By Miguel Rivera
Felix 'Tutico' Zabala of All Star Boxing has once again prevailed in court over two-division world champion Saul 'Canelo' Alvarez.
Last June in a Miami court room, Canelo was cracked with a jury verdict which directed him to $8.5 million to former promoter Zabala.
For several years, there was an ongoing lawsuit between Zabala and Golden Boy Promotions/Canelo.
Zabala claimed that Canelo signed a four year promotional contract in 2008, but then violated that contract when he signed a promotional agreement with Golden Boy in 2011. The jury exonerated Golden Boy, but ordered Canelo to pay $8.5 million to Zabala - ruling that the Florida based promoter introduced Canelo to Golden Boy and helped jump start his career in the United States.
Of course Canelo vowed to appeal the jury's verdict and he filed two motions. One motion was to dismiss the verdict and other was for the court to order a new trial.
Both motions were denied, according to two separate orders, which BoxingScene.com has obtained:
MIAMI COURT ORDER 1
Defendant contends that the Court should grant its Renewed Motion for Directed Verdict and dismiss this case because Plaintiff’s principal, Felix Zabala (“Zabala”) has perpetrated a fraud upon the court. “[A] trial court has the inherent authority to dismiss an action as a sanction when the plaintiff has perpetrated a fraud on the court.” Morgan v. Campbell, 816 So. 2d 251, 252 (Fla. 2d DCA 2002); see also Ramey v. Haverty, 993 So. 2d 1014, 1018 (Fla. 2d DCA 2008).
“A trial court's power to dismiss a case based on fraud should be cautiously and sparingly exercised and then only on ‘the most blatant showing of fraud, pretense, collusion or other similar wrongdoing.’” Laurore v. Miami Auto. Retail, Inc., 16 So. 3d 862, 864 (Fla. 3d DCA 2009) (quoting Young v. Curgil, 358 So. 2d 58, 59 (Fla. 3d DCA 1978)); see also Tri Star Invs., Inc. v. Miele, 407 So. 2d 292, 293 (Fla. 2d DCA 1981). The test for determining whether dismissal is appropriate is set forth in Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998), which explains:
The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117–18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party's misconduct is correspondingly egregious.” Id. at 1118.
Further factors for the Court to consider are whether: (1) the other party has been “so prejudiced by the misconduct that it would be unfair to require [the party] to proceed further in the case,” (2) the party's misconduct has put “an intolerable burden” on the court by “requiring the court to modify its own docket and operations in order to accommodate the delay,” or (3) the court finds it necessary “to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.” Webb v. D.C., 146 F.3d 964, 971 (D.C. Cir. 1998)(quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071 (D.C.Cir.1986)); see also Butera v. D.C., 235 F.3d 637, 661 (D.C. Cir. 2001). Because the inherent judicial power of the court “must be exercised with restraint and discretion,”
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991), a court may use such power to enter a sanction as severe as dismissal or default judgment only if it finds, first, that there is clear and convincing evidence that the fraudulent or bad faith misconduct occurred, and second, that a lesser sanction “would not sufficiently punish and deter the abusive conduct while allowing a full and fair trial on the merits.” Shepherd v. Am. Broad. Cos. Inc., 62 F.3d 1469, 1472 (D.C. Cir. 1995). Moreover, in order to warrant dismissal, the party’s conduct must demonstrate “a scheme calculated to evade or stymie discovery of facts central to the case.” Bologna v. Schlanger, 995 So. 2d 526, 528 (Fla. 5th DCA 2008); see also Perrine v. Henderson, 85 So. 3d 1210 (Fla. 3d DCA 2012).
However, “[a] trial court has a duty and an obligation to dismiss a cause of action based upon fraud.” Long v. Swofford, 805 So. 2d 882, 884 (Fla. 3d DCA 2001). Florida courts have repeatedly determined that dismissal is the proper sanction where a plaintiff lies under oath, and where those falsehoods go to the heart of the claim and subvert the integrity of the process. See Williams v. Miami-Dade Cnty. Pub. Health Trust, 17 So. 3d 859 (Fla. 3d DCA 2009); Austin v. Liquid Distribs. Inc., 928 So. 2d 521 (Fla. 3d DCA 2006); Metro. Dade Cnty v. Martinsen, 736 So. 2d 794 (Fla. 3d DCA 1999).
