IN THE SUPREME COURT OF FLORIDA

THE FLORIDA BAR,

Complainant/Appellee, Supreme Court Case # SC00-256

Honorable Jacqueline Hogan Scola, v. Florida Bar File # 1998-71, 455(11B) ALAN I. KARTEN,

Respondent/Appellant / __________________________________________________________________

ON PETITION FOR REVIEW OF THE AMENDED REPORT OF THE SUCCESSOR REFEREE DENYING RESPONDENT/APPELLANT AN

EVIDENTIARY HEARING ON HIS MOTION FOR NEW TRIAL

INITIAL BRIEF OF THE APPELLANT

____________________________________ ALAN IRA KARTEN, pro se 1888 N.W. 7th Street Miami, Florida 33125 Tel: (305) 541-6300 Fax: (305) 643-3334

TABLE OF CONTENTS Page

TABLE OF CONTENTS …………………………….………………………… i TABLE OF AUTHORITIES ……………………………………….………….. ii STATEMENT OF THE ISSUES………………………………………………...1 STATE OF THE CASE AND RELEVANT FACTS……………………………1 STANDARD OF REVIEW …………………………………………………….10 SUMMARY OF THE ARGUMENT ………………………………………..…10 ARGUMENT ………………………………………………….………………..12

I. THE SUCCESSOR REFEREE INCORRECTLY RULED THAT THE EVIDENCE PRESENTED IN KARTEN’S MOTION TO SUPPLEMENT THE RECORD AND FOR REHEARING (FEBRUARY 8, 2001) AND HIS MOTIONS TO RELINQUISH JURISDICTION IN ORDER TO PURSUE NEWLY DISCOVERED EVIDENCE FILED DURING HIS APPEAL WERE PRECLUDED FROM CONSIDERATION.

II. THE SUCCESSOR REFEREE, IN A NON-JURY PROCEEDING, FAILED TO FOLLOW THE CORRECT PROCEDURE FOR REVIEWING A MOTION FOR NEW TRIAL FILED PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.540. III. ASSUMING THAT A NEW TRIAL IS NOT MANDATED THE SUCCESSOR REFEREE IS REQUIRED TO HOLD AN EVIDENTIARY HEARING.

CONCLUSION……………………………………………………………..…49 CERTIFICATE OF SERVICE………………………………………………..50 CERTIFICATE OF COMPLIANCE………………………………………….50

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Table of Authorities

Cases Page Anderson v. City of Bessemer City NC, 470 U.S. 564 (1985)……………………………….……………….16 Anderson v. Dewey, 350 P.2d 734(Idaho 1960)................................................…..............17 Austin v. United States, 113 S.Ct. 2801 (1993) …..………………………..……….…………4 Canseco v. USA, 97 F.2d 1224 (9th Cir. 1996)…………….……...……………….….15 Corporation v. Siraco, 174 F.2d 360 (2nd Cir 1949)…………………………………………16 Davenport v. Dimitrijevic, 857 So.2d 957 (4th DCA 2003)….…………………………………..39 David E. Lever v. United States of America, 443 F.2d 350 (2nd Cir 1971)………………..……………………….15 Dynasty Express Corp. v. Weiss, 675 So.2d 235 (4th DCA 1996)….………..………………….…20, 39 The Florida Bar v. Alan Ira Karten, 829 So.2d 883 (Fla. 2002)……………………………………………4 The Florida Bar v. Clement, 662 So.2d 690 (Fla. 1995)…………….……………………………..10 The Florida Bar v. Weiss, 586 So.2d 1051 (Fla. 1991)………………………………………….10

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Federal Deposit Ins. Corporation v. Siraco, 174 F.2d 360 (2nd Cir. 1949)…………..……………………………20 Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla. 2001)…………..………………………………13 Grudzina v. New Mexico Youth Diagnostic and Development Center, 725 P. 2d 255 (N.M. App 1986).….…………………………………21 Herwitt v. Caffee, 368 So.2d 1342 (3d DCA, 1979)…...………………………………..23 Island Transp v. Ilman, 669 So.2d 298 (3rd DCA 1996)……...………………...…………….48 Kline v. Belko, LTD, 480 So.2d 126 (3rd DCA 1985)………………………………………42 Karten v. Karten, Case # 99-000210 (Cir. Ct. 17th Jud. Circuit1999)........................36, 38 Lashbrook v. Kennedy Motor Lines, Inc., 119 F. Supp. 716 (W.D. Pa. 1954)…………………………………..18 Loynaz v. Karten,

Case # 02-6097 CA 21 (Cir. Ct. 11th Jud. Circuit 2002).7, 28, 32, 34, 45 Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).....................................................................19 McBride v. State, 801 So.2d 1019 (5th DCA 2002)….……………………………….…14 McDonald v. Pickens, M.D., 544 So.2d 261 (1st DCA 1989).…..…………………………………..42 National Health Care v. Cascio, 725 So.2d 1190 (2nd DCA 1998)..……………………………………17

Reaves v. Reaves, 546 So.2d 744 (2nd DCA 1989)………………………………………19 Roberto v. Allstate Insurance Co., 457 So.2d 1148 (3rd DCA 1984)……….…………………………….42 Rose Hall LTD v. Chase Manhattan Overseas Banking, 576 F. Supp. 107 (D. Del. 1983)…..…………………………............18 Ross v. Bandi 566 so.2d 55 (4th DCA 1990)…………….………………………..…48 Smith v. Brown, 525 So.2d 868 (Fla. 1988)……………….…………………………..28 Smith v. Silberman, 586 So. 2d 467 (3d DCA 1991)………….……………………….….18 State of Maine v. Ruybal v. Armstrong, 408 A.2d 1284 (Me. 1979)...................................................................20 Swafford v. State, 679 So.2d 736 (Fla. 1996)…………………...……………………….48 Teresa Marie Schiavo v. Michael Schiavo, 800 So. 2d 640 (2nd DCA 2001)……………...………………………23 Tingle v. Dade County Board of County Commissioners, 245 So.2d 76 (Fla. 1971)………………………..…………………14, 16 Topps v. State, 685 So.2d 1253 (Fla. 2004)……………………..…………………11, 14 United States v. Fernandez, 136 F.3d 1434 (11th Cir. 1998)…………………..…………………….48 United States v. Martinez, 14 F.3d 543 (11th Cir. 1994)……………………..……………….……48

United States v. Posner, 644 F. Supp. 885 (S.D. Fla. 1986)………………..………………….49 United States v. Radatz, 447 U.S. 667 (1980)……………..…………………….……………19 United States v. Robinson, 54 F.3d 564 (9th Cir 1995)………..………………………………….5 Wiley v. Wiley, 546 So.2d 1149 (4th DCA 1989)….…………………………………48 Rules Rule 3-7.7 (c)(5) The Rules Regulating the Florida Bar……………… 10 Rule 4-8.4 (c), The Rules Regulating the Florida Bar .………….…2, 4, 37 Rule 1.540 (b)(3), The Rules Regulating the Florida Bar ………….…...23 Florida Rule of Civil Procedure 1.190 …………………………………....9 Florida Rule of Civil Procedure 1.530…………………………6, 14, 15, 16 Florida Rule of Civil Procedure 1.540………..1, 5, 7, 10, 11, 12, 13, 14, 15 Florida Rule of Civil Procedure 1.540 ( b)………………………………...7 Federal Rule of Civil Procedure 63……………………….………11, 17, 18

STATEMENT OF THE ISSUES

I. WHETHER THE SUCCESSOR REFEREE INCORRECTLY RULED THAT THE EVIDENCE PRESENTED IN KARTEN’S MOTION TO SUPPLEMENT THE RECORD AND FOR REHEARING (FEBRUARY 8, 2001) AND HIS MOTIONS TO RELINQUISH JURISDICTION IN ORDER TO PURSUE NEWLY DISCOVERED EVIDENCE FILED DURING HIS APPEAL WERE PRECLUDED FROM CONSIDERATION.

II. WHETHER THE SUCCESSOR REFEREE, IN A NON-JURY PROCEEDING, FAILED TO FOLLOW THE CORRECT PROCEDURE FOR REVIEWING A MOTION FOR NEW TRIAL FILED PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.540.

III. WHETHER, ASSUMING THAT A NEW TRIAL IS NOT MANDATED, THE SUCCESSOR REFEREE IS REQUIRED TO HOLD AN EVIDENTIARY HEARING.

