DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SHORELINE FOUNDATION, INC.,

Appellant,

v.

VICTOR BRISK,

Appellee.

No. 4D18-1605

[June 26, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Sandra Perlman, Judge; L.T. Case Nos. CACE 14-020494 

(02), CACE 14-020793 (04).

Steven H. Osber of Conrad & Scherer LLP, Fort Lauderdale and Elliot 

B. Kula, W. Aaron Daniel, and Ashley P. Singrossi of Kula & Associates, 

P.A., Miami, for appellant.

Jeffrey A. Rynor and Loren H. Cohen of Mitrani, Rynor, Adamsky & 

Toland, P.A., Miami Beach, for appellee.

KLINGENSMITH, J.

Appellant Shoreline Foundation, Inc., (“Shoreline”) appeals an 

Amended Final Judgment entered following a jury verdict in favor of 

appellee Victor Brisk. Brisk brought several claims against Shoreline, his 

former employer, but prevailed only on his count alleging breach of 

fiduciary duty stemming from what he claims was a joint venture with 

Shoreline to develop property in the Bahamas. Shoreline contends that 

the evidence was insufficient to establish that a joint venture existed, and 

also challenges the trial court’s order denying entitlement to attorneys’ fees 

under Florida’s Blue Sky Law.1 We agree on both issues and reverse. We 

affirm all other issues raised on appeal and cross-appeal without 

comment. 

In October 2003, one of Shoreline’s principals approached Brisk with 

an opportunity to invest in Hidden Hills, a townhome development in the 

 

1 Chapter 517, Florida Statutes (2015). 
2

Bahamas. Shoreline was developing Hidden Hills in conjunction with a 

Bahamian entity called P&P. Brisk was given the opportunity to purchase: 

(1) a 15% ownership interest in seven of the townhome units Shoreline 

would own; and (2) 15% ownership interest in the 50% of P&P’s shares in 

the Hidden Hills Project that Shoreline would own. The parties entered 

into a written agreement called a “Partial Assignment” that assigned Brisk 

the above ownership interests. Brisk was not a party to the Hidden Hills 

Contract between Shoreline and P&P, but the Partial Assignment 

established Brisk knew about the Hidden Hills Contract: 

5. Acknowledgement. Brisk acknowledges that he is fully 

acquainted with the condominium project which is the subject 

of this agreement and that he will actively participate in the 

development of the project.

(Emphasis added). 

The record shows Brisk was indeed aware of the Hidden Hills Project’s 

status because he was employed by Shoreline as its Controller. There is 

no mention of Brisk’s duties or authority, nor is there any mention of a 

joint venture or partnership between Brisk and Shoreline contained in the 

Partial Assignment.2 

Over the next five years, Brisk continued to invest in the project, 

making contributions toward his share3 totaling $219,600 while 

remaining employed as Shoreline’s Controller. However, Brisk never 

controlled the Hidden Hills Project, and never met with the P&P principals. 

According to the evidence, Brisk’s involvement in the project, aside from 

his financial investment, was limited to occasionally performing 

accounting duties, verifying and paying invoices, and entering those 

expense allocations into the accounting software. 

Unfortunately for the parties, the Hidden Hills Project fell victim to the 

2008 recession. P&P’s construction went into foreclosure, and the 

development went unfinished and unsold. While Shoreline continued to 

make payments on the various mortgages to which Shoreline’s principals 

remained obligated, Brisk was under no such personal obligation for these 

mortgages.

 

2 The Hidden Hills Contract between Shoreline and P&P specifically designated 

the relationship between those two entities as a joint venture. 

3 Under the terms of the Partial Agreement, Brisk’s interest in the Hidden Hills 

Project was proportionate to his actual investment. If Brisk failed to pay the total 

valuation of his 15% share, then his percentage interest would also be reduced. 
3

Soon after, the relationship between Brisk and Shoreline soured, and 

Brisk was terminated from his position as Controller. When Brisk 

correspondingly stopped making payments toward his 15% interest and 

requested a refund of his investment in the Hidden Hills Project, Shoreline 

refused. Brisk then filed a multi-count suit against Shoreline and the 

Shoreline principals (collectively “defendants”) alleging breach of contract, 

fraud, misrepresentation in violation of section 517.301(1), Florida 

Statutes (2015), (the “Blue Sky Law”), breach of fiduciary duty, and civil 

theft, among other claims. Shoreline filed a separate declaratory judgment 

claim to establish Brisk’s continuing duty to make payments under the 

terms of the Partial Assignment. Shoreline’s declaratory judgment claim 

was consolidated with Brisk’s suit for trial. 

