3-18-14 Motion for New Trial Deer Valley

8/12/2019 3-18-14 Motion for New Trial Deer Valley

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1 2 4 8 5 S W 1 3 7 t h A v e n u e , S u i t e 2 0 5 | M i a m i , F l o r i d a 3 3 1 8 6 | 3 0 5 - 2 3 4 - 2 0 6 0

IN THE CIRCUIT COURT OF THESEVENTEENTH JUDICIAL CIRCUIT, INAND FOR BROWARD COUNTY, FLORIDA

CIVIL DIVISION

CASE NO. 12-10560 CACE (07)DEER VALLEY REALTY INC.,

Plaintiff,

vs.

SB HOTEL ASSOCIATES LLC, et al.,

Defendants.

))))))))))

PLAINTIFFS MOTION FOR NEW TRIAL

Plaintiff, DEER VALLEY REALTY, INC. (Plaintiff), by and through undersigned counsel

and pursuant to Florida Rule of Civil Procedure 1.530, hereby files its Motion for New Trial, and in

support thereof states:

Introduction

On March 12, 2014, the jury rendered a verdict in favor of Defendants Donald J. Trump and

The Trump Organization on all of Plaintiffs claims.1 For the reasons discussed below, Plaintiff is

entitled to a new trial.

The trial of this matter from March 3rd through 11th was marred by a series of extraordinary

errors, including conduct of the trial judge which was highly prejudicial to the Plaintiff. The judge

exhibited favoritism to Donald Trump in front of the jury including reciting the catchphrase from

Trumps popular TV show, The Apprenticeand lending Trump his glasses on two occasions.

1 Prior to that, at the close of Plaintiffs case in chief, the Court directed a verdict in favor of DefendantTrump Florida Management LLC. This verdict is also challenged, for the same reasons set forth below as toDefendants Donald Trump and The Trump Organization, including, but not limited to, that the manifest weightof the evidence at trial showed that Trump Florida Management LLC was also responsible for the misleadingstatements and omissions indicating that Donald Trump was the developer of the project at issue pursuant tothe Hotel Pre-Opening Agreement and Hotel Management Agreement entered into evidence.


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Meanwhile, the judge was sharply critical of Plaintiffs counsel before the jury numerous times.

Through this conduct, along with other trial irregularities and favorable treatment afforded Trump,

the Court transgressed basic principles of impartiality and fairness underlying the judicial system.

Moreover, allowing the Defendants to repeatedly introduce and argue from the real estate

market crash of 2008-09, over Plaintiffs objection in limine, proved to be a highly prejudicial error

on the part of the Court. This evidence was entirely irrelevant to Plaintiffs claims because, as was

undisputed throughout the trial, Plaintiff sued only to recover its out-of-pocket losses incurred when

the deposits were paid in 2005-06. The irrelevant evidence of the market crash was highly prejudicial

because it confused the jury on the element of causation when there should never have been any

doubt that the loss was caused by Plaintiffs reliance on the misrepresentations and misleading

advertising in 2005-06. Indeed, Defendants counsel made the evidence regarding the market crash

the basis for its leading argument an ultimately successful attempt to mislead the jury on causation

in both their opening and closing, and it was a central point of each of their witnesses testimony.

Not only did the Court erroneously allow Defendants to introduce this evidence, but it then

eviscerated Plaintiffs ability to rebut the evidence by refusing to allow Plaintiffs expert to testify to

factors neutralizing the market crashs effect.

The Court also improperly excluded evidence directly impugning the credibility of

Defendants only fact witness who was not Donald Trump or his top lawyer. Furthermore, the

verdicts were contrary to the manifest weight of the evidence.

Plaintiff is entitled to a new trial as a matter of Florida law.

Legal Standard

As the Fourth District Court of Appeal has held,

The trial judge who must decide whether to grant a new trial on the proffered groundthat some reversible error of law occurred at some point during the trial need only askhimself if there was error and if so whether the error was substantially prejudicial. Inthat instance, the judge is required to sit in essence as an appellate judge. If he


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concludes that reversible error has been committed, the judge is obliged to grant

a new trial on the same basis that an appellate court would do so.The power ofappellate review over the trial judge's resolution of such alleged errors is quite broad,the appellate court being on an equal footing with the trial court.

For v. Robinson, 403 So. 2d 1379, 1382 (Fla. 4th DCA 1981) (emphasis added).

Ultimately, the party moving for new trial must convince the trial judge that it is reasonably

clear that substantial rights have been violated to the extent that a fair trial was not had.

Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 584 (Fla. 2d DCA 1996) (emphasis added).