STATEMENT OF THE CASE AND RELEVANT FACTS

In February of 2000, the Florida Bar filed a complaint against Appellant, Alan

Ira Karten (herein referred to as “Karten”). The complaint sought sanctions against

Karten on two bases. First, the Complaint alleged that Karten violated the Criminal

Justice Act (“CJA”) by taking four automobiles that the complainant, Nelson

Loynaz (herein referred to as “Loynaz”) allegedly owned and had forfeited to the

United States in his criminal case as fees for services performed under his court

appointment. Second, the Complaint alleged that Karten engaged in a scheme to

defraud Loynaz out of the four automobiles by buying them back from the United

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States, without Loynaz’ permission, and selling them for a profit. The Bar alleged

that this conduct violated Rule 4-8.4(c) of the Rules Regulating the Florida Bar

(“[a] lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation).

After hearings before referee, Judge Gerald Bagley, Karten was found guilty of

violating Rule 4-8.4 (c). According to the referee, Loynaz was more “credible”

than Karten, because Loynaz allegedly had “no discernible motive…to testify

untruthfully”

Karten filed a Motion to Supplement Record and for Rehearing. Karten sought

to reopen the case and submitted affidavits of Dennis Bruce, Esq., Robert Ira

Woltin, and Ira Baraz. Bruce’s affidavit corroborated Karten’s version of the

events and contradicted Loynaz’ false hearing testimony that he never spoke to

Karten. Woltin’s affidavit also corroborated Karten’s version of the events and

confirmed that Karten was unaware that he was being credited with a $24,000

contribution by his partners from the sale of one Corvette to Duncan. Baraz’

affidavit confirmed the same. Karten also submitted the deposition of Robert Ira

Woltin, dated November 30, 1999 in which Woltin, in 1999, before the hearing,

testified that he did not have “the faintest idea” where Karten’s contribution came

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from (offered as proof of Woltin’s perjury at the hearing) and proffered the

testimony of Elena Garcia, Karten’s former secretary. (Garcia corroborated

Karten’s version of the events, corroborated that Loynaz acknowledged the

agreement with Karten and established another motive for Loynaz’ false testimony,

i.e. his displeasure with Karten’s inability to procure a sentence reduction for him.)

Karten also produced his telephone records, which conclusively proved that

Loynaz’s hearing testimony was false. Karten requested that the referee reconsider

his findings in light of the additional evidence and testimony that had been

uncovered that showed that Loynaz and Woltin had testified falsely during the

hearings.

On February 27, 2001, Karten’s motion was summarily denied.

Karten appealed the referee’s Report and Recommendation to the Florida

Supreme Court. While the appeal was pending Karten filed a number of motions,

including Appellant’s Amended Motion To Supplement The Record Or To Take

Judicial Notice Of Certain Documents, Respondent’s Motion to Relinquish

Jurisdiction in Order to Pursue Newly Discovered Evidence, Respondent’s Motion

to Supplement Motion To Relinquish Jurisdiction in Order to Pursue Newly

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Discovered Evidence, Respondent’s Motion To Supplement Motion To Relinquish

Jurisdiction In Order To Pursue Newly Discovered Evidence and Respondent’s

Second Motion To Supplement Motion To Relinquish Jurisdiction In Order To

Pursue Newly Discovered Evidence.

In The Florida Bar v. Alan Ira Karten, 829 So.2d 883, 891 (Fla. 2002) this

Court denied these motions in a footnote without discussion or a citation.

This Court affirmed the Report and Recommendation of the referee holding

that Karten violated Rule 4-8.4 (c) of the Rules Regulating the Florida Bar. The

Court, however, did not find that Karten violated the Criminal Justice Act by

accepting an unauthorized fee under the act but that Karten made an unauthorized

profit from the sale of the vehicles. For Karten to not have made an unauthorized

fee under the CJA, this court, by logical inference, must have accepted Karten’s

assertion that Karten was permitted to charge Loynaz for any additional

representation after his sentencing since then existing case law provided that

Loynaz was not entitled to court appointed counsel to represent him in civil or

criminal forfeiture matters. See, Austin v. U.S., 113 S.Ct. 2801 (1993); U.S. v.

Robinson, 54 F.3d 564 (9th Cir 1995).

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On October 9, 2003, Karten filed a Motion for New Trial Based Upon

Evidence that Arose or was Discovered after the Hearing Before the Referee along

with an Appendix. The motion alleged newly discovered evidence, perjury and

fraud.

Judge Bagley refused to consider the motion and held that he was without

jurisdiction. The motion was filed pursuant to Florida Rule of Civil Procedure

1.540. The Bar mistakenly argued Rule 1.530. This Court entered the following

order:

Respondent’s petition for writ of mandamus is granted. The motion for rehearing filed before the trial judge, as referee, is treated by the Court as a motion filed

pursuant to Florida Rule of Civil Procedure 1.540 and is granted. The Court finds that the referee has jurisdiction

over petitioner’s motion to for new trial and should consider that motion on its merits.

Karten filed a motion to recuse the referee. The motion alleged, in part, that the

referee fabricated testimony and attributed it to Loynaz to support his conclusion

that Karten was less credible than Loynaz.

This Court in its opinion acknowledged that Karten’s disbarment was based

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upon the referee’s conclusion that Loynaz had “no discernible motive on his part

to testify untruthfully…irrespective of his several felony convictions”

This Court also quoted the referee’s explanation of why, in part, the referee

believed Loynaz over Karten:

Mr. Karten presented testimony and other evidence in an attempt to show that Mr. Loynaz was not the lawful owner of the aforementioned vehicles, or in the alternative, even if he was the lawful owner, counsel was lawfully hired by Mr. Loynaz to handle this matter as an administrative forfeiture not covered by the Criminal Justice Act. The former assertion is belied by credible testimony by Mr. Loynaz that he purposefully masked the ownership in the vehicles to avoid their seizure and forfeiture in the event of an arrest on drug charges.

The successor referee quoted this court’s opinion which quoted the above

referenced fabricated testimony cited by the first referee to rationalize why

Loynaz’ admission in Loynaz v. Karten, Case # 02-6097CA21 (Cir. Ct. 11th Jud.

Circuit 2002), that Tropikar Sales, Inc. was the owner of the vehicles in question,

was not a repudiation of his bar testimony.

This “testimony” of Loynaz does not exist. It was fabricated by the referee

as alleged in Karten’s motion for recusal.

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The recusal motion was granted on May 13, 2004.

Judge Jacqueline Hogan Scola was appointed as successor referee.

The Florida Bar then moved for clarification the Court’s order granting

the Mandamus. The Bar sought clarification of that part of the Court’s original

order which stated that “The motion for rehearing filed before the trial judge, as

referee, is treated by the Court as a motion filed pursuant to Florida Rule of Civil

Procedure 1.540 and is granted.”

The Court entered the following clarification order:

The Florida Bar’s Motion for Clarification is granted. This Court’s previous order dated April 21, 2004, granting Respondent’s petition for writ of mandamus is clarified and amended by this order. Respondent’s “Motion for New Trial Based Upon Evidence that Arose or was Discovered After the Hearing Before the Referee,” filed before the trial judge, as Referee, is treated by the Court as a motion filed pursuant to Florida Rule of Civil Procedure 1.540(b). The petition for writ of mandamus to require the referee to consider and rule on the merits of that motion is granted. The Court find’s that the referee has jurisdiction over respondent’s “Motion for New Trial Based Upon Evidence That Arose or Was Discovered After The Hearing Before the referee.” and the referee should consider that motion on its merits within (90) days of this order.

On August 6, 2004, Karten filed a motion for issuance of a Subpoena Duces

Tecum directed at the Federal Bureau of Prisons for 1997 visitation logs

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(to prove dates of Kartent-Loynaz visits); motion to interview witness

Horacio Alba Sardinas (who Karten located in prison in Italy. Sardinas, according

to Loynaz’ testimony sold the cars in question to Loynaz) and a motion to

subpoena FBI 302 Reports (to prove Loynaz’ perjury. Loynaz had filed an affidavit

in his civil lawsuit against Karten, post trial, in which he claimed that the United

States Attorney’s office was informed by him that he purchased the automobiles

with drug proceeds. If Loynaz’ claim is true it will be reflected in a 302 report, if

not, Loynaz is a perjuror). A claim denied by FBI Special Agent Scott Wiegman.

