392, 393 (Fla: 4th DCA 1997) aptly summarized the preferred

approach as follows:

It is basic that the trial to a judge on equitable claims

cannot supplant the right to *393 a jury trial on
interrelated legal claims. Beacon Theatres Inc. v.
Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 957, 3
L.Ed.2d 988 (1959) ("only under the most imperative
circumstances... can the right to a jury trial of legal issues
be lost through prior determination of equitable claims.");
Dairy Queen Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8
L.Ed.2d 44 (1962); and Cerrito v. Kovitch, 457 So.2d1021
(Fla.1984). When legal and equitable claims are
interrelated, as they demonstrably are here, as a practical
consequence the jury trial usually precedes the equitable
determination. Although a trial judge could certainly
require that all evidence supporting both legal and
equitable claims be adduced by the parties during the jury
trial, with the judge to decide the equitable claims
following the jury's verdict, a trial judge is just as surely
not bound to follow that procedure.

52.
Thus, pursuant to well-settled Florida caselaw, when a legal claim is

so related to the issues made by the equitable claim, a jury trial

should be afforded on all issues. See K.M.A. Associates, Inc. v. Meros,

452 So. 2d 580, 580–82 (Fla. 2d DCA 1984). N.J. Willis Corp. v.

Raskin, 430 So. 2d 996 (Fla.4th DCA 1983); Napolitano v. H.L.

Robertson & Associates, Inc., 311 So. 2d 757 (Fla.3d DCA 1975);

Westview Community Cemetery of Pompano Beach v. Lewis, 293 So.

2d 373 (Fla.4th DCA 1974). Here, because all of the issues involved

in Lerner’s legal count for various breaches of contract were so

related to Halegua’s equitable accounting claim, a jury trial should

have been afforded Lerner on all issues and it was reversable error

for the Court not to so hold.

B. HALEGUA HAD NO LEGAL ENTITLEMENT TO AN

ACCOUNTING.

Halegua’s counterclaim seeking an accounting was predicated

upon the 2003 LOI that accorded him a shareholder or member

interest in certain corporations and LLC’s, (Sunset Harbour and

Yacht Club Realty), none of which were ever parties to this action.

Moreover, as the 2003 LOI was superseded by the 2005 LOI and

because the parties ceased doing business through the entities

53.
whose stock was transferred pursuant to the 2003 LOI, the

entitlement portion of the accounting claim made by Halegua was

both legally and practically untenable. Indeed, the uncontradicted

evidence confirmed that before finalizing the 2005 LOI, Halegua

requested and obtained a complete accounting of “Sunset Harbour,

Yacht Club and The Entities”, the business records of which were to

be “reconciled and have a zero ($0.00) balance prior to Closing.” See

page 22, supra.

The books and records of the successor entities in which Lerner

and Halegua each held 50% interests, Citigroup Realty and City

Realty Group and Reality Realty were all produced to Halegua in

discovery and examined and reconciled by Lerner’s C.P.A. expert. An

accounting was performed and presented to the jury. (R. 1167-68).

Additionally, Halegua did not plead that his accounting claim

was predicated upon a fiduciary relationship. As equal shareholders,

no fiduciary relationship exists or could be implied. Orlinsky v.

Patraka, 971 So. 2d 796 (Fla. 3rd DCA 2008). Instead, Halegua

asserted in his pleadings that the accounts are complicated, however

he did not allege or prove that they were so complicated as to preclude

54.
the viability of actions at law. To the contrary, Halegua combined

both legal and equitable claims in his Counterclaim and received a

jury trial on the legal claim he chose to present.

Although Halegua withdrew his breach of oral and written

contract claims at trial, such claims were prosecuted in conjunction

with his accounting claim and he submitted his money lent legal

claim to the jury for resolution. The caselaw considers such actions

“unmistakably legal”. See Managed Care Solutions, Inc., v. Essent

Healthcare, Inc., 09-60351-PAS (S.D. Fla. January 25, 2010);

Bradshawv. Thompson, 454 F.2d 75 (6th Cir. 1972).

