A O P - T M: Mended Rder On OST Rial Otions

Case 1:08-cv-20260-AJ Document 241 Entered on FLSD Docket 04/19/2010 Page 1 of 24
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 08-20260-CIV-JORDAN
MANUEL SOLTERO )
)
Plaintiff
)
vs. )
)
SWIRE DEVELOPMENT SALES, INC., et
)
al.
)
Defendants )
____________________________________ )
AMENDED ORDER ON POST-TRIAL MOTIONS

This order addresses the parties’ post-trial motions. Following oral argument and review of
the pertinent portions of the record, the motions of the defendants for judgment as a matter of law
and/or new trial [D.E. 187, 188] are GRANTED IN PART AND DENIED IN PART , Mr. Soltero’s motion
to amend the judgment to add prejudgment interest [D.E. 191] is DENIED , and Ms. Aguila’s motion
for attorney’s fees and costs on the civil theft and RICO claims [D.E. 198] is DENIED WITHOUT
PREJUDICE .
I. BACKGROUND
In December of 2005, at or near the height of the real estate boom in Miami, Mr. Soltero
purchased a four-bedroom apartment with a wrap-around balcony and spectacular water views on
the 36th floor of Carbonell, a condominium on Brickell Key developed by the Swire Group. Despite
the fact that the apartment -- known as Unit 3608 -- was appraised at $1.5 million, and that he was
aware of this appraisal, Mr. Soltero paid $1.7 million to buy it from its owner, Mr. Enriquez.
This bitterly-fought case involved allegations that the defendants – Ms. Aguila, Swire
Development Sales, and Swire Realty (the latter two entities being members of the Swire Group) –
made fraudulent and negligent misrepresentations to Mr. Soltero with respect to Unit 3608. There
were no claims by Mr. Soltero that Unit 3608 had any construction (or other) defects, or that it did
not have the number of rooms and bathrooms advertised, or that the ceilings were lower than they
should have been, or that the square footage was smaller than represented. Instead, Mr. Soltero
alleged that the defendants made misrepresentations to him about the size and height of Asia, another
condominium building that was being constructed by the Swire Group next to Carbonell, and the
effect Asia would have on Unit 3608. Although no one disputed the right of the Swire Group to
build Asia on Brickell Key as it saw fit (in terms of location, size, height, shape, etc.), Mr. Soltero
alleged that the defendants falsely told him that Asia would not be higher than Unit 3608 and
therefore would not obstruct the privacy in, or the views of the water from, Unit 3608. As it turned
out, Asia was built so that it was higher than Unit 3608; it partially obstructed the wrap-around water
views that previously existed -- Unit 3608 still had some magnificent water views, but they were
certainly not as expansive as before -- and allowed tenants in Asia who were at or above the 36th
floor of Carbonell to look at or into Unit 3608.
Mr. Soltero asserted that the defendants’ conduct constituted fraud, negligent
misrepresentation, civil theft, and – because he also claimed that the defendants had repeatedly
engaged in false advertising about Carbonell and Asia – violated Florida’s RICO statute. All of
these claims were based on Florida law.
After a two-week trial, the jury returned a verdict in favor of Mr. Soltero and against all the
defendants on the fraud and negligent misrepresentation claims, in favor of all the defendants and
against Mr. Soltero on the civil theft claims, in favor of Mr. Soltero and against the Swire defendants
on the RICO claim, and in favor of Ms. Aguila and against Mr. Soltero on the RICO claim.
On the fraud and negligent misrepresentation claims, the jury awarded Mr. Soltero $200,000
for the loss of value to Unit 3608, as well as $150,000 for the improvements Mr. Soltero had made
to Unit 3608. On the RICO claim, the jury awarded Mr. Soltero $250,000 for the loss of value to
Unit 3608. The jury also awarded Mr. Soltero punitive damages of $200,000 against Ms. Aguila,
$500,000 against Swire Development Sales, and $500,000 against Swire Realty.
II. APPLICABLE STANDARDS
The defendants move for judgment as a matter of law under Rule 50(b) and/or for a new trial
under Rule 59(a). Each of these provisions calls for application of a different standard.
Under Rule 50(b), the question is whether, “as a legal matter,” there is sufficient evidence,
viewed in the light most favorable to Mr. Soltero, “from which a reasonable jury could find” in his
favor. See Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007). A court, in applying
this standard, cannot reweigh the evidence. See Norton v. Snapper Power Equipment, 806 F.2d
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1545, 1548 (11th Cir. 1987).