The referee held a status conference on August 16, 2004. Memorandums were

filed at the request of the referee. Karten filed an Appendix to Response To

Florida Bar’s Reply and Position on Evidentiary Hearing With Incorporated

Memorandum of Law. That Appendix, which is part of the Appendix submitted to

this Court contained in excess of a hundred pages of newly discovered documents

including new documents not submitted as part of the original Motion for New

Trial. The documents included documentary proof that the testimony of both Carl

Karmin and Robert Woltin was perjurious and the redacted ledger submitted by

Karmin and introduced by the Bar was a falsified document. Among the new

allegations supported by newly discovered documents were the following:

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• the unredacted ledger did not reflect a $9,000 cash contribution of Karten to the corporation.

• Woltin applied the $24,000 (credited to Karten) from the Duncan sale in his submission to the Bureau of Alcohol Tobacco and Beverages when he applied for a liquor license for 201 East Atlantic Investments, Inc.

• The documents used by Karmin to substantiate the falsified ledger had been “eaten by rats” according to Karmin and therefore could not be produced.

• Woltin forged Karten’s signature on sale documents for the other corvette and crated a fraudulent bill of sale for the vehicle as well as creating a fraudulent sales document.

Karten moved the successor referee to permit supplementation of the record

pursuant to Florida Rule of Civil Procedure 1.190.

The referee issued her Amended Report and Recommendation November 8,

2004. In her report, the successor referee incorrectly stated that “The Respondent

has alleged twelve (12) facts or items which he claims are new and would have, if

known at the time of the trial, resulted in a different outcome.” The successor

referee’s analysis was premised upon inapplicable case law and ignored scores of

additional documents and facts.

Karten moved for a rehearing pointing out that the successor referee had not

ruled upon his Motion to Amended or Supplement his motion for new trial. The

successor referee stated, “I think it’s granted.

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I addressed it in there (referring to her Amended Report and Recommendation) it is

in there and that request was granted,” but refused to enter a written order in

conformity. A transcript is provided in the Appendix.

STANDARD OF REVIEW

A lawyer seeking to review of a Referee’s Report must demonstrate that the

report “is erroneous, unlawful or unjustified.” Rule 3-7.7(c)(5) of The Rules

Regulating the Florida Bar. To be upheld, a Referee’s findings of fact must be

“supported by competent, substantial evidence, “ The Florida Bar v. Clement, 662

So.2d 690, 696 (Fla. 1995), and will be reversed if clearly erroneous. The Florida

Bar v. Weiss, 586 So.2d 1051, 1053 (Fla. 1991).

SUMMARY OF THE ARGUMENT

I. The sucessor referee’s report and recommendation should not be approved by

the Court as the sucessor referee failed to consider all of the evidence

presented by the Appellant in support of his motion for new trial filed

pursuant to Florida Rule of Civil Proceedure 1.540.The successor referee

incorrectly held that this Court’s denial of Karten’s motions to temporarily

relinquish jurisdiction during his direct appeal precluded the successor

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referee from considering the information presented in those motions because

this Court’s denial constituted law of the case. The successor referee also

incorrectly ruled that she could not consider any evidence presented before the

original referee as an appendix to Karten’s Motion to Supplement and for Re-

Hearing. The successor referee should have considered all of the evidence, as the

“law of the case” doctrine did not apply since there was no decision on the merits.

Topps v. State, 685 So.2d 1253 (Fla. 2004).

II. The successor referee, in a non-jury proceeding, failed to follow the correct

procedure for reviewing a Florida Rule of Civil Procedure 1.540 motion. This

Court should adopt a procedure similar to Federal Rule of Civil Procedure 63. The

Federal Rule requires that a successor referee must hear the testimony of witnesses

where credibility is an issue. Other jurisdictions have adopted this procedure and

support the principle that a successor judge in a non-jury proceeding must hear the

testimony of witnesses. Further, where the successor referee is required to resolve

conflicting evidence or pass on the credibility of witnesses a new trial should be

ordered.

III. The successor referee was required to hear Karten’s motion “on its merits”

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pursuant to this Court’s clarification order “on the merits” requires an evidentiary

hearing. Assuming that a new trail is not required and that the Court did not order

an evidentiary hearing, the pleadings were sufficient to mandate an evidentiary

hearing. Karten proffered sufficient evidence that constituted more than a colorable

entitlement to 1.540 relief.

ARGUMENT

I. THE SUCCESSOR REFEREE INCORRECTLY RULED THAT THE EVIDENCE PRESENTED IN KARTEN’S MOTION TO SUPPLEMENT THE RECORD AND FOR REHEARING (FEBRUARY 8, 2001) AND HIS MOTIONS TO RELINQUISH JURIDSDICTION IN ORDER TO PURSUE NEWLY DISCOVERED EVIDENCE FILED DURING HIS APPEAL WERE PRECLUDED FROM CONSIDERATION.

This successor referee’s recommendation is reversible because she failed to

consider all of the evidence. Not only did the successor referee fail to consider all

the evidence she excluded evidence from consideration by incorrectly apply the

doctrine of law of the case.

The successor referee dismissed Manny Mesa’s affidavit (points 6,7 and 8 of

her report) as “not new information.” But Mesa’s affidavit was obtained after the

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original hearing in 2000. The successor referee held that Karten’s motions to

the Supreme Court, denied, without citation, in Footnote 7 of the opinion was law

of the case and therefore were precluded from consideration. Additionally, the

successor referee failed to address any of the testimony, proffers or documents

submitted to the first referee in Karten’s Motion to Supplement the Record and for

Re-Hearing.

In support of the successor referee’s conclusion that the motions to the

Supreme Court and the rehearing motion addressed to the first referee the

successor referee cited Florida Department of Transportation v. Juliano, 801

So.2d 101 (Fla. 2001). Never the less the successor referee acknowledged:

It is unclear whether the Supreme Court reviewed and denied these motions on their merits or simply declined to consider them at all because of their untimeliness.

The newly discovered evidence presented to the original referee in Karten’s

Motion to Supplement the Record and for Re-Hearing and all of the newly

discovered evidence presented to the Supreme Court by way of motion should

have been considered by the successor referee. The denial of the rehearing motion

(Florida rule of Civil Procedure 1.530) and denial of the motions addressed to the

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Supreme Court does not constitute law of the case. The newly discovered

evidence previously presented may be considered when incorporated in a motion

for new trial under Florida Rule of Civil Procedure 1.540. A ruling on a motion

does not, in any event, preclude admissible evidence from being introduced in

support of another motion.

In Juliano, supra, this court held that the law of the case requires that

questions of law actually decided on appeal must govern the case in the same court

and the trial court through all subsequent proceedings. This Court added:

Further, where a previous appellate court has given no explanation for its decision, a subsequent appellate court is not bound by the law of the case…

The doctrine of law of the case does not apply if a prior a appeal or motion

was decided on procedural grounds. McBride v. State, 810 So.2d 1019 (5th DCA

2002). A prior per curium, affirmed is not law of the case.

Recently this Court readdressed the doctrine in Topps v. State, 685 So.2d

1253 (Fla. 2004), reaffirmed that a ruling must be on the merits to be decided. A

judgment rendered on any grounds which do not involve the merits of the action

may not be used as a basis for the operation of the doctrine of res judicata. The

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Court clarified that this holds true for appellate rulings on specific writs.

Court’s reasoning logically applies to motions for new trial pursuant to

Florida Rule of Civil Procedure 1.530, which were summarily denied without

opinion or citation and to motions to relinquish jurisdiction to pursue newly

discovered evidence during an appeal. As this court stated:

Writs may be denied in the appellate courts for many other reasons besides an adjudication on the merits. Where the denial is to a Writ or as in this case where a motion is discretionary and not an absolute right it is not law of the case.

When a court intends to deny an extraordinary writ, the court need only to

include a simple phrase “with prejudice” or “on the merits” to indicate that the

merits of the case have been determined and that the denial is on the merits.

Neither referee Bagley nor this Court noted any thing that would support a

finding that there was an adjudication on the merits. This Court ruled:

To insure that litigants and the courts alike are clear as to the legal effect of unelaborated denial orders, henceforth, if a Florida court denies a writ petition with the intent that the denial be on the merits, language to that effect must be included in the order.

Finally, a denial of a Florida Rule of Civil Procedure 1.530 motion does

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not as a matter of law preclude inclusion or admission of the same evidence in a

motion filed pursuant to Florida Rule Civil Procedure 1.540. The successor referee

incorrectly applied the doctrine of law of the case and confused the difference

between a ruling on a motion and the admissibility of evidence supporting the

motion in another hearing.

