> IN THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT, STATE OF FLORIDA
>
> CASE NO. 05-4228

LEWIS B. TUNNAGE

APPELLANT

v\.

CLIFFORD K. GREEN

APPELLEE

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

> APPELLEE'S ANSWER BRIEF

By: ROBERT GARVEN, ESQ.

> #300
>
> 9900 W SAMPLE RD.
>
> CORAL SPRINGS, FL. 33065
>
> \(954\) 755-6665

And: COSTELL WALTON, JR., ESQ.

> Law Offices of Costell Walton, Jr.

Fort Lauderdale, Florida

> [TABLE OF CONTENTS]{.underline} [PAGE(S)]{.underline}

TABLE OF CITATIONS ii

INTRODUCTION v

STATEMENT OF CASE AND FACTS 1

STANDARD OF REVIEW 12

SUMMARY OF ARGUMENT 12

ARGUMENT:

ISSUES I and II: THE TRIAL COURT ACTED 14

CORRECTLY BY DENYING

> TUNNAGE'S MOTIONS FOR
>
> SUMMARY JUDGMENT AND
>
> DIRECTED VERDICT

ISSUE III: THE TRIAL COURT'S REFUSAL 20

> TO READ F.S. 689.01 DID NOT
>
> CONSTITUTE REVERSIBLE ERROR

ISSUE IV: THE TRIAL COURT DID NOT ERR 23

BY AWARDING ATTORNEY'S

FEES TO GREEN

ISSUE V: ANY ERROR IN REGARD TO 24

> FRAUD WAS HARMLESS ERROR

ISSUE VI: THE TRIAL COURT'S FINAL 27

JUDGMENT DID NOT EXCEED

ITS AUTHORITY

CONCLUSION 30

CERTIFICATES 31

i

> [TABLE OF CITATIONS]{.underline}

[CASES]{.underline} [PAGE(S)]{.underline}

[Aristek Communities v. Fuller]{.underline} 15

453 So. 2d. 547 (Fl 4 DCA 1984)

[Broward County v. Russell]{.underline} 20

589 So. 2d. 983 (Fl 4 DCA 1991)

[Colucci v. Kar Kare Automotive Group]{.underline} 14

918 So. 2d. 431 (Fl 4 DCA 2006)

[Coram v. Palmer]{.underline} 16

58 So. 721 (Fl 1912)

[Cortina v. Cortina]{.underline} 28, 29

98 So. 2d. 334 (Fl 1957)

[Doyle v. Tutan]{.underline} 16

110 So. 2d. 42 (Fl 3 DCA 1959)

[Edgewater Beach Owners v. Walton County]{.underline} 15

833 So. 2d. 215 (Fl 1 DCA 2002)

[Ganz v. HZJ, Inc.]{.underline} 23

605 So. 2d. 871 (FL 1992)

[Hallam v. Gladman]{.underline} 16

132 So. 2d. 198 (Fl 2 DCA 1981)

[Head v. Lane]{.underline} 16

495 So. 2d. 821 (Fl 4 DCA 1986)

[Hensel v. Aurilio]{.underline} 16

417 So. 2d. 1035 (Fl 4 DCA 1982)

ii

[FLORIDA CASES]{.underline} [PAGE(S)]{.underline}

[Howell v. Fiore]{.underline} 16

210 So. 2d. 253 (Fl 2 DCA 1958)

[In Re Guardianship of Coolidge]{.underline} 19

368 So. 2d. 426 (Fl 4 DCA 1979)

[J.S. v. S.A. & J.A.]{.underline} 15

912 So. 2d. 650 (Fl 4 DCA 2005)

[Johnson v. Home-Owners Insurance Co.]{.underline} 15

915 So. 2d. 196, 197 (Fl 4 DCA 2005)

[Katos v. Cushing]{.underline} 15

601 S. 2d. 612, 613 (Fl 3 DCA 1992)

[Keys Lobsters, Inc. v. Ocean Divers, Inc.]{.underline} 23

468 So. 2d. 360 (Fl 3 DCA 1985)

[Lazzari v. Lin]{.underline} 14

884 So. 2d. 393 (Fl 2 DCA 2004)

[Location 100, Inc. v. Gould S.E.L.]{.underline} 23

517 So. 2d. 700 (Fl 4 DCA 1987)

[Martin v.Town of Palm Beach]{.underline} 15

643 So. 2d. 112 (Fl 4 DCA 1984)

[Ruotal Corp. N.W.]{.underline}, [Inc. v. Ottati]{.underline} 14

391 So. 2d. 308 (Fl 4 DCA 1980)

S[teinhauer v. Steinhauer]{.underline} 19

336 So. 2d. 665 (Fl 4 DCA 1976)

[Triana v. FI-Shock, Inc]{.underline}. 20

763 So. 2d. 454 (Fl 3 DCA 2000)

iii

[FLORIDA CASES]{.underline} [PAGE(S)]{.underline}

[Trustees Internal Improvement Fund v. Claughton]{.underline} 16

86 So. 2d. 775 (Fl 1956)

[Vandergriff v. Vandergriff]{.underline} 15

456 So. 2d. 464 (Fl 1984)

[Walker v. City of Jacksonville]{.underline} 18, 22

360 So. 2d. 52 (Fl 1 DCA 1978)

[Zurstrassen v. Stonier]{.underline} 16

786 So. 2d. 63 (Fl 4 DCA 2001)

[FEDERAL CASES]{.underline}

[Commodores Point Terminal Co. v. Hudnall]{.underline} 27

283 F. 150 (S.D. Fl. 1922)

[STATUTES]{.underline}

F.S. 57.105 13, 23

F.S. 689.01 3, 12, 14,

18-21

iv

[INTRODUCTION]{.underline}

Clifford K. Green ("Green") shall be referred to as Plaintiff or
Appellee

when not identified by name. Lewis Tunnage ("Tunnage") shall be

referred to as Defendant or Appellant when not identified by name.

"R" shall refer to the record-on-appeal.

v

> [STATEMENT OF CASE AND FACTS]{.underline}

