long time one of the busiest districts in the country the middle district of florida will serve together as chief she is a leader in the judiciary she's always picked and chosen to serve on committees the chief justice very well respected very this case is don't be upset by the results you didn't get with the work eat into this court should vacate the jury's verdict reverse final judgment and remain this case for entry of judgment for mr right  mr amos is claimed for fraud because as a matter of law he did not and could not establish reasonable reliance or proximate cause ation where in the record did you raise that argument before the district court in the third transcript from february eleventh two thousand and sixteen on page one ninety eight and miss what was the argument there we feel that the evidence has not been sufficient as a matter of law to create a genuine issue to go to the jury as to the claims of mr amos's for fraudulent inducement and then at the close of evidence right claimants reasserted the same motion but chose quote not to spend any more time arguing about whether or not there are issues of fact for the fraud on each side isn't that essentially a concession that you are not arguing that you know the fraud was that we said it was a fact issue right there was a can go the it was a reiteration of the prior argument that the trial court shut down that as a matter of law should have been entered on the fraud claim due to mr amos's failure to establish the elements of a fraud claim i thought your argument was primarily in your brief and orally what ratification and a waiver tie bargain there were other arguments thrown into the motion for judgment of the as a matter of law but orally at trial in two places this argument was race in preserved it wasn't as articulate as it could have been but the law only requires that it be preserved and that that ground to be stated it was closely related to the arguments made in this appeal and there's no surprise there was no mention of reasonable reliance though that argument to element well it's a burden that there were he did not meet his burden of  and proximate cause are elements of the cause of action for fraud reason our alliances and sensually a fact based argument and in that very generic sort of touching on they show there was no discussion of why the facts were inadequate or anything of that nature to tip the judge off that that's what you were focusing on it could have been a more articulately made argument i agree but it was still mr burton and mr amos his burden to prove each adversary indicates there's plenty of support in the record anyway for the jury's decision and that they that they had jury could have concluded he made various misrepresentations about the property why didn't you speak that argument actually the fact of the misrepresentation is not the basis of the appeal the basis is that mr amos was a sophisticated businessman experienced in real estate he had the burden to show that any misrepresentations that allegedly were made he had the right to rely on and that those misrepresentations caused the damages that he saw mr amos did not make any reasonable investigation before signing the guarantees or before signing the operating agreement in his words he took mr wright's word for it this was an arm's length transaction mr right did not owe mr amos a duty to disclose anything most had the responsibility to make sure that the properties listed in the operating greenman were uncomfort one of the properties in the operating agreement actually said it wasn't cumbered so he had an obligation to go out make sure that mr right wasn't lying to him he had an obligation to make sure that what he was signing was accurate he had no right to rely on mr wright's representations orally about anything because it was an arm's length transactions between two sophisticated real estate businessmen and an arm's length joint venture when when a lay person goes out and buys a house they do a title search they hire an attorney they don't just sign the mortgage they just don't sign the closing papers mr ramos took mr wright's word for it and he has a sophisticated businessman who testified that he knew the guy you can tell somebody i'm going to sell you a house i own it and i say i'm going to buy you and if i screw up on the title search or whatever good for the guy that lived he gets away with such an argument you know in that particular case you have a lay person to lay people you're not dealing with an arm's length transaction where you have two sophisticated businessmen held to a higher standard than the average lay person mr this is not so much sophistication as outright lying is that your client misrepresented his if the facts are in front of you and they belong what you are being told mr ford the safe harbor estate property mr amos said that mr wright misrepresented in a prior agreement that he owned that property free and clear but the actual operating agreement which by its terms superseded that prior agreement set on its face this property has a three point eight million dollar mortgage on it they call it there's an explanation for that and isn't  all just aren't these all just questions of fact for the jury in terms of whether there was a misrepresentation yes in terms of reasonable reliance in proximate cause ation no those aren't questions of fact reasonable wrong you know because he would have the if he if mr amos had testified that he did even the minimal due diligence before he signed that agreement if he had asked to see the documents referenced in the operating agreement if he had asked to see the promissory note for the get blank guarantee he was signing there could have been a question of fact he didn't do anything he relied on the coral word of a businessman and that is not enough reasonable reliance under the law under butler versus you some it's not enough he is held to the standard of what a reasonable investigation would have revealed if he had gotten the promissory note from the bank before he signed that guarantee he would have seen on the face of the note it said this is a four point million dollar loan to purchase safe harbor states he didn't get that promissory note he signed the blank aaron t and testified at trial he knew the consequences of signing a blank aaron t but he signed it anyway he also testified at trial that as to those two properties lot one sixty and property b there's all these different names of properties in there he knew they were encumbered when he signed the agreement but he signed it anyway because mr wright allegedly puffed that he could get rid of the incumbrances and he believed him in terms of the noriega property to the extent there was a misrepresentation which is not clear that would be a question of fact but signing a guarantee signing an operating agreement without checking the records to see if that property was uncovered if mr wright truly did have a transferable