The trial judge has a duty to grant such a motion when the jury has been influenced by

extraordinary considerations, misled by the force and credibility of the evidence, or when the

verdict fails to comport with the manifest weight of the evidence. Pierce v. Nicholson Supply

Co., 676 So. 2d 70, 71 (Fla. 2d DCA 1996) (emphasis added). Other grounds warranting a new trial

include fundamental error, defined as error which deprives a party of a fair trial error which an

objection and a curative instruction could not have prevented, and which gravely impairs a calm

and dispassionate consideration of the evidence and the merits by the jury . Hernandez v.

Feliciano, 890 So. 2d 401, 405 (Fla. 5th DCA 2004) (emphasis added).

Inadmissible evidence constitutes grounds for a new trial where the evidence likely results in

jury confusionas to the issues and evidence considered. Goldman v. Bernstein, 906 So. 2d 1240,

1241 (Fla. 4th DCA 2005) (emphasis added). A new trial is warranted whenever irrelevant,

prejudicial evidence is improperly introduced. Probkevitz v. Velda Farms, LLC, 22 So. 3d 609,

615 (Fla. 3d DCA 2009) (citing Shaw v. Jain, 914 So. 2d 458, 460-61 (Fla. 1st DCA 2001) (emphasis

added)).

Argument

I. The Grossly Improper Display Of Judicial Favoritism Toward Donald J. Trump During

His Testimony Was Highly Prejudicial And Fundamentally Erroneous


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Donald J. Trump and his companies were on trial for fraudulent conduct and misleading

advertising in connection with the sale of units in the Trump International Hotel & Tower in Fort

Lauderdale. One of the fundamental issues in this case was Mr. Trumps credibility. But the Courts

conduct impeded Plaintiff from attacking Mr. Trumps credibility by propping him up in front of the

jury.

In Vaughn v. Progressive Casualty Insurance Co., 907 So. 2d 1248, 1252 (Fla. 5th DCA

2005), the court stated,

It cannot be too often repeated, or too strongly emphasized, that the function of a ...trial judge is not that of an umpire or of a moderator at a town meeting. A trial isnot a game of sportwhere umpires engage in heated discussion with players who

have allegedly broken the rules, and it is not a town meeting where moderators scoldcitizens who promote their self-interests or voice their grievances in a manner andwith language unbecoming the solemnity of a courtroom. Rather, a trial is a formalproceeding where every litigant is entitled to nothing less than the cold

neutrality of an impartial judge charged with the duty to ensure that everygrievance is fairly resolved in accordance with the rules of evidence and trialprocedure.

(footnote and citations omitted) (emphasis added). See also id. (Trial judges must be fair,

impartial, and disinterested participants in the proceedings. It is their obligation to see that

justice is done and to that end, they have no more important duty than to ensure that the facts are

properly developed through compliance with the rules of evidence and trial procedure and that those

facts relevant and material to the questions at issue are fairly and properly presented to the jury.

(emphasis added)). As the Fourth District Court of Appeal has held, All litigants, whether

represented by an attorney or proceeding pro se, are afforded equal access to the courts, and are

entitled to a just and fair proceeding no matter how adversarial it may become. Lingle v. Dion, 776

So. 2d 1073, 1078 (Fla. 4th DCA 2001);see also Pistorino v. Ferguson, 386 So. 2d 65, 66 (Fla. 3d

DCA 1980) (The courts of this state are firmly committed to the proposition that the due process

guarantee of a fair trial contains in its core the principle that every litigant is entitled to nothing less

than the cold neutrality of an impartial judge. (emphasis added)).


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A. The Eyeglasses Incident: You Want To Borrow These, Sir?

At trial, the Court eradicated the impartiality of the forum during the testimony of Mr. Trump

in the Defendants case in chief. While Mr. Trump was under questioning, the trial judge offered his

eyeglasses for the purpose of assisting Mr. Trump in reading certain documents.

THE COURT: You want to borrow these, sir?2

THE WITNESS: I need them I think. Do you mind?

THE COURT: No I dont.

THE WITNESS: Oh, boy. Oh thats much better.

THE COURT: Thats a first, by the way. See? Thats the first.

THE WITNESS: Just too vain. Thank you, Your Honor.

Trial Transcript, March 10, 2014, at 45:17-44:2.

Later on, Mr. Trump borrowed the Courts spectacles a second time.

THE WITNESS: Could I use your glasses again, Your Honor? Is thatpossible? I hate to do this to you.

BY MR. RUSSOMANNO:

Q. Can you, Mr. Trump

THE COURT: I know youre there, but I cant see.

BY MR. RUSSOMANNO:

Q. Mr. Trump, if you could, can you, and its just a short paragraph, can youplease read that paragraph, the caption, and whats in there to theladies and gentlemen of the jury.

A. Yes.MR. RUSSOMANNO: And, Your Honor, this is the first time in this whole trialthat Ive asked anybody to read.

THE COURT: I hear a voice but I dont know where it comes from.