Under Rule 59(a), if the motion is made on the ground that the verdict is against the great
weight of the evidence, the court may not just simply substitute its judgment for that of the jury. See
Conway v. Chem. Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir. 1980). (Explaining factors
to be taken into account by court). In addition, Rule 59(a) itself provides that a new trial may be
granted “on all or part of the issues . . . for any of the reasons for which new trials have heretofore
been granted in actions at law in the courts of the United States.” The grant of a new trial under this
provision includes excessive or inadequate damages, see Lucas v. American Mfg. Co., 630 F.2d 292,
293 (5th Cir. 1980), as well as improper closing arguments, see Christopher v. State of Florida, 449
F.3d 1360, 1365-68 (11th Cir. 2006), and is reviewed for abuse of discretion.
III. DISCUSSION
The defendants seek to set aside the verdicts against them, asserting that they are not
supported by sufficient evidence. They also argue that the compensatory and punitive damages
awarded to Mr. Soltero are should be set aside because they are not supported by sufficient evidence,
cannot be recovered under Florida law, and/or are excessive. Finally, they request a new trial on
punitive damages due to the closing argument of Mr. Soltero’s counsel.
A. FRAUD & NEGLIGENT MISREPRESENTATION
In Florida, the elements of common-law fraud are (1) a false statement about a material fact;
(2) knowledge by the speaker that the statement was false; (3) an intent by the speaker that the false
statement induce reliance of another person; and (4) injury the other person acting in reliance on the
false statement. See, e.g., Lance v. Wade, 457 So.2d 1008, 1011 (Fla. 1984); Lopez-Infante v. Union
Central Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002). The elements for common-law
negligent misrepresentation are the same, except that as to element (2) the speaker need not actually
know that the statement was false; it is sufficient if the speaker made the statement without knowing
whether it was true or false or made the statement under circumstances in which he should have
known that the statement was false. See, e.g., Hoon v. Pate Const. Co., Inc., 607 So.2d 423, 427
(Fla. 4th DCA 1992); Atlantic Nat’l Bank of Florida v. Vest, 480 So.2d 1328, 1331-32 (Fla. 2d DCA
1985).
Critically, actual injury is an element of both fraud and negligent representation. If no harm
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is shown, an action on either theory fails on the merits. See, e.g., Casey v. Welch, 50 So.2d 124, 125
(Fla. 1950) (setting aside fraud verdict because plaintiff “was unable to prove any damage, and the
record is devoid of evidence that plaintiff was injured by the defendant’s representations”); Sutton
v. Gulf Life Ins. Co., 189 So. 828, 829 (Fla. 1939) (“It is the very essence of an action for fraud or
deceit that the same shall be accompanied by damage, and neither damnum absque injuria nor injuria
absque damnum by themselves constitute a good cause of action.”); Kent v. Sullivan, 793 So.2d
1027, 1028 (Fla. 5th DCA 2001) (setting aside fraud verdict because plaintiff failed to prove how
he was harmed by misrepresentations: “This is one of those cases where a false statement did not
constitute a fraud upon which a claim for relief could be based.”); Essex Ins. Co. v. Universal
Entertainment & Skating Center, 665 So.2d 360, 363 (Fla. 5th DCA 1995) (“Under these
circumstances, Universal has suffered no damage and a claim for fraud is not sustainable.”); Nat’l
Aircraft Services, Inc. v. Aeroserv Int’l, Inc., 544 So.2d 1063, 1065 (Fla. 3d DCA 1989) (“Brewer
did not show that he had sustained injury as a result of the alleged fraud. He thus failed to
demonstrate an indispensable element of the tort.”).
Contrary to the defendants’ arguments, there was sufficient evidence to support the jury’s
findings as to elements (1)-(3) of Mr. Soltero’s fraud and negligent misrepresentation claims.
Simply put, the testimony of Mr. Soltero, Mr. Paz, and Ms. Rivera, if credited, allowed a reasonable
jury to find that Ms. Aguila (who could have been found to have superior knowledge about Asia) and
the Swire defendants knowingly and/or negligently made false representations and omitted material
information concerning Asia’s size, height, and effect on Unit 3608, and intended that Mr. Soltero
rely on those misrepresentations. See, e.g., Johnson v. Davis, 480 So.2d 625, 626-27 (Fla. 1985);
Newbern v. Mansbach, 777 So.2d 1044, 1046-47 (Fla. 1st DCA 2001). The problem for Mr. Soltero,
as explained below, is that he failed to prove harm, and that failure is fatal to his fraud and negligent
misrepresentation claims.
B. RICO
I also disagree with the Swire defendants that Mr. Soltero failed to prove certain elements
of his Florida racketeering claim. Although not overwhelming, Mr. Soltero’s evidence -- viewed in
the light most favorable to the verdict -- was sufficient for the jury to find that the Swire defendants
conducted a pattern of fraudulent behavior to sell condominiums at Carbonell through misleading
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advertisements in violation of Fla. Stat. §§ 772.102, 772.103, and 772.104. Specifically, the jury
heard evidence that the Swire defendants made and disseminated false or misleading advertisements
and employed sales representatives who made false representations to prospective buyers regarding
Asia’s impact on certain Carbonell condominiums (i.e., the apartments on the so-called 08 line
having the same general view Unit 3608).
To prove a RICO claim under Florida law, a plaintiff must show that the defendant (1)
participated in an enterprise, (2) through a pattern of criminal activity. See Fla. Stat. § 772.103(3).
To show a pattern of criminal activity, a plaintiff must show two or more predicate acts, see Fla. Stat.
§ 772.102(4), as well as a relationship and continuity among the predicate acts, see H.J. Inc. v.
Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989).1 Continuity can be either open-ended
or close-ended. Id. at 241-42. If the continuity is close-ended, the plaintiff must show “a series of
related predicates extending over a substantial period of time.” Id. at 242.
A plaintiff who proves by “clear and convincing evidence that he or she has been injured by
reason of any violation of the provisions of § 772.103 shall have a cause of action for threefold the
actual damages sustained and, in any such action, is entitled to minimum damages of $200, and
reasonable attorney’s fees and costs[.]” See Fla. Stat. § 772.104(1). Thus, actual injury is an element
of a Florida Rico claim. “[I]ndirect injuries, that is, injuries sustained not as a direct result of
predicate acts under the Florida [RICO] Act, Chapter 895, Florida Statutes . . . will not allow
recovery under Florida RICO.” O’Malley v. St. Thomas University, 599 So.2d 999, 1000 (Fla. 3d
DCA 1992).
First, the Swire defendants argue that Mr. Soltero failed to prove a pattern of racketeering
predicates because he failed to show a scheme that lasted for a sufficiently long period of time to
establish close-ended continuity. The parties disagree on length of the time period of the alleged
racketeering predicates, but even the Swire defendants’ more conservative period of nineteen months
is sufficiently long to establish close-ended continuity. See, e.g., Banderos v. Banco Cent. del
Ecuador, 461 So.2d 265, 267 (Fla. 3d DCA 1985) (affirming civil RICO liability for period lasting
“Because of the similarities between Florida and federal RICO acts, Florida looks to
federal authority regarding the interpretation and application of its act.” Palmas y Bambu, S.A. v.
E.I. Dupont de Nemours & Co., Inc., 882 So.2d 565, 570 n.1 (Fla.3d DCA 2004).
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eleven months); Wilson v. De Angelis, 156 F.Supp.2d 1335, 1339 (S.D. Fla. 2001) (denying motion
to dismiss because series of predicate events over period of ten months sufficiently established close-
ended continuity under Florida civil RICO statute). Cf. State v. Lucas, 600 So.2d 1093, 1095 (Fla.
1992) (indicating a six-month period of criminal activity may be long enough to establish close-
ended continuity).
Second, the Swire defendants claim that Mr. Soltero failed to prove that they engaged in a
sufficient number of predicate acts to constitute a pattern. The parties disagree on the number of
predicate acts, with the Swire defendants saying Mr. Soltero only proved four predicate acts (the
advertising and sales to Mr. Soltero, Mrs. Hankin, Mr. and Mrs. Williams, and Ms. Melgarejo), and
with Mr. Soltero saying he alleged and proved twenty-one incidents of making or disseminating false
advertisements. Because even four predicate acts are sufficient for a jury to find a pattern of
racketeering activity, the Swire defendants’ argument lacks merit. See Fla. Stat. § 772.102(4)
(“‘Pattern of criminal activity’ means engaging in at least two incidents of criminal activity. . . .”).
See also H.J. Inc., 492 U.S. at 237-38 (explaining that more than two predicate acts must be
established to prove a pattern). Cf. United States v. To, 144 F.3d 737, 746-47 (11th Cir. 1998) (three
predicate acts constituted a pattern under the federal criminal RICO statute); Shimek v. State, 610
So. 2d 632, 633, 635 (Fla.1st DCA1992) (state put forth sufficient evidence to establish Florida
RICO pattern in criminal case with four predicate acts).
Third, the Swire defendants contend that Mr. Soltero failed to prove the predicate act related
to him was sufficiently related to the other predicate acts. Mr. Soltero bought Unit 3608 post-
construction and from Mr. Enriquez using Ms. Aguila, a Swire broker, as an intermediary. The
other three buyers noted above bought their condominiums at Carbonell pre-construction and directly
from the Swire Group through brokers other than Ms. Aguila. The Swire defendants therefore claim
that these acts constitute, at most, one scheme for the pre-construction direct sales and one single act
with regard to Mr. Soltero’s purchase. Mr. Soltero, however, presented evidence that all four buyers
were given the same (or similar) (a) representations about Asia, (b) sales pitches, and/or (c)
marketing materials. He also presented evidence that Ms. Aguila trained and supervised agents who
conducted both new sales and resales of condominiums at Carbonell. There was sufficient evidence,
therefore, for the jury to find that Mr. Soltero’s sale was part of the same general scheme as the
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preconstruction direct sales.

