Fittipaldi USA, Inc. v. Castroneves

• Decision Date: 30 March 2005
• Docket Number: No. 3D04-569.,3D04-569.
• Citation: 905 So.2d 182
• Parties: FITTIPALDI USA, INC., Appellant, v. Helio CASTRONEVES, Appellee.
• Court: Florida District Court of Appeals

905 So.2d 182

FITTIPALDI USA, INC., Appellant, v. Helio CASTRONEVES, Appellee.

No. 3D04-569.

District Court of Appeal of Florida, Third District.

March 30, 2005.

Rehearing and Rehearing Denied July 13, 2005.

Steel Hector & Davis, Alvin B. Davis and Digna B. French, Miami, for appellant.

Lauri Waldman Ross, Miami, for appellee.

Before COPE, FLETCHER, and CORTIÑAS, JJ.

Rehearing and Rehearing En Banc Denied July 13, 2005.

CORTIÑAS, Judge.

The plaintiff, Fittipaldi USA, Inc. ("FUSA"), appeals from an adverse final judgment after a jury trial. We affirm.

On June 11, 1997, Helio Castroneves, a race car driver, and FUSA, through its principal, Emerson Fittipaldi, entered into a five-year Management Agreement wherein FUSA agreed to serve as Castroneves' exclusive manager and representative. The Management Agreement provided, among other things, that FUSA would procure (1) professional motorsport driving opportunities, (2) merchandising, licensing, and endorsement agreements, and (3) corporate sponsorship for Castroneves. In exchange, Castroneves agreed to compensate FUSA with varying percentages of his gross revenues. The Management Agreement provided that either party could terminate the agreement for reasonable cause. Reasonable cause for Castroneves to terminate the Management Agreement was further defined, in relevant part, as breach of any term and condition and/or the failure of FUSA to use its best efforts to attempt to procure the necessary agreements for merchandising, licensing, endorsements, and corporate sponsorships.

On January 26, 1999, FUSA obtained an employment agreement for Castroneves with Hogan Racing, L.L.C. ("Hogan"). For the 1999 racing season, Hogan agreed to pay Castroneves a $250,000 salary, plus incentives, and $50,000 in travel expenses.

Simultaneously with the execution of the Hogan Agreement, FUSA and Fittipaldi entered into a Marketing Agreement with Hogan wherein, for the year 1999, Fittipaldi personally guaranteed to fund or raise through corporate sponsorships a minimum of $1 million by March 15, 1999, and committed to raising a minimum of $3 million in corporate sponsorships for Hogan Racing. In return, FUSA would receive a 15% commission on any sponsorship funds FUSA raised above $3 million. Under the terms of the Hogan Agreement, Hogan was not required to pay Castroneves if it did not receive the required sponsorship funds from FUSA or Fittipaldi. On February 12, 1999, Hogan, Castroneves, and Ilmor Engineering, Inc. ("Ilmor") executed an Assignment of the Hogan Agreement stating that, if Hogan was unable to obtain sufficient funding for the 2000 season by September 1, 1999, Hogan could immediately transfer to Ilmor all of its rights to Castroneves' services. If Ilmor was unable to find a driving position for Castroneves by October 15, 1999, then Castroneves would be free to accept any other offer.

In February and March 1999, Fittipaldi failed to raise the required sponsorship funds, and, as a result, Hogan withheld payment of Castroneves' salary and expenses. On May 3, 1999, Hogan wrote to Fittipaldi demanding the $1 million guarantee. Hogan explained that, because of Fittipaldi's failure to fulfill his obligation, Castroneves had not received any salary payment. On October 5, 1999, Hogan notified Fittipaldi of its intent to file suit.

On October 26, 1999, at a race in Fontana, California, Hogan publicly announced that its team was ceasing operations. Although Ilmor contemplated organizing a race team, it did not have sufficient funds in place to do so. On October 28, 1999, Castroneves met with the Walker Racing Team's attorney, Alan Miller, and they discussed a possible buy-out of the Ilmor contract, but no agreement was reached. On October 30, 1999, at the Fontana race, another driver was fatally injured, and Castroneves was approached by that driver's team, Penske Racing Team, Inc. ("Penske"). During this time, Fittpaldi was not present to assist Castroneves.

On November 1 or 2, 1999, Castroneves asked Alan Miller to represent him. On November 3, 1999, Castroneves served FUSA with a notice of termination of the Management Agreement citing the following reasons for termination: 1) failure to pay $1 million to Hogan, 2) failure to assist Castroneves during the Fontana race weekend, 3) breach of contract and breach of fiduciary duty for the foregoing activities, 4) failure to comply with duties as described in the Management Agreement, and 5) failure to use best efforts to develop merchandising and licensing endorsements or corporate sponsorships.