interest if there were any liens attached the property he did not do his homework and that is not reasonable in an arm's length transaction that lack of reasonable alliance also destroys the ca link between his damages and the misrepresentation so while there could have been a misrepresentation of a misrepresentation made that created a question of fact the court should have entered judgment as a matter of law because the reasonable reliance and proximate cause ation elements were missing mr right and the right claimants also countersued mr amos for breach of the operating agreement and for fraud mr amos defended on fraud and for the same reasons he could not state  case for fraudulent inducement he could not state a defense for fraud and that should not have gone to the jury to the extent a new trial is ordered on mr right the right claim is claim for breach of contract mr wright should be allowed to testify at retrial as to the value of the block c property the right claimants alleged that mr amos fraudulent lea misrepresented the value of the biloxi property but the district court would not allow mr wright to offer his opinion as to what that value was mr wright was a licensed real estate broker in two states he was a sophisticated businessman he was the managing director of its who had a legal bright to own that property mr right testified that he reviewed it's his business records and with his experience that bolstered his competence to testify confidence is not based on title the fact that he was not the owner of the property is not dispositive it's whether he had the information standing in that position to offer a competent opinion as to the value and the record reflect in conclusion the right claim is request that this court reversed the denial of judgment as a matter of law against mr amos on his claim and defense of fraud vacate the jury's verdict remain and for entry a final judgment against mr a most honest claim and defense of fraud and order a new trial on the rights claimants breach of contract and fraud claims and to allow mr wright to testify at that retrial as to the value of the c was the plaintiff sued mr amos won his guarantee so you have the f d i c the plane to be amos and then mr amos bought an answer and then a third party claim against mr right for the fraud mr right then  against mr amos for breach of the contract mr amos had no breach of contract claim but he then affirmatively defended own the breach of contract claim on two basis one that a pre contract to a fraud was committed and then also that there were material breaches of the contract by mr right which relieved mr amos so procedurally you had a two part trial which is why you get so many different representations or misrepresentations by mr wright admitted into the evidence throughout because you had the pre contract or a fraud issue which was solely the note the promissory note getting him to sign the guarantee and the fraud related to that and then you had the defense of fraud issues related to the host of misrepresentations that were made i think there was a lot of factual issues discussed that we do want to address to judge powers one question about whether was brought up page two of the reply brief cites to in total the page one ninety of the transcript which talks about the where the opposing counsel brought up the the issue of the in the motion and all the words are there and you're right reasonable reliance is not mentioned at all reasonable reliance being in a firm a defense that was not played was not sought to be played nor even mentioned even  at that late stage and one of your arguments is that you have not preserved the issue that is to be the keystone of their appellate issue which was reasonable reliance was not shown that was not focused on the motion for judgment judgement of the matter  carnoustie the argued the defense of reasonable reliance would have been a defense that they wouldn't need to seek to add they didn't add it they did was no evidence brought out towards it throughout the trial whether it's reasonable or not although you could take some of the cross examination of mr amos about his sophistication is kind of leading towards that but more importantly for today's purposes and for appellate purposes when the when the motion was brought at the conclusion of the evidence there was no mention of it at all the reasonable reliance it wasn't mentioned  the first time i heard of it having gone through the trial was in the appellate briefing first time it specifically attempted to be references and page two of reply brief a couple of the facts that are interesting and i don't want to retry the case because the case is already  concluded and and everything that would relate to the facts really falls under the abuse of discretion standard but we talked about noriko point and it's interesting the transformation of that argument he said he owned it then at trial he turned it into his testimony in this is it  page thirty one he turned it into i had a contractual interest in it and then admitted a contract unsigned into this court into the record for the jury to review to represent his contractual interest then on cross exam beginning on page thirty one we presented him with a signed version it needed the unsigned version without explanation which said he had a contractual interest then we admitted on cross exam we presented him with a signed version by both parties but he used another action to sue those other parties so he filed another federal action to enforce the contract it was signed and guess what the signed version doesn't give him that contractual interest so he lied about owning it then he came to the court and tried to pass off an unsigned contract that said he owned it he turned owning it into contractual interest then he went to this jury and said here's how i owned it then when we we're on cross exam well here's a signed contract why doesn't it have the same details well it's different ok with us different reason i just drove into those facts and we're going to dive into the ones about biloxi in safe harbor here in a minute is to show that that reasonableness there was a representation of ownership there was then as late as trial a further representation that changed the nature of the ownership and then even if it took as late as cross examination a trial to for the truth to come out if you would so that's that's one aspect just as to noriega lot one sixty is interesting it is acknowledged and they point to this acknowledgment it has always had an a spoils easement over it it's a layman could recognize that because it is the only piece of beachfront down in the destined past with nothing on it so something's wrong with it and it has an army cor of engineers oils easement that was allow them to dump the spoils from the dredging of the past mr wright representation which to which we took no issue with was that he could get it removed that was his puffing