Fourth, the Swire defendants assert that the RICO claim fails because Mr. Soltero did not
prove that they intentionally made false statements with respect to the predicate acts. The jury,
however, found that the Swire defendants made false and negligent misrepresentations to Mr.
Soltero. Thus, the jury concluded that the Swire defendants had the requisite intent for at least that
predicate act. Furthermore, the remaining predicate acts alleged by Mr. Soltero were acts of
misleading advertising. For those acts, Mr. Soltero only had to show that the Swire defendants made
statements that were “known, or through the exercise of reasonable care or investigation could or
might have been ascertained, to be untrue or misleading” and which were “made or disseminated
with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal
property. . . .” See Fla. Stat. § 817.40(5). A reasonable jury, in reviewing the advertising materials,
could determine that the Swire defendants at least should have known that the advertisements were
misleading. Significantly, the Florida RICO statute contains no independent state of mind
requirement beyond what is required to establish the predicate acts. Cf. Bowden v. State, 402 So.
2d 1173, 1174 (Fla. 1981) (holding that the Florida criminal RICO statute was not unconstitutional
despite the fact that “it imposes strict liability without requiring criminal intent or knowledge. . . .”);
United States v. Pepe, 747 F.2d 632, 675-76 (11th Cir. 1984) (“A plain reading of the [federal
criminal RICO] statute indicates that RICO does not contain any separate mens rea or scienter
elements beyond those encompassed in its predicate acts.”) (citations omitted).
Fifth, the Swire defendants say that Mr. Soltero failed to prove he was damaged by the
alleged racketeering activity because the jury found that Ms. Aguila – the agent who allegedly
perpetrated the fraud against Mr. Soltero – was not individually liable on the RICO claim.
According to the Swire defendants, Ms. Aguila was the only nexus between the pattern of conduct
and Mr. Soltero. But Mr. Soltero presented evidence that the Swire defendants sought to mislead him
through means other than Ms. Aguila’s statements, including through allegedly false or misleading
advertisements distributed by Swire. Thus, the jury’s verdict against the Swire defendants on the
RICO claim is not dependent on the jury’s verdict in favor of Ms. Aguila on that claim.
Finally, the Swire defendants argue that they cannot be liable on the RICO claim if Ms.
Aguila is not liable because a corporation acts only through its agents. Although the Swire
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defendants are correct that a corporation generally cannot be liable if its liability is based solely on
the doctrine of respondeat superior and its agent is exonerated, see Bankers Multiple Line Ins. Co.
v. Farish, 464 So. 2d 530, 532 (Fla. 1985), that is not the case here. Mr. Soltero presented evidence,
viewed in the light most favorable to the verdict, that the Swire defendants sought to perpetrate a
fraud on him apart from Ms. Aguila’s actions through their dissemination of allegedly false or
misleading advertisements to him and others. “[W]hen there are additional acts by the principal, an
exoneration of the agent does not automatically preclude a finding of liability against the principal.”
Id. As such, the verdict against the Swire defendants on the RICO claim would be able to stand
without a verdict against Ms. Aguila.
As with the fraud and negligent misrepresentation claims, however, this is not the end of the
matter. A plaintiff must be able to show injury in order to prevail on a RICO claim, see §
772.104(1), but Mr. Soltero, for the reasons which follow, failed to present sufficient evidence to
allow the jury to find that he had suffered harm and to award compensatory damages. The verdicts
on the RICO claims, therefore, must be set aside.
C. COMPENSATORY DAMAGES
Mr. Soltero alleged that he was misled, i.e., defrauded, as to what effect Asia would have on
the views from, and the privacy in, Unit 3608. He did not, however, seek rescission. In a case like
this one, Florida law provides that one of two standards can be used to determine damages: “The first
standard is the ‘benefit of the bargain’ rule which awards as damages the difference between the
actual value of the property and its value had the alleged facts regarding it been true. The second
standard is the ‘out-of-pocket’ rule which awards as damages the difference between the purchase
price and the real or actual value of the property. Either measure requires a plaintiff to prove the
actual value of the property at the time of purchase.” Kind v. Gittman, 889 So.2d 87, 90 (Fla. 4th
DCA 2004). This has long been the law in Florida. See, e.g., Williams v. McFadden, 1 So. 618, 621
(Fla. 1887); West Florida Land Co. v. Studebaker, 19 So. 176, 179 (Fla. 1896); Nystrom v. Cabada,
652 So.2d 1266, 1268 (Fla. 2d DCA 1995); DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532, 536
(Fla. 3d DCA 1970). Determining the difference in value is therefore critical. If the plaintiff fails
to sufficiently prove one of the two components necessary for such a determination, an award of
damages must be set aside. See, e.g., Kind, 889 So.2d at 90 (directed verdict should have been
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granted against fraud plaintiff who failed to prove damages and “presented no testimony fixing the
actual value of the property on the date of the sale”); Martin v. Brown, 566 So.2d 890, 891-92 (Fla.
4th DCA 1990) (where plaintiff claimed fraud due to misrepresentation of which parking space he
would receive when purchasing a condominium, damages based on value of hoped-for space,
calculated without taking into account the value of the space actually received, had to be reversed).
Florida law also provides that, in a case like this one, a fraud plaintiff who elects to keep the
property he purchased cannot recover for improvements made to the property. The rationale for this
rule is that the plaintiff will continue to use the property, and therefore continue to benefit from the
improvements, which may also enhance the value of the property when it is sold at a later time. See
Colandrea v. Johansen, 632 So.2d 284, 285 (Fla. 2d DCA 1994) (in case involving fraudulent
representations in the sale of a single-family residence, purchaser who remained in possession could
not, in addition to “benefit of the bargain” damages, recover money spent on improvements:
“Betterment damages are generally limited to actions in ejectment . . . to compensate a disposed
occupant of lands for improvements made in good faith. The concept has been expanded to include
improvements made by a purchaser in possession of residential property where it is later determined
that title cannot be conveyed. We know of no authority, and the parties have cited none, whereby
a property owner can recover damages of this class in addition to benefit of the bargain damages
while continuing to own and occupy the property. We therefore reverse this award.”); London v.
Brown, 537 So.2d 612, 613 (Fla. 4th DCA 1988) (where rescission was not available, buyer who
purchased residence and was misled as to its permissible use as a multi-family residence could not
recover for improvements made to residence: “One of the items of damages awarded was $25,163.94
in the form of labor and improvements carried out by buyer. However, since the result leaves the
property in the buyer’s hands, the seller should not be required to reimburse the buyer for
improvements from which the buyer will reap the benefit.”). See also Holland v. Holmes, 14 Fla.
390, 1874 WL 2321, *3 (Fla. 1874) (dicta) (“The vendee could not have recovered the price paid for
the land and the value of his improvements, and at the same time have a right to retain possession,
with probability that he might never have been evicted.”).2
In contrast, where the defrauded buyer obtains rescission of the sale and recovers the
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In accordance with these principles of Florida law, the jury was instructed that, if Mr. Soltero
prevailed on any of his claims, it could award him certain items of compensatory damages if they
were proven: “(1) the difference between the value of Unit 3608 as represented and the actual value
of Unit 3608 at the time of the sale to Mr. Soltero, and (2) out of pocket expenses incurred by Mr.
Soltero with respect to Unit 3608 that he would not have otherwise expended. As to this second item
of damages, Mr. Soltero is seeking damages for things such as real estate taxes, mortgage interest,
association/condominium fees, and improvements to Unit 3608. You may consider these items of
claimed damages, but you may not award damages for expenses that would have been incurred by
Mr. Soltero as to Unit 3608 notwithstanding any alleged misrepresentations. You also may not
award damages for expenses incurred on Unit 3608 if those expenses improved the property and
their cost was not lost or rendered fruitless.” See Jury Instructions [D.E. 177] at 17-18.3 Mr. Soltero
agreed at the hearing on the post-trial motions that this instruction “fully complied with Florida law
in terms of the difference in value.”
On the fraud and negligent misrepresentation claims, the jury awarded Mr. Soltero $200,000
for the difference in value of Unit 3608 and $150,000 for improvements to Unit 3608. On the RICO
claims, the jury awarded Mr. Soltero $250,000 for the difference in value of Unit 3608 but nothing
