• Florida Supreme Court, Case 92,697

IN THE SUPREME COURT IN AND FOR
THE STATE OF FLORIDA
CASE NO. 92,697
__________________________________________________
ROGER V. BARTH,
Petitioner/Appellant
vs.
VICTOR M. KHUBANI, KHUBANI ENTERPRISES, INC.
AND AZAD INTERNATIONAL, INC.,
Respondents/Appellees
__________________________________________________
On Review From the Third District Court of Appeals
Decision Case No. 97-681
APPELLANT'S REPLY BRIEF ON THE MERITS
Bernardo Burstein, Esq.
AKERMAN, SENTERFITT & EIDSON, P.A.
Sun Trust International Center
One Southeast Third Avenue, 28th Floor
Miami, Florida 33131
(305) 374-5600
Fax No.: (305) 374-5095
and
Paul S. Richter, Esq.
RICHTER, MILLER & FINN
1019 Nineteenth Street, N.W.
Washington, D.C. 20036
(202) 467-6200
Fax No.: (202) 293-4395
Attorneys for Petitioner/Appellant
 TABLE OF CONTENTS
TABLE OF CONTENTS ......................................... i
TABLE OF AUTHORITIES ..................................... ii
REPLY BRIEF ON THE MERITS ................................. 1
1. KHUBANI'S ARGUMENTS FAIL TO RECOGNIZE THAT THE
PRECEDENTS OF THIS COURT FOR THE PAST TWENTY YEARS
HAVE CONFINED THE APPLICATION OF THE "TWO ISSUE
RULE" ONLY TO CASES INVOLVING THE SUBMISSION OF
MULTIPLE CAUSES OF ACTION TO A JURY. ................ 1
2. KHUBANI'S PROPOSED "SOLUTION," WHILE ATTRACTIVE AT
FIRST BLUSH, IS ILL CONCEIVED AND UNWORKABLE AND
WOULD CHANGE CIVIL JURY TRIAL PRACTICE IN A
FUNDAMENTAL MANNER IN FLORIDA. ...................... 3
3. KHUBANI HAS NOT RESPONDED MEANINGFULLY TO THE
"RULES" ARGUMENTS RAISED BY BARTH. ................. 8
A. This Court May Reject The Third DCA's
"Extension" Of The "Two Issue Rule" As Without
Proper Legal Authorization. .................... 8
B. This Court Should Use The Existing, Well
Established Rule Making Processes To Make Any
Further Changes Dealing With This Area Of
Judicial Procedure. ............................ 9
C. Khubani's Argument That Barth Contends There Is
A Conflict Between Fla. R. Civ. P. 1.470 And The
"Two Issue Rule" Should Be Rejected. ........... 11
4. KHUBANI'S ATTEMPT TO RATIONALIZE THE CONFLICTING
DECISIONS OF THE VARIOUS DISTRICT COURTS OF APPEAL
SINCE COLONIAL STORES AND FIRST INTERSTATE SHOULD BE
REJECTED. ......................................... 11
5. KHUBANI'S ATTEMPTS TO RAISE "FACTUAL" DISPUTES
SHOULD BE SEEN AS IRRELEVANT AND UNAVAILING TO THE
LEGAL ISSUE TO BE DECIDED: THE STATUTE OF FRAUDS
INSTRUCTION ACTUALLY GIVEN WAS ERRONEOUS AND
PREJUDICIAL UNDER THE UNDISPUTED "FACTS." ........ 13
A. The Trial Court's Statute of Frauds Instruction
Was Erroneous And Prejudicial. ............... 13
B. Khubani's Answer Brief Contains A Long,
Convoluted And Discursive Discussion Of The
"Facts" Which Is Irrelevant To The Legal Issues
To Be Decided. ............................... 14
CONCLUSION .............................................. 14
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 TABLE OF AUTHORITIES
CASES
A.G. Edwards & Sons, Inc. v. Weinreich,
572 So.2d 993 (Fla. 2d DCA 1990) .......................... 7
Barhoush v. Louis,
452 So.2d 1075 (4th DCA Fla. 1984) ....................... 12
Barth v. Khubani,
705 So.2d 72 (3rd DCA Fla. 1997) .......................... 4
Brown v. Sims,
538 So.2d 901, 907 n. 4 (3rd DCA Fla. 1989),
quashed in part and remanded in part,
574 So. 2d 131 (Fla. 1991) ........................ 8, 12, 13
Charlemagne v. Francis,
700 So.2d 157 (4th DCA Fla. 1997) ......................... 7
Colonial Stores, Inc. v. Scarbrough,
355 So. 2d 1181 (Fla. 1978) ........... 1, 2, 4, 5, 8, 10, 11
Comreal Miami, Inc. v. Hatari Imports, Inc.,
559 So.2d 1175 (3rd DCA Fla. 1990) ....................... 13
Davidson v. Gaillard,
584 So.2d 71 (1st DCA Fla. 1991) .......................... 7
Emerson Electric Company v. Garcia,
623 So. 2d 523 (3rd DCA Fla. 1993) .................... 7, 13
First Interstate Development Corp. v. Ablanedo,