2 In contrast, when Plaintiffs representative Michael Goodson, 72 years old, left his glasses at counseltable, the judge did not offer to lend him his glasses. See Trial Transcript, March 3, 2014 at 9:10.


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Trial Transcript, March 10, 2014, at 93:3-21. Upon reading a paragraph from the Prospectus while

using the judges glasses, Mr. Trump then commented, Thank you, Your Honor. Those are good

glasses. Id. at 94:17-18.

In providing Mr. Trump his glasses, the judge created the appearance of a cordial and trusting

relationship between the Court and the Defendant. The act was the extension of a favor to Mr. Trump

by the Court literally assisting the Defendant with his testimony played out right in front of the

jury. The exchange also afforded Mr. Trump the opportunity to compliment the judge on the quality

of his glasses, and to thank the judge for his assistance. This was manifestly improper, and shattered

the appearance of an impartial proceeding while countering Plaintiffs ability to attack the credibility

of the witness which was at the very heart of the case. Indeed, the Court emphasized the unusual

nature of the conduct as it extended the glasses to Mr. Trump.

But then it got even worse.

B. The Court To Donald Trump: Youre Fired.

At the conclusion of Mr. Trumps testimony, the following exchange occurred:

THE COURT: You may step down, sir. Youre excused.Youre fired.

I had to do it. Sorry.

THE WITNESS: Nice to meet you. Take care, Your Honor.

Trial Transcript, March 10, 2014 at 95:5-8.

The exchange between Mr. Trump and the Court resulted in uproarious laughter from the

audience. While the audience reaction is not apparent from the transcript, it was captured by the

television camera recording the proceedings.3

3 Along with the trial transcripts, the video taken of portions of the trial will be filed with the Court.


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It was utterly improper for the Court to initiate this exchange with the Defendant. Youre

fired! is the tagline from Mr. Trumps popular reality TV show, The Apprentice. It was not at issue

in this case and referenced nowhere in the record. By invoking the tagline, the judge acknowledged

Mr. Trump as a celebrity with a popular show on TV, and turned what was supposed to be a

solemn courtroom proceeding into something more reminiscent of a reality show episode . The

judge suggested to the jury that he was a fan of The Apprenticewith the inference that the Court likes

Mr. Trump and his show. The result was to support Mr. Trump as a good guy and likeable

celebrity in front of the jury, and to elicit visible feelings of goodwill from the jury to the Defendant.

As such, any impartiality associated with the trial left after the glasses incident was utterly destroyed.

These errors alone require a new trial.

II. Further Trial Irregularities Improperly Favored Trump At The Expense Of The

Plaintiff

A. Donald Trump Also Received Favorable Treatment From Broward County

Outside Of The Courtroom

On the day of his testimony, Donald Trump also received unusual and favorable treatment

outside of the courtroom.

As reported by Local 10 News, Mr. Trump was given a Broward Sheriffs Office (BSO)

police escort to the courtroom, was permitted to use the judges private parking lot, and was allowed

to enter through the judges private entrance. Each of these special perks militated against the

impartiality and fairness of the forum.

B. Courthouse Personnel Prevented Plaintiff John Taglieri From Entering The

Courtroom During Mr. Trumps Testimony

The Courts favorable treatment of Mr. Trump extended to the point of preventing Plaintiff

John Taglieri from entering the courtroom and attending h is own tr ialwhile Mr. Trump was

testifying. As set forth in the accompanying affidavit of John Taglieri, when Mr. Taglieri arrived

outside the courtroom, Mr. Trumps testimony had already begun, but an officer from the Broward


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Sherriffs Office was stationed outside the door and declined him entry for approximately 20-25

minutes. See Affidavit of John Taglieri.4 By Florida statute, it is illegal to exclude parties from a

proceeding. See 90.616(2), Fla. Stat. (2013); Goodman v. W. Coast Brace & Limb, Inc., 580 So.

2d 193 (Fla. 2d DCA 1991) (reversible error where lower court excluded party from the trial). This

outrageous fact alone is grounds for a new trial.

C. Courthouse Personnel Barred The Public And The Press From Attending

Portions Of The Trial

As the Florida Supreme Court has held, both civil and criminal court proceedings in Florida

are public events and adhere to the well established common law right of access to court proceedings

and records. Barron v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988). A trial is

a public event. What transpires in the court room is public property.... There is no special perquisite

of the judiciary which enables it, as distinguished from other institutions of democratic government,

to suppress, edit, or censor events which transpire in proceedings before it. Id. (quoting Craig v.

Harney, 331 U.S. 367, 374 (1947)). Public trials are essential to the judicial systems credibility in

a free society. Barron, 531 So. 2d at 116.