The newly discovered evidence presented to referee Bagley and to this court by

way of motion, during the pendency of Karten’s appeal, should have been

considered by the successor referee.

II. THE SUCCESSOR REFEREE, IN A NON-JURY PROCEEDING, FAILED TO FOLLOW THE CORRECT PROCEDURE FOR REVIEWING A MOTION FOR NEW TRIAL FILED PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.540.

Florida has no rule of procedure comparable to Federal Rule of Civil

Procedure 63. Appellant suggests that the Federal Rule should be adopted by the

Court to insure due process of law. The Florida Supreme Court has expressly

indicated that a successor judge is entitled to entertain a Florida Rule of Civil

Procedure 1.540 motion, Tingle v. Dade County Board of County Commissioners,

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245 So. 2d 76 (Fla. 1971), but the Court has not lent guidance as to how a

successor judge, after a jury or non-jury trial or hearing, is to conduct that task.

Federal Rule of Civil Procedure 63 provides as follows:

If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undo burden. The successor judge may also recall any other witness.

As of the writing of this brief there are no Florida appellate court

opinions that outline the procedure a successor judge must follow in

determining the merits of a motion for new trial filed pursuant to Florida

Rule of Civil Procedure 1.540 where the hearing or trial was without a jury.

Only one Florida appellate court has suggested a methodology after a jury

trial. In National Health Care v. Cascio, 725 So.2d 1190 (2nd DCA 1998)

the court outlined the procedure for a successor judge to follow in reviewing

a motion for new trial based upon manifest weight of the evidence after a

jury trial. The court recognized that even after a jury trial a “successor judge

may still grant a new trial on the ground that he cannot fairly rule upon the

specific motion for new trial in light of particular credibility issues in the

record.”

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Federal Rule 63 also recognizes that the procedure a successor judge must

follow is different depending on whether the trial or hearing is with or without a

jury and whether credibility assessments will have to be made by a successor

judge.

Federal Rule of Civil Procedure 63 always permitted a successor judge to decide postrial motions in a case in which finding of fact and conclusions of law had been filed. See, e.g. David E. Lever v. United States of America, 443 F.2d 350,351 (2nd Cir 1971); Rose Hall LTD v. Chase Manhattan Overseas Banking, 576 F. Supp. 107,125 (D.Del. 1983) aff’d without opinion 740 F.2d 956 (3rd Cir. 1984) cert. denied 469 U.S. 1159 (1985) (applying Federal Rule of Civil Procedure 63 to allow a successor judge who did not preside at trial to decide a motion notwithstanding verdict, so long as the successor judge is not required to evaluate credibility of witnesses) Lashbrook v. Kennedy Motor Lines, Inc., 119 F. Supp. 716 (W.D. Pa. 1954).” Canseco v. USA, 97 F.2. 1224 (9th Cir. 1996). Emphasis added.

In Smith v. Silberman, 586 So. 2d 467 (3d DCA 1991) the court was presented

with a situation where, in a prior appeal it had ordered the trial court to hear the

testimony of a previously excluded witness. In the interim, the original trial judge

recused himself. The successor judge only heard the testimony of the previously

excluded witness. The successor judge considered the record but heard only the

one witness. The Court ruled that absent a stipulation to the contrary a successor

judge may not weigh and compare evidence heard before a prior judge. A

successor judge who does not hear all the evidence may not enter a judgment.

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e.g. Reaves v. Reaves, 546 So.2d 744 (2d DCA 1989).

When the successor judge became responsible for the completion of the case, it required that he not only hear and evaluate the surviving wife’s testimony, but the estate’s evidence as well which, when properly evaluated, might change the result. The successor judge necessarily had to hear and evaluate all of this testimony directed to the issue of the gift in order to perform the quintessence of the function of the trier of fact in assessing not only the credibility of the testimony but the weight which it was accorded.

The Reaves case is important because like this case it was non-jury.

The Federal Rule recognizes that when a successor judge is called upon to rule

upon a motion for new trial which necessarily requires a credibility finding a

successor judge must rehear the witness whose credibility is at issue. See, Federal

Rule of Civil Procedure 63. See also, Advisory Committee Notes to 1991

Amendment to Rule 63 (“The court would, however, risk error to determine the

credibility of a witness not seen or heard who is available to be recalled. Cf.

Anderson v. City of Bessemer City NC, 470 U.S. 564, 575 (1985); Marshall v.

Jerrico, Inc., 446 U.S. 238, 242 (1980). See also, United States v. Radatz, 447 U.S.

667 (1980).

The courts are uniform that a successor judge may rule on a motion for new

trial unless there are credibility issues.

The court in National Healthcorp Limited Partnership, supra, recognized

this rule. “We caution that this holding does not rule out the possibility that the

successor judge may still grant a new trial on the ground that he cannot fairly rule

upon the specific motion for new trial in light of particular credibility issues in the

19

record….[T]hus the type of credibility issue that mandate a new trial, as a matter of

law, would normally occur only when the first judge could have granted a new trial

because of a witness’s demeanor while testifying of perhaps due to the

impeachment of a witness.” See, State of Maine v. Ruybal v. Armstrong, 408 A.2d

1284 (Me. 1979) (new trial may be granted where it is clear that newly discovered

impeachment evidence would have resulted in a different verdict.)

Although the successor referee applied the wrong law in assessing whether

Karten was entitled to an evidentiary hearing, (See, infra,) she recognized that she

would have to assess credibility in her determination as to whether the newly

discovered evidence would “probably change the result if a new trial is granted.”

In a hearing which was determined upon a credibility finding the successor referee

cannot determine if the newly discovered evidence would probably result in a

different credibility finding by reading a cold record. The successor referee’s

determination, without hearing testimony, that credibility evidence would not

change the outcome is flawed

The successor judge would have to evaluate each witness. See, e.g.

Anderson v. Dewey, 350 P.2d 734 (Idaho 1960)(In a case where the successor

judge, after a non jury trial, in resolving the issues raised by a motion for new trial

is required to resolve conflicting evidence or pass upon the credibility of witness a

new trial should be ordered)

In Federal Deposit Ins. Corporation v. Siraco, 174 F.2d 360 (2nd Cir 1949)

The Court held that where the testimony of the defendant and his witness was

sufficient to support finding for the defendant, but facts raised a suspicion as to

verity of their testimony, and judge to whom case was referred after death of judge

20

who heard testimony, and who made finding in favor of defendant, did not see

witnesses, the case should be reversed and a new trial ordered before a judge who

could decide after seeing witnesses. Accord; Grudzina v. New Mexico Youth

Diagnostic and Development Center, 725 P. 2d 255 (N.M.App 1986)(credibility of

a witness may be so vital that a new trial is required even when the parties have

stipulated to the successor judge’s authority to decide case after former judge is

disabled, in which case successor judge has discretion to order new trial)

This importance of the newly discovered evidence is underscored by the

referee’s finding that Karten was not credible and that Loynaz was. “With regard

to Mr. Loynaz’ credibility, no discernible motive on his part to testify untruthfully

has been established from the evidence, irrespective of his several felony

convictions.” (The referee made this statement despite the Bar’s seeking

restitution.) This Court also acknowledged, in its opinion, that this original bar

proceeding was decided on credibility. “The referee in the instant case assessed

Karten’s credibility and chose to credit the testimony of other witnesses over

Karten’s testimony.” The successor referee, in her report, dismissed the fact that

Loynaz filed a civil lawsuit against Karten and that his wife sought a one half

interest in any monetary judgment in her divorce proceeding, because either had “a

vested interest in any lawsuit which might be filed”(as would any married couple)

and was argued before the referee as bias or motive.” If it was discernable motive

to lie (financial stake in the proceedings) than the finding of the referee was wrong.

If it was not a discernible motive according to the first referee the successor referee

missed the significance of the evidence.

21

The successor referee, to rule on Karten’s motion for new trial, has to resolve conflicting evidence and determine the credibility of witnesses and therefore the Court should remand this cause and order a new trial.

III. ASSUMING THAT A NEW TRIAL IS NOT MANDATED THE SUCCESSOR REFEREE IS REQUIRED TO HOLD AN EVIDENTIARY HEARING

This court, in two different orders referred this matter to the referee to be

heard on its merits. The plain meaning of “on its merits” mandated that the

successor referee hold an evidentiary hearing. The Court de facto found that Karten

met the necessary threshold, on the pleadings, when it ordered the new trial motion

to be heard on its merits.