Green's Amended Complaint alleged that Green and Tunnage had engaged

in a joint venture by which they would locate and purchase undervalued
and

depressed real property which they would later renovate and refurbish.
The

oral agreement between the two parties called for a 50-50 split of the
profits.

The Amended Complaint further alleged that when Tunnage was unable or

unwilling to pay Green, Tunnage conveyed three pieces of real property
to

him via two quit claim deeds. One quit claim deed conveyed Lot 23 and

Lot 24: Lot 23 was occupied by a 3-bedroom single family residence and

Lot 24 was occupied by a 12 unit rooming house. A second quit claim deed

conveyed Lot 25: this Lot was vacant and unimproved. Both conveyances

were dated Aug. 16, 1995; the quit claim deeds were delivered to Green

and were recorded by him on September 21, 1995. (Vol. I, R 121-137).

The Amended Complaint further alleged that from August, 1995 through

December, 1999, Green exercised ownership over Lots 23, 24 and 25. It
also

alleged that Tunnage had continued to collect rent from the residence on

Lot 24, but had had failed to share profits with Green or to otherwise
pay

him in any way. (Vol. I, R 121-137).

1

The Amended Complaint further alleged that in December, 1999, Green

notified the Fort Lauderdale Housing Authority (from whom Tunnage

was receiving rents for the single family residence ) that Tunnage was
no

longer the owner of the premises and was, therefore, not entitled to
collect

rent there. The Amended Complaint further stated that Tunnage had told

tenants that the property was now under new management and that payment

of rent should be made directly to Tunnage. Green investigated and
learned

that two quit claim deeds had been recorded: these deeds purported to
re-

convey Lots 23, 24, and 25 to Tunnage. These deeds were dated November

20, 1995, were notarized on Dec. 20, 1995 and were recorded on Aug. 10,

19999\. These quit claim deeds were allegedly signed by Green and

witnessed by Sandra Stokes and Holly Barnes and notarized by Stokes.

The Amended Complaint stated that the alleged deeds of re-conveyance

to Tunnage had been fraudulently created by Tunnage, Stokes and Barnes:

Green had never signed the quit claim deeds which purported to re-convey

the real property to Tuunnage. (Vol. I, R 121-137).

The Amended Complaint consisted of: Count I (Quiet Title), Count II

(Conspiracy to Slander Title -- Stokes) Count III (Fraud -- Tunnage,
Stokes,

Barnes), and Count IV (Declaratory Judgment). (Vol. I, R 131-137).

2

Tunnage filed an Answer and Affirmative Defenses. The Affirmative

Defenses alleged that the deeds of re-conveyance had been properly

executed by Green and were genuine; it was also alleged that the initial

conveyance by Tunnage to Green "did not intend to convey ownership

interest in the real property to (Green)". A counterclaim for an
accounting

was also filed by Tunnage. (Vol. I, R 142-153).

Tunnage subsequently filed a Motion for Summary Judgment. The Motion

recited the requirements of F.S. 689.01 that a conveyance of land needed

two witnesses and repeated that Tunnage had never intended to convey

ownership or title to the property in question to Green. (Vol. I, R
178-179).

The Motion was accompanied by an Affidavit from Tunnage regarding his

lack of intent to transfer title via the quit claim deeds. (Vol. I, R
186-187).

Green filed an Affidavit in opposition to the Motion for Summary
Judgment,

stating that he had never signed the re-conveying quit claim deeds. (R
188-

189). The Motion for Summary Judgment was denied. (Vol. I, R 190).

The matter proceeded to jury trial before the Hon. Robert Collins\*. At
trial,

\* The Hon. Patti Englander Henning was the presiding judge on the case

prior to trial.

3

Holly Barnes testified that she had met Tunnage in 1993. (Vol. IV, R
160).