At trial Brisk alleged the defendants owed him a fiduciary duty, 

stemming from what he claimed was his role as a joint venturer, to develop 

the Hidden Hills Project. Brisk claimed a joint venture existed because he 

was a “partner” with Shoreline in the Hidden Hills Project and stipulated 

that the only basis for his breach of fiduciary duty claim stemmed from 

this alleged joint venture. Shoreline asserted they did not owe Brisk a 

fiduciary duty because he was not a joint venturer in the Hidden Hills 

Project since the parties merely entered into an “arms-length transaction.” 

All parties agreed that without the existence of a joint venture there could 

be no claim for breach of fiduciary duty. 

At the close of Brisk’s case, Shoreline moved for a directed verdict

arguing there was no evidence to support the existence of a joint venture. 

The trial court denied the motion and ruled that the question of whether 

the parties were engaged in a joint venture was an issue of fact for the 

jury. 

The jury found in favor of the defendants on all claims except for the 

breach of fiduciary duty claim under Count IV of Brisk’s complaint. While 

the jury found that a joint venture did exist between Shoreline, the 

Shoreline principals, and Brisk, they only found that Shoreline and one of 

its principals had breached their fiduciary duty. The jury awarded Brisk 

damages in the amount of $219,600—an amount equal to Brisk’s 

investment in the Hidden Hills Project. As to Shoreline’s declaratory 

judgment claim, the jury found Brisk in breach of the Partial Assignment 

for failing to make the required payments, but did not reduce Brisk’s 

percentage of interest, finding Shoreline had waived the right to any 

reduction by failing to demand the payments per the terms of the Partial 

Assignment.
4

After the verdict, the parties filed various post-trial motions. Shoreline

renewed their arguments on the existence of a joint venture by way of a 

motion for judgment notwithstanding the verdict (JNOV). The court denied 

the JNOV and ruled that Brisk would be awarded $219,600 plus 

prejudgment interest and confirmed he would also retain his 15% interest 

in the project. Final judgment was entered accordingly. 

Shoreline also moved for determination of entitlement to attorneys’ fees 

as the prevailing party on Brisk’s Blue Sky Law claim. Brisk argued such 

an award would be “unjust” because he prevailed on the fiduciary duty 

claim, which he alleged was “inextricably intertwined” with the Blue Sky 

Law claim. Because of the related nature of the claims, Brisk argued that 

he was the prevailing party under the “significant issues test.” Persuaded 

by this argument, the trial court denied Shoreline’s request for attorneys’ 

fees under the statute.4 An Amended Final Judgment was later entered 

incorporating the amount of the prejudgment interest awarded to Brisk for 

prevailing on the breach of fiduciary claim and stating “Brisk owns a 15% 

interest in Shoreline’s interest in the Hidden Hills Project pursuant to the 

Partial Assignment,” and specifically noting that Shoreline’s principals 

were not liable to Brisk. This appeal follows. 

1. Shoreline’s Motion For JNOV 

“We review the court’s denial of a motion for JNOV de novo. A JNOV is 

appropriate only when there is no evidence upon which the jury could rely 

in finding for the non-moving party.” Mulvey v. Stephens, 250 So. 3d 106, 

109 (Fla. 4th DCA 2018) (citations omitted). A motion for JNOV is the 

substantive equivalent of a motion for directed verdict. See Hall v. Ricardo, 

331 So. 2d 375, 376 (Fla. 3d DCA 1976).

Under Florida law, a joint venture occurs “when two or more persons 

combine their property or time or a combination thereof in conducting 

some particular line of trade or for some particular business deal.” Kislak 

v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957). This relationship must arise 

out of a contract. See id.

In order to create a joint venture, a contract must contain the 

following elements: “(1) a community of interest in the 

performance of the common purpose, (2) joint control or right 

 

4 Section 517.211(6), Florida Statutes (2015), provides that “[i]n any action 

brought under this section, including an appeal, the court shall award reasonable

attorneys’ fees to the prevailing party unless the court finds that the award of

such fees would be unjust.”
5

of control, (3) a joint proprietary interest in the subject matter, 

(4) a right to share in the profits and (5) a duty to share in any 

losses which may be sustained.” 