Evidence adduced at trial clearly proves that Halegua received

all of the necessary business books and records and had been given

an accounting by Lerner’s expert accountants. (R. 1167-68).

Accordingly, Halegua cannot now contend, nor did he contend below,

that he lacked an adequate legal remedy due to any unavailability of

the books and records. Significantly, such accounting information

was only presented to the jury by Lerner and it was only Lerner who

presented expert accounting testimony. Halegua both failed to elicit

55.
any expert testimony of his own as well as failed to challenge the

conclusions of Lerner’s expert accountants.

C. EVEN IF HALEGUA WAS LEGALLY ENTITLED TO AN

ACCOUNTING, THE JURY HAD ALREADY DECIDED THAT
NO MONEY WAS DUE TO HIM.

The jury heard and determined whether the capital account13

for City Realty Group was unequal in favor of Lerner because, as

Halegua testified, he received no distributions whatsoever, or,

whether the capital account was unequal in favor of Halegua based

upon the expert accounting work and testimony of Lerner’s Certified

Public Accountants - Kim Marks and Harold Benjamin. Ultimately,

the jury determined that it was Lerner who was owed money from

Halegua.14 When a jury decides fact issues in an action at law, and

13 A capital account is defined as "`[a] term used in accounting to

describe the equity in a business. In a partnership, each partner has
a capital account which represents his contribution or investment in
the partnership.'"Cadle Co. v. G & G Assocs., 757 So.2d 1278, 1279
n. 2 (Fla. 4th DCA 2000) (quoting BLACK'S LAW DICTIONARY 209
(6th ed.1990)).
14Harold Benjamin, C.P.A. testified that he analyzed the books and
records of CitiGroup, City Realty Group and Reality Realty to
determine the capital or partner accounts for both Lerner and
Halegua from the execution of the 2005 Letter of Intent until 2009.
He concluded that in order to equalize their capital accounts,
Halegua would have to pay Lerner $52,887.78. (R. 808; 813).
56.
the issues are sufficiently similar to the fact issues in a related

equitable claim, the trial court is bound by the jury's findings of fact

when it then rules on the equitable claim. See Billian v. Mobil Corp.,

710 So.2d 984, 992 (Fla. 4th DCA 1998), review denied, 725 So.2d

1109 (Fla.1998); Paoli v. Natherson, 732 So.2d 486 (Fla. 2d DCA

1999).

By trying Halegua’s equitable accounting claim after the jury

verdict, the Court erred by ignoring that verdict and the factual

determinations supporting same and proceeding to an independent

bench trial on an accounting. After the jury verdict, both legally and

factually no further “accounts” remained to be decided, reconciled or

adjusted by the Court.

D. THE ACCOUNTING TRIAL LACKED DUE PROCESS OR

FUNDAMENTAL FAIRNESS AND WAS NOT PROPERLY
CONDUCTED.

1. Due Process

Despite Lerner’s requests for Halegua to outline the issues of

fact and law to be tried by his accounting claim and Lerner’s

contention that principles of due process and fairness dictated that

Halegua should have been compelled to outline his accounting case,

57.
including what amounts of money he was claiming was due to him;

upon what facts such claims were based, and why, from a legal

standpoint, he would be entitled to such monies from the Court,

when the jury had already denied him such relief, See Bernardele v.

Bonorino, 608 F.Supp.2d 1313, 1329 (S.D. Fla. 2009) ("[a] complaint

in equity for an accounting must show that the plaintiff is entitled to

the relief sought . . ."), the Court declined to require Halegua to afford

Lerner such notice. (R. 683-84; 876-882).

Such alleged accounting discrepancies should, in any event,

have been raised during the jury trial and presented to the jury for

determination, either as part of Halegua’s counterclaim or as

impeachment of Lerner’s experts. Halegua’s failure to raise or

otherwise litigate any such claims at trial waives any right to a

subsequent accounting bench trial.

Indeed, it is questionable as to whether Halegua even could

have complied with such an order because he readily acknowledged

that his facts and arguments, together with his objections to the

expenditures raised as evidence in the accounting trial, were only

58.
presented by him for the first time at the trial on May 3, 2019. (R.