She testified that she had performed secretarial services at Tunnage Tax

Services since being employed there on a continuous part-time basis
since

January, 1994. She had been interviewed and hired by Stokes. (Vol. IV,

R 162-165). During her testimony, the following exchange occurred:

> Question: Did there come a time when you were employed by (Tunnage)?

Answer: No.

Q You never worked for him?

A No. I work for Sandra (Stokes)

Q You work for Sandra?

A Yes.

> Q You were never paid by Tunnage Tax Services for any services that
> you rendered?
>
> A No, Sandra.
>
> Q Sandra Stokes paid you?

A Yes

Q And what checks did she use to pay you -- Sandra Stokes

> checks?

A Tunnage Tax Services (Vol. IV, 161).

4

Barnes later said that she was paid by Tunnage Tax Services checks and
was

therefore employed by that entity. (Vol. IV, R 167). When asked who
owned

Tunnage Tax Services, Barnes first said Tunnage, then Tunnage and
Stokes,

then said that her knowledge derived from what she had been told by
Stokes.

(Vol. IV, R 164).

Barnes's deposition testimony was introduced. At her deposition, Barnes
had

been asked whether she had witnessed the signing of the re-conveyance of

the quit claim deeds by Green and had responded "I don't know". Barnes

had added at deposition that the signing had occurred "eight years ago".

(Vol. IV, R 186-187).

Sandra Stokes testified that she was the "sole owner" of Tunnage Tax

Services and that the business was in her name alone. She testified that

Tunnage was not her partner, although he did share the proceeds. Later,

she stated that Tunnage was a 50% partner. (Vol. IV, R 201-203). She
also

testified that she had witnessed Green's signature on the re-conveyance

and that Barnes had been present at that time. (Vol. IV, R 224, 239).

Tunnage stated that he was not an owner of Tunnage Tax Services, but
that

he collected 50% of the net income. (Vol. V, R 276-277). He added:

5

In order to process income taxes you must be granted by the

Federal Bureau a license. If you are being investigated, which

I was, they were going over my income tax, I could not get the

license for overnight filing income taxes and those things. So

> the license was in my name, but due to the fact that I was being
> audited by the IRS, I had to transfer those licenses to Ms.
>
> Stokes. So everything is in her name.

(Vol. V, R 277-278).

In regard to the original conveyance to Green, Tunnage testified:

During the time that the deeds were transferred to Mr. Green,

they were only to establish management purposes only. That's

why the deeds did not have proper signatures on there (sic).

They were never meant to be ownership. He was only to

manage the property and I said well, just in case something

goes wrong, this is backup. He was managing the property.

It was never intended to convey the property to him at all.

That's why it was not done properly. (Vol. V, R 304-305).

Tunnage, a former real estate salesman, added that he had "never
intended

to give (Green) the property at all". According to Tunnage, Green had

needed a deed in order to show ownership so that he would have the

appearance of authority necessary to seek assistance from police and
code

enforcement officials in preventing drug dealers and prostitutes from

loitering on the premises. (Vol. V, R 305-310). When asked whether he

had explained this to Green, Tunnage first said that Green "understood"
,

then said that "maybe I did not explain that to him", then said that
that

he had "probably explained it to him". (Vol. V, R 311).

6

Tunnage said that the re-conveyance quit claim deeds were dated 1995 and

had been recorded in 1999 or in 2000. He stated that the deeds had been

executed for "backup" "in case something (went) wrong". (Vol. V, R 301-

304).

Green questioned Tunnage as to the amount of income derived from the

property in question and the amount of expenses incurred in maintaining

that property. (Vol. V., R 353-370). Tunnage was then asked:

Question: If Mr. Green had had possession of that property

> during that period of time (when he was not in possession), that would
> have been the income
>
> derived and the approximate value of the
>
> property, correct?

Tunnage's objection that this was "pure conjecture" was sustained by the

trial court. (Vol. V., R 360). Later, Green confronted Tunnage with
various

figures:

Question: So, if we look at all the income of \$195,00 and we

> subtract your maintenance figure of \$11,000 ... there
>
> is a positive difference of \$84,000. Am I correct in
>
> these calculations?
>
> Answer: If your figures are correct, that would be the correct answer.
> (Vol. V, R 367-370).

Tunnage was subsequently questioned by his own attorney regarding these

matters:

7

> Question Isn't it true, Mr. Tunnage that (Green's attorney) did not
> ask you to bring any records to court today?
>
> Answer No, sir.
>
> Q And at no time during the course of those three or four years has
> (Green's attorney) ever asked you to produce any rental income
> documents. Is that correct?
>
> A That's correct, sir.

Q He has never over that three or four year period asked

> you to produce any rental cost documents. Is that correct?

A Correct sir. (Vol. V, R 373).

Frank Norwitch, a handwriting expert called by Tunnage, testified that
it was

"highly probable" that Green had signed both quit claim deeds. (Vol. VI,
R

443). Anthony McAloney, a handwriting expert called by Green, gave it

his highest level of reasonable probability" that the quit claim deeds
of re-

conveyance contained forged signatures. (Vol. VII, R 523, 553).

