HOWARD M. DUNN AND SIDNEY ZUKER, PETITIONERS,
v.
HERMAN L. SHAW, RESPONDENT
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The Florida Supreme Court reversed a District Court of Appeal decision that eliminated punitive damages in a stock fraud case, holding that the jury's verdict for punitive damages was properly supported by evidence of malicious and outrageous conduct and reinstating the trial court's judgment in full.
The Court held that the jury's punitive damages award was justified by the conduct, which constituted malicious and outrageous fraud. The District Court majority's finding that the fraud lacked such character was an improper evidentiary conclusion that invaded the jury's province.
[1] A dissenting opinion from a district court of appeal can be considered in determining the existence of a conflict of decisions.
[2] Punitive damages may be awarded in a stock fraud case where the misrepresentation is characterized as malicious and outrageous.
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Join FLexlaw to unlock all legal intelligence“the fraud or misrepresentation could have been malicious and outrageous and that the District Court characterization of such conduct to the contrary was an evidentiary conclusion that invaded the province of the jury”
Establishes that the appellate court improperly substituted its judgment for the jury's on whether the fraud met the malice and outrageousness standard for punitive damages
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Join FLexlaw to unlock all legal intelligenceHerman Shaw, an experienced stock trader with prior convictions for stock fraud, induced two retired plaintiffs (one legally blind) to purchase stock …
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PER CURIAM.
We have reviewed by writ of conflict certiorari the decision of the District Court of Appeal, Third District, in the case of Shaw v. Dunn (1973), 287 So. 2d 404, and find that conflict of decisions exists.
' As reflected by the majority and dissenting opinions, we note that the majority of the District Court concluded that in the instant case the stock fraud was not
“ . . . characterized by malicious and outrageous aggravation.
* * * * , * *
“ . . . that the record is devoid of anything other than a misrepresentation by one stock trader to other persons interested in becoming stock traders. We therefore conclude there is no basis for punitive damages.” 287 So. 2d at 406.
On the other hand, the dissenting opinion of Judge Barkdull states:
“I concur with the revised opinion prepared by Judge Pearson, except for that portion relating to punitive damages. I would affirm the jury award of punitive damages.
“The defendant, who had previous connections with the plaintiffs in their mutual support of Zionist activities, induced the two plaintiffs through misrepresentations to purchase stock. The defendant was much more experienced in stock matters; both the plaintiffs were retired and one was legally blind. The record shows that the defendant had previously been convicted of a crime [stock fraud], and I would sustain the punitive damages award as rendered by the jury verdict. The defendant, who was accustomed to living in a luxurious apartment and driving a Rolls Royce, did not even take the time to attend the trial.” 287 So. 2d 406-407.
That a dissenting opinion of a district court may be considered in determining existence of conflict, see Commerce National Bank in Lake Worth v. Safeco Ins. Co. (Fla.1973), 284 So. 2d 205.
Read together, the instant District Court opinions reflect the majority opinion conflicts with controlling decisions of this Court. Compare Barnett First Nat’l Bank of Jacksonville v. Buie (Fla.1972), 266 So. 2d 657, following Winn and Lovett Grocery Co. v. Archer (1936), 126 Fla. 308, 171 So. 214, and Adams v. Whitfield (Fla.1974), 290 So. 2d 49. Taking into consideration the description of the stock fraud in Judge Barkdull’s dissent, we are not impressed with the attempt of the majority to distinguish the instant case situation from our decisions cited just above. It appears to us the fraud or misrepresentation could have been malicious and outrageous and that the District Court characterization of such conduct to the contrary was an evidentiary conclusion that invaded the province of the jury. The jury under the trial judge’s instructions was well within its province to find the stock fraud misrepresentation justified award of punitive damages.
Finding conflict as we do, the decision of the District Court is quashed with direction that on remand the judgment of the trial court be reinstated in full.
It is so ordered.
ADKINS, C. J., and ROBERTS, ERVIN, McCAIN, DEKLE and OVERTON, JJ., concur. BOYD, J., dissents.
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Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367 (Fla. 4th DCA 1981)…rate violence or oppression, or when the defendant acts wilfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Winn & Lobett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). But, cf., Dunn v. Shaw, 303 So. 2d 6 (Fla.1974). Plaintiffs’ remaining points are without merit and do not require discussion. REVERSED AND REMANDED. BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur. . Amended at trial to “a spacious hunting lodge to look like the artist’…
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Hosp. Corp. OF Lake Worth & Hosp. Corp. of Am. v. Raul Romaguera, M.D., 511 So. 2d 559 (Fla. 4th DCA 1986)…the Supreme Court, and “the jury ... was well within its province to find ... justification]_ The District Court[’s] characterization of such conduct to the contrary was an evidentiary conclusion that invaded the province of the jury.” Dunn v. Shaw, 303 So. 2d 6, 7 (Fla.1974); see also Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla.1978); St. Regis Paper Co. v. Watson, 428 So. 2d 243 (Fla.1983). Turning next to the second criterion, i.e., the nature, extent and enormity of the wrong, we are convinced that t…
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Myron B. Susman v. Schuyler, 328 So. 2d 30 (Fla. 3d DCA 1976)…jury was justified in concluding that punitive damages were properly awarded on both claims against both Susman and Rosenblatt. Glusman v. Lieberman, Fla.App. 1973, 285 So. 2d 29; Adams v. Whitfield, Fla.1974, 290 So. 2d 49; Dunn v. Shaw, Fla.1974, 303 So. 2d 6. Turning to the cross-assignment of error, we believe the trial judge erred in denying the attorney fees as part of the costs of removing the cloud from Schuyler’s title. See: Glusman v. Lieberman, supra, wherein the following is found: * * * * *…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308 (Fla. 1936)
- Buie v. Barnett First Nat'l Bank OF Jacksonville, 266 So. 2d 657 (Fla. 1972)
- In re the use by the trial courts of the Standard Jury Instructions (Civil Cases), 290 So. 2d 49 (Fla. 1974)
- Adams v. Whitfield, 290 So. 2d 49 (Fla. 1974)
- Commerce Nat'l Bank IN Lake Worth v. Safeco Ins. Co. OF Am., 284 So. 2d 205 (Fla. 1973)
- Marwell Jon Smith v. State, 287 So. 2d 404 (Fla. 2d DCA 1974)