511 So. 2d 536 (Fla. 1987) .............. 2, 3, 8, 11, 12, 13
Gonzalez v. Leon,
511 So.2d 606 (3rd DCA Fla. 1987) ................. 8, 12, 13
LoBue v. Travelers Insurance, Inc.,
388 So. 2d 1349 (4th DCA Fla. 1980) ....................... 8
Odom v. Carney,
625 So.2d 850 (4th DCA Fla. 1993) ........................ 12
Rosenfelt v. Hall,
387 So.2d 544 (5th DCA Fla. 1980) ........................ 12
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CONSTITUTIONS
Cal. Const. Art. I, Sec. 16 ................................... 10
Fla. Const. Art. I, Sec. 22 ......................... 6, 9, 10, 11
Fla. Const. Art. V, Sec. 2(a) ........................... 8, 9, 10
Ohio Const. Art. I, Sec. 5 .................................... 10
STATUTES
Cal. CCP Sec. 624 ............................................. 10
Cal. CCP Sec. 625 ............................................. 10
Con. Gen. Stat. 52-224 ........................................ 10
COURT RULES
Fed. R. Civ. P. 49 ........................................ 10, 11
Fla. R. Civ. P. 1.470(b) ...................................... 11
Fla. R. Jud. Admin. 2.130 ............................... 8, 9, 11
Ohio R. Civ. P. 38 ............................................ 10
Ohio R. Civ. P. 48 ............................................ 10
Ohio R. Civ. P. 49 ............................................ 10
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 REPLY BRIEF ON THE MERITS
1. KHUBANI'S ARGUMENTS FAIL TO RECOGNIZE THAT THE PRECEDENTS
OF THIS COURT FOR THE PAST TWENTY YEARS HAVE CONFINED THE
APPLICATION OF THE "TWO ISSUE RULE" ONLY TO CASES INVOLVING
THE SUBMISSION OF MULTIPLE CAUSES OF ACTION TO A JURY.
As a matter of history, the common law rule followed in
Florida until 1978 was that any prejudicial error was presumed to
affect an overall general verdict in a cases involving the
submission of multiple causes of action to a jury. Up until then
it was not necessary for counsel in Florida to request special
verdicts in civil cases involving the submission of multiple
counts (i.e., multiple causes of action) to a jury in order to
preserve the right for appellate review.
As civil litigation became more complicated in Florida prior
to 1978 with cases requiring the submission of multiple causes of
action to juries, the practice developed of using special verdict
forms to identify the jury's verdicts on each separate cause of
action. This was a good, logical, and natural development which
made it easier for the trial court to provide intelligible
instructions, easier for counsel to organize closing arguments,
and easier for juries to keep the instructions logically in mind
in reaching their verdicts on the separate counts. The juries
would be instructed to return a separate verdict for each count
in accordance with a special verdict form.
Based upon that successful developing practice and with the
prospect that additional judicial efficiencies could be obtained,
the Florida Supreme Court adopted the "two issue rule" in its
decision in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181
(Fla. 1978) in 1978. That new rule changed the common law
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presumption that had theretofore been followed in Florida. Under
the then new "two issue rule" in Florida, if "[o]ne of the issues
submitted to the jury ... [is] free from prejudicial error, it
will be presumed all issues ... [are] decided in favor of the
prevailing party." Colonial Stores at 1186. This Court further
specifically considered and discussed the possibility that
injustice could result from the change in the rule, concluding,
however, that any injustice or unfairness could be easily
avoided. The Court advised of a simple, direct practice for
counsel to follow to avoid such problems: "... the remedy is
always in the hands of counsel. Counsel may simply request a
special verdict as to each count in the case." (Emphasis Added.)