Green testified that he was a seventy six year old man who had grown up
in

Grenada. (Vol. VII, R 565, 640). He had received the equivalent of a
high

school education. (Vol. VII, R 643). Green testified that he had entered
into

an oral agreement with Tunnage, but denied that he had ever entered into
a

written agreement with him. (Vol. VII, R 572). Green said that his
friends

8

had warned him against signing any documents with Tunnage. Green denied

signing the quit claim deeds which re-conveyed the properties to
Tunnage.

(Vol. VII, R 597, 600, 601, 602, 605, 612, 613, 636, 637-640).

By the terms of the oral agreement, Tunnage agreed to supply funds to
buy

and repair the real properties (which Green would then physically
repair).

(Vol. VII, R 573-574). When asked what damages he had suffered due to
the

fraud, Green said that 'they all got together and put me out of my
property".

(Vol. VII, R 634). He added that they had deprived him of income by
taking

the property away from him. (Vol. VII, R 645).

Green speculated that the value of the property today was approximately

\$400,000. When asked why Tunnage would give him valuable property,

Green replied that Tunnage had owed him a great deal of money. He said

that he (Green) had "built a house for him on seventh court ... "that's

about the prettiest house in that area. I built a lot of work for
Lewis".

(Vol. VII, R 675-676), He said that he had believed that the quit claim

deeds were intended as a form of payment. (Vol. VII, R 682).

At the close of Green's case, Stokes, Barnes and Tunnage brought Motions

for Directed Verdict. These motions were denied. (Vol. VIII, R 696,
699).

9

Tunnage testified again that the quit claim deeds that he had executed
in

favor of Green had been exclusively for management purposes and had

never been intended to convey title. He stated that he had been aware

that these quit claim deeds were "incomplete". (Vol. VIII, R 745-746,

750-753, 773-774). Tunnage also testified that he was paying for legal

representation for Stokes and Barnes. (Vol. VIII, R 766).

Tunnage asked that the trial court read various statutes as "jury
instructions".

Upon objection by Green, the trial court declined to do so. (Vol. IX, R
808-

809).

During Closing Argument, Green requested \$84,000 damages. (Vol. IX,

R 856). Green said that he had been damaged by loss of income from the

property in question and by the loss of the properties. (Vol. IX, R
858).

During Closing Argument, Stokes and Barnes argued that there was no

evidence to support the request for that sum. (Vol. IX, R 861).

The jury returned a verdict that quieted title to the properties in
favor of

Green and found fraud by Stokes and Tunnage. The jury did not award any

money damages as a consequence of the fraud. (Vol. X, R 937-938). After

trial, a written Final Judgment was entered. After reciting the jury
verdict,

10

the Final Judgment "quieted title" to Lots 23, 24 & 25 in favor of
Green,

saying that that all persons claiming under Tunnage "are hereby
permanently

enjoined from asserting any estate, right, title, lien or interest in or
to the

real property or any part of the property ..." It added that Green would

recover attorney's fees from Stokes and Tunnage. (Vol. II, R 277-280).

Tunnage subsequently filed this appeal. (Vol. II, R 336-344).

11

> [STANDARD OF REVIEW]{.underline}

Green accepts the standards that are provided within the Initial Brief.

[SUMMARY OF ARGUMENT]{.underline}

The decision of the trial court should be affirmed. The finding of the
jury

clearly demonstrated its belief that Tunnage had lied and had engaged in

inappropriate and fraudulent activities in regard to his dealings with

Green; equitable principles of estoppel prevent Tunnage from profiting

from his own dishonesty in these dealings. Tunnage's duplicity should

not be rewarded.

The failure to read F.S. 689.01 as a jury instruction was not error --
such

a request was apparently never made. Even if it had been made, the trial

court acted within its broad discretionary powers in declining to read
the

potentially unclear and confusing language of the statute.

The fact that the jury found "zero damages" does not in any way alter
the

fact that the jury rejected Tunnage's story in its entirety. The failure
to

award money damages was due to Green's lack of evidence to support his

demand for the amount requested. In addition, Green was damaged by

being ejected from his land and deprived of the use and enjoyment
thereof.

12

Green was entitled to an award of attorney's fees, pursuant to F.S.
57.105.

Tunnage's entire defense was based on a position that the jury found

fraudulent.

The language utilized by the Final Judgment was appropriate: it merely

recited a statement of rights that were incidental to the quieting of
title

in favor of Green.

13

> [ARGUMENT]{.underline}
>
> ISSUES I & II: THE TRIAL COURT ACTED CORRECTLY WHEN IT DENIED
>
> TUNNAGE'S MOTIONS FOR
>
> SUMMARY JUDGMENT AND
>
> FOR DIRECTED VERDICT

Green does not believe it necessary to separate his response to the
first two

issues that are raised within the Initial Brief. These issues address
the same

basic matter: the failure of the trial court to rule in Tunnage's favor
when

confronted with the language of F.S. 689. 01, which states that a
conveyance

of real property must be witnessed by two persons. (Issue I deals with

Summary Judgment; Issue II deals with Directed Verdict.) Here, the

conveyance from Tunnage to Green was witnessed by only one person.

