Guthartz v. Park Centre West Corp. ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-10048 NOV 16, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 9:07-cv-80334-KAM
ALAN GUTHARTZ
lllllllllllllllllllll Plaintiff - Appellant
versus
PARK CENTRE WEST CORP.,
4685 HAVERHILL, INC.,
SHINING STAR RANCH, INC.,
BARNETT GUTHARTZ,
JANET BARRY,
lllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 16, 2010)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Alan Guthartz sued his father, sister, and three corporate entities
under 28 U.S.C. § 2201(a) seeking a declaration that he is the rightful owner of at
least a portion of the three corporate defendants. Having reviewed the record and
decision below, we find that the district court committed neither errors of fact nor
law and, thus, affirm.
Alan Guthartz alleges that, ten years prior to commencing this lawsuit (and
one year before her death), his mother mailed him three “stock powers” for shares
of ownership in three companies owned by his parents.1 According to the
appellant, he placed the stock powers in a fireproof box where he left them for a
decade, not appreciating their significance. Around the time that his father
attempted to evict him from the family’s New York home, the appellant, claiming
to be a shareholder, attempted to inspect the records of the three corporate
defendants. The defendants, appellee on this appeal, disputed appellant’s
allegations and accused him of altering old corporate documents that were left in
the family home. Furthermore, defendants presented evidence that, even if
appellant’s allegations were true, they would not have effected a transfer of
1
A “stock power” is a power of attorney that allows the current owner of a registered
security to transfer that ownership to another. The testimony showed that stock powers
traditionally accompany security certificates when there is a present or possible future need to re-
assign ownership, such as in the context of loan collateralization. The shares in dispute were
uncertified.
2
corporate ownership under Florida law or entitled appellant to access of the
corporate records. The court below ruled for the defendants, finding that
appellant’s father and mother owned the corporations as tenants by the
entirety—making a unilateral transfer of shares impossible—and that appellant’s
father lacked any donative intent to effectuate a transfer of the shares.
Furthermore, the court found that, even taking appellant’s allegations as true, the
purported transaction did not conform to the requirements of Florida common law
or the Uniform Commercial Code (“UCC”).
On appeal, we review the district court’s conclusions of law de novo, and its
findings of fact for clear error. Mitchell v. Hillsborough County, 468 F.3d 1276,
1282 (11th Cir. 2006). The district court made two clear findings of fact in this
case: (1) that appellant’s father and mother owned the corporations in dispute as
tenants by the entirety; and (2) that, even if one assumed appellant’s story to be
true, appellant’s father did not have the donative intent required to transfer
ownership of the assets to his son. The appellant argues that the former
determination is clearly erroneous because the disputed stock powers contain
designations that the parent-signatories owned the shares as tenants in common.
After reviewing the record, we determine there was a wealth of information in the
record supporting both of the district judge’s factual determinations and very little
3
evidence supporting the opposite conclusions. As the defendants correctly point
out in their brief, when the evidence before the factfinder fairly supports each of
two possible conclusions, the factfinder’s choice between the two will not be
“clearly erroneous.” United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S. Ct.
177, 179 (1949). Here, appellant has failed to demonstrate that the evidence even
permits a second view.
These undisturbed findings of fact dictate a judgment in favor of the
defendants. Even if we accept appellant’s argument that stock powers can convey
ownership of uncertified shares, appellant’s mother was without power to
unilaterally transfer ownership of those shares. See Sitomer v. Orlan, 660 So. 2d
1111, 1113-14 (Fla. Dist. Ct. App. 1995). Furthermore, regardless of the nature of
the ownership of the shares at issue, the transfer in question does not conform to
the requirements of the Uniform Commercial Code for transferring unregistered
stock. See FLA. STAT. §§ 678.1021(1)(l), 1071(1)(b) (requiring that “instructions”
directing the transfer of uncertified shares be made to the issuer); FLA. STAT. §
678.3011(2)(a)–(b) (defining “delivery” for uncertified securities by registration
with the corporation). Such requirements exist to prevent situations exactly like
the one at bar: he said/she said lawsuits where one party asserts that a transfer was
made based on some document not reflected in the corporate records. These
4
requirements apply with equal force to gifts. See Sackett v. Shahid, 722 So. 2d
273, 276 (Fla. Dist. Ct. App. 1998).
The district court’s conclusions of law that appellant’s mother was without
power to make a unilateral conveyance of corporate ownership and, even had she
been, the form of this conveyance did not effect any such transfer were not
erroneous. Therefore, the judgment below is affirmed.
AFFIRMED.
5