Jackson–Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1089 (Fla.

2008) (quoting Kislak, 95 So. 2d at 515). “The absence of one of the 

elements precludes a finding of a joint venture. Moreover, in a joint 

venture, the parties have the right and authority to bind the others with 

reference to the subject matter of the joint venture.” Id. (citations omitted). 

Joint control “exists when a contract specifically allows both parties to 

control the operations of the venture.” MDVIP, Inc. v. Beber, 222 So. 3d 

555, 564 (Fla. 4th DCA 2017). “A contract of joint adventure is in effect 

one of mutual agency, each adventurer acting as a principal in his own 

behalf and as agent for his co-adventurer.” Marriott Int’l, Inc. v. American 

Bridge Bah. Ltd., 193 So. 3d 902, 906 (Fla. 3d 2015) (quoting Deal Farms, 

Inc. v. Farm & Ranch Supply, Inc., 382 So. 2d 888, 891 (Fla. 1st DCA 

1980)). Thus, “[w]here the actions of one party do not bind the other, joint 

control does not exist.” In re Cuenant, 339 B.R. 262, 276 (Bankr. M.D. 

Fla. 2006). 

Although joint ventures and partnerships are separate legal entities, 

both are governed by the same rules of law. See Sheridan Healthcorp, Inc. 

v. Amko, 993 So. 2d 167, 170 (Fla. 4th DCA 2008). “The ultimate 

determination, however, turns upon the intent of the parties.” Fla. Trading 

and Inv. Co., v. River Constr. Servs., Inc., 537 So. 2d 600, 602 (Fla. 2d DCA 

1988). “Whether two or more persons have created a joint venture between 

themselves depends on their intent, ‘which is to be determined in 

accordance with the ordinary rules governing the interpretation of 

contracts.’” A & A Elec. Servs., Inc. v. Jurado, 198 So. 3d 37, 41 (Fla. 2d 

DCA 2015) (quoting Willis v. Fowler, 136 So. 358, 365 (Fla. 1931)). 

Here, the parties have a written agreement that is unambiguous in 

establishing their relationship. It is evident from the plain language of the 

Partial Agreement that Brisk’s role was that of an investor, not a comanager. Mere contribution of capital, absent the exercise of joint control, 

does not establish a joint venture. See, e.g., Pinnacle Port Cmty. Ass’n, Inc. 

v. Orenstein, 872 F.2d 1536, 1539-40 (11th Cir. 1989) (no joint venture 

where lender “would fund [condominium development] on an ‘as needed’ 

basis” and developer and lender “each had agents on site who had 

independent areas of control,” and “the actions of one did not bind the 

other”) (applying Florida law); cf. Arango v. Reyka, 507 So. 2d 1211, 1213-

14 (Fla. 4th DCA 1987) (holding that sufficient evidence of joint control 

existed to send the issue to the jury where a hospital maintained control 
6

over day-to-day operations such as patient scheduling and group 

assignments). 

Brisk alleges there was competent substantial evidence presented at 

trial from which the jury could have found the existence of a joint venture. 

We disagree. As evidence of joint control, Brisk points to the fact that he 

ran the payroll and cut the checks for the Hidden Hills employees. But 

such duties were within the scope of his employment as Controller—Brisk 

ran payroll and cut checks for the employees of all Shoreline projects—

regardless of whether some work was done on his own time. The evidence 

was clear that when performing bookkeeping and accounting functions, 

Brisk had no real authority to control any of the management or day-today operation decisions relating to the Hidden Hills Project. The fact that 

he made entries into accounting software for Hidden Hills does not equate 

to joint control for the purposes of creating a joint venture. The evidence 

shows Brisk was subject to Shoreline’s control when completing his 

Controller tasks and did so pursuant to authorization from the Shoreline 

principals. Even when Brisk was actively participating in the Hidden Hills

Project outside his role as Controller, he was directed entirely by 

Shoreline’s principals. For instance, although Brisk personally met with 

and extended an offer to a potential investor, this only occurred after one 

of Shoreline’s principals approached Brisk with the idea, approved 

extending the offer, and directed Brisk entirely in the process. 