It is axiomatic that a trial court's decision is supported by a
presumption

of correctness. [Lazzari v. Lin]{.underline}, 884 So. 2d. 393 (Fl 2 DCA
2004). The

burden is upon the appellant to demonstrate error. [Colucci v. Kar
Kare]{.underline}

[Automotive Group]{.underline}, 918 So. 2d. 431 (Fl 4 DCA 2006); [Ruotal
Corp.]{.underline}

[N.W.]{.underline}, [Inc. v. Ottati]{.underline}, 391 So. 2d. 308 (Fl 4
DCA 1980).

In addition, it is incumbent upon an appellant to show that any error
that

might have occurred in the lower court was not merely
[harmless]{.underline}. This

14

Court has stated that 'the test for harmful error is whether but for
such error,

a different result would have been reached". [Aristek Communities v.
Fuller]{.underline},

453 So. 2d. 547, 548 (Fl 4 DCA 1984). Accord: [Edgewater Beach Owners
v.]{.underline}

[Walton County]{.underline}, 833 So. 2d. 215, 220 (Fl 1 DCA 2002);
[Katos v. Cushing]{.underline},

601 So. 2d. 612, 613 (Fl 3 DCA 1992).

This Court has recently re-affirmed the well-established appellate
principle

that "a trial court decision will be upheld on appeal if
[any]{.underline} legal theory

supports it". [Johnson v. Home-Owners Insurance Co.]{.underline}, 915
So. 2d. 196, 197

(Fl 4 DCA 2005). (Emphasis added). Accord: [Martin v. Town of
Palm]{.underline}

[Beach]{.underline}, 643 So. 2d. 112, 113 (Fl 4 DCA 1984). See also:
[J.S. v. S.A. & J.A.]{.underline} ,

912 So. 2d. 650,651 (Fl 4 DCA 2005). This is true "regardless of whether

the reasons advanced (by the trial court) are erroneous". [Vandergriff
v.]{.underline}

[Vandergriff]{.underline}, 456 So. 2d. 464, 466 (Fl 1984).

In this regard, it is essential to take notice of principles of
"equitable

estoppel":

> Equitable estoppel is a doctrine generally recognized
>
> by the courts of this country by which a party is
>
> prevented from setting up his legal title because he
>
> has, through his acts, words, or silence, led another
>
> to take a position in which the assertion of the legal
>
> title would be contrary to equity and good conscience.
>
> 15

[Howell v. Fiore]{.underline}, 210 So. 2d. 253, 256 (Fl 2 DCA 1958). See
also: [Trustees]{.underline}

[of Internal Improvement Fund v. Claughton]{.underline}, 86 So. 2d. 775
(Fl 1956);

[Doyle v. Tutan]{.underline}, 110 So. 2d. 42 (Fl 3 DCA 1959); [Hallam v.
Gladman,]{.underline}

132 So. 2d. 198 (Fl 2 DCA 1981). Principles of equitable estoppel are

fully applicable to claims involving title to real property.
[Hallam]{.underline},

supra; [Coram v. Palmer]{.underline}, 58 So. 721 (Fl 1912); [Zurstrassen
v. Stonier]{.underline},

786 So. 2d. 63 (Fl 4 DCA 2001).

This Court has written:

> Equity will stay its hand where a party is guilty of conduct
>
> condemned by honest and reasonable men. Unscrupulous
>
> practices, overreaching, concealment, trickery or other
> unconscientious conduct are sufficient to bar relief.

[Hensel v. Aurilio]{.underline}, 417 So. 2d. 1035, 1038 (Fl 4 DCA 1982).
See also:

[Head v. Lane]{.underline}, 495 So. 2d. 821 (Fl 4 DCA 1986);
[Zurstrassen]{.underline}, supra.

The doctrine of "equitable estoppel" has been used in an "abundant"

number of cases and in an "infinite number of varied factual
situations".

"(T)he facts of each individual case must govern". [Hallam]{.underline},
supra, at 209.

Accord: [Head v. Lane]{.underline}, supra.

Tunnage's actions estop him from capitalizing on his fraudulent
activities at

Green's expense. Equitable principles prevent Tunnage from intentionally

16

deceiving Green by knowingly conveying to him a defective title.
Equitable

principles will not allow Tunnage to trick Green and then benefit by
such

trickery at Green's expense.

Tunnage may not be heard to complain that the transaction was improperly

performed when he was the knowing architect of the impropriety. Tunnage
--

not Green - knew that the transaction was not being conducted properly.

Tunnage tried to exploit his superior knowledge by convincing Green

otherwise (while also misrepresenting to the police and to other
government

officials the true ownership of the properties). Tunnage may not be
allowed

to reap a benefit by his orchestration of a fraudulent scam to deceive
Green.