At trial, the Court violated this basic precept of a free society, not only when it prevented Mr.

Taglieri from attending portions of his own trial, but also during the deliberation phase. While the

jury was still deliberating in the jury room and as observed by undersigned counsel, the bailiff locked

the doors to the courtroom and covered the windows with paper to prevent the news camera outside

from filming the proceeding. This action violated the publics right of access, and is further grounds

for a new trial.D. The Trial Judge Improperly Scolded, Ridiculed And Expressed Contempt For

Plaintiffs Counsel In Front Of The Jury Throughout The Trial

4 Plaintiffs counsel did not learn of the exclusion of Mr. Taglieri until after the trial was over.


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In his conduct of the trial, the presiding judge must make every effort to remain fair and

impartial. Seaboard Coast Line R. Co. v. Wisenfeld Warehouse Co., 316 So. 2d 567, 569 (Fla. 1st

DCA 1975). Inasmuch as the trial judge has, or at least should have, the absolute confidence and

respect of the jury, he should be extremely careful in his remarks and actions to insure that nothing he

says or does might be construed by the jury as being either critical of an attorney or of the attorney's

case. Id. The failure to abide by this duty constitutes reversible error. Id. See also Medina v.

Variety Childrens Hosp., 438 So. 2d 138, 139 (Fla. 3d DCA 1983) (when a trial judge believes that

an attorneys conduct is improper, it is error for him to criticize or take any disciplinary action against

the attorney in the presence of the jury); Vaughn v. Progressive Cas. Ins. Co., 907 So. 2d 1248, 1253

(Fla. 5th DCA 2003) (When the trial court believes that counsel's misbehavior or improper conduct

warrants rebuke, the trial court must attempt to do so in a manner that does not disfavor one party to

the jury.).

Here, the Court admonished, ridiculed, and scolded Plaintiffs counsel throughout the trial and

in front of the jury. This conduct was prejudicial on its own, and even more so when contrasted with

the favoritism exhibited by the Court toward Mr. Trump.

In chronological order, the following remarks by the Court were improper:

1. During the re-direct examination of Plaintiff John Taglieri conducted byElizabeth Lee Beck, the Court addressed Plaintiffs counsels table and remarked,

Are you hiding Mr. Beck? (Mr. Beck had his head down at that moment because

he was looking at his notes in preparation to take the direct examination of the next

witness). See Trial Transcript, March 3, 2014, at 148:1-6.

2. Later during Mr. Taglieris re-direct, the Court interrupted Ms. Becksquestions and initiated the following exchange:

THE COURT: How much coffee did you have at lunch?


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MS. BECK: I actuallyI actually, Your Honor, I just had some

french fries. I really didnt have anything. Im just trying to save

time.

THE COURT: Yeah. But Im getting a tightness in my chest.


3. Then before Mr. Taglieris re-redirect, the Court addressed Ms. Beck andgratuitously commented on the state of her marriage to co-counsel Mr. Beck:

THE COURT: Why dont you give him [Mr. Beck] a chance totalk to you. It would be in the best interest of yourrelationship that you do that.

Trial Transcript, March 3, 2014, at 167:21-24.

4. In the middle of Roy Stillmans direct testimony, as Mr. Beck was taking Mr.Stillman through the critical documents showing that Donald Trump was never a

developer of the project, the Court interjected,

THE COURT: Mr. Beck, its 4:25. Its really tedious.

MR. BECK: Im sorry?

THE COURT: Tedious.

MR. BECK: And I apologize.

THE COURT: The jury has been sitting since 9:30. This is difficultat4:30 p.m.


5. Further on in Mr. Stillmans testimony, the judge warned Mr. Beck he mightthrow something at him if he didnt speed up the questioning:

THE COURT: Isit really necessary that take this amount of

time just to determine a page number to an exhibit? Could

you just help us out with that, please, Mr. Beck, so we can move

forward? Sir, please.


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MR BECK: If it please the Court. I think the difficulty of is that

the pages in the Prospectus arent numbered.

THE COURT: Well, can you tell us the exhibit then? Theres an

exhibit name and number thats in it. Something. This is not

good use of our time.

MR. BECK: I understand.

THE COURT: Ive never thrown anything at a lawyer yet.

MR. BECK: Okay.

THE COURT: Dont tempt me.


6. Later in Mr. Stillmans testimony, the judge ridiculed Plaintiffs counselspreparation:

THE COURT: People think lawyers dont have a sense of humor

but would it have been a challenge to put them in numerical

sequence based upon date? Apparently so.

MR. BECK: Its entirely my fault.

THE COURT: So they threw them up in the air, they shuffled it

the way they did and thats how you got them.