1162-63; 1168).

2. Proper Conduct of Accounting Trial

As explained in Ho, Christine, The Most Efficient Way To Litigate

A Dispute Between Business Partners With Axes To Grind: Partnership

Accountings, 86 Fla..B. J. 22 (August 2012):

During phase two of the partnership accounting, a court

must conduct an accounting “in accordance with generally
accepted accounting practices.”68 The trial court may
conduct the accounting on its own or appoint a special
master to do so.69 Typically, a special master, such as a
CPA, is appointed. The special master may review the
books and records of the partnership and have the parties
submit to oral examination.70 Although a special master
may, and often does, take testimony or evidence during
the actual accounting, there is no requirement to do so.71
In short, the trial court and the special master are
accorded great discretion in deciding how to conduct a
partnership accounting.

68. Stone v. Stone, 657 So. 2d 1256, 1257 (Fla. 2d D.C.A.

1995).
69. See Goldfarb Novelty Co. of Fla., Inc. v. Vann, 94 So. 2d
845, 849 (Fla. 1957) (appointing a master to take an
accounting is “regular and sensible”).
70. E.g., Novak v. O’Donnell, 211 So. 2d 855 (Fla. 3d
D.C.A. 1968).
71. Id. at 856-57 (finding that, although a special master
is not required to take testimony or evidence, the trial
court erred in resubmitting the issue of depreciation to the
special master after he made an arbitrary finding as to the
depreciation figure).

59.
 As per Florida Administrative Code Rule 61H1-20.007 Generally

Accepted Accounting Principles, “Generally Accepted Accounting

Principles” shall be deemed and construed to mean accounting

principles generally accepted in the United States of America in effect

as of June 30, 2002, including, but not limited to, Accounting

Principles Board Opinions Nos. 1 to 31 as published by the American

Institute of Certified Public Accountants, and statements of

accounting standards and interpretations thereof, as published by

the Financial Accounting Standards Board (FASB), the Governmental

Accounting Standards Board (GASB).15

Here, Halegua’s “accounting”, adopted by the Court in its Partial

Final Judgment was incomplete and not in accordance with generally

accepted accounting principles. The sum and substance of Halegua’s

15 The FASB materials are entitled Original Pronouncements

2001/2002 Edition, vols. I, II, & III, dated 12/31/00, and available
from FASB, 401 Merritt 7, P. O. Box 5116, Norwalk, CT 06856-5116,
1(888)777-7077, http://www.cpa2biz.com. The GASB materials are
entitled Governmental Accounting and Financial Reporting
Standards, (Statement 34 Edition), available from GASB, 401 Merritt
7, P. O. Box 5116, Norwalk, CT 06850-5116. The FASAB materials
are entitled FASAB Statements 1-22, dated 12/31/00, and are
available from FASAB, 750 First Street, Suite 1001, Washington,
D.C. 20002, (202)512-7350.
60.
entire “accounting trial evidence” was that he culled certain isolated

checks from only certain jointly owned companies’ business records

and claimed those disbursements to have been “unauthorized”. (R.

1157-58).

No evidence of how any of either the identified or unidentified

checks were booked for accounting, general ledger, or profit and loss

purposes was introduced by Halegua or are in evidence to supply any

support to the contentions made by him. Indeed, Lerner testified that

certain checks directly payable for his living expenses, such as his

apartment, were to be booked as distributions to him. (R. 1180-81).

Similarly, no evidence of reimbursements or deposits were

introduced by Halegua despite the fact that evidence of such

deposited reimbursements existed. (R. 1157; 1179-80).

IV. THE TRIAL COURT’S JUDGMENT ON THE ACCOUNTING

COUNTERCLAIM IS NOT SUPPORTED BY SUBSTANTIAL
COMPETENT EVIDENCE.

Significantly, none of the allegedly “unauthorized”

disbursements were raised or addressed during the jury trial and

presented to the jury for determination, either as part of Halegua’s

counterclaim or as impeachment of Lerner’s experts. (R. 1157-58).