The Court finds that Plaintiff did not commit a fraud upon the Court. Specifically, the Court finds that Zabala’s testimony was not false. Zabala was asked questions in deposition and at trial relating to whether he had altered the contract with Defendant Alvarez after Defendant had signed it. Zabala denied ever doing so. Although Defendant Alvarez argues that Zabala’s testimony in this regard was not truthful, the Court finds that there is no record evidence to support Defendant Alvarez’s position. The record does not contain any contract with missing term or a “blank contract” that had been signed by Defendant Alvarez. In relation to this issue, it appears that the parties dispute the meaning of what constitutes a “blank contract” and whether Zabala was authorized to fill in certain terms in the parties’ Exclusive Promotional Agreement. These disputes are contrasting issues of fact, but simply because Defendant disagrees with Plaintiff does not rise to the level of Plaintiff having perpetrated a fraud on the Court.
The Court further finds that Plaintiff has not filed sham pleadings. “A pleading is considered a sham when it is inherently false and based on plain or conceded facts clearly known to be false at the time the pleading was made.” Upland Dev. of Cent. Fla., Inc. v. Bridge, 910 So. 2d 942, 944 (Fla. 5th DCA 2005). To constitute a “sham,” a pleading must appear clearly false, as a pretense set up in bad faith, and without color of fact. Ader v. Temple Ner Tamid, 339 So. 2d 268, 270 (Fla. 3d DCA 1976). Defendant Alvarez’s claim is that Plaintiff’s reference in the Complaint to the parties’ execution of the Exclusive Promotional Agreement is false because Defendant Alvarez did not sign the document which was attached to the Complaint. The timing of the signatures and the insertion of information after Defendant signed the document was raised on several occasions before the Court and was argued before the jury. Again, the Court finds that this issue is one involving a matter of disputed fact, i.e., whether Plaintiff inserted information in the Exclusive Promotional Agreement with or without the authority or knowledge of Defendant Alvarez after Defendant had signed the Exclusive Promotional Agreement. The allegations in the Complaint do not rise to the level of a pleading that is “clearly false, as a pretense set up in bad faith, and without color of fact.”
The Court also finds that the record evidence does not support Defendant Alvarez’s argument that evidence was manufactured by Zabala. There were no fact witnesses or expert witnesses who testified as to the authenticity of the documents which Defendant Alvarez claims were manufactured or fabricated. The Court also finds that the documents which Defendant Alvarez relies upon in support of this argument were not “critical” or “material” to the issues to be resolved by the jury and, thus the arguments raised by Defendant Alvarez, both at trial and at this stage, relate to matters that are collateral to the issues in dispute.
Therefore, it is ORDERED AND ADJUDGED as follows: Defendant’s Motion is DENIED.
MIAMI COURT ORDER 2
THIS CAUSE came before the Court on Defendant Saul Alvarez’s Motion for Remittitur or For New Trial (“Defendant’s Motion”), and the Court having reviewed Defendant’s Motion and the Court file, having heard argument of counsel and being fully advised in the premises, the Court FINDS as follows:
This case was tried before a jury over 13 days from May 23, 2016 until June 13, 2016. On June 13, 2016, the jury returned a verdict in favor of Defendants Alvarez (“Alvarez”) and Golden Boy Promotions, Inc. (“Golden Boy”) and against Plaintiff All Star Boxing, Inc. (“ASB”) on ASB’s Breach of Contract and Tortious Interference claims. However, the jury returned a verdict in favor of ASB and against Alvarez on the Unjust Enrichment claim, and awarded ASB $8,500,000. Alvarez timely moved for remittitur of the jury’s verdict on the unjust enrichment claim, or, alternatively for a new trial on unjust enrichment damages.
The Florida Legislature has provided trial courts with the discretionary authority to review a jury’s damages award for excessiveness or inadequacy in light of the facts and circumstances that were presented to the jury. See § 768.74(1), (6), Fla. Stat. (2015). In exercising such discretion, a court must consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.
§ 768.74(5), Fla. Stat.