In the order clarifying its first order the Court stated:

The Court finds that the referee has jurisdiction over Respondent’s Motion for New Trial and should consider that motion on its merits within ninety (90) days of this order.

Blacks Law Dictionary defines on the merits as follows:

on the merits: (of a judgment) delivered after the court has heard and investigated the substantive arguments of the parties. [vs.]

on the pleadings: (of a judgment) rendered without hearing or evaluating the full arguments of the parties.

The Third District has clearly defined the legal requirements mandated for

22

hearing a matter on the merits. In Herwitt vs. Caffee, 368 So.2d 1342 (3d

DCA, 1979), the claimant alleged that the judicial referee failed to give her a

hearing on the merits of her motion. The judge allowed only the introduction of

medical records at the hearing without receiving further evidence. The reviewing

court found this process insufficient in meeting the legal requirements of hearing a

case on the merits.

THE PLEADINGS SUPPORT AN EVIDENTIARY HEARING

The evidence presented to the successor referee established a colorable

showing that fraud was committed and that witnesses testified falsely.

Karten’s allegation of fraud and false testimony by Nelson Loynaz, as well

as the discovery of the fraudulent nature of the vehicle documents, falsified records

of 201 East Atlantic Investments, Inc and the presentation of unexpected false

testimony raised more than a colorable entitlement to 1.540 relief and required an

evidentiary hearing. See, Dynasty Express Corp. vs. Weiss, 675 So.2d 235 (4th

DCA 1996) (if the allegations in the moving party’s motion for relief from

judgment raise a colorable entitlement to Rule 1.540(b)(3) relief, a formal

evidentiary hearing on the motion, as well as permissible discovery prior to the

hearing is required). See also, In re Guardianship of Teresa Marie Schiavo v.

Michael Schiavo, 800 So. 2d 640, (2nd DCA 2001).

23

After discovering that his cooperation with the United States was not going

to result in a significant sentence reduction, Nelson Loynaz did what numerous

clients do - turned on his attorney and filed a bar complaint against him. Loynaz

testified that he entered into an agreement with the United States whereby he was

to receive four vehicles in exchange for the sum of $30,000.00 that his friend

Manny Mesa was to provide. Mesa was to sell the vehicles and split the proceeds.

(Coincidentally, the same agreement Karten testified he had with Loynaz). He was

unable to sell the vehicles because Karten, he testified, picked up and sold the

vehicles without his authorization or agreement.

The first referee primarily relied upon the testimony of Loynaz and his wife,

Mary for corroboration. They testified that Loynaz’ friend, Manny Mesa had a

$30,000.00 check to be deposited in Karten’s trust account to be used to satisfy the

agreement with the government. Nelson Loynaz committed fraud by falsely

testifying that he had no agreement with Karten to sell the four forfeited vehicles

and that Manny Mesa had the funds to purchase the vehicles.

The referee found that Karten made a profit from the sale of a corvette to

Thomas Duncan. This was corroborated, according to the referee, by Karten’s

business partner, Karl Carmin who submitted a redacted and falsified exhibit

indicating that Karten received the benefit of $24,000 from the sale of the Duncan

24

corvette as a capital contribution to the corporation. The documents supplied by

Karten’s ex-partner, Karl Carmin were fraudulent, the alleged supporting

documents “were eaten by rats” and the supporting documents contained false

information and forged signatures of Karten.

According to Duncan, Woltin supplied a falsified bill of sale for the

corvette. That document was never produced by Duncan or Woltin. Woltin’s

forging Karten’s signature on that document would be consistent with Woltin’s

other forgery of Karten’s signature. (Woltin’s forgery of Karten’s signature on an

identical purchasing agreement to that of Duncan’s and the actual title on a second

corvette is presently under investigation by law enforcement and is part of the

evidence presented to the successor referee.)

1. TWENTY (20) DAYS AFTER THE BAR HEARING MARY LOYNAZ FILES FOR DIVORCE ALLEGING AN INTEREST IN A CIVIL ACTION FILED BY HER THEN HUSBAND, NELSON LOYNAZ.

The original referee relied heavily on the “credibility of the witnesses” in

disbarring Karten. Clearly, the inclusion of the Karten civil lawsuit in her divorce

action a mere twenty (20) days after the hearing is not a coincidence and is

something that should have been disclosed during the course of the hearing.

Although Mary Loynaz refers to a civil lawsuit filed by her husband no such

25

lawsuit was, filed at the time her petition for dissolution was filed. It is reasonable

and logical to infer from that fact that Nelson and Mary had discussed filing a

lawsuit against Karten.

The successor referee states “Mary Loynaz was previously impeached on

her bias with regard to having a claim in any law suit which her husband might file

for recovery.” That is not what she said. What Mary Loynaz stated was:

Q: Okay. Mrs. Loynaz, if your husband obtains these cars or any monies from this or other litigation, you will benefit by that, will you not? A: Yes.

Mary Loynaz believed, at the time she testified, that her husband intended

on filing a civil action - as was filed for $300,000.00. This $300,000.00 lawsuit

and her planned interest in it, by way of divorce court, should have been disclosed.

In her divorce complaint, filed 20 days after she testified, she alleged that her

husband had filed a civil lawsuit against Karten. He had not. The lawsuit was filed

14 months later. This interest affects this witness’ credibility and was not

considered as a motive for Loynaz to give false testimony by the first referee. The

successor referee agrees that Loynaz had a motive to lie, a motive not recognized

by the first referee.

2. NELSON LOYNAZ FILED A LAWSUIT AGAINST KARTEN FOR $300,000 AND FAILED TO DISCLOSE THAT HE HAD HIRED A LAWYER TO SUE KARTEN

26

PRIOR TO HIS BAR TESTIMONY.

As evidenced above, Loynaz intended on filing this lawsuit against Karten

prior to the time of the hearing. Loynaz retained counsel months before his bar

testimony. Such a financial interest would affect any reasonable trier of facts

judgment of the credibility of a witness. The intention to file is evidenced by Mary

Loynaz divorce petition above. The successor referee dismisses these contentions

as “not likely to effect the outcome of the case.” A conclusion that necessarily

makes a credibility determination. The original referee in his report specifically

stated that other than Loynaz’ 12 felony convictions he had no discernable motive

to lie. There is no greater discernable motive to lie than having a financial stake in

the outcome of a proceeding. Loynaz’ financial motive was not considered by the

original referee. The successor referee dismisses this testimony as not newly

discovered material. The evidence was discovered after the bar hearing. The

successor referee also dismisses the evidence because the “evidence in this case is

overwhelming and compelling, it has not been shown to be likely that this evidence

would have resulted in a different outcome.” Again, the successor referee ignores

that such a conclusion requires credibility assessments. See, Karten’s prior

argument regarding successor judge not making credibility determinations without

27

hearing testimony. The successor referee’s comment on the weight of the evidence

is remarkable in that the successor referee did not certify that she read the record

nor did she hear any testimony. In evaluating the weight of the evidence a trier of

fact must make credibility determinations. Smith v. Brown, 525 So.2d 868 (Fla

1988).

2. MARY LOYNAZ NOW SAYS THAT SHE NEVER SAW A $30,000 CHECK FROM MANNY MESA AND THAT ALL HER TESTIMONY CONCERNING ANY AGREEMENTS AS WELL AS ALL OTHER CORROBORATING TESTIMONY CAME FROM HER THEN HUSBAND - NELSON LOYNAZ.

At the trial, Mary Loynaz testified that she and Manny Mesa attempted to

tender a $30,000.00 check to Karten to pay for the cars - the heart of Loynaz’

allegation. In a civil deposition taken in Loynaz v. Karten, Case # 02-6097CA21

(Cir. Ct. 11th Jud. Circuit 2002) filed after the hearing, she states:

Q. Is it fair to say that the source of your information concerning whatever arrangements, if any, there were between myself (Karten) and Nelson Loynaz, was Nelson Loynaz?

A. Yes. Page 35 of Mary Loynaz’ deposition.

The deposition continues and on redirect, she reaffirms the above statement:

Q. And you have those understandings because that’s what Nelson

Loynaz told you. 28

A. As far as what?

Q. All those questions about what your understanding was putting up the money, bringing money, the meaning of the agreement, all these understandings of what the agreement was were because Nelson told you that’s what the agreement was?