7. Just minutes into her cross-examination of Mr. Trump and in front of the jury,the Court threatened Ms. Beck with terminating the exam on the spot:

THE COURT: Okay, maam. Ask a direct question without referenceto the name of any other case or any other project at this point, oryour cross-examination will be concluded.


8. The Court continued to criticize Ms. Beck in front of the jury during Mr.Trumps testimony and accused her of playing to the television cameras:

THE COURT: . . . Please move on. And they say Im not apatient person.


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THE COURT: Im sorry, maam. Its not fair to the jury. Maybegood TVbut not good for the jury.5


9. During the direct examination of Plaintiffs rebuttal expert, J.M. Padron, theCourt suggested Plaintiffs counsel was trying to surprise the jury with matters outside

of Mr. Padrons expert report, even though the report specifically rebutted the report

prepared by Defendants expert Dr. Fishkind:

THE COURT: Okay. But first of all, the fact that the jury is hearingthat is totally inconsistent with my instruction from Day One. But

since youve now done it the way we prepare is they get reports andyou prepare based upon whats in there. There are no surprises.

Trial Transcript, March 10, 2014, at 127:22-128:4. And even after Plaintiffs counsel

proceeded to demonstrate that these matters were addressed in Mr. Padrons report,

the Court permitted only extremely limited testimony to begin to rebut the market

crash evidence testified to by Dr. Fishkind.

10. During closing, Plaintiffs counsel analogized the case to paying for aMercedes but getting a Dodge and stated, theres nothing wrong with a Dodge. I

drive one myself, ladies and gentlemen[.] The Court subsequently interjected, A

Viper or a Dart? What? suggesting that Mr. Beck might drive a high-end Dodge, an

incorrect insinuation that Mr. Beck had to correct on the record.


All of these remarks were inappropriate, had no place in front of the jury, and further eroded

the impartiality of the forum.

5 Ironically, it was the trial judge who cocked his head toward the courtroom audience containing thetelevision camera, delivering the Youre fired! line, followed by, I had to do it. Sorry.


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III. The Court Improperly Allowed Defendants To Introduce Evidence Of The 2008-09

Market Crash, Which Was Totally Irrelevant And Confused The Jury

A. The Market Crash Evidence, Which Was The Sole Basis For Defendants

Confusing Causation Argument, Should Have Been Excluded

On January 28, 2014, Plaintiff moved in limine to exclude any evidence or argument relating

to the market crash as a cause of Plaintiffs damages, noting that mention of the crash was

irrelevant and would be misleading and confusing to the jury. See Plaintffs Notice of Joinder in

Motion inLimineon Damages Evidence. The Court denied the motion by order dated February 14,

2014.

Under Florida law, a denial of a motion in limine before trial is sufficient to preserve the

evidentiary objection for appeal without renewing the objection at trial. See 90.104(1)(b), Fla. Stat.

(2013); Stokes v. State, 914 So. 2d 514, 516 n.2 (Fla. 4th

DCA 2005).

Here, the market crash evidence should have been excluded, because it was irrelevant and

confused the jury on the issue of causation, which was an element of each of Plaintiffs claims. One

of Defendants principal strategies at trial was to argue that the market crash caused Plaintiffs loss as

opposed to the misrepresentations in the advertising. In his opening statement, Defendants counsel

mentioned the 2008-09 market crash or bank failures 11 timesas being the cause of Plaintiffs loss.

This evidence was also a centerpiece of each of the Defendants fact witnesses testimony, as well as

the only subject testified to by their expert. And during closing, where the market crash or bank

failure was invoked some 13 times, the notion that the market crash caused Plaintiffs loss (as

opposed to Trumps misrepresentations) was Defendants leading argument.

Based on the evidence at trial, this argument was misleading, confusing, and incorrect as a

matter of law. For the causation element of each of Plaintiffs claims, and as reflected in the final

jury instructions, legal cause as taken from the standard instructions is defined in the following terms:

Misrepresentation of a material fact is a legal cause of loss or damage if it directlyand in natural and continuous sequence produces or contributes substantially to


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producing such loss or damage, so that it can reasonably be said that, but for themisrepresentation, the loss or damage would not have occurred.

(emphasis added).

Here, based on the definition of causation, the market crash of 2008-09 could not possibly

have been the cause of Plaintiffs loss because the deposits the sole source of the out-of-pocket loss

sued for were paid in 2005-06. But forTrumps misrepresentations, Plaintiff would not have paid

those deposits, and there was no evidence at trial to the contrary. See Totale, Inc. v. Smith, 877 So.

2d 813, 815 (Fla. 4th

DCA 2004) (for claims seeking out-of-pocket damages, the crucial time for the

measurement is the time of the fraudulent representation. Later appreciation or depreciation of the

property that is subject of the false representation generally does not alter the fraud damage

computation.).