Tunnage's scheme was utterly amoral: he knowingly gave a deed that had

been incorrectly executed to an elderly, uneducated immigrant - then

arranged for the forging of Green's name and the fraudulent execution of

additional quit claim deeds. It is outrageous for Tunnage to complain
about

the defective nature of the transfer when he is the one who is
responsible

for it -- not through unawareness, but through knowing trickery. Green

denies any awareness that he was being used by Tunnage to deceive the

authorities. Did Tunnage reveal this to Green? Tunnage says: "yes" ...

17

and "no" ... and "maybe". Principles of equity and justice cannot allow

Tunnage to benefit from a sleazy scheme involving phony transactions

and subsequent forgery.\*

Appellant argues that issues involving fraud and forgery in connection
with

the alleged re-conveyance to Tunnage are "irrelevant red herrings"
(Initial

Brief, p 31.); this is not correct. These matters are part of the
overall *res*

*gestae*. The entire scenario that was presented at trial must be
acknowledged

and given consideration by the Court -- just as it was given due
consideration

by the jury. The fraudulent re-conveyance to Tunnage and the forging of

Green's signature are significant and meaningful for two reasons.

First, these acts demonstrate the nature and scope of Tunnage's scam.
The

jury did not believe Tunnage's testimony: they completely rejected his

denials and explanations and refused to grant him the relief that he
desired.

\*The cases cited by Appellant in the Initial Brief do not involve
situations

in which principles of equitable estoppel may be called into play. It
is,

however, noteworthy that in [Walker v. City of
Jacksonville]{.underline}, 360 So. 2d. 52

(Fl 1 DCA 1978), the Court observed that the record was "devoid of any

evidence to support (the party's) contention of equitable estoppel". The

clear implication is that the presence of such evidence
[would]{.underline} have raised

important issues relative to the disposition of title and property --
notwithstanding non-compliance with the provisions of F.S. 689.01)

18

In addition, these acts demonstrate the full extent of Tunnage's
deception

and are, therefore, of great importance to any examination of equitable

factors. Each instance of deceit by Tunnage lends support to Green's
right

to an equitable estoppel. Each instance of trickery by Tunnage
demonstrates

the inequity of allowing him to succeed with his dishonest plans.

Of course, Tunnage's fraud was not restricted to the alleged
re-conveyance

to him. Questions exist as to the circumstances surrounding Tunnage's
claim

that the initial conveyance to Green via quit claim deeds was provided
and

intended for "management purposes only". There were questions regarding

Tunnage's disclosure of this "plan" to Green. There were issues
concerning

the authenticity of a written partnership agreement about which Green

denied having any knowledge. The jury obviously believed Green's

testimony in regard to these matters and concluded that Tunnage's

dealings with Green involved trickery, deception and fraud.\*

\*Appellant states that Green "offered no proof and raised no inferences

to rebut ... 689.01." As a transcript of the hearing on the Motion for
Summary Judgment has not been provided, Green wonders how Tunnage is
able to support this statement. An appellant's attempt at securing a
reversal may not be granted when the record that is provided to the
appellate court

is inadequate. S[teinhauer v. Steinhauer]{.underline}, 336 So. 2d. 665
(Fl 4 DCA 1976);

[In Re Guardianship of Coolidge]{.underline}, 368 So. 2d. 426 (Fl 4 DCA
1979).

19

ISSUE III: THE TRIAL COURT'S REFUSAL

TO READ F.S. 689.01 DID NOT

> CONSTITUTE REVERSIBLE ERROR

Initially, Green notes that the Initial Brief's reference to the
appellate record

(Vol. IX, R 807-809) does not support Tunnage's claim that he asked the

trial court to read F.S. 689.01 to the jury. Three statutes are
mentioned --

but 689.01 is not one of them.

In addition, Appellant did not provide proposed written instructions (as
per

the Court's instruction); he instead asked the Court to read certain
statutes

verbatim. The Court declined to do so. Even if one assumes
[arguendo]{.underline} that

a request to read F.S. 689.01 was made, denial of such request was not
error.

This Court has stated that a trial court possesses "wide discretion" in
matters

concerning jury instructions and that reversal is justified "only if
prejudicial

error which would result in a miscarriage of justice" would ensue.
[Broward]{.underline}

[County v. Russell]{.underline}, 589 So. 2d. 983, 985 (Fl 4 DCA 1991).
Accord: [Triana]{.underline}

[v. FI-Shock, Inc.]{.underline}, 763 So. 2d. 454, 457-458. (Fl 3 DCA
2000).

Here, the trial court would have been well within its right to decline
to read

F.S. 689.01. The statute (as shown on page 46 of Appellant's Appendix),

20

consists of three sentences. The first sentence -- which comprises the
bulk of

the statute - contains approximately 170 words and includes references
to

"freeholds", "messuages", and "hereditaments". The purpose of jury

instructions is to make "legalese" more comprehensible to the members of

the jury; the trial court obviously believed that the statutory wording
was

"technical", potentially confusing to the jury, and unlikely to be
helpful

to the jury in understanding the issues. A reading of the statute hardly

disputes such a conclusion.