Colonial Stores at 1186.
These comments make it absolutely clear that this Court
intended the "two issue rule" to apply only to appeals arising in
cases which had involved the submission of a least two separate
causes of action to a jury.1 The Court did not change the scope
of the "two issue rule" in First Interstate Development Corp. v.
Ablanedo, 511 So.2d 536 (Fla. 1987), which continued to confine
its applicability to appeals arising from cases involving the
submission of a least two separate causes of action to a jury.
This Court specifically held that the two issue rule "applies to
1 Colonial Stores did not mandate the use of special verdicts
for each separate count in cases involving the submission of
multiple causes of action to juries. The "two issue rule"
operates only to preclude appellate review by a party claiming
error only if the party claiming error did not request the trial
court to use such special verdicts.
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those actions that can be brought on two theories of
liability..." First Interstate at 538.
From this brief historical review, it is very clear that
there is no basis in the precedents of this Court either for
Khubani's arguments [Khubani Answer Br. 16-22] or for the Third
DCA's application of its extended version of the "two issue rule"
to bar appellate review in this case. The "two issue rule" as
formulated and adopted by this Court has never required the use
of special verdicts for each theory of non-liability (and/or on
each affirmative defense) in a case involving the submission of
only a single cause of action to a jury in order to preserve
appellate review.2
2. KHUBANI'S PROPOSED "SOLUTION," WHILE ATTRACTIVE AT FIRST
BLUSH, IS ILL CONCEIVED AND UNWORKABLE AND WOULD CHANGE CIVIL
JURY TRIAL PRACTICE IN A FUNDAMENTAL MANNER IN FLORIDA.
The Third DCA's decision and the "solution" proposed by
Khubani for extension of the "two issue rule" is ill considered,
incomplete and unworkable, even though seductively simple and
seemingly logical at first blush. Either would change civil jury
trial practice in a fundamental manner throughout Florida.
Khubani's position may be stripped down to a very simple
proposition: he urges that the "two issue rule" be extended to
require counsel to request a special verdict for each theory of
non-liability in order to preserve the right for appellate
review, even in cases submitted on only a single cause of
2 Khubani's contention that the "two issue rule" has been
consistently invoked to bar appellate review in cases involving a
single cause of action is simply untrue. See, discussion at
pp. 11-13, infra. Serious flaws associated with Third DCA's
decision and Khubani's "solution" are also discussed below.
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action.3 [Answer Br. 14, 16.] Khubani also urges that this is a
simple and easy rule for counsel to follow because all
affirmative defenses can be determined in advance.4 [Answer
Br. 14, 19, 24.] The apparent simplicity of Khubani's proposal
is deceptive because it is seriously flawed and incomplete, and
beset with semantic problems.
What is a "theory of non-liability?" Is it the same from a
defendant's perspective as from a plaintiff's perspective? An
"affirmative defense" would seem to only represents one type of
"theory of non-liability." Why does Khubani's proposal apply
only to "affirmative defenses" which he erroneously equates with
theories of non-liability? [Answer Br. 16.] Even the Third
DCA's decision in this case is unclear about what the Third DCA
really expected Barth to do at trial. Does it make any sense now
to adopt a new rule of court procedure which will affect every
civil jury trial in Florida and not make it clear what counsel
must do to avoid problems under the new rule?5
If special verdicts are now to be necessary for subquestions
under a single cause of action for the "theories of
3 This represents a fundamental change in the "two issue rule"
as established by this Court. Affirmance now of the Third DCA's
decision would require juries by special verdict to determine
subquestions in single cause of action cases, and logically would
require juries to determine subquestions by special verdict for
each separate count in multiple count cases too.
4 Although "affirmative defenses" can be determined in advance,
more general "theories of non-liability" cannot. The Third DCA's
remarks in this case on this exact point focus on broader
"theories of non-liability" rather than simply "affirmative
defenses." Barth v. Khubani, 705 So.2d 72 (3rd DCA Fla. 1997).
5 As already noted, this Court wisely provided such explicit
guidance when it first adopted the "two issue rule" in Colonial
Stores in 1978.