Indeed, at the close of Defendants case in chief, the Court itself recognized the irrelevance of

the market crash in trying to dissuade Plaintiffs counsel from calling their rebuttal expert:

THE COURT: So where are we going with the effect of a market on acondominium hotel in 2008 and 2009? How can you bring an expert in tosay its not daytime in South Florida?

MR. BECK: Your Honor, there has been a suggestion and I think itsbeen made repeatedly to the jury that it would have made no sense for

our clients to close on these units in 2009.

I think the jury is entitled to hear about why somebody in fact would havemade out very well given the recovery of the economy since then.

THE COURT: But these unitsthis building just sold for 60 percent of whatit cost to build it. Youre heading down treacherous territory.

Neither one of your clients said I would have closed and held it even thought Icouldnt live in it. Even though Trump wasnt going to manage it. Eventhough I found out he wasnt the developer. I would have closed and I wouldhave held on to it if given the chance. They never said that.

So, the fact that somebody might have, how is that germane?

MR. BECK: They were led into this project because


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THE COURT: Thats your case.Everything that happened afterwards is irrelevant. Your whole case is

what caused them to sign the contracts to begin with. So why are we well, its your decision. I could let them go. We could spend the afternoonpreparing for closing in the morning. Its up to you.

Trial Transcript, March 10, 2014 at 119:10-120:23 (emphasis added).

Unfortunately, the jury was confused by the repeated references to the market crash. During

deliberations, the jury asked a single question, showing that while it was inclined to find the

advertising misleading, it believed any loss was not caused by the misrepresentations: If the jury

believes that advertisements may have been misleading but agree that the

misleading/advertisements have not caused the plaintiff financial loss, how do we proceed to

deliberate further? Trial Transcript, March 11, 2014, at 149:4-9. And Defendants did not produce

a shred of evidence on the causation element of Plaintiffs claims other than the misleading market

crash evidence.

The admission of market crash evidence and argument therefrom constitute reversible error

and are grounds for a new trial.

B. The Court Improperly Refused To Allow Plaintiff To Rebut The Market

Crash Evidence

The failure to exclude this evidence was reversible error on its own. That said, the Court

further compounded the problem when it refused to allow Plaintiff to rebut the evidence through its

rebuttal expert.

Even though the market crash of 2008-09 was completely irrelevant to the issue of whether

the misrepresentations caused Plaintiffs loss of deposits paid in 2005-06, once the evidence was in,

Plaintiff should have had the opportunity to rebut the effect of the misleading market evidence and

establish that improving market conditions since 2009, coupled with the income unit owners would

have enjoyed from the hotel program, would have overtaken the effect of the market downturn in the

long term. Plaintiffs rebuttal expert J.M. Padrons report addressed these issues in noting that


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Defendants experts report: (1) failed to consider Plaintiffs exit strategy in purchasing the unit,

which necessarily includes cash flow analysis and time horizon in purchasing the unit; (2) used an

irrelevant time range of 2007-2011 to analyze the market value of the Trump project units; and (3)

used a flawed analysis to determine a 40% decrease in just value of Broward County

condominiums from 2006 to 2013.

However, when Mr. Padron began testifying regarding the market recovery since 2009 as well

as income Plaintiffs would have enjoyed from the hotel units in the years after the crash, the Court

cut off the testimony, stating, the current value was purely speculative. Purely speculative and not

for jury, and Thats outside the jurys consideration. It didnt happen. We have that as fact. The

building is empty. Trial Transcript, March 10, 2014, at 127:22-128:4, 129:8-11. Having allowed in

the improper market crash evidence, it was further improper, and only served to compound the

original error, to eviscerate Plaintiffs ability to rebut the evidence through Mr. Padrons testimony.

For all of these reasons, Plaintiff is entitled to a new trial.6

IV. The Court Erroneously Precluded Plaintiff From Challenging The Credibility Of

Defendants Witness Julius Schwarz

Defendants called four witnesses at trial: (1) Donald Trump; (2) Donald Trumps top lawyer,

Alan Garten; (3) an $800-an-hour expert witness, Dr. Hank Fishkind; and (4) Julius Schwarz.

Of Defendants witnesses, only Schwarz who testified he was Gartens friend was not

either a Defendant, a corporate representative of a Defendant, or a hired expert. Yet at trial, the Court

prevented Plaintiff from establishing Schwarzs lack of credibility.

6 Additionally, as Plaintiff previously indicated in moving to exclude Dr. Fishkinds testimony, it wasan abuse of discretion and reversible error for the Court to allow Defendants severely late and improperdisclosure of Dr. Fishkind, which effectively forced Plaintiff to retain Mr. Padron (who had already beenretained in the relatedAbercrombiematter) as the rebuttal expert or face having no rebuttal expert at all. SeePipkin v. Hamer, 501 So. 2d 1365 (Fla. 4th DCA 1987) (late-disclosed experts should be excluded to averttrial by ambush);Fla. Marine Enters. v. Bailey, 632 So. 2d 649, 652 (Fla. 4th DCA 1994) (trial court shoulduse its discretion to strike improperly disclosed witnesses to prevent the objecting party from being forced tochoose between frantic last-minute discovery and an unjustified delay of her trial).