A. Correct.

Q. You had no other outside source of information concerning the agreement, just what Nelson told you.

A. Right. Page 47 (emphasis added)

The successor referee ignored Mary Loynaz’ deposition testimony and concluded:

“Mary Loynaz does not ever say that she did not have personal knowledge.”

4. MARY LOYNAZ NOW ADMITS THAT SHE ATTENDED A MEETING AT THE JAIL WHERE THE AGREEMENT BETWEEN KARTEN AND LOYNAZ WAS DISCUSSED.

The successor referee stated: “[A]fter review of Mary Loynaz’ testimony

this Referee fails to find that the testimony referred to supports the conclusion that

Mary Loynaz’ testimony corroborates the Respondent’s testimony.” All of the

successor referee’s citations to the record are only to the testimony of Mary

Loynaz. The successor referee never certifies or even states that she read Karten’s

hearing testimony. However, Mary Loynaz’ post hearing deposition in the civil

case reveals that she did in fact witness a meeting between Karten and Loynaz at

29

which their agreement to sell the cars was discussed.

At the Bar hearing, Mary Loynaz never testified that she witnessed a

conversation between Loynaz and Karten “about the cars.” At the time, she was

still married to Loynaz. She now admits that she did so at a time when she was at

the jail at the same time as Karten. Records confirm that this meeting took place

before the stipulation and settlement was executed. She states:

Q. Do you recall what we talked about? A. I know the two of you were discussing about the cars and

money, but don’t recall exactly why.

Q. Do you recall, when we discussed the cars, you were sort of listening to the two of us talk, basically?

A. Yes. Deposition testimony pages 35-36. (emphasis added)

Karten testified about this meeting with Loynaz at the Federal Corrections

Center at his bar hearing. (R 263 – 264.)

Mary Loynaz’s testimony corroborates Karten’s testimony and is

inconsistent with Loynaz’ bar hearing testimony. A reasonable trier of fact would

find that this testimony is of some “moment” in judging the credibility of both

Karten and Loynaz.

5. MANNY MESA SIGNED A SWORN POST HEARING STATEMENT THAT HE HAD NO AGREEMENT

30

WITH NELSON LOYNAZ TO SELL THE CARS FOR HIM AND NEVER HAD A $30,000.00 CHECK FOR KARTEN. HE FURTHER STATES THAT HE WAS NEVER ADVISED TO TALK TO THE UNITED STATES ATTORNEY AS STATED BY LOYNAZ IN HIS BAR TESTIMONY.

This is the smoking gun. Mesa was unavailable to testify for the Bar (or

Karten) at the time of the hearing. Yet, he is the witness who could have

corroborated Loynaz’ testimony, since he is the one who had agreed to pick up and

sell the cars for Loynaz and to talk to the United States Attorney.

The successor referee’s response is that Karten cannot present Mesa’s

testimony as it is precluded as “law of the case”. See, argument, supra. This post-

hearing document establishes that Nelson Loynaz lied at the hearing about having

an agreement with Manny Mesa to sell the cars and to talk directly to the United

States Attorney. A reasonable fact finder would find this significant in judging

Loynaz’ credibility as well as the Bar’s case in chief. Mesa’s affidavit was offered

to prove that Loynaz’ bar hearing testimony was false and unexpected.

6. LOYNAZ NOW ADMITS THAT THE VEHICLES WERE OWNED BY TROPIKAR SALES, INC., NOT HIM.

31

At the Bar hearing Loynaz told the referee that the cars were owned by him.

In Loynaz v. Karten, Case # 02-6097CA21 (Cir. Ct. 11th Jud. Circuit 2002) filed in

2002, in an answer to a request to admit - Loynaz admits that the cars were owned

by Tropikar Sales, Inc. The import of this is obvious, Loynaz testimony or

statements at any time are not worthy of belief. The actual titles to the vehicles

belie Loynaz’ testimony.

The successor referee refers to the Court’s opinion, which quotes the report

and recommendation of the first referee. The original referee stated that Loynaz

testified that he masked the ownership of the vehicles to avoid their seizure and

forfeiture. While this is a common process employed by professional criminals,

that statement is not in the record of the bar’s proceedings. In fact, Karten, in his

motion to recuse, alleged that the first referee fabricated this testimony to support

his conclusion. The successor referee now parrots this false statement. Loynaz

specifically testified that he kept the titles in their original names to protect their

value. In fact, an examination of the titles, will, without any doubt, show that

some of the titles were transferred to Tropikar Sales. Inc. years before Loynaz the

date that Loynaz testified they were. The 1967 Corvette title was transferred by

Quality Leasing, Inc. to Tropikar, Sales, Inc. in 1989. The Shelby title was never

transferred to Tropikar, Sales, Inc. (contrary to Loynaz’ testimony). The affidavit

32

of Manuel Fernandez, owner of Tropikar Sales, Inc. indicates that in 1994 he

owned the vehicles, not Loynaz. The newly discovered evidence is proof that the

Bar presented false testimony at the original hearing.

7. LOYNAZ’ STATEMENTS IN HIS POST HEARING DEPOSITION SUPPORTS THAT KARTEN WAS TO PUT UP THE FUNDS FOR THE CAR.

In his deposition in support of his civil lawsuit against Karten, Loynaz for

the first time seems uncertain as to whether Karten actually was the person with

whom he was going to sell the cars. Karten agrees that it is not a true admission.

However, if Loynaz does not remember what was said at the meeting with the

government than Karten’ testimony before the referee was uncontraverted.

8. LOYNAZ’ POST HEARING TESTIMONY AT DEPOSITION REGARDING STANDING CORROBORATES KARTEN AND LOGICALLY CONFLICTS WITH LOYNAZ’ BAR TESTIMONY

In his post hearing testimony, Loynaz admits that there was a necessity to

establish standing prior to discussions with the government regarding the

forfeiture of the vehicles. The testimony supports Karten’s testimony that he

argued that Loynaz could argue standing under a mechanics lien theory. The

successor referee states that she reviewed Loynaz’ deposition and Loynaz does not

concede the point.

33

Loynaz’ deposition at page 133-134:

Q: John Roth asked---- I remember that I told him that I did some work on the cars. Q: Right, and our argument was that we could have standing possibly file a challenge based upon a mechanic’s lien on the vehicles because you had done some repairs to the vehicles --- tires, paint or body work. I don’t remember what it is personally. Do you recall that? A: Yes. I remember something like that.

See, Karten’s hearing testimony at page 259.

The referee also ignored Loynaz’ subsequent affidavit in Opposition to

Defendant’s Motion for Summary Judgment filed in Loynaz v. Karten, Case # 02-

6097CA21 (Cir. Ct. 11th Jud. Circuit 2002) in which, under oath, Loynaz states

that:

1. He informed the U.S. attorney’s office that he owned the vehicles. (If so

why was standing an issue)

2. He told prosecutors that he bought the cars will illegal drug money.

3. A prosecutor told him he had a 50/50 chance of getting the cars back.

(Even though purchased with illegal drug money).

4. An assistant United States attorney told him they knew he would be

unable to provide proof of income for the purchase of the vehicles.

All of which is incredible and defies all common sense and reason. As a matter of

34

law, Loynaz is unworthy of belief. If any of Loynaz’ affidavit is true there would

not have been an issue as to standing nor an inquiry by AUSA Roth as to standing.

Loynaz simply would have asserted that he was the owner and the owner always

has standing.

9. THE DOCUMENTS SUBMITTED BY THE BAR

FROM 201 EAST ATLANTIC INVESTMENTS, INC. (THE RESTAURANT PARTNERSHIP) ARE FRAUDULENT, SIGNATURES ARE FORGED AND ROBERT WOLTIN AND CARL KARMIN COMMITTED MULTIPLE ACTS OF PERJURY.

The Bar introduced evidence and testimony to support its case that Karten

deposited the “profits” from the sale of the vehicles in his restaurant partnership,

201 East Atlantic Investments Inc. Testimony was presented that Robert Woltin

deposited $24,000.00 from the sale of one of the corvettes as a “credit” towards

Karten’s participation in the corporation. (Duncan sale) Karten testified that this

was done without his knowledge and that the $24,000.00 was not a “profit” to

Karten. Woltin testified at the Bar hearing in person. Karmin testified via

deposition.