for improvements to Unit 3608. See Verdict [D.E. 181]. Because the jury was not instructed that
any separate damages flowed from the RICO claim, only one of the two awards for the difference
in value of Unit 3608 ($200,000 or $250,000) can stand. Mr. Soltero is simply not entitled to a
purchase amount, or where specific performance is not possible, he or she can seek to recover as
damages any amounts spent on improvements because the seller, who will get the property back, will
be the beneficiary of those improvements. See Chabot v. Winter Park Co., 15 So. 756, 759 (Fla.
1894).
3
The “rendered fruitless” language was taken from cases like McNeil v. Bredgerg, 192
Cal. App.2d 438, 469, 13 Cal. Rptr. 580 (Cal. App. 2d Dist. 1961) (holding, in case involving fraud
in the sale of property, that “the repairs and construction have not been lost and rendered fruitless,
but . . . constitute improvements of the property,” and therefore were not the proper measure of
damages). An example of an expense which can be recovered by a defrauded purchaser who retains
possession is fumigation of the property against termites, because fumigation is not permanent and
will have to be repeated in the future. See Amusement Ind., Inc. v. Antin, 2007 WL 1241548, *15-
*16 (Cal. App. 2d Dist. 2007).
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double recovery for the difference in value. See, e.g., Atlantic Coastline R.R. v. Saffold, 178 So. 288,
290 (Fla. 1938) (“Double damages are not legally recoverable.”); Besett v. Basnett, 437 So.2d 172,
173 (Fla. 2d DCA 1983) (“[D]ouble recovery based upon the same element of damages is prohibited.
. . The appellees in presenting evidence concerning damages made no distinction between the
alternate causes of action, and the proof of damages was the same on both counts. Based upon the
evidence, the jury had a basis for awarding damages in the amount of $18,000 on either count of the
complaint, but not on both, and therefore the trial court should have entered a judgment only on the
count based on fraud.”) (citations omitted).4
If that were the only problem, it would be relatively easy to fix; one of the two awards for the
difference in value would be set aside, and the other one (presumably the higher one, if supported
by the evidence) would stand along with the $150,000 awarded for improvements. But, as explained
below, that is not the only problem, for none of the compensatory damages awarded by the jury are
supported by sufficient evidence.
1. THE “VIEW PREMIUM ”
Mr. Soltero retained a real estate valuation expert, but chose not to call him as a witness to
to provide opinions as to the actual value of Unit 3608 in December of 2005, or as to the value of
Unit 3608 in December of 2005 had the representations about Asia been true. In closing argument,
and now in his response to the defendants’ post-trial motions, Mr. Soltero argues that the award of
$250,000 or $200,000 for the difference in the value of Unit 3608 is justified because that amount
represents a so-called “view premium.” Again, however, there was no testimony, expert or
otherwise, about any “view premium.”
Mr. Soltero presents a number of justifications for the jury’s award of compensatory damages
for a “view premium.” Each one is addressed below.
In his response, Mr. Soltero asserts that he could recover a total of $450,000 for the
difference in the value of Unit 3608, but does not explain why such a duplicative recovery on
compensatory damages would be appropriate given that (1) no separate harm flowed from the RICO
violation and the misrepresentations, and (2) the jury was instructed collectively on compensatory
damages for all of the claims. But even if Mr. Soltero were correct that this recovery would not be
duplicative, the total award of $450,000 would have to be set aside because there is no evidence to
support such an award for a $450,000 difference in the value of Unit 3608.
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a. At the hearing on the post-trial motions, Mr. Soltero argued that the $200,000 or $250,000
“view premium” was supported by evidence that Mr. Enriquez (the seller) told Ms. Aguila (the
broker) that Unit 3608, with the view, was worth over $2 million, and that Ms. Aguila herself said
it was worth $1.7 million to $1.8 million. See Transcript of Hearing [D.E. 228] at 51. That
argument does not work for a number of reasons. First, Mr. Soltero cannot defend the “view
premium” on what Ms. Aguila told him that Mr. Enriquez said to her about the supposed value of
Unit 3608, or what Ms.Aguila herself opined. See, e.g., Bekins Van Lines v. Schaefffer, 630 So.2d
633, 634 (Fla. 4th DCA 1994) (owner of property could not testify about property’s value “based
upon telephone and personal conversations with others”). Second, if Mr. Soltero is suggesting that
he bought Unit 3608 for less than what it was really worth with unobstructed water views (i.e., that
he paid $1.7 million when it was really worth $2 million or more, as it was represented), then the
benefit of the bargain theory may not even apply. Cf. Getelman v. Levey, 481 So.2d 1236, 1239-40
(Fla. 3d DCA 1985) (the benefit of the bargain rule “is designed for a situation where a party has
effected a sale of property by representing it as worth more than its actual value,” and does not apply
where the buyer obtains the property representing that it is “worth less than its actual value”).
b. Mr. Soltero also relies, in part, on opinions he personally expressed at trial concerning Unit
3608’s actual value, or its value as it was represented. Those opinions, however, cannot save the
verdict. First, my trial notes reflect that Mr. Soltero testified that Unit 3608 was worth $1.2 million
at the time of trial (i.e., in July of 2009). Such a valuation does nothing to put an actual value on
Unit 3608 at the time of the sale (i.e., in December of 2005), or to show what the value was if the
representations about Asia had been true, which are the two critical numbers required under Florida
law for an appropriate benefit of the bargain comparison. See, e.g., Studebaker, 19 So. at 179; Kind,
889 So.2d at 90. Second, to the extent that Mr. Soltero tried to put an actual or “as represented”
value on Unit 3608 as of December of 2005, such an opinion was hopelessly speculative, as Mr.
Soltero did not take into account or explain the effect on his valuation of either an overheated real
estate market -- in which many were buying as speculators in the hope that prices would continue
to climb -- or comparable sales on the 08 line of Carbonell around that time on his valuation.
It is true that under Florida law an owner of property, including an owner of real property,
may generally express an opinion as to its value. But such an owner, like any other witness, must
12
be shown to be competent to testify about valuation. Mere ownership, without more, is not enough.
And when the valuation of a condominium apartment has to be made in the context of an
unsustainable bubble market, like the one that existed in late 2005, and the alleged reduction in value
is based in part on something as subjective as a less expansive water view, it was incumbent upon
Mr. Soltero to explain that his opinion was something more than mere speculation. See, e.g., Trailer
Ranch, Inc. v. Levine, 523 So.2d 629, 632 (Fla. 4th DCA 1988) (“[T]he presumption that an owner
is sufficiently familiar with property to give an admissible opinion as to its value is a fragile one.
If it be shown that the owner . . . does not have such familiarity, the opinion evidence is not
admissible.”). Thus, in a number of cases, Florida courts have ruled that an owner’s speculative
testimony as to the value of real property is insufficient to establish valuation or support an award
of damages. See, e.g., Tucker v. Tucker, 966 So.2d 25, 26 (Fla. 2d DCA 2007) (husband’s testimony
concerning value of townhouse was insufficient to support trial court’s valuation finding because
husband did not explain how he calculated that value); Craig v. Craig, 982 So.2d 724, 729 (Fla. 1st
DCA 2008) (the rule allowing a property owner to testify about the value of his property “is not so
broad as to permit the former husband to hypothesize the property’s net value at a future date after
the property is transformed through the application of developmental expertise he does not possess”).
That is the situation here.5
c. Mr. Soltero also relies on the $1.5 million appraisal of Unit 3608 to support the $200,000
or $250,000 award. Mr. Soltero’s argument goes like this. First, Mr. Soltero paid $1.7 million for
Unit 3608 at closing in December of 2005 (admittedly at or near the height of a real estate market
which then crashed). Second, the appraisal on Unit 3608, prepared before the closing, came in at
$1.5 million. Third, Ms. Aguila told Mr. Soltero that, despite the appraisal, the $1.7 million sales
price was appropriate. From this evidence, Mr. Soltero reasons that the jury could have reasonably
Insofar as Mr. Soltero and Ms. Rivera also testified about the decreased privacy in
Unit 3608 after the construction of Asia, that testimony also cannot support the “view premium” or
a reduction in the value. See S.H. Inv. & Dev. Corp. v. Kincaid, 495 So.2d 768, 770 (Fla. 5th DCA
1986) (“the trial court erroneously admitted conjectural testimony by one Paul Novak, who did not
appraise the subject property, that ‘emotional factors’ would reduce the value of fire damaged
property by as much as 25%”).
13
awarded him $250,000 or $200,000 as a “view premium.” This argument fails.