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The ability to expose an improper impetus for a witness testimony is an essential component

of the right to a jury trial. Smith v. State, 98 So. 2d 632, 637 (Fla. 4thDCA 2012) (quotingLove v.

State, 971 So. 2d 280, 285 (Fla. 4th

DCA 2008)). Extrinsic evidence is admissible for collateral

impeachment as evidence which would discredit a witness by pointing out the witnesss bias,

corruption or lack of competency. Smith, 98 So. 2d at 637 (quoting Correia v. State, 654 So. 2d

952, 954 (Fla. 4th

DCA 1995) (citingDempsey v. Shell Oil Co., 589 So. 2d 373, 377 (Fla. 4th

DCA

2012))).

At trial, the Court erroneously prevented Plaintiffs counsel from inquiring as to extrinsic

evidence demonstrating the improper impetus for Schwartzs testimony, including his bias as a

witness. Plaintiffs counsel was prevented from asking Schwarz whether as of November 2012,

Donald Trumps attorney had threatened to file a major, multimillion dollar lawsuit against

Schwarz personally in connection with a settlement in another lawsuit involving the same project.

SeeNovember 20, 2012 letter from Alan Garten to Julius Schwarz (marked as Exhibit A, not in

evidence, in court file). The jury was entitled to hear about the sword of Damocles wielded by

Donald Trump over Schwarzs head as the latter testified for the Defendants because the threatened

multimillion dollar lawsuit went to straight to the heart of Schwarzs credibility. And Schwarz was

the lone defense witness who was not Donald Trump himself, a Trump lawyer, or a hired expert. But

the Court inexplicably prevented Plaintiff from presenting this evidence to the jury.

The Courts ruling makes even less sense given that inDomenico Bartucca et al. v. SB Hotel

Associates LLC, Case No. 13-8560-CACE-07 (17th

Jud. Cir., Broward Cty., Fla.) a bench trial

involving the same development conducted before the same trial judge the Court found Schwarzs

testimony to be economically motivated, and therefore not credible, due to the very same litigation

threat from Donald Trump. If this evidence was relevant and admissible to establish Schwarzs lack

of credibility inBartucca, how could the very same evidence not be relevant or admissible to


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establish Schwarzs lack of credibility in this case? The Courts ruling makes no logical sense and

severely prejudiced Plaintiffs ability to expose Schwarz as a non-credible witness on the stand.

A new trial is warranted for this reason too.

V.

The Verdict Was Against The Manifest Weight Of The Evidence

Finally, the verdict was against the manifest weight of the evidence, and a new trial is

required for this reason as well.

A motion for new trial based on the claim that a jury verdict is against the manifestweight of the evidence is somewhat unique in our jurisprudence. The trial court isnot limited to merely reviewing the record to determine if the verdict is supported bycompetent, substantial evidence. Brown v. Estate of Stuckey, 749 So.2d 490, 496(Fla.1999). Instead, the trial court must take into account [its] contact with the trial

and [its] observation of the behavior of those upon whose testimony the finding offact must be based. Id.(citing Cloud v. Fallis,110 So.2d 669, 673 (Fla.1959)). Inthis regard, the trial judge has broad discretion to engage in some limitedreweighing of the evidence to determine if the verdict was so contrary to the weightof the evidence that it constituted a miscarriage of justice or unjust verdict.Brown,749 So.2d at 495. The rationale for the trial courts extraordinary discretionin this regard is that it supplies the only check against a jury that has reached anunjust decision on the facts.Id.In doing so, however, [t]he role of the trial judge isnot to substitute his or her own verdict for that of the jury, but to avoid what, in thejudges trained and experienced judgment, is an unjust verdict.Id.50 State Sec. Service, Inc. v. Giangrandi, __ So.3d __, 2013 WL 6212039, *4 (Fla. 3d DCA

Nov. 27, 2013).

As the Florida Supreme Court has explained, in evaluating a motion for a new trial on the

ground that the verdict was contrary to the manifest weight of the evidence:

Clearly, it is a jury function to evaluate the credibility of any given witness.Moreover, the trial judge should refrain from acting as an additional juror.Nevertheless, the trial judge can and should grant a new trial if the manifest

weight of the evidence is contrary to the verdict. In making this decision, the

trial judge must necessarily consider the credibility of the witnesses along

with the weight of all of the other evidence.

. . .