On November 3, 1999, Castroneves advised Ilmor that its agreement was void since the date for providing an alternative driving position had passed.

On November 5, 1999, Castroneves, represented by Miller, executed a driver's contract and a relationship agreement with Penske.

On February 29, 2000, FUSA filed a complaint against Castroneves alleging breach of contract. On April 7, 2000, Castroneves filed his answer, affirmative defenses, and counterclaims seeking declaratory relief and alleging breach of contract, breach of fiduciary duty, fraudulent inducement, tortious interference with a prospective business relationship, and fraud. Castroneves also filed a three-count third-party complaint against Fittipaldi. On May 12, 2000, FUSA and Fittipaldi served their answers and affirmative defenses to the counterclaims and the third-party complaint.

A jury trial was conducted from February 2-7, 2004. Neither FUSA nor Castroneves prevailed at trial as the jury returned a verdict finding for Castroneves on FUSA's breach of contract claim, for FUSA on Castroneves' counterclaims, and for Fittipaldi on the third-party complaint. Thus, no money damages were awarded to either party. FUSA's appeal follows raising two issues for this court's consideration.

First, FUSA contends that the trial court abused its discretion by allowing attorney Alan Miller to give expert testimony where Castroneves failed to designate him as an expert witness, thereby unduly prejudicing FUSA and the outcome of the case.

The parties do not dispute that Alan Miller was a disclosed witness and that he was deposed by FUSA prior to trial. The parties do, however, disagree as to whether a specific portion of the testimony he gave at trial was "expert" testimony, whether the objection to Miller's testimony was properly preserved, and whether Miller's testimony unduly prejudiced FUSA or the outcome of the case.

At trial, attorney Miller testified that the Ilmor Agreement "didn't provide anything in the way of terms and conditions," was "poorly drafted," and "was a very ill-advised agreement." Four to five questions after making these statements, FUSA's counsel objected to this testimony and requested a sidebar conference. Immediately prior to the sidebar, Miller had testified that the Ilmor agreement "was a driver's nightmare," which caused FUSA's counsel to object and, in that instance, the trial court sustained the objection.

During the sidebar conference, FUSA's counsel objected to Miller's testimony on the ground that it was expert testimony by someone not previously designated as an expert. Because of the closeness in time between Miller's testimony and counsel's objection, we believe that the objection was timely and that the issue is preserved for appellate review. See, e.g., Barrett v. State, 649 So.2d 219, 221 (Fla.1994)

; Jackson v. State, 451 So.2d 458, 461 (Fla.1984).

Generally, to preserve an issue for appellate review, counsel is required to object contemporaneously with the offered testimony. Fincke v. Peeples, 476 So.2d 1319 (Fla. 4th DCA 1985). The purpose for requiring a contemporaneous objection is to put the trial judge on notice of a possible error, to afford an opportunity to correct the error early in the proceedings, and to prevent a litigant from not challenging an error so that he or she may later use it as a tactical advantage. Crumbley v. State, 876 So.2d 599 (Fla. 5th DCA 2004); Fincke, 476 So.2d at 1322. In this case, FUSA's objection was sufficiently timely to afford the trial court an opportunity to address the issue.

In response to the objection, Castroneves' counsel stated that Miller's testimony was "factual." The trial court found that Miller functioned as Castroneves' lawyer and "what he did and why he did it as his lawyer is factual," thereby denying FUSA's objection. The court added that it "will take it on a question by question basis." From this point forward, no "expert" testimony was allowed over objection.

We find that attorney Miller's testimony concerning the quality of Castroneves' prior contracts was "expert" testimony and was not factual in nature. While attorney Miller properly testified as a fact witness concerning the course of action he took on behalf of Castroneves, his testimony regarding the legal quality of Castroneves' prior agreements crossed the line into expert testimony. Miller's legal conclusions that the Ilmor agreement "didn't provide anything in the way of terms and conditions," was "poorly drafted," and "was a very ill-advised agreement" depended on the use of his legal experience and specialized training, without which he would not be qualified to render this opinion. Such testimony is only admissible as expert testimony under section 90.702, Florida Statutes (1999). Accordingly, the trial court should have sustained the objection and excluded that portion of Miller's testimony.

Castroneves' reliance on Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981) is misplaced. Castroneves contends that Miller's testimony was akin to that of a "treating physician," which has been held to be non-expert testimony. Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998); Carpenter v. Alonso, 587 So.2d 572 (Fla. 3d DCA 1991)(treating physician is not subject to trial court's limitation of one expert witness per side in medical malpractice suit); Frantz v. Golebiewski, supra.

In ...