Although the agreed purchase price is “strong, but not conclusive evidence of the value of
the property as represented,” Studebaker, 19 So. at 179, the concept of a “view premium” is
inherently subjective and speculative, and required additional testimony to support an award of
damages. As the evidence at trial showed, people can feel differently about the importance of a
wrap-around water view. For example, Mr. Enriquez, who sold Unit 3608 to Mr. Soltero, testified
that he did not care that Asia was being built next to Carbonell.
The “view premium” is a creation of Mr. Soltero’s counsel, and is not supported by sufficient
competent evidence. For starters, no one at trial, not even Mr. Soltero, testified that there was a
$250,000 or $200,000 “view premium” built into the purchase price of Unit 3608 as a result of any
misrepresentations concerning Asia. The price of Unit 3608 was based on the apartment as a whole,
and included not only the view, but also the floor the apartment was on, the square footage, the
number of bedrooms, and the number of bathrooms. As noted above, Mr. Soltero had a valuation
expert, but chose not to have that expert testify as to the actual value of Unit 3608 at the time of the
sale or the value of Unit 3608 as represented. There is simply no competent evidence that Mr.
Soltero paid a “view premium” of $200,000 or $250,000.
Moreover, at the hearing on the post-trial motions Mr. Soltero surmised that the appraisal did
not even take into account the views from Unit 3608 or the possible obstruction from Asia. See
Transcript of Hearing [D.E. 228] at 51-53. What the appraisal took into account is sheer speculation,
however, because Mr. Soltero -- who had the burden of proving damages -- chose not to call the
appraiser as a witness either. Assuming, nonetheless, that Mr. Soltero’s supposition is correct, and
that the appraiser did not consider the views from Unit 3608 or the effect of Asia, then the appraisal
cannot establish the actual fair market value of Unit 3608 in December of 2005 in the bubble market
(i.e., the actual value with everyone knowing the actual impact or effect Asia would have). And if
the appraiser was misled about Asia, as was Mr. Soltero, then the $1.5 million appraisal was itself
inflated and did not establish the actual value on the date of sale, much less justify a “view premium”
of $200,000 or $250,000. See Kind, 889 So.2d at 90 (suggesting that “as is” appraisal did not
establish actual value of the property on the date of sale). Without evidence as to the actual value
of Unit 3608 in December of 2005, Mr. Soltero has failed to carry his burden of demonstrating that
14
he paid an inflated price for the view given the unsustainable Miami real estate market.6
The Fourth District’s decision in Kind instructive. In Kind the purchaser of an office
building claimed that the seller had made fraudulent misrepresentations about the length and rental
income of existing leases in the building, and alleged that he paid an inflated amount ($1.6 million)
that was higher than the appraised value of the building ($1.5 million) based on his belief that those
leases were going to be in place for certain periods of time. See 889 So.2d at 90. The Fourth District
reversed an award of damages to the purchaser based on lost rental profits because, despite an
appraisal, he had not shown what the building was actually worth at the time of the sale (i.e. the
value if the true facts were known about the leases): “In this case, the buyer did not prove the
element of damages. Although he alleged in his complaint that he did not receive the benefit of his
bargain because he paid an ‘inflated price’ for the property, at trial he presented no testimony fixing
the actual value of the property on the date of the sale.” Id. That same rationale applies here, and
calls for the same result. Cf. Gilchrist Timber Co. v. ITT Rayonier, Inc., 127 F.3d 1390, 1396-97
(11th Cir. 1997) (applying Florida law in misrepresentation case, and holding there was sufficient
evidence as to damages because (1) the plaintiffs introduced evidence of appraisals before and after
sale of tract of land, (2) there was evidence that the appraised value prior to the sale would be
adjusted upward 5% per year if asserted zoning classification existed, and (3) appraisers
acknowledged that land had more limited use if zoned contrary to seller’s representations).
There are a number of additional reasons in this unusual case why the compensatory damages
awarded for the “view premium” must be set aside as legally insufficient. First, Mr. Enriquez, the
seller of Unit 3608, testified that it was he – and not any of the defendants – who set the sale price
on that apartment, and he initially listed it at $1.9 million. Significantly, there was never any claim
that Mr. Enriquez made any misrepresentations to Mr. Soltero, so the price demanded by Mr.
Enriquez was unrelated to any misrepresentations. Second, undisputed evidence about other
If the appraiser did take into account the water views and privacy Unit 3608 would
have would have once Asia was built, then Mr. Soltero encounters other problems. Unlike other
fraud cases where the defrauded buyer does not know the actual value until after the purchase, Mr.
Soltero was aware of the appraisal before he closed on Unit 3608. Indeed, because the appraisal
came in below the purchase price, he was forced to put additional cash towards the down payment.
Mr. Soltero therefore chose to pay above the actual fair market value.
15
comparable sales at Carbonell before and after Mr. Soltero’s purchase indicate that the supposedly
inflated price of Unit 3608 was what the market bore at the time. For example, before Mr. Soltero’s
purchase, an apartment on the 31st floor of Carbonell, on the same 08 line as Unit 3608 but five
floors lower, sold for $1.6 million. And after Mr.Soltero’s purchase, an apartment on the 38th floor
of Carbonell, on the same 08 line as Unit 3608 but two floors higher, sold for $1.9 million. There
was no evidence that these sales were tainted by any fraudulent misrepresentations to the buyers
about Asia. Third, in September of 2005 Mr. Soltero made an unsuccessful offer of $1.4 million for
a three-bedroom apartment at Carbonell (Unit 2504) that did not have any water views – it faced the
city – and was 11 floors below Unit 3608. There was no claim by Mr. Soltero that there was any
fraud as to Unit 2504, and it was clear that Unit 2504 was worth less than Unit 3608 given its size
and location.7
For these reasons, the awards of compensatory damages for the difference in value of Unit
3608 are set aside as a matter of law. If I am incorrect in setting aside these awards, then I am
alternatively granting a new trial on this element of damages because the jury’s verdict was against
the great weight of the evidence.
2. THE IMPROVEMENTS TO UNIT 3608
Mr. Soltero asked the jury to award him damages for the improvements he made to Unit 3608
after he bought it. These improvements, Mr. Soltero testified, consisted of things like lights, floors
on the balconies, hardware, locks, custom furniture, blinds, tile, drapes, the bathrooms, and sound
proofing of the floor. The jury awarded Mr. Soltero $150,000 for these improvements.
Mr. Soltero defends the jury’s award of $150,000 for improvements on several grounds. His
first argument is that this award was less than the $335,000 he asked for in closing argument. It is
true that the jury awarded less than Mr. Soltero sought, but this fact does not make damages for the
improvements legally appropriate. A plaintiff cannot seek to obtain damages that are legally
impermissible and then defend an award for such damages on the ground that the jury gave him less
Just two years earlier, in late 2003, apartments on the 08 line at Carbonell were selling
for around $1 million at pre-construction prices (e.g., Ms. Hankin bought Unit 3208 for $1.1 million,
and Mr. Williams, Jr. bought Unit 3408 for $1 million).
16