[T]his Court has repeatedly held that the trial judge has broad discretion in ruling ona motion for a new trial on the grounds that the verdict is contrary to the manifestweight of the evidence. A trial judge has the responsibility to draw on his [or her]


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talents, his [or her] knowledge, and his [or her] experience to keep the search for thetruth in a proper channel, and the trial judge should always grant a motion for a newtrial when the jury has been deceived as to the force and credibility of the evidenceor has been influenced by considerations outside the record. Cloud [ v. Fallis], 110So.2d [669], 673 [ (Fla.1959) ]. The trial judges discretion permits the grant of anew trial although it is not clear, obvious, and indisputable that the jury was

wrong. When a trial judge grants the motion for a new trial, he or she mustarticulate the reasons for the new trial in the order.

Van v. Schmidt, 122 So.3d 243, 253 (Fla. 2013).

Here, all of Plaintiffs claims required proof of substantially overlapping legal elements. The

manifest weight of the evidence shows that Plaintiff met its burden on each of the elements.

A. False And Misleading Statements/Omissions

The manifest weight of the evidence shows that the Defendants made false and misleading

statements and omissions in the advertising and disclosures for the condominium hotel. These

materials represented that Donald J. Trump was a developer when he was not. See, e.g., Trial Ex. 2

(letter signed by Donald J. Trump: It is with great pleasure that I present my latest development,

Trump International Hotel & Tower, Fort Lauderdale. This magnificent oceanfront resort offers the

finest and most luxurious experience I have created. (emphasis added)). None of the disclosures

stated that Donald Trump was not a developer. Indeed, in its one question to the Court, the jury

indicated it believes that advertisements may have been misleading. Trial Transcript, March 11,

2014, at 149:4-9. And at the preliminary charge conference, the trial judge agreed. See Trial

Transcript, March 5, 2014, at 7:16-19 (and respectfully all the materials, materials, all the sales

materials to initially induce someone to go forward were misleading. They were.).

B. Scienter

The manifest weight of the evidence also shows that the misrepresentations were made

intentionally by the Defendants and with their knowledge. All of the evidence showed that the

advertising and legal disclosures were created with Donald Trumps authority. All of the evidence

showed that Donald Trump was never a developer and that he knew this fact.


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C. Reliance

All of the evidence at trial shows that the Plaintiffs relied and justifiably/reasonably relied on

the misrepresentations. Defendants provided noevidence to contradict the testimony that Plaintiffs

relied on the misrepresentation that Donald Trump was a developer. And they also put forward no

evidence to show that this representation was dispelled in the legal disclosures.

D. Intentionality

All of the evidence at trial shows that the Defendants intended for Plaintiffs to rely on the

misrepresentations. The misrepresentations appeared in advertising, the purpose of which was to

induce members of the public to pay deposits for units. All of the evidence at trial shows that Donald

Trump-developed projects carry a substantial premium in the marketplace.

E. Causation

All of the evidence at trial shows that the misrepresentations caused Plaintiffs loss because

they paid deposits in 2005-06 in reliance on the misrepresentations. But for the misrepresentations,

the manifest weight of the evidence shows that Plaintiffs would not have incurred the loss.

Defendants put forth no evidence on causation other than the market crash, which occurred in

2008-09 and therefore could not have been a cause of the loss. As discussed above, the market crash

evidence was confusing and should never have been admitted.

Because the verdict was contrary to the manifest weight of the evidence on each of Plaintiffs

claims, it should be vacated and a new trial ordered.

Conclusion

Plaintiff is entitled to a new trial as a matter of law.

~signature page follows~


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DATED: March 18, 2014RESPECTFULLY SUBMITTED,

/s/ Elizabeth Lee BeckJared H. Beck

Fla. Bar No. [email protected];[email protected];[email protected] Lee BeckFla. Bar No. [email protected];[email protected];[email protected]

BECK & LEE TRIAL LAWYERS

12485 SW 137th Avenue, Suite 205Miami, Florida 33186Tel.: 305-234-2060; Fax: 786-664-3334

Attorneys for Plainti ff


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CERTIFICATE OF SERVICE

I hereby certify that on March 18, 2014, a true and correct copy of the foregoing

PLAINTIFFS MOTION FOR NEW TRIAL

was sent by e-mail to:

Herman J. Russomanno, Esq.Robert J. Borrello, Esq.Herman J. Russomanno III, Esq.Russomanno & Borrello, P.A.Museum Tower, Penthouse 2800150 West Flagler StreetMiami, FL 33130Fax: [email protected];[email protected];[email protected] for Defendants Donald J. Trump,

Trump Organization, LLC and Trump

Florida Management, LLC

/s/ Elizabeth Lee Beck

Elizabeth Lee Beck

Documents

3-18-14 Motion for New Trial Deer Valley