that really wasn't the subject matter of any of the multiple fr issues but he also didn't own it he also had no contractual interest in it and it also had five million dollars of debt on it that he didn't disclose so the fact that he could or couldn't have gotten that done is is is was not true because he didn't get it done but but all those facts are most interesting let's go to his house they call it safe harbor that's what he called it in the in the glossy materials it was his house they hadn't paid the insurance on in a year he hadn't paid his taxes and he hadn't paid his debt to a bank bank was in the fall this bank i pointed out the procedural posture so you saw it from the beginning where that was going under it was taken over by the f b i see for a series of bad loans to include this one these bank officers the c eventually put them in prison for bank fraud on a series of straw transactions this being one of them the bank officers on mr right came up with the idea to refinance the house by getting new blood on the guarantee that was mr amos they took a bad debt on his house sold it as a project refinance to buy transfer in a wind company to another and mr amos signed that guarantee and therefore they could book the loan as a good loan that's what happened those bank officers went to jail for that transaction and three others so on lot one sixty the red misrepresentations were fast this free and clear argument only becomes relevant because it wasn't and the loan was past due and the loan that they took out the mr amos guarantee didn't go to develop it that was the fraud not the amount not that he was going to get a loan because he knew those things but that it that money that money didn't come out and go to develop safe harbor  is to pay off mr wright's bad debt and to bring the bank's loan back into good standing that's the fraud and for those reasons the jury found the reliance element even though reasonable reliance was in pled  that it was reasonable i think is implicit in that reliance element of a fraud and the jury certainly had no issue with finding reliance lasting one talk about blocks of property because it was mentioned and of course we only get there if the court reverses and then there's the issue but i mean you just mentioned where they went with this is a case the salvage and surplus case in florida weintraub and it extends this notion in florida law that an owner can testify as to the value of their property so you start with an owner in florida can testify as the value of the real property that's a principle of law weintraub salvage surplus case extends that to a corporation and it says this an officer of a corporation can testify as the value of the real property owned by the corporation if if they can establish that that officer is sufficiently familiar with the operations of the company the books and records of the company and the asset because you couldn't just put some straw person up with as with an officer title and then they become an appraiser that's what this whole thing is about is an end run of the appraisal aspect that value of a real property is an expert opinion versus a layman's opinion that's how we get to this rule so in the weintraub case in all the cases a follow the key element is that it's an asset that the company oh means you heard the twist because i just heard it not heard it at trial mr wright was a manager of it said i t s a it did not own the biloxi property it didn't own it so you've missed that huge critical element that it has to be the value of the property that the company owned what they said was it's a has a contractual interest well that's not enough because the exceptions already broad enough and it's no case that's ever expanded it and if you have a contractual interest then that turns you into the professional appraiser of the value of the property that you're going to buy that law doesn't exist in florida now but let's go further and drill down into that for other he was or he was a realtor in florida the property was in mississippi he was presented in his deposition with five appraisals over the years of the blocky property and on all but one of them two thousand and ten on the other four he said i don't have sufficient knowledge to tell you whether that's a good number or not i don't know so he turns i don't know one five different appraisals and in two thousand and ten the only one that he said anything about is he had said he had scott's concerns about its value he turned that i don't know into a later trial effort to be an expert on the value that's that's the end of that first of all it's a didn't didn't didn't own it but second of all he had already testified that he didn't have the knowledge he can't now grow the knowledge because they didn't have an appraiser and that's what the trial court found so we never get to a scenario where mr right as a member of it gets to testify about property that it's it doesn't own in another state which he's not licensed in a scenario where he's already testified he doesn't know the battle with that and if there's no for the questions i will concede the rest of my time thank you please the court opposing counsel made an issue of sting point in arguing against the lack of reasonable reliance and proximate cause ation counsel said that that defense was not preserved below but reasonable reliance and proximate cause ation not a defense it's part of the prime aphasia case that his client was required to meet for this case to go to a jury but for you to preserve that only you know you have to alert the district judge as part of the motion for judgment a matter of law that that is the point on which you think there was a defect improve and what he said there was no hint of that but as well just cards that the record belies that the record shows that twice on february eleventh two thousand and sixteen and again on the next day his lawyer said that the evidence has not been sufficient to create a genuine issue of fact as to the claim of fraudulent inducement there are two cases which support that that issue was preserved the first cases ramirez at six eighty six f three d twelve thirty nine a litigant is failure to raise a specific argument in a rule fifty a motion does not waive appellate review if as here the argument involves a pure issue of law there were no disputed facts as to what mr ramos relied on the only question was was that reasonable and that is a question of law the other case is for that same proposition and there's a third case i apologize ross versus rhodes furniture one forty six f three d twelve eighty six if there is no surprise and the arguments are closely related the fact that they are not identical does not mean it's weight the arguments made at the close about didn't and at the close of trial was that he did not state a claim of fraudulent induce ment to go to the jury and he didn't if there are no more questions we will rest right thank you thank you