than he requested. Mr. Soltero’s second argument is that he would not have made the improvements
had he known the truth about Asia. The flaw in this argument is that it fails to acknowledge binding
Florida precedent. As noted earlier, Florida courts have unequivocally held that, where a defrauded
purchaser of real property remains in possession, he cannot recover for improvements he made to
the property because he will continue to benefit from those improvements. All of the improvements
described above make Unit 3608 more attractive and valuable (to Mr. Soltero or to a future
purchaser), and none has been rendered fruitless. Unit 3608 has not been rendered uninhabitable due
to Asia, so Mr. Soltero cannot recover the costs of those improvements. See Johansen, 632 So.2d
at 285; Brown, 537 So.2d at 613. The award of $150,000 is therefore set aside as a matter of law.
D. PUNITIVE DAMAGES
Had Mr. Soltero adequately proven compensatory damages, the evidence -- which,as noted
above, was sufficient to support the jury’s verdict as to the other elements of fraud, negligent
misrepresentation, and RICO -- would have also been sufficient to submit the issue of punitive
damages to the jury as to all defendants. See Fla. Stat. § 768.768.72(2)-(3); Southstar Equity LLC
v. Lai Chau, 998 So.2d 625, 632-33 (Fla. 2d DCA 2008). See also First Interstate Dev. Corp. v.
Ablanedo, 511 So.2d 536, 539 (Fla. 1987). But there are two reasons why the jury’s awards of
punitive damages must be set aside – the lack of compensatory damages and the closing argument
of Mr. Soltero’s counsel.
1. THE LACK OF COMPENSATORY DAMAGES
As set forth earlier, under Florida law harm is an element of fraud, negligent representation,
and RICO. Because all of the compensatory damages awarded by the jury are being set aside as a
matter of law, the awards of punitive damages must also be set aside.8
Nominal damages cannot be awarded under Florida law to a fraud plaintiff who fails
to prove actual harm. See Kent, 793 So.2d at 1027 (reversing trial court’s award of nominal damages
to fraud plaintiff who did not show harm from misrepresentations). But even if nominal damages
could be awarded in a fraud/negligent misrepresentation/RICO case without proof of injury, Mr.
Soltero waived any claim to nominal damages by not requesting a jury instruction and by not asking
that nominal damages be included on the verdict form. See Beverly Health & Rehabilitation
Services, Inc. v. Freeman, 709 So.2d 549, 551 (Fla. 2d DCA 1998); Walker v. Anderson Elec.
Connectors, 944 F.2d 841, 845 (11th Cir. 1991).
17
The Florida Supreme Court has held that a jury can award punitive damages even when it
does not award compensatory damages, see Ault v. Lohr, 538 So.2d 454, 455-56 (Fla. 1989) (claim
for assault and battery), but that rule does not apply where the cause of action itself requires proof
of harm or injury as an element. See id. at 457 (Ehrlich, C.J., concurring) (“Where actual damage
is an essential element of the underlying cause of action, an award of compensatory damages must
be a prerequisite to an award of punitive damages. This case involved the torts of assault and
battery, which do not require proof of actual damage.”); Morgan Stanley & Co. v. Coleman (Parent)
Holdings, Inc., 955 So.2d 1124, 1132 (Fla. 4th DCA 2007) (fraud case: “Because we conclude that
Morgan Stanley was entitled to a directed verdict and reversal of the compensatory damages award,
we reverse the punitive damages award as well. The punitive damages award cannot stand where,
as here, no legally cognizable damage was shown as a result of the alleged fraud.”); R.D.M.H., Inc.
v. Dempsey, 618 So.2d 794, 795 (Fla. 5th DCA 1993) (“Because compensatory damages for fraud
were not properly recoverable, the award of punitive damages cannot stand.”); Nat’l Aircraft
Services, 544 So.2d at 1065 (“[T]he law, as summarized in Chief Justice Ehrlich’s specially
concurring opinion in Ault . . ., is that punitive damages for fraud may not be based upon nominal
damages alone. For this reason as well, the punitives award cannot stand.”). Because Mr. Soltero
did not present sufficient evidence to sustain an award of compensatory damages, the awards of
punitive damages against the defendants are vacated.
2. THE CLOSING ARGUMENT BY MR . SOLTERO ’S COUNSEL
If I am wrong in setting aside the compensatory damages and punitive damages as a matter
of law, I alternatively grant the defendants a new trial on punitive damages. This alternative grant
of a new trial is based on the improper closing argument by Mr. Soltero’s counsel.
During trial, I allowed Mr. Soltero to put on evidence concerning the relationship of the
Swire defendants to other Swire entities in the Swire Group, including Swire Pacific Holdings (the
parent company which wholly owns Swire Development Sales and Swire Realty), because I believed
that this relationship was relevant to Mr. Soltero’s “enterprise” theory on the RICO claim. At the
same time, however, I instructed Mr. Soltero’s counsel that he was not allowed to refer to the foreign
ownership or location, or to the assets or wealth, of the other Swire entities, which were not parties
to the lawsuit.
18
Mr. Soltero sought punitive damages against all of the defendants. In closing argument, Mr.
Soltero’s counsel told the jury that “even $10 million in punitive damages is chickenfeed to Swire,
who’s invested over $800 million in Brickell Key alone.” This argument was based on evidence that
Swire Pacific Holdings -- and not the Swire defendants on trial -- had invested hundreds of millions
of dollars in Brickell Key. The defendants lodged a contemporaneous objection, but I mistakenly
overruled the objection. Mr. Soltero’s counsel then told the jury “that’s what the law allows. Those
are the punitive damages that [Mr. Soltero] is asking you to award.” As a result of this second
statement, I gave the jury a curative instruction: “Let me just add one thing, ladies and gentlemen.
Swire Pacific Holdings is not a party in this case. And you may not consider any assets or conduct
of Swire Pacific Holdings in deciding the issues in this case, including the issue of punitive damages,
if you should award them.”
After closing arguments were finished, I reminded Mr. Soltero’s counsel that I had repeatedly
ruled that he could not use the assets of the related Swire entities that were not parties, admonished
him for violating those rulings and for “playing games,” and said that I expressed no view on what
effect, if any, that improper closing argument would have on a verdict in favor of Mr. Soltero. The
response of Mr. Soltero’s counsel was that the $800 million figure came from the website of Swire
Realty.
Mr. Soltero does not now try to justify his counsel’s closing argument, except to say that it
was based on evidence presented at trial, and that the law with respect to the admission of evidence
about a parent company’s wealth is “in flux.” Mr. Soltero’s main argument is that the reference to
Swire Pacific Holdings’ $800 million investment in Brickell Key does not warrant reversal.
It is true that Stephen Owens, the president of Swire Development Sales and Swire Realty,
testified that Swire Pacific Holdings had invested $800 million in Brickell Key. See also Plaintiff’s
Exh. 195. The issue, however, is not whether the statement made by Mr. Soltero’s counsel in closing
argument was factually accurate, but whether it was legally improper because it told the jury to base
an award of punitive damages, and the amount of such an award, on the substantial assets of a parent
corporation that was not a party, particularly when there was no attempt by Mr. Soltero to pierce the
19
corporate veil.9
Although there are no Florida cases directly on point, the great majority of courts hold that,
in requesting that punitive damages be assessed against a corporate defendant, a plaintiff cannot refer
to or use to the assets and wealth of a parent corporation or related entity if the corporate veil has not