Brisk’s also argues a joint venture was created based on the trial 

testimony of some Shoreline principals referencing Brisk as a “partner” in 

the Hidden Hills project, or that this evidence at least created a question 

of fact for the jury. While describing Brisk as a “partner” in conversation 

might be sufficient to create “apparent authority” vis-à-vis any dealings 

with third parties, it is insufficient to create either a partnership or a joint 

venture where the intent of the parties and the scope of their relationship 

has been outlined in a formal written agreement between them. See 

Kislak, 95 So. 2d at 514 (“[I]t is now understood that [partnerships and 

joint ventures] are not identical and that decisions defining and describing 

partnerships are not necessarily controlling upon the question of whether 

parties to a particular contract are joint adventurers.”). 

Brisk’s reliance on Barwick v. Alderman, 35 So. 13, 15 (Fla. 1903), to 

establish the creation of a partnership is misplaced. There, the Florida 

Supreme Court held that testimony that an individual was held out as a 

partner is “competent evidence tending to prove the partnership in fact.” 

Id. However, that case dealt with a written contract between the parties 

which was left unexecuted, thus requiring consideration of parol evidence. 

Id. at 16. Here, the parties formalized their intentions with an 
7

unambiguous written contract, making Barwick inapplicable to this 

situation. Moreover, Barwick pertains to the creation of a partnership, not 

a joint venture; it is unclear how referencing an individual as a “partner” 

establishes any of the five elements necessary to create a joint venture. 

Based on the foregoing, we conclude that the evidence overwhelmingly 

fails to support the existence of a joint venture between Brisk, Shoreline 

or its principals. Shoreline never intended for Brisk to share equal control 

in the Hidden Hills Project. On the contrary, the evidence establishes that 

Shoreline—along with P&P—at all times exercised full management control 

over Hidden Hills. Shoreline principals held weekly meetings to manage 

the daily decisions and progress of the Hidden Hills Project; Brisk was 

never invited to attend these meetings and was merely informed of those 

decisions by the Shoreline principals. Shoreline principals also directed 

Shoreline’s employee staffing at the Hidden Hills Project site, including the 

hiring of independent contractors and an attorney. Again, Brisk did not 

participate in these decisions. At best, the evidence shows Brisk was an 

employee of Shoreline, who later became an investor in the project with no 

defined responsibilities or managerial duties. 

The Partial Assignment did not grant Brisk the authority to control or 

bind Shoreline in the Hidden Hills Project, and as such, neither the 

contract nor these statements establish a right to joint control. See, e.g.,

E & H Cruises, Ltd. v. Baker, 88 So. 3d 291, 295 (Fla. 3d DCA 2012) (no 

joint venture where plain language of agreement revealed one party could 

not control the other). There was no competent substantial evidence to 

support the existence of joint control, thus precluding the existence of a 

joint venture. Therefore, Shoreline and its principals were entitled to a 

directed verdict, or alternatively, to a JNOV on Brisk’s fiduciary duty claim.

2. Shoreline’s Motion for Fees under Section 517.211(6) 

A trial court’s determination of whether a party prevails on the 

“significant issues” in litigation so as to designate that party as the 

prevailing party for the purpose of awarding attorneys’ fees is reviewed for 

abuse of discretion. See Olson v. Pickett Downs Unit IV Homeowner’s Ass’n, 

Inc., 205 So. 3d 869, 872 (Fla. 5th DCA 2016) (quoting Moritz v. Hoyt 

Enters, Inc., 604 So. 2d 807, 810 (Fla. 1992)). However, “[t]he 

determination of whether multiple claims within a lawsuit are separate 

and distinct for purposes of attorney’s fees is a matter of law to be reviewed 

de novo.” Leon F. Cohn, M.D., P.A. v. Visual Health & Surgical Ctr., Inc., 

125 So. 3d 860, 863 (Fla. 4th DCA 2013) (quoting Avatar Dev. Corp. v. 

DePani Constr., Inc., 883 So. 2d 344, 345 (Fla. 4th DCA 2004)).
8

“It is well-settled that attorneys’ fees can derive only from either a 

statutory basis or an agreement between the parties.” Waverly at Las Olas 

Condo. Ass’n, Inc. v. Waverly Las Olas, LLC, 88 So. 3d 386, 389 (Fla. 4th 

DCA 2012) (quoting Fla. Hurricane Prot. & Awning, Inc. v. Pastina, 43 So. 