Although courts must give “close scrutiny” to damages awards, the Legislature did not lose sight of the principle that a “fundamental precept of American jurisprudence” is that the reasonable actions of a jury “should be disturbed or modified with caution and discretion.” § 768.74(6), Fla. Stat. The party challenging the jury’s award bears the burden of showing it was “unsupported by the evidence, or that the jury was influenced by passion or prejudice.” Bould v. Touchette, 349 So. 2d 1181, 1184 (Fla. 1977) (quoting Talcott v. Hall, 224 So. 2d 420, 422 (Fla. 4th DCA 1969)); see also Chaskes v. Gutierrez, 116 So. 3d 479, 491 (Fla 2d DCA 2013).
Defendants’ request for a remittitur is not subject to being granted given that the record evidence does not support a determination that the amount of damages is so excessive that it shocks the judicial conscience and indicates that the jury has been influenced by passion or prejudice. Weinstein Design Grp., Inc. v. Fielder, 884 So. 2d 990, 1002 (Fla. 4th DCA 2004); see also City of Delray Beach v. Desisto, 197 So. 3d 1206, 1210 (Fla. 4th DCA 2016).
Rather, the Court finds that the jury’s award is supported by the evidence presented at trial. Namely, the evidence supports the jury’s finding that ASB conferred a direct benefit on Alvarez.
The Court finds that there was substantial evidence at trial that ASB conferred a direct benefit on Alvarez that facilitated, and was necessary to, Alvarez’s financial success. Among other things, the record contains testimony from Felix Zabala, ASB’s principal, wherein he testified that Alvarez and he agreed that ASB would promote Alvarez, and that pursuant to that understanding, Zabala obtained an immigration visa for Alvarez; established a plan for Alvarez’s career; promoted fights for Alvarez; paid expenses for Alvarez, his trainer and his manager; and arranged for Alvarez to participate in numerous fights in Mexico in order to groom him and cultivate a healthy fan following in Mexico.
In addition, newspaper articles and video footage supported that testimony, showing Zabala by Alvarez’s side at numerous fights and press conferences. ASB’s boxing expert, Arthur Pelullo, testified that the promotional efforts made by ASB were typical and necessary to build a young fighter’s career.
Florida law recognizes that unjust enrichment exists where one provides services with the expectation of eventual compensation, those services benefit the recipient, and the provider does not receive fair value for the services. Media Servs. Grp., Inc. v. Bay Cities Commc'ns, Inc., 237 F.3d 1326, 1330-31 (11th Cir. 2001); see also BAC Fin. Servs. Inc. v. Multinat’l Life Ins. Co., No. 13-21529, 2013 WL 5929428, at 3* (S.D. Fla. Nov. 5, 2013).
As such, the Court finds that the evidence supports a determination that ASB’s services conferred a direct benefit on Alvarez.
The Court also finds that the record evidence demonstrates that the jury’s award reflects the value of the benefit ASB conferred on Alvarez.
Florida law is clear that the measure of damages in an unjust enrichment claim is “measured in terms of the benefit to the owner, not the cost to the provider.” Tooltrend, Inc. v. CMT Utensili, SRL, 198 F.3d 802, 807 (11th Cir. 1999) (applying Florida law) (emphasis added); see also Restatement (Third) of Restitution and Unjust Enrichment §§ 49(3)(a), (c) (2011) (“Enrichment from the receipt of nonreturnable benefits may be measured by … the value of the benefit in advancing the purposes of the defendant ... [or] the market value of the benefit.”).
The jury was properly instructed that if it found Alvarez was unjustly enriched, one of the appropriate measures of ASB’s damages was “the value of the benefits that Defendant Saul ‘Canelo’ Alvarez received from ASB’s labor and expenses.”
Alvarez argues that ASB failed to provide its damages with reasonable certainty.