been pierced. Such an argument is viewed as improper for various reasons, one being that it leaves
the jury with the notion that someone else’s substantial assets are available to pay a judgment against
a defendant, and another that it disregards separate corporate identities. See, e.g., Gearhart v.
Uniden Corp. of America, 781 F.2d 147, 153 (8th Cir. 1986) (Missouri law); Durocher v. Central
Michigan R.Co., 1999 WL 33435725, *5-*7 (Mich App. 1999);Ramada Hotel Operating Co. v.
Shaffer, 576 N.E.2d 1264, 1269-71 (Ind. App. 1st Dist. 1991) (Indiana law); Miller Brewing Co. v.
Best Beers of Bloomington, Inc., 579 N.E.2d 626, 641-43 (Ind. App. 1st Dist. 1991) (Indiana law),
vacated on other grounds, 608 N.E.2d 975 (Ind. 1993); Walker v. Dominick’s Finer Foods, 415
N.E.2d 1213, 1216-17 (Ill. App. 1st Dist. 1980) (Illinois law); HCA Health Services v. Nat’l Bank
of Commerce, 745 S.W.2d 120, 123-24 (Ark. 1988) (Arkansas law); Liberty Fin. Management Corp.
v. Beneficial Data Processing Corp., 670 S.W.2d 40, 51-52 (Mo. App. 1984) (Missouri law).
Gearhart v. Uniden Corp. of America, 781 F.2d 147, 153 (8th Cir. 1986) (Missouri law). Cf.
Guzman v.Tower Development, Inc., 1996 WL 875780, *6 (D. Guam 1996) (Guam law) (suggesting
that counsel’s reference to wealth of defendant’s corporate parent was improper, but concluding that
error was waived due to lack of objection and/or cured when counsel told the jury to only consider
defendant’s wealth when awarding damages).10 There is one decision to the contrary, see Mihara
v. Dean Witter & Co., 619 F.2d 814, 824 (9th Cir. 1980) (under California law, income of
defendant’s parent company was admissible because it was relevant to punitive damages), but that
I note that this was not the only aspect of the closing that was improper. At one point
Mr. Soltero’s counsel began referring to a man who lost an arm in an accident and was awarded a
million dollars. The defendants objected, and their objection was sustained.
10
Here the error was all the more prejudicial because the reference to the $800 million
investment did not even deal with Swire Pacific Holdings’ current net worth, but rather a capital
investment over a period of time without any indication as to what profit Swire Pacific Holdings
made on that investment. See, e.g., Walker, 415 N.E.2d at 1217.
20
decision, in my view, is not at all persuasive because it does not explain its holding.
In any event, the important point is that I had ruled in accordance with the majority view at
trial and repeatedly told Mr. Soltero’s counsel that he could not use the wealth or assets of Swire
Pacific Holdings with respect to liability or punitive damages. Despite this clear admonition, he
chose to make an improper argument in an effort to inflame the jury, increase the possibility of a
punitive damages award, and ramp up any such award.
Like the improper closing argument in Christopher, 449 F.3d at 1365-67, the improper
closing argument here was not harmless. First, Mr. Soltero’s counsel not only mentioned Swire
Pacific Holdings’ $800 million investment in Brickell Key, he used that argument to ask the jury to
punish “Swire,” a collective reference to all of the Swire companies. Second, Mr. Soltero’s counsel
told the jury that what he had said was what the law allowed. Third, the improper argument was
used to justify a punitive damage award of $10 million. Although it may seem, superficially, that
the improper closing argument was harmless given that the jury “only” awarded $500,000 in punitive
damages against each Swire defendant, I conclude – having sat through the trial and observed the
jury – that the opposite is likely true. In other words, by telling the jury that it could feel comfortable
awarding $10 million, Mr. Soltero’s counsel made it more likely that the jury would disregard its
obligations and just impose a six-figure penalty without more than a passing thought. After all, if
$10 million is ok, what’s a mere $500,000? Fourth, I mistakenly overruled the defendants’ initial
objection to the improper argument concerning the $800,000 investment by Swire Pacific Holdings,
possibly giving the jury the incorrect impression that the argument was appropriate. Fifth, I do not
believe that the curative instruction I gave sufficed. Curative instructions sometimes work, and
sometimes do not. See McWhorter v.City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990)
(affirming grant of new trial due to improper closing argument, despite lack of objection and court’s
curative instruction: “We recognize that curative instructions do not always eradicate the prejudice
resulting from an improper argument, and thus cannot say that the district [court] abused its
discretion in determining that its instructions were insufficient to erase the prejudice resulting from
the improper argument.”) (citation omitted). This is one of those cases where I do not have any
confidence that the curative instruction did its job. That is why I told Mr. Soltero’s counsel, right
after closing arguments were done, and when the events were fresh, that I was not expressing any
21
view on what effect his improper argument might have on the verdict. Sixth, understanding that all
cases are different, it is significant that many courts have set aside awards of punitive damages (or
remitted such awards) where the plaintiff’s counsel improperly referred to the wealth or assets of the
defendant’s corporate parent. See, e.g., Durocher, 1999 WL 33435725, at *5-*8; HCA Health
Services, 745 S.W.2d at 123-24; Miller Brewing Co., 579 N.E.2d at 641-43; Walker, 415 N.E.2d at
649-50. As an Indiana appellate court put it: “A verdict for punitive damages against a defendant
based on the wealth of someone else is plain error and the only cure is to retry the issues of what
amount of punitive damages is appropriate.” Miller Brewing Co., 579 N.E.2d at 643. Seventh,
although the evidence was sufficient to sustain the jury’s verdicts with respect to some elements of
the fraud and negligent misrepresentation claims, the case was very close, and punitive damages
were not a foregone conclusion given the evidence that Mr. Soltero knew Asia was being built next
to Carbonell, that the defendants had a model of Asia in the sales office, that the sales materials
about Asia were readily available, that the defendants suggested to Mr. Soltero that he hire an
attorney for the transaction, that the condominium documents made it clear that no views at
Carbonell were guaranteed, that the Asia building site was open and ongoing, and that Mr. Soltero
had time to decide whether to follow through on the transaction after he returned to Puerto Rico.
Finally, like the Swire defendants, Ms. Aguila is entitled to a new trial on punitive damages.
She was an employee of both Swire defendants, and in my view the jury likely took the improper
reference to Swire Pacific Holdings’ $800 million investment into account with respect to the
punitive damages sought against Ms. Aguila. If the jury believed – as I think it did – that a hefty
award of punitive damages against the Swire defendants was going to be paid by Swire Pacific
Holdings, it probably believed that the same was true as to any award against Ms. Aguila.
I understand that it is a drastic step to take away a jury’s award of punitive damages due to
a closing argument. But that drastic step – a step I have never taken in 10 years on the bench – is
justified under the facts and circumstances here, and is, in addition, necessary to vindicate the rulings
I made during the trial. See Christopher, 449 F.3d at 1367 (affirming grant of new trial due in part
to improper closing argument and explaining that the “district court’s grant of a new trial served to
protect the rights of defendants and to vindicate the authority of the court”) (emphasis in original).
And even if the issue of prejudice is closer than I think it is, Mr. Soltero should not reap the benefits
22
of any uncertainty as to the effect of his counsel’s improper closing argument.