Tunnage did not offer a proposed instruction which would incorporate or

otherwise summarize the essential elements of the statute(s) in
question. He

did not offer or attempt to adapt the language so that the content could
be

communicated to the jury in a clear and comprehensible manner. Instead,

he offered nothing other than a verbatim reading of a statute. The trial
court

was well within its judicial discretion in declining such a request.

The "harmless error" doctrine may also be invoked here. As is noted

elsewhere within this Brief, the content of F.S. 689.01 lacks
significance

due to the applicability of fundamental principles of equity and
estoppel.

A reading of the statute would not have had any meaningful impact on

21

the outcome of this case, given the jury's obvious opinion of Tunnage's

fraudulent dealings with Green.\*

\* Equitable estoppel was not a factor in the various cases cited by
Appellant

in support of the "jury instruction" issue. As noted previously,
however, the court in [Walker v. City of Jacksonville]{.underline},
[supra]{.underline}, noted the absence of evidence in the record that
would support a party's claim of equitable estoppel. The court implied
that such a claim -- if supported -- would have validity, despite
non-compliance with the provisions of F.S. 689.01.

22

> ISSUE IV: THE TRIAL COURT DID NOT
>
> ERR WHEN IT AWARDED
>
> ATTORNEY'S FEES TO GREEN

Appellant argues that Green is not entitled to attorney's fees. Such
fees

were, however, requested by Green in his pleadings. Tunnage did not

challenge this request via a Motion to Strike nor did he challenge

entitlement to such fees via his Affirmative Defenses.

The general rule is that entitlement to attorney's fees must be based on

contract or statute. Here, F.S. 57.105 applies. The jury rejected
Tunnage's

explanations and accepted Green's claim of deception by Tunnage. The
jury

found that Tunnage did not possess a credible or viable defense; it
believed

that Tunnage's defense was without merit and his actions were predicated

upon fraud. It is acceptable for a party to request such fees --even if
they

have not previously been requested -- pursuant to that statute at the

conclusion of the case. [Ganz v. HZJ, Inc.]{.underline}, 605 So. 2d. 871
(FL 1992).

\* Green disagrees with Appellant's interpretation of [Location 100,
Inc. v. Gould S.E.L. Computer Systems, Inc.]{.underline}, 517 So. 2d.
700 (Fl 4 DCA 1987) and [Keys Lobsters, Inc. v. Ocean Divers,
Inc.]{.underline}, 468 So. 2d. 360 (Fl 3 DCA 1985).

These cases deal with fraud and fraud in the inducement in contract
settings; they do not hold stand for the broad proposition asserted by
Tunnage that

attorney's fees may not be awarded in fraud actions.

23

> ISSUE V: ANY ERROR IN REGARD

TO THE FRAUD COUNT

> WAS "HARMLESS ERROR"

Appellant complains about the trial court's finding of fraud by Tunnage

when the jury declined to award money damages to Green. Tunnage's

argument in this regard is without merit.

In his Initial Brief, Tunnage cites two cases for the proposition that a
cause

of action for fraud requires damages. In that context, it is appropriate
to

review the Amended Complaint. After reasserting and reincorporating
prior

paragraphs in the Amended Complaint (including those which deal with

quieting title), Count III of that pleading ("Fraud") alleged in
Paragraph

#63 that as a result of the fraud, Green had been "injured in an amount
of

actual damages in excess of \$15,000 (and) [loss of possession of
Plaintiff's]{.underline}

[properties and income therefrom".]{.underline} (Emphasis added).

Green [did]{.underline} suffer damages as a result of Tunnage's fraud:
Green was denied

clear and unencumbered title to property and all of the incidents and
rights

that accompany ownership and possession. As Green testified, Tunnage's

fraud damaged Green by dispossessing him from his property; the jury's

award of the property to Green rectified this injustice.

24

Even if one assumes [arguendo]{.underline} that the fraud count is
fatally defective and

has not been proven, the Final Judgment nevertheless remains intact. The

finding of "zero damages" does not impose any liability or obligation
upon

Tunnage; any error which may arguably exist in this regard, therefore,
is

harmless. Tunnage has not been harmed by the finding of fraud.

The "zero damage" verdict was undoubtedly attributable to the lack of
proof

that was put forth by Green in his case in regard to actual damages that
had

resulted as a consequence of Tunnage's fraud. As noted within the
[Statement]{.underline}

[of Case and Facts]{.underline} within this Brief, this issue was
addressed during the

questioning of Tunnage at trial and during closing argument. Quite
simply,

the award of "zero damages" was due to the fact that Green had failed to

produce the necessary documentation to support his right to a particular
sum.

