                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT            FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-10048                 NOV 16, 2010
                                   Non-Argument Calendar             JOHN LEY
                                                                       CLERK
                                 ________________________

                            D.C. Docket No. 9:07-cv-80334-KAM

ALAN GUTHARTZ

lllllllllllllllllllll                                          Plaintiff - Appellant

       versus

PARK CENTRE WEST CORP.,
4685 HAVERHILL, INC.,
SHINING STAR RANCH, INC.,
BARNETT GUTHARTZ,
JANET BARRY,
lllllllllllllllllllll                                          Defendants - Appellees.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                     (November 16, 2010)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       Appellant Alan Guthartz sued his father, sister, and three corporate entities

under 28 U.S.C. § 2201(a) seeking a declaration that he is the rightful owner of at

least a portion of the three corporate defendants. Having reviewed the record and

decision below, we find that the district court committed neither errors of fact nor

law and, thus, affirm.

       Alan Guthartz alleges that, ten years prior to commencing this lawsuit (and

one year before her death), his mother mailed him three “stock powers” for shares

of ownership in three companies owned by his parents.1 According to the

appellant, he placed the stock powers in a fireproof box where he left them for a

decade, not appreciating their significance. Around the time that his father

attempted to evict him from the family’s New York home, the appellant, claiming

to be a shareholder, attempted to inspect the records of the three corporate

defendants. The defendants, appellee on this appeal, disputed appellant’s

allegations and accused him of altering old corporate documents that were left in

the family home. Furthermore, defendants presented evidence that, even if

appellant’s allegations were true, they would not have effected a transfer of


       1
         A “stock power” is a power of attorney that allows the current owner of a registered
security to transfer that ownership to another. The testimony showed that stock powers
traditionally accompany security certificates when there is a present or possible future need to re-
assign ownership, such as in the context of loan collateralization. The shares in dispute were
uncertified.

                                                 2
corporate ownership under Florida law or entitled appellant to access of the

corporate records. The court below ruled for the defendants, finding that

appellant’s father and mother owned the corporations as tenants by the

entirety—making a unilateral transfer of shares impossible—and that appellant’s

father lacked any donative intent to effectuate a transfer of the shares.

Furthermore, the court found that, even taking appellant’s allegations as true, the

purported transaction did not conform to the requirements of Florida common law

or the Uniform Commercial Code (“UCC”).

      On appeal, we review the district court’s conclusions of law de novo, and its

findings of fact for clear error. Mitchell v. Hillsborough County, 468 F.3d 1276,

1282 (11th Cir. 2006). The district court made two clear findings of fact in this

case: (1) that appellant’s father and mother owned the corporations in dispute as

tenants by the entirety; and (2) that, even if one assumed appellant’s story to be

true, appellant’s father did not have the donative intent required to transfer

ownership of the assets to his son. The appellant argues that the former

determination is clearly erroneous because the disputed stock powers contain

designations that the parent-signatories owned the shares as tenants in common.

After reviewing the record, we determine there was a wealth of information in the

record supporting both of the district judge’s factual determinations and very little

                                          3
evidence supporting the opposite conclusions. As the defendants correctly point

out in their brief, when the evidence before the factfinder fairly supports each of

two possible conclusions, the factfinder’s choice between the two will not be

“clearly erroneous.” United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S. Ct.

177, 179 (1949). Here, appellant has failed to demonstrate that the evidence even

permits a second view.

      These undisturbed findings of fact dictate a judgment in favor of the

defendants. Even if we accept appellant’s argument that stock powers can convey

ownership of uncertified shares, appellant’s mother was without power to

unilaterally transfer ownership of those shares. See Sitomer v. Orlan, 660 So. 2d

1111, 1113-14 (Fla. Dist. Ct. App. 1995). Furthermore, regardless of the nature of

the ownership of the shares at issue, the transfer in question does not conform to

the requirements of the Uniform Commercial Code for transferring unregistered

stock. See FLA. STAT. §§ 678.1021(1)(l), 1071(1)(b) (requiring that “instructions”

directing the transfer of uncertified shares be made to the issuer); FLA. STAT. §

678.3011(2)(a)–(b) (defining “delivery” for uncertified securities by registration

with the corporation). Such requirements exist to prevent situations exactly like

the one at bar: he said/she said lawsuits where one party asserts that a transfer was

made based on some document not reflected in the corporate records. These

                                          4
requirements apply with equal force to gifts. See Sackett v. Shahid, 722 So. 2d

273, 276 (Fla. Dist. Ct. App. 1998).

      The district court’s conclusions of law that appellant’s mother was without

power to make a unilateral conveyance of corporate ownership and, even had she

been, the form of this conveyance did not effect any such transfer were not

erroneous. Therefore, the judgment below is affirmed.

      AFFIRMED.




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