The successor referee’s conclusions of the fraud allegations can be summarized

as follows:

35

1. Woltin’s 1999 deposition is not newly discovered evidence.

2. Baraz was known to the parties, therefore any possible

testimony of Baraz cannot be newly discovered.

3. Assertions of perjury by Karmin and Woltin are conclusory.

Assuming arguendo that they committed perjury, their

testimony was not material to the case. This was a theft case

and evidence regarding Karten’ finances “were merely

supplemental evidence.” The outcome of the case would be

the same.

The successor referee failed to understand Karten’s argument and the applicable

case law.

In Karten v. Karten, Case # 99-000210 on Nov. 30, 1999, Woltin, under oath,

testified that he “hadn’t the faintest idea” where Karten’s contribution came from.

Q. Do you know where that money came from? (referring to Karten’s contribution) A. I haven’t the faintest idea. It was either wired in, as I remember, either wired into the account or put in by check or cashier’s check. (Note: no mention of cash).

Baraz’ affidavit was presented as proof of Woltin and Karmin’s perjury or false

statements. Baraz offers testimony that he was directed by both Karmin and Woltin

to credit Karten with the $24,000 from the sale of the car to Duncan in the redacted

36

ledger. As noted, supra, a party is not required to anticipate false testimony from

the opposing party and, therefore, is not required to discover evidence that would

refute the false testimony. See, citations, supra.

The successor referee asserted, “this was a theft case.” The successor referee is

incorrect. The Bar alleged that Karten violated Rule Regulating the Florida Bar 4-

8.4(c) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation). The first referee relied heavily on the testimony of Woltin and

Karmin and the redacted ledger. Paragraphs 7 and 8 of his report and

recommendation deal entirely with Karten’s dealings with Woltin. The report is

replete with references to alleged violations of the Criminal Justice Act (which this

Court interpreted as “improper profit” allegations). “Moreover, Mr. Karten’s use of

a $30,000 loan from his wife as payment to satisfy the Stipulation and Settlement

Agreement, coupled with the financial returns on his business arrangement with

Mr. Woltin, further illustrates the extent of his irregular and deceitful conduct to

exclude and take advantage of Mr. Loynaz during his confinement in a federal

penitentiary outside of Florida.” Referee’s Report pg.5. If Woltin and Karmin are

lying, Karten did not make an improper profit. He made no profit at all.

The documents submitted with Karten’s new trial motion include the

unredacted ledger, which shows the purported contributions of Woltin and Karmin.

37

Also included are correspondence between Karten and Karmin in which Karten

seeks the “records” which Karmin testified where used to create the ledger. When

the records were requested, Karmin, the custodian of records, stated that there were

none because they “had been eaten by rats.” Karten filed two lawsuits. First, a

Mandamus action was filed pursuant to statute to produce the corporate records

and second, a lawsuit was filed for an accounting of 201 East Atlantic Investments,

Inc. An accounting was ordered and Karten engaged the services of Lewis

Freeman and Associates to conduct the accounting, which is still in progress.

Karmin testified at the Bar proceeding that the ledger was based upon bank

statements, deposit slips and checkbook stubs. When later asked to produce these

items, Karmin responded: “the records were eaten by rats.” Karten provided as an

exhibit to his new trial motion a copy of the bank records from Northern Trust

Bank and the deposit slip for the $24,000 deposit. There are no checkbook stubs.

The records do not indicate for whose benefit the deposit was made. According to

Baraz’ affidavit, submitted with the motion, in 1999, after Karten was thrown out

of the restaurant, Karmin and Woltin “informed (him) that $24,000 was to be

credited to Alan Karten as part of his contribution. Baraz never spoke to Karten

regarding the $24,000. Despite the inability to produce any of the supporting

documents, Karmin testified in Karten v. Karten, Case # 99-000210 (38) (91) on

38

March 15, 2000 that he didn’t know where Karten’s funds came from.

Q. Do you know where the funds from Alan Karten came from? A. No. I can’t, I didn’t see the checks as they came in, so I don’t know exactly where they came from.

Later in the deposition Karmin is shown a December 31, 1999 Financial

Statement of the corporation which is identical to the unredacted ledger as it relates

to partner contributions. Karmin testified that he doesn’t think the document

accurately reflects the contributions of the partners. Karmin testified:

Q: Do you know who prepared these documents? A: Our accountant. (Baraz) Q: Okay. Do you know where your accountant got the information to prepare these documents? A: I have no idea.

On May 25, 2004, in partial compliance with Judge Lewis’ order the

Defendants Woltin and Karmin turned over a note made by Baraz during their

meeting. On the document is a notation that Karten made a $9,000 cash

contribution which is not reflected on the redacted ledger submitted by the Bar.

Woltin and Karmin committed perjury and the Bar submitted a fabricated

document. Karten has made a colorable showing of fraud and was entitled to an

evidentiary hearing and discovery.

In summary:

39

A. Karmin submitted to the Bar a redacted and (fraudulent) general

ledger showing a “credit” of the $24,000.00 to Karten. The ledger was prepared in

March of 1999 after Karten was forced out of the restaurant. In his deposition,

filed with the court as evidence, Karmin testifies that he does not have the “faintest

idea” where the $24,000.00 contribution comes from. Baraz swears that Woltin

and Karmin told him to credit the money to Karten. In a post hearing deposition,

Karmin testifies that he did not know of the sale of the car until years later but

certainly after March of 1999.

B. Karmin took an additional $9,000.00 from Karten, which was

part of Karten’s contribution, and did not document the deposit in the redacted

general ledger or anywhere else.

C. Woltin correctly took the $24,000.00 credit and included it in

the application submitted to the Florida Division of Alcoholic Beverages and

Tobacco for the restaurant’s alcohol license. Specifically he stated that his

(Woltin’s) contribution was $129,000.00. Notably, the unredacted general ledger

submitted showed that Woltin’s contribution, as of the date of the alcohol license

application submission, was $105,000.00 to the restaurant - the difference being

$24,000.00, the exact amount that Woltin and Karmin directed Baritz to credit to

Karten later in 1999. Woltin cooked the books of the corporation and credited the

40

$24,000.00 to Karten without Karten’s knowledge. As soon as Karten was

removed from the restaurant, the same time the ledger taking a yearly salary of

$260,000.

D. Woltin lied during his bar testimony, created fraudulent

documents and forged Karten’s signature. During the course of his testimony,

Woltin stated that he bought the cars from Karten for $30,000.00. The accounting

revealed that Woltin executed subsequent sale documents on the vehicles stating

that he was acting on behalf of Karten as the seller - an inaccurate and untrue

statement - but one that saved him from the payment of sales and income tax. The

document was a form. It was identical to the form Woltin used with Duncan which

the Bar introduced before the referee. Duncan had testified at the Bar hearing that

Woltin provided him with a fake bill of sale that he could use to defraud the state

in the collection of sales tax. That bill of sale was never produced. Based on the

actions of Woltin it is reasonable to infer that Woltin forged Karten’s signature.

E. Woltin forged Karten’s signature on subsequent sale documents for the

second corvette, as well as creating a fraudulent sale price. Woltin is presently

under investigation by law enforcement. Handwriting exemplars have now been

taken and it is expected that Woltin will be criminally charged.

These documents have been discovered over a lengthy period of time. Some

41

have been requested after the discovery of other revealing documents. The

successor referee states that some of these documents or witnesses (Baraz) could

have been discovered prior to trial, however, this ignores that steps were taken to

create fraudulent documents and cover up other documents. An evidentiary

hearing is required on this issue alone. Karten did not go into the Bar hearing with

the knowledge that he was the victim of fraud by his business partners. The

documents only became available after the testimony and subsequent accounting.

A party is not required to anticipate false testimony from the opposing party

and, therefore, is not required to discover evidence that would refute the false

testimony. Roberto v. Allstate Insurance Co., 457 So.2d 1148 (Fla. 3rd DCA

1984); Kline v. Belko, LTD, 480 So.2d 126 (3rd DCA 1985); McDonald v. Pickens,

M.D., 544 So. 2d 261 (1st DCA 1989); Dynasty Express, Corp. v. Weiss, 675 So.2d

235 (4th DCA 1996).

Perjury constitutes fraud. Whether testimony is perjurious is requires an

evidentiary hearing. Davenport v. Dimitrijevic, 857 So.2d 957 (4th DCA 2003).

The referee ignored most of the evidence submitted by Karten, and failed to apply

the law.

In conclusion, as to the Bar’s “corroboration,” it is based on false documents

generated by an individual(s) who is about to be charged with fraud and forgery.