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non-liability," how are the trial courts to instruct the jury on
the vote to be required to decide each subquestion submitted?
Khubani neither anticipates nor suggests how this basic question
should be answered. This is not surprising because the issue is
truly new and there is no Florida case providing an answer.6 Yet
a definitive answer to this most basic question would be needed
immediately because the answer would affect every civil jury
trial occurring in Florida. Because jury verdicts in Florida
have always been unanimous, the simple answer would seem to be
that the jury should be instructed that it must decide each
subquestion by unanimous vote.7
Even more fundamental questions would arise. Would the
additional costs, overhead and burdens associated with this new
rule which would affect all civil jury cases in Florida be offset
by sufficient judicial economies or other benefits to justify
those costs? Certainly longer jury deliberations would be
required in almost all cases because more questions (i.e.,
subquestions under each count) requiring specific decisions would
have to be submitted to the jury, increasing considerably the
work required by the jury. What real benefits or economies would
be obtained? Nothing like this has ever been required before in
Florida civil cases and the existing jury trial system has
6 The practice under Colonial Stores in which separate causes
of action are submitted, count by count, for special verdict,
each by unanimous vote, does not present the subquestion issue
under individual counts.
7 This simple answer, however, might not be the "right" or
"best" answer. Why should a unanimous special verdict be required
on all subquestions submitted so long as the overall verdict on a
given count were still unanimous? If some lesser vote might be
permitted on subquestions, what should it be? Why?
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functioned quite well for a very long time. Requiring special
verdicts on all subquestion issues doubtlessly would
fundamentally change the dynamics of jury deliberation. This
likely would lead to legal challenges that this new type of
"trial" no longer constituted a "jury trial" as described in Fla.
Const. Art. I, Sec. 22.
Other very significant problems would arise once it was fully
appreciated that the elements of an affirmative defense (or a
theory of non-liability) overlapped with elements of the
plaintiff's claim. In real jury trials in civil cases it is the
trial court's substantive jury instructions covering all disputed
elements of the plaintiff's theories of liability as well as all
disputed elements of the defendant's theories of non-liability,
which define the "issues" being submitted to the jury.8 Even in
a simple single count case, the plaintiff has his "theories of
liability" and the defendant has his "theories of non-liability."
In fact, the elements of each are exactly the same; the
difference is that the plaintiff wants the jury to determine
those elements one particular way and the defendant wants the
jury to determine them differently.
From the defendant's perspective, the "theories of
non-liability" involve more than just establishing all of the
elements of at least one affirmative defense; they also usually
involve attempting to prevent proof of at least one element
8 Only the "boiler plate" instructions which describe the
general duties of the jurors, how evidence is to be evaluated,
the standards of proof, and the like and the specific "finding"
instructions which are unique to particular cases, do not define
the disputed "issues" to be decided.
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essential to plaintiff's affirmative claim. From the plaintiff's
perspective, the "theories of liability" involve more than just
establishing all of the elements of the plaintiff's affirmative
claim; they also usually involve attempting to prevent proof of
at least one element essential of each of the defendant's
affirmative defenses. Regardless, from any perspective, the full
range of disputed "issues" submitted to a jury are set out in the
trial court's substantive jury instructions.9
Civil juries in Florida have never been required to explain
in cases submitted on a single cause of action exactly how the
jury has reached its unanimous verdict, "issue" by "issue." The
idea of requiring "issue" by "issue" special verdicts
commensurate with the range of "issues" defined by the
substantive jury instructions is untried and untested. In fact,
all of the DCA's which have considered the question of element by
element special verdicts, including the First, Second, Third and
Fourth, have concluded that the "two issue rule" should not be
extended to elements of a claim.10
One panel of the Fourth DCA foresaw the problems inherent in
the this type of possible "extension" of the "two issue rule" and
rejected it completely. "We do not believe the [two issue] rule
should be extended to require a claimant to specifically
9 Attempts to distinguish elements of a plaintiff's claim from
elements of a defendant's theories of non-liability involves only
semantics and "hair splitting."
10 This point illustrates another flaw in Khubani's argument.
See, Davidson v. Gaillard, 584 So.2d 71 (1st DCA Fla. 1991); A.G.
Edwards & Sons, Inc. v. Weinreich, 572 So.2d 993 (2nd DCA Fla.