While the full extent of the damages incurred by Green may not have been

decisively proven at trial, the fraud was clearly perceived by the jury
and the

damage to Green's title was acknowledged. Green's failure of proof as to
his

entitlement to a sum certain does not alter that fact. By finding that
Tunnage

was guilty of fraud and by quieting title to the properties in question
in favor

of Green, the jury indicated its total rejection of Tunnage's position.
It did

25

not believe Tunnage's version of the "facts" and circumstances
surrounding

the conveyance and subsequent re-conveyance of the quit claim deeds.

Even if the fraud count -- and the express finding that Tunnage was
guilty

of fraud -- is removed from the scenario, there is no change in the
outcome

of the trial (or the effect on Tunnage). Elimination of the "fraud"
count

(and of the appropriate language within the Final Judgment) [still
leaves]{.underline}

[Tunnage with zero indebtedness and still quiets title to the properties
in]{.underline}

[question in favor of Green]{.underline} (pursuant to the "Quiet Title"
action). The jury

believed that Tunnage had tried to defraud Green and thus quieted title

to the properties in favor of Green. [The failure of Green to obtain
an]{.underline}

[award of monetary damages for a cause of action sounding in fraud
is]{.underline}

[separate and distinct from the jury's rejection of Tunnage's defense
to]{.underline}

[the "quiet title action"and the fraud that the jury perceived in that
context.]{.underline}

26

> ISSUE VI: THE TRIAL COURT'S FINAL
>
> JUDGMENT DID NOT EXCEED
>
> ITS AUTHORITY

Appellant objects to language in the Final Judgment that "enjoins
Tunnage

from asserting interest in the subject property". Appellant claims that
this

matter "was neither pled nor tried".

On the contrary, this matter was pled and tried. Green's Amended
Complaint

specifically asked the Court to "quiet title, remove the cloud from
title, and

name him as the rightful owner of the real property in question". The

language that Appellant deems objectionable is merely a statement of
rights

which are incidental to the quieting of title in favor of Green. By
quieting

title (as per Count I of the Amended Complaint), the Court described
those

rights and privileges which flowed logically and naturally from the
Court's

ruling.

In [Commodores Point Terminal Co. v. Hudnall]{.underline}, 283 F. 150
(S.D. Fl. 1922),

the "chief object" of the suit was to quiet title. Since title to real
property

was "the thing in issue", the Court took note of the claims by the
various

parties and wrote:

27

> \(A\) court of equity has and will exercise jurisdiction to
>
> determine the title and adjudicate the rights of all the
>
> parties and grant complete and adequate relief, and to
>
> that end will enjoin the prosecution of the ejectments
>
> instituted by (the other party) for recovery of the interest
>
> claimed by each, and will at the same time enjoin all
>
> threatened actions of ejectment by any and all defendants.

[Id.]{.underline}, at 166, 167.

The language of which Tunnage complains is merely a statement of rights

which accompany and flow from the quieting of title in Green's favor: it

is simply an explanation of the benefits and privileges that attach to
the

finding of the court. "Quieting title" necessarily provides certain
rights

for Green while imposing limitations and restrictions upon Tunnage

(and upon thoise may seek to assert some right to the property through

Tunnage). This was not by way of granting Green relief that had not been

requested or was otherwise inappropriate; it was, instead a detailing of
the

"complete and adequate relief" that was being provided by the Court in

response to the prayer for relief that was contained within Count I of
the

Amended Complaint (as per the finding of the jury).

Appellant's reliance upon [Cortina v. Cortina]{.underline}, 98 So. 2d.
334 (Fl. 1957),

is misplaced. There, the Court found error when a lower court addressed

matters that were "entirely outside of the issues made by the
pleadings".

28

In [Cortina]{.underline}, a lower court had modified the support
provisions of a divorce

order -- despite the fact that the only matter which had been properly
brought

before the Court was a Motion for Contempt due to violation of the

complaining party's visitation rights.

A Motion for contempt (due to violation of visitation rights) is
decidedly

separate and distinct from support issues. Here, however, the entire
case

revolved around the question of entitlement to property. "Quieting"
title is

not separate and distinct from the enjoinder that is contained within
the Final

Judgment; it is instead a statement of the rights that Green may now
assert

and enjoy as a consequence of the jury's verdict in his favor.

29

> [CONCLUSION]{.underline}

For all of the reasons specified within this Brief, Appellee, Clifford
Green,

respectfully requests that this Court enter an Order affirming the Final

Judgment entered by the circuit court.

> 30

[CERTIFICATES]{.underline}

I HEREBY CERTIFY that a true copy of this document has been sent

by mail this day of June, 2006, to: Paula Revene, Esq. , 600 S.

Andrews Ave., #404, Fort Lauderdale, Fl. 33301.

I HEREBY CERTIFY that this Brief is in compliance with the font and

format requirements of this Court and that this Brief is also being sent

contemporaneously to this court by electronic submission.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

ROBERT GARVEN, ESQ.

#300

9900 W. Sample Rd.

Coral Springs, Fl. 33065

\(954\) 755-6665

FL BAR#437905

31