61.
In fact, Halegua’s testimony was that he did not examine the banking

records until after the jury trial, notwithstanding the fact that he has

been in actual possession of the records since 2013. (R. 1175).

Halegua testified from a spreadsheet that he created within the year

before the accounting trial and only first produced it the day of the

accounting trial. (R. 1157; 1163). Halegua admitted that he never

confronted Lerner about any of the checks he claimed to have been

unauthorized. (R. 1162-63).

More importantly the only evidence of these allegedly

“unauthorized disbursements” consisted of Halegua’s testimony

(admitted over objection) (R. 1158-59), identifying a representative

sample of checks he claimed not to have authorized and then

testifying to what the sum total was of an unidentified collection of

unauthorized checks, never otherwise identifying the full universe of

such checks, other than to state that “there are a couple of thousand

of them in that box over there”. (R. 1168). Thus, there is no exhibit

in evidence otherwise identifying the alleged thousands of

62.
unauthorized checks, and Halegua confirmed that he had not shown

anyone except his attorneys such documents. (R. 1168).16

Finally, Halegua failed to account for disbursements he received

from Reality Realty, a company he owned 50%-50% with Lerner but

for which had sole check-writing authority, despite the fact that there

was evidence that Halegua both deposited and withdrew funds

otherwise due to Lerner. (R. 1163-64; 1172-73). In fact, Halegua

admitted that Reality Realty paid a credit card of his and made

payments to him which he characterized as a reimbursement of his

expenses. Halegua also admitted his solely owned company, Nervia,

received a $28,000.00 check from Reality Realty. (R. 1133; 1135-37).

Such evidence also belies Halegua’s testimony that “he received

not even a dime” during the entire six (6) year “partnership”

relationship with Lerner. It defies logic that Halegua would stay in a

business relationship for six (6) years where he was receiving

16Given the nature of Halegua’s testimony, he also never sought to

utilize the evidentiary tool of a “Summary” and the spreadsheet was
never admitted into evidence and instead only referred to as a
“demonstrative exhibit”. (R. 1152-53, 1158-60) See Section 90.956
Fla. Stat.
63.
absolutely no financial benefits and where during the early part of

such relationship the main company “was making a lot of money”.

(R. 1118, 1153).

Halegua’s claims of unauthorized disbursements were also

undercut by his own testimony conceding that from and after 2005,

year-end accountings were done by the accountant and everything

went fine without any problems between himself and Lerner until

2009. (R. 1138-39).

64.
 CONCLUSION

Lerner respectfully requests this Court to reverse the Partial

Final Judgment by granting the requested additur, by reversing the

accounting counterclaim, award and to remand this action to allow

the trial court to enter a new judgment. Alternatively, Lerner asks

this Court to reverse the Partial Final Judgment and remand this

matter for a new trial on damages.

Respectfully submitted,

David H. Charlip, B.C.S.

Florida Bar No. 329932
CHARLIP LAW GROUP, L.C.
999 Brickell Ave., Suite 840
Miami, Florida 33131
Telephone: (305) 354-9313
dcharlip@charliplawgroup. corn
Coi^fzsel fp^-Appellants

By: I / //
^/H. ChWrp, B.C.S.

65.
 CERTIFICATE OF SERVICE

I certify that on February 26, 2021, pursuant to and in

compliance with Florida Rule of Judicial Administration 2.516, this

Initial Brief was served through the Florida Court's e-filing portal on

all counsel of record, as follows:

CHARLIP LAW GROUP, L.C.

999 Brickell Ave., Suite 840
Miami, Florida 33131
Telephone: (305) 354-9313
dcharlip@charliplaw^rpyp,com
Counsel/Qf Appellants

Daxid/y. Charlip, B.C.S,

Flori4^L Bar No. 329932

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was prepared in Bookman Old

Style, 14-point font, in compliance with Rule 9.045 of the Florida

Rules of Appellate Procedure and contains 12,115 words and thus is

/'" ,'\

in conformity with all font and word count requir^nfe^ts.

Davidjfi^Charlip, B.C.S.
iy

66.