1990); Emerson Electric Co. v. Garcia, 623 So.2d 523 (3rd DCA
Fla. 1993); and Charlemagne v. Francis, 700 So.2d 157 (4th DCA
Fla. 1997).
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demonstrate the precise element of the cause of action the jury
found lacking. To do so would require the use of an
interrogatory type verdict in all cases detailing the elements of
the claims and the defenses thereto." LoBue v. Travelers
Insurance Co., 388 So.2d 1349, fn. 3 at 1351-52 (4th DCA Fla.
1980). This Court should now overrule the Third DCA's decision.
3. KHUBANI HAS NOT RESPONDED MEANINGFULLY TO THE "RULES"
ARGUMENTS RAISED BY BARTH.
A. This Court May Reject The Third DCA's "Extension" Of The
"Two Issue Rule" As Without Proper Legal Authorization.
Fla. Const. Art. V, Sec. 2(a) gives this Court the sole
judicial rulemaking authority to establish the rules of procedure
governing all courts. This Court can exercise its exclusive
rulemaking authority by formal rulemaking procedures as provided
in Fla. R. Jud. Admin. 2.130 or by judicial decision as it did,
for example, in Colonial Stores. Although the District Courts of
Appeal and the other lower courts are fully competent to
interpret and apply the rules of procedure as established by this
Court, those lower court have no legal authority to "amend" or
"extend" the rules established by this Court.
The Third DCA established its own "extended" version11 of the
"two issue rule" to refuse to consider part of Barth's appeal.
11 A panel of the Third DCA acknowledged that the Third DCA's
decision in Gonzalez v. Leon, 511 So.2d 606 (3rd DCA Fla. 1987),
was an "extension" of the "two issue rule" which was unsupported
by any precedent from this Court, noting that the
Gonzalez extension was probably not good law after First
Interstate. Brown v. Sims, 538 So.2d 901, 907 n. 4 (3rd DCA Fla.
1989), quashed in part and remanded in part, 574 So.2d 131 (Fla.
1991). The Court in Brown, however, did not need to decide the
appropriateness of the Gonzalez extension of the "two issue rule"
because the error in that case affected all elements of the
plaintiff's single cause of action.
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Although Barth did everything necessary to comply with the
applicable court rules to preserve the trial court's instruction
error for review, the Third DCA's decision amended the "two issue
rule" established by this Court to deprive Barth of his right to
judicial review. The Third DCA's "extension" of the "two issue
rule" is legally infirm in view of Fla. Const. Art. V, Sec. 2(a).
Khubani's Answer Brief did not address this point.
B. This Court Should Use The Existing, Well Established
Rule Making Processes To Make Any Further Changes
Dealing With This Area Of Judicial Procedure.
This Court has established detailed, formal rulemaking
procedures in Fla. R. Jud. Admin. 2.130 consistent with its
authority under Fla. Const. Art. V, Sec. 2(a). The "two issue
rule" as adopted in 1978 has persisted without protest or formal
rulemaking amendment for more than twenty years now, obviously
because the Civil Rules Committee of The Florida Bar, the Board
of Governors of The Florida Bar, and interested civil trial
practitioners as well this Court has not seen any need to further
modify that rule. Khubani does not address this point in his
Answer Brief.
Any extension of the existing "two issue rule" will have
many, far reaching and complex implications, including possibly
even changing the nature of civil jury trial as that has existed
and been known in Florida. Fla. Const. Art. I, Sec. 22. If any
changes might be desirable or necessary, this Court should first
make full use of the "experts" available to it under Fla. R. Jud.
Admin. 2.130 so that only a change for the "better" is made.
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 In announcing its policy choice for Florida in Colonial
Stores, this Court relied in part upon judicial decisions and
practices in Ohio, California and Connecticut. While the rules,
practices and experiences of other States are always instructive
and of great interest when "policy" is being considered, great
caution is necessary. Assumptions of any kind without careful
inquiry can be very dangerous when attempting to accurately
understand the meaning of reported decisions or court rules of
other States dealing with the peculiarities of State specific
court procedures. Many of Florida's very well established court
practices, rules and traditions, and the important details
relating to them, which we are inclined to take for granted as
basic "assumptions," simply may not exist or even be applicable
at all in other States.12 As noted in Barth's Opening Brief
at 16-18, the pertinent civil jury trial practices in the U.S.