E. MS. AGUILA ’S REQUEST FOR ATTORNEY ’S FEES
Ms. Aguila requests an award of attorney’s fees and costs on the civil theft and RICO claims.
In light of the rulings set forth in this order, and the amended judgment which will be issued, I am
denying this motion without prejudice. It makes no sense to spend time and/or money on fees and
costs until there has been a final decision concerning the jury’s verdict.
If there is an appeal by any party, any and all motions for attorney’s fees and costs shall be
filed within 30 days of the issuance of the Eleventh Circuit’s mandate. If there is no appeal, then any
and all motions for attorney’s fees and costs shall be filed within 30 days of the deadline to file a
notice of appeal.
IV. CONCLUSION
Mr. Soltero failed to present legally sufficient evidence to support the compensatory damages
awarded by the jury. Those damages are therefore set aside as a matter of law. Alternatively, I grant
a new trial with respect to damages for the difference in value of Unit 3608 because that award, at
best, was against the great weight of the evidence.
Without an award of compensatory damages, Mr. Soltero has failed to prove that he was
harmed or injured by the misrepresentations. Under Florida law, then, Mr. Soltero has failed to
prove an essential element of his claims for fraud, negligent misrepresentation, and RICO. The
verdicts in his favor on those claims are therefore set aside as a matter of law. Mr. Soltero’s motion
to amend the judgment to add prejudgment interest is denied.
The punitive damages awarded to Mr. Soltero cannot stand given the absence of
compensatory damages. Those damages are therefore set aside as a matter of law as well.
Alternatively, I grant a new trial on punitive damages due to the improper closing argument by Mr.
Soltero’s counsel.11
An amended judgment will be issued separately.
11
Because the awards of compensatory and punitive damages are being set aside, I do
not address the defendants’ argument that Mr. Soltero could not recover both treble damages (under
RICO) and punitive damages (under the fraud and negligent misrepresentation claims).
23
DONE and ORDERED in chambers in Miami, Florida, this 16th day of April, 2010.
_______________________
Adalberto Jordan
United States District Judge
Copy to: All counsel of record
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A O P - T M: Mended Rder On OST Rial Otions

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Case 1:08-cv-20260-AJ Document 241 Entered on FLSD Docket 04/19/2010 Page 1 of 24

UNITED STATES DISTRICT COURT

AMENDED ORDER ON POST-TRIAL MOTIONS

1545, 1548 (11th Cir. 1987).

preconstruction direct sales.

awarded him $250,000 or $200,000 as a “view premium.” This argument fails.

of any uncertainty as to the effect of his counsel’s improper closing argument.

Copy to: All counsel of record

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