3d 893, 895 (Fla. 4th DCA 2010)). “Florida law permits more than one 

prevailing party in a single lawsuit where each of the claims that support 

a fee award is ‘separate and distinct and would support an independent 

action, as opposed to being an alternative theory of liability for the same 

wrong.’” Leon F. Cohn, M.D., P.A., 125 So. 3d at 863 (quoting Fid. Warranty 

Servs., Inc. v. Firstate Ins. Holdings, Inc., 98 So. 3d 672, 677 (Fla. 4th DCA 

2012); accord Fid. Warranty Servs., 98 So. 3d at 677 (reversing denial of 

fees to defendant that prevailed on one distinct claim). Claims are separate 

and distinct if “they could support an independent action and are not 

simply alternative theories of liability for the same wrong.” Padgett v. 

Kessinger, 190 So. 3d 105, 108 (Fla. 4th DCA 2015) (quoting Avatar Dev. 

Corp. v. DePani Constr., Inc., 883 So. 2d 344, 346 (Fla. 4th DCA 2004)). 

“Chapter 517, commonly known as the Blue Sky Law, governs 

securities transactions.” Citizens Fed. Sav. & Loan Ass’n of St. Lucie Cty.

v. Loeb Rhoades, Hornblower & Co., 473 So. 2d 679, 682 (Fla. 4th DCA 

1984). Section 517.211(6), Florida Statutes (2015), allows a court to 

decline an award of attorneys’ fees to a prevailing party if the court finds 

that the award of such fees would be “unjust.” 

However, “[t]here is little Florida authority construing what the word 

‘unjust’ means within the context of this statute . . . .” Newsom v. Dean 

Witter Reynolds, Inc., 558 So. 2d 1076, 1077 (Fla. 1st DCA 1990). Black’s 

Law Dictionary defines “unjust” as “[c]ontrary to right and justice, or to 

the enjoyment of his rights by another, or to the standards of conduct 

furnished by the laws.” BLACK’S LAW DICTIONARY 1535 (6th ed. 1995). The 

American Heritage Dictionary defines “unjust” as: “1. Being in violation of 

principles of justice or fairness; unfair. 2. Acting in violation of such 

principles; unfair in one’s dealings and actions.” THE AMERICAN HERITAGE 

DICTIONARY OF THE ENGLISH LANGUAGE 1323 (2nd ed. 1985). Webster’s Third 

New International Dictionary defines “unjust” as, “deficient in justice and 

fairness.” WEBSTER’S THIRD INTERNATIONAL DICTIONARY 2501 (2002). 

Although equitable considerations should inform a court’s decision in this 

area, it cannot be said that an award of fees to Shoreline is “unjust” under 

any of these definitions. 

The record shows the trial court declined to award fees under the Blue 

Sky Law to Shoreline for successfully defending against Count III primarily 

because it was persuaded by Brisk’s argument that Count IV, the breach 

of fiduciary claim, was “inextricably intertwined” with the Blue Sky Law 
9

violation and made Brisk the prevailing party on a “significant issue” in 

the case. However, the mere fact that Brisk recovered under only one

claim in his multi-count suit—and, incidentally, did not prevail on any of 

the eight other separate counts he filed—is insufficient to find that an 

award of fees under Section 517.211(6) was “unfair” or “contrary to 

standards of conduct furnished by the laws.” THE AMERICAN HERITAGE 

DICTIONARY 1323 (2d ed. 1985); BLACK’S LAW DICTIONARY 1535 (6th ed. 

1995). 

Here, the claims of breach of fiduciary duty and violation of the Blue 

Sky Law,5 counts upon which each opposing party prevailed, were

separate and distinct claims requiring different allegations of wrongdoing 

and different elements of proof. We therefore reverse the denial of 

Shoreline’s motion for fees and remand with instructions to enter an order 

awarding appellee statutory attorney fees under section 517.211(6), and 

to determine a reasonable amount thereto. 

Affirmed in part; reversed in part and remanded with instructions.

MAY and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

 

5 Section 517.301(1)(a), Fla. Stat.