District Courts are also quite different than those in the State
Courts in Florida. This Court should likewise be cautious in
12 A few simple examples should suffice. California: A civil
jury trial in California requires a twelve member jury, but only
nine jurors need concur to reach a verdict. Cal. Const. Art. 1,
Sec. 16. The California Civil Procedure Code provides elaborate
statutory rules and procedures for various types of permitted
verdicts, and there has been extensive litigation concerning
those rules. See, Cal. CCP Secs. 624-625. All of this is quite
different than Florida. Ohio: A civil jury trial in Ohio requires
an eight member jury, but only six jurors need concur to reach a
verdict. Ohio Const. Art. 1, Sec. 5, Ohio R. Civ. P. 38, 48.
Ohio R. Civ. P. 49 dealing with types of verdicts had its genesis
in 1971 in Fed.R.Civ.P. 49, but that rule has been amended based
upon Ohio's experience and the current similarities to Fed. R.
Civ. P. 49 are very limited, and "special verdicts" have been
abolished. Connecticut: A civil jury trial in Connecticut
requires a unanimous verdict as in Florida, but a Connecticut
statute [Conn. Gen. Stat. 52-224] defines "special verdict" in a
manner unknown in Florida. Connecticut also has specific court
rules which address verdict form issues.
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considering the implications of the Federal rules and the
decisions by federal courts which address this general subject
area.13
These points are offered simply to suggest the wisdom of
utilizing the amendment processes for Florida court rules as
established by this Court under Fla. R. Jud. Admin. 2.130 in a
complex area like this one.
C. Khubani's Argument That Barth Contends There Is A
Conflict Between Fla. R. Civ. P. 1.470 And The "Two
Issue Rule" Should Be Rejected.
Khubani offers an extended "strawman" argument [Khubani
Answer Br. 15, 26-31] that Barth somehow contends that there is a
conflict between Fla. R. Civ. P. 1.470 and the "Two Issue Rule"
as established and authorized by this Court. This is perplexing
because Barth has never made such a contention.
4. KHUBANI'S ATTEMPT TO RATIONALIZE THE CONFLICTING DECISIONS
OF THE VARIOUS DISTRICT COURTS OF APPEAL SINCE COLONIAL
STORES AND FIRST INTERSTATE SHOULD BE REJECTED.
The decisions from the different DCAs are not easily
reconcilable and do not support Khubani's basic contention.
[Khubani Answer Br. 16-22.] Although certain decisions from the
Third, Fourth and Fifth DCAs have extended the "two issue rule,"
those DCAs have not universally extended that rule to require
special verdicts directed to multiple theories of non-liability
13 Florida has no comparable rule to Fed. R. Civ. P. 49 which
provides a wide range of discretionary options for verdicts in
Federal civil jury cases. A number of the "options" available
under Fed. R. Civ. P. 49 depart significantly from the Florida
civil jury trial tradition and probably could not be adopted
consistent with Fla. Const. Art. I, Sec. 22. As noted, the
Federal courts have not adopted Florida's version of the "two
issue rule" despite having Fed. R. Civ. P. 49.
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in cases with only a single cause of action. Khubani's
contention is inaccurate. Only the Third DCA has done that.
The Fifth DCA's remarks in Rosenfelt v. Hall, 387 So.2d 544
(5th DCA Fla. 1980) which preceded this Court's decision in First
Interstate implied that the "two issue rule" perhaps should be
extended to cover multiple theories of non-liability in a single
count case. However, no other Fifth DCA decision has ever
followed that suggestion or actually "extended" the "two issue
rule." No Fifth DCA decision since First Interstate has
suggested that the "two issue rule" has any applicability except
to cases involving submission of at least two causes of action to
a jury.14
The Fourth DCA has extended the "two issue rule" rationale to
require "issue isolation" for separate components of statutory
damages when a single cause of action is submitted to the jury,
nothing more. Barhoush v. Louis, 452 So.2d 1075 (4th DCA Fla.
1984) and Odom v. Carney, 625 So.2d 850 (4th DCA Fla. 1993).
This special rule from the Fourth DCA was fully addressed in
Barth's Opening Br. at 9-10 and presents circumstances which are
easily distinguished from the Third DCA's decision in this case.