“The burden of proof is more rigorous with respect to the fact of damage than to the amount of damage. A plaintiff must show to a reasonable degree of certainty that some damage occurred, while a relaxed burden of proof [applies] to ascertainment of the amount of damage.” Slip-N-Slide Records, Inc. v. TVT Records, LLC, No. 05-21113-CIV, 2007 WL 3232274, at *10 (S.D. Fla. Oct. 31, 2007) (quoting Alphamed Pharm. Corp. v. Arriva Pharm., 432 F. Supp. 2d 1319, 1342 (S.D. Fla. 2006))(emphasis in original); Christopher Adver. Grp., Inc. v. R & B Holding Co. Inc., 883 So. 2d 867, 871 (Fla. 3d DCA 2004) (law does not contemplate that damages must be calculated with mathematical exactness); G.M. Brod & Co., Inc. v. U.S. Home Corp., 759 F.2d 1526, 1538 (11th Cir.1985) (proof of damages may be indirect and based upon assumptions and estimates, as long as the assumptions rest on adequate data).
Moreover, it is clear that “[u]ncertainty as to the amount of damages or difficulty in proving the damages will not prevent recovery if it is clear that substantial damages were suffered as a result of the wrong.” Slip-N-Slide Records, Inc. at *9 (S.D. Fla. Oct. 31, 2007) (citing In re Jet 1 Ctr., Inc., 335 B.R. 771, 788 (M.D.Fla.2005)).
There was substantial evidence presented at trial regarding ASB’s labor on behalf of Alvarez, and regarding the value of the benefit that such labor conferred on Alvarez.
The fact that Alvarez’s profits were considered to determine the value of his career does not mean that the jury mistakenly awarded ASB’s lost profits.
It is the province of the jury to weigh the evidence, assess credibility, and consider conflicting expert testimony. J & H Auto Trim Co., Inc. v. Bellefonte Ins. Co., 677 F.2d 1365, 1373 n.12 (11th Cir.1982) (“The very essence of [the jury's] function is to select from among conflicting inferences and conclusions that which it considers most reasonable. That conclusion ... cannot be ignored.”).
Although ASB submitted to the jury that its lost past profits were $24,000,000, the jury did not improperly utilize that measure of damages and instead awarded ASB the sum of $8,500,000.
Finally, the Court determines that the amount awarded by the Jury is within the parameters established by the evidence. The evidence submitted to the jury supports its findings regarding the benefit conferred on Alvarez’s career, and the amount by which ASB contributed to that value.
The evidence at trial established that the value provided by a promoter is necessarily proportional to the boxer’s earnings, which can vary according to many factors. The verdict is, therefore, supported by the evidence. Further, the Court does not find record evidence to support the contention made in the motion that counsel for ASB instructed the jury to improperly award lost profits.
MOTION FOR NEW TRIAL
The Court has a duty to grant a new trial only where “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., Inc., 676 So. 2d 70, 71 (Fla. 2d DCA 1996).
“A new trial should not be granted unless it is reasonably clear that substantial rights have been violated to the extent that a fair trial was not had.” N. Dade Imp. Motors, Inc. v. Brundage Motors, Inc., 221 So. 2d 170, 176 (Fla. 1st DCA 1969); see also Lindsey v. Johnson, 415 So. 2d 778, 780 (Fla. 1st DCA 1982). “If an error has been preserved, the legal standard the trial court uses in deciding a motion for new trial is whether the error is so pervasive or prejudicial that the injured party is denied the right to a fair trial.” Hasegawa v. Anderson, 742 So. 2d 504, 506 (Fla. 2d DCA 1999), citing Gregory v. Seaboard System R.R., Inc., 484 So. 2d 35, 39 (Fla. 2d DCA 1986).
The Court does not find record evidence that demonstrates that the jury did not understand the jury instructions or was confused as to the law governing their duty. The Court also finds that the statements made by counsel for ASB in closing arguments do not rise to the level of comments that warrant a new trial. Alvarez has not demonstrated that, based on ASB’s counsel’s comments, Alvarez was deprived of a fair trial.
The Court’s decision regarding the proposed “Unclean Hands” instruction is not in error and does not entitle Alvarez to a new trial. To the contrary, the Court found that there was no evidence presented to substantiate Alvarez’s proposed “Unclean Hands” instruction. Cuozzo v. Ronan & Kunzl, Inc., 453 So. 2d 902, 904 (Fla. 4th DCA 1984).
The arguments raised by Alvarez as to purported evidentiary errors in the trial are not supported by the record and, thus, do not entitle Alvarez to a new trial.
Accordingly, Defendant’s Motion is DENIED.