42

These are the only documents and testimony, which relate to Karten’s, alleged

profit from the sale of the cars and are the only physical evidence from which a

referee could question Karten’s credibility. A reasonable trier of fact would

question Loynaz’ testimony, as well as and more importantly the Bar’s case in

chief.

FAILURE OF THE SUCCESSOR REFEREE TO ADDRESS OTHER EVIDENCE

The successor referee did not address the newly discovered evidence that

was part of Karten’s Motion to Supplement the Record and for Rehearing filed

before the original referee. This pleading was filed immediately after the hearing

concluded but prior to the sanctions portion of the hearing. The original referee

declined to reopen the hearing notwithstanding the significance of the documents

contained therein.

That document contained new information including:

A. Ninety-three (93) collect phone calls from Loynaz to Karten.

The telephone calls were for ten to fifteen minutes each and continued through

January of 1998. The information directly conflicts with Loynaz testimony that he

was unable to speak with Karten and proves Loynaz’ testimony to be false.

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B. The affidavit of Dennis Bruce, Esq. In his affidavit he states

that he shared space with Karten and that Nelson Loynaz called the office

numerous times and that he personally witnessed the secretary (Elaine Linder

Garcia) putting the Loynaz calls through to Karten. Bruce also states that Karten

freely spoke with him regarding his participation in putting up the $30,000.00 on

behalf of Loynaz, to sell the cars and divide the profit. This information

contradicted Loynaz testimony that Karten secretly “stole” his cars from him and

proves that the Bar, through Loynaz, presented false testimony.

C. The proffer from Karten’s then secretary, Elena Linder Garcia.

She would have testified that she had conversations with Loynaz and that Loynaz

was aware that Karten was taking the vehicles for future sale and that Karten was

putting up the money for the vehicles. Furthermore, at no time did Loynaz ever

tell her that Karten had stolen the cars. Finally, she would have testified that

Loynaz advised her that he was firing [Karten] because he did not get the 5K 1.1

Sentencing Reduction.

A 5K 1.1 motion is filed by the government specifically the United States

Attorney assigns to a specific criminal case, when he or she believes that a criminal

defendant has provided substantial assistance to the United States government.

The referee never heard this testimony. The successor referee ignored it.

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Additionally the successor referee failed to address any of the newly

discovered evidence that was outlined in the pleadings filed before this Court

during the pendency of Karten’s original appeal.

Respondent’s motions to this court appended the following newly

discovered evidence:

1 A July 21, 2001 Miami Herald article in which Loynaz told a Miami Herald

reporter that he started a business “Exotic Toys” some six months earlier –

i.e. December 2000, the same month he testified before the referee by

borrowing $300,000. In the article, Loynaz states that he owned Blue Eagle

Body Shop, a 73-car operation in Hialeah, for years. If true, Loynaz

repeatedly perjured himself in official court proceedings.

The corporate records of Blue Eagle Paint and Body Shop, Inc., Hialeah,

Florida which do not reflect any interest of Nelson Loynaz.

3. Criminal records of Loynaz’ Exotic Toys partner Luis Fernandez and the

criminal records of Jaime Cruz who appears on the corporate records of

Blue Eagle Paint and Body Shop, Inc.

4. Criminal records of Jesus E. Rios, who also appears on the corporate

records of Blue Eagle Body Shop.

5. Complaint, Loynaz v. Karten, Case No. 02-6097(Cir. Ct. 11th Jud. Circuit).

6. Sworn statement of Manuel Alberto Mesa, July 1, 2002.

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7. Deposition of Manuel Fernandez, Nelson Loynaz v. Alan I. Karten, Case No. 02-6097 (11) (Cir. Ct. 11th Jud. Circuit) (August 5, 2002)

8. Rule to Show Cause Pleadings and Order, Nelson Loynaz v. Alan I. Karten, Case No. 02-6097 (11) (Cir. Ct. 11th Jud. Circuit)

THE SIGNIFICANCE OF THE EVIDENCE

On Saturday, July 21, 2001, both the English and Spanish editions of The

Miami Herald published a front page article in the Business Section featuring none

other than the “vulnerable victim” Nelson Loynaz. In the few months since being

released from prison, Loynaz managed to become co-owner of a business “Exotic

Toys,” which leases luxury automobiles, including Porches and Ferraris, to movie

stars and the “hip” crowd on South Beach. Id. Loynaz told The Herald that he

allegedly started the business “from scratch” six months earlier—i.e., in December

2000, the same month he testified before the Referee herein—by “borrowing”

$300,000. However, the article provides a possible explanation for the alleged

loan. According to The Miami Herald , “Loynaz, 35, is no stranger to cars of all

kinds. He has owned Blue Eagle Body Shop, a 73-car operation in Hialeah, for

years”. Id.

If Loynaz has “owned a “73-car” Business “for years,” he was not indigent

in 1996, 1997 or in 2000, when he repeatedly swore under oath that he had no

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money or other assets to retain counsel. In short, if the statements attributed to

Loynaz by The Miami Herald are true, Loynaz perjured himself both in federal

court and before the Referee. He is neither “credible” nor “vulnerable” but, as

Respondent has consistently claimed, a predator who made false accusations

against Respondent for a variety of selfish motives.

The Successor Referee should have conducted an evidentiary hearing on the

revelations contained in The Miami Herald article. See generally Swafford v. State,

679 So.2d 736 (Fla. 1996) (relinquishing jurisdiction for 90 days for Circuit Court

to conduct evidentiary hearing on newly discovered evidence claims in criminal

case); Island Transp v. Ilman, 669 So.2d 298 (Fla. 3d DCA 1996) (reversing denial

of Rule 1.540 motion for evidentiary hearing); Ross v. Bandi, 566 So.2d 55 (Fla 4th

DCA 1990) (same); Wiley v. Wiley, 546 So.2d 1149 (Fla. 4th DCA 1989) (same).

The revelations by The Miami Herald constitute a colorable showing of

misconduct, sufficient to require such a hearing. Evidentiary hearings are

frequently held on newly discovered claims based on media reports. See, e.g.,

United States v. Fernandez, 136 F.3d 1434, 1439 (11th Cir. 1998) (reversing denial

of motion for new trial for evidentiary hearing based entirely on newspaper articles

and a transcript of a “60 Minutes” broadcast); United States v. Martinez, 14 F.3d

543, 550-51 (llth Cir. 1994) (reversing for denial of motion for new trial following

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evidentiary hearing which was convened, in part, following media reports of juror

misconduct); United States v. Posner, 644 F. Supp. 885, 889 (S.D. Fla. 1986)

(newspapers quoting juror’s comments sufficient to prompt court to conduct sua

sponte inquiry: court thereafter grants motion for new trial), aff’d, 828 F.2d 773

(11th Cir. 1987), cert. denied, 485 U.S. 935 (1988).

The deposition testimony of Manuel Fernandez also contradicts the

sworn testimony of Nelson Loynaz before the Referee. Loynaz testified below that

he purchased the four cars at issue herein for $150,000 in cash from someone

named “Horacio Sardinas.” See Hearing Testimony, December 15, 2000, at p.62.

In his deposition, Mr. Fernandez testified that he sold the four cars to Loynaz for a

total only $30,000. Mr. Fernandez further testified that he had previously told the

Respondent—falsely as it turned out—that he (Fernandez) still owned the cars and

that Loynaz did not. Id. at pp. 18-20. Thus, Mr. Fernandez’ deposition testimony is

both completely inconsistent with Loynaz’ testimony before the Referee

(concerning how he acquired the vehicles and their value) and consistent with

Respondent’s testimony concerning the actual owner of the vehicles.

CONCLUSION

Based upon the above argument and citations of authorities the Court should

remand the case for a new trial.

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Respectfully submitted,

__________________________ ALAN IRA KARTEN, pro se 1888 N.W. 7th Street Miami, Florida 33125 Tel: (305) 541-6300 Fax: 305-643-3334

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing brief

was mailed this ____ day of ______________ 2005 to:

Randi Klayman Lazarus Staff Counsel The Florida Bar The Florida Bar Rivergate Plaza 650 Apalachee Parkway Suite M-100 Tallahassee, Florida 32399-2300 444 Brickell Avenue Miami, Florida 33131 __________________________ ALAN IRA KARTEN

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing Brief was prepared in Times New Roman 14-point font. __________________________

ALAN IRA KARTEN

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