The Third DCA alone has expressly extended the "two issue
rule" to apply to theories of non-liability in a case involving
only a single cause of action in this case and previously in
Gonzalez v. Leon, 511 So.2d 606 (3rd DCA Fla. 1987). After
Brown, but prior to this case, it did not appear that the Third
14 This Court rejected the Fifth DCA's misapplication of the
"two issue rule" in First Interstate.
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DCA would continue to apply the Gonzalez-like extension of the
"two issue rule." See, for example, Comreal Miami, Inc. v.
Hattari Imports, Inc., 559 So.2d 1175 (3rd DCA Fla. 1990); and
Emerson Electric. However, the Third DCA applied a Gonzalez-like
extension of the "two issue rule" in this case, curiously,
without citing Gonzalez, and without commenting on Brown or the
implications of First Interstate to Gonzalez.
The DCA cases do not support Khubani's basic contention which
should be rejected.
5. KHUBANI'S ATTEMPTS TO RAISE "FACTUAL" DISPUTES SHOULD BE
SEEN AS IRRELEVANT AND UNAVAILING TO THE LEGAL ISSUE TO BE
DECIDED: THE STATUTE OF FRAUDS INSTRUCTION ACTUALLY GIVEN
WAS ERRONEOUS AND PREJUDICIAL UNDER THE UNDISPUTED "FACTS."
A. The Trial Court's Statute of Frauds Instruction Was
Erroneous And Prejudicial.
Barth stands by his detailed discussion of the legal issues
relating to the erroneous Statute of Frauds instruction actually
given as set out in his Opening Brief at 19-27. There Barth
showed that the Statute of Frauds instruction was erroneous and
prejudicial as a matter of law under the undisputed facts.
Khubani does not directly challenge Barth's analysis of the trial
court's error, but instead discursively attempts to raise and
argue various "factual issues." [Answer Br. 31-33.] Certainly
there may be disputed facts and interpretations of the facts, but
Khubani's approach is unavailing because Barth has shown that the
Statute of Frauds instruction actually given was erroneous and
prejudicial as a matter of law under the undisputed facts.
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 B. Khubani's Answer Brief Contains A Long, Convoluted
And Discursive Discussion Of The "Facts" Which Is
Irrelevant To The Legal Issues To Be Decided.
Khubani's lengthy statement concerning "The Underlying
Transaction" [Answer Br. 1-10] in his Statement Of The Case
contains many disputed facts and disputed interpretations of
disputed facts, and at several points misstates the evidence or
mischaracterizes the proceedings at trial. The presentation of
these contentions by Khubani, however, is irrelevant to the
limited and focused legal issues to be decided.
CONCLUSION
For all of the foregoing reasons, this Court should reverse
the Third DCA's extension of the "two issue rule" which has
barred appellate review, and remand this action for a new trial
without the erroneous "statute of frauds" instruction on the
breach of contract count.
Respectfully Submitted,
AKERMAN, SENTERFITT & EIDSON, P.A.
Sun Trust International Center
One Southeast Third Avenue, 28th Floor
Miami, Florida 33131-1704
Tel: (305) 374-5600 Fax: (305) 374-5095
By:__( Original Signed )_________
BERNARDO BURSTEIN, ESQ.
Florida Bar # 972207
-and-
RICHTER, MILLER & FINN
1019 Nineteenth Street, N.W., #650
Washington, D.C. 20036
Tel: (202) 467-6200 Fax: (202) 293-4395
By:__( Original Signed )_________
PAUL S. RICHTER, ESQ.
Florida Bar # 918090
Attorneys for petitioner/appellant
Roger V. Barth
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 CERTIFICATE OF FONT AND TYPE SIZE
Counsel hereby certifies that this brief is typed using
12 point Courier, a font that is not proportionately spaced.
_( Original Signed by B.B. )_
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the
foregoing Appellant's Reply Brief On The Merits has been sent by
mail to Herbert Stettin, P.A., One Biscayne Tower, Two South
Biscayne Boulevard, Suite 3270, Miami, Florida 33131, and to
Susan E. Trench, Esq., Goldstein & Tanen, P.A., One Biscayne
Tower, Suite 3250, Two South Biscayne Boulevard, Miami, Florida
33131, attorneys for defendants Victor M. Khubani, Khubani
Enterprises, Inc. and Azad International, Inc., this 18th day of
December, 1998.
_( Original Signed by B.B. )_
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