SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS — CONTRACT AND BUSINESS CASES Meeting Agenda
Thursday, March 7;2019 1:30 pm–5:30 pm Friday, March 8, 2019; 9:00 am–1:30 pm Hillsborough County Courthouse 6th Floor Conference Room 800 E. Twiggs St. Tampa, FL 33602 The call-in number is 1-888-376-5050 Conference code: 965 874 1256#
1. Welcome and Introductions
2. Approval of November 2018 Minutes ...... p. 5
3. SJI Civil and SJI Contract and Business Joint Report on Fiduciary Duty
Status: In case number SC18-1672. Opinion issued December 20, 2018. The following new instructions: 451.1 (Introduction); 451.2 (Summary of Claims or Contentions); 451.3 (Greater Weight of the Evidence); 451.4 (Existence of Fiduciary Duty Disputed); 451.5 (Breach of Fiduciary Duty); 451.6 (Legal Cause); 451.7 (Preemptive Charges); 451.8 (Preliminary Issue Vicarious Liability); 451.9 (Burden of Proof on Preliminary Issues); 451.10 (Issues on Main Claim); 451.11 (Burden of Proof on Main Claim); 451.12 (Defense Issues); and 451.13 (Burden of Proof on Defense Issues).
In case number SC19-185. Verdict Form 451.14 (Model Form of Verdict for Breach of Fiduciary Duty) is pending.
4. SJI Contract and Business Filing of Various Instructions and Verdict Forms
Status: Petition filed on 10/08/2018. Case number SC18-867. Corrected Opinion issued on January 4, 2019 ...... p. 13
5. Subcommittee Reports A. 416.27 (Model Form of Verdict For Affirmative Defense—Undue Influence) Subcommittee to review the draft model verdict form for instruction 416.27, regarding undue influence, to determine whether any changes are necessary and to put together a final proposal for the full Committee’s consideration (Spector, Bitman, Serafin, and Turkel) Latest version of the Instruction ...... p.14
B. 416.28 (Model Form of Verdict For Affirmative Defense—Fraud) Subcommittee to review the draft model verdict form for instruction 416.28, regarding fraud, to determine whether any changes are necessary and to put together a final proposal for the full Committee’s consideration (Payton, Osherow, and Gunn) Subcommittee Report ...... p.16 Proposed Instruction and Verdict Form ...... p.17
C. 416.30 (Model Form of Verdict For Affirmative Defense—Waiver) Subcommittee to review the draft model verdict form for instruction 416.30, regarding waiver, to determine whether any changes are necessary and to put together a final proposal for the full Committee’s consideration: (Boyle, Gentile, Williams)
Case law and materials ...... p.23 Proposed Form ...... p.117
D. 416.31 (Model Form of Verdict For Affirmative Defense—Novation) Subcommittee to review the draft model verdict form for instruction 416.31, regarding novation, to determine whether any changes are necessary and to put together a final proposal for the full Committee’s consideration: (Burns, Nation, Sanchez) Subcommittee Report ...... p.119 Proposed Instruction ...... p.120
E. Subcommittee Reviewing Section 500 Subcommittee to review the various proposed 504 verdict forms, suggest any necessary revisions, consider the adoption of a 504.5 form, consider the addition of a damages line in the 504.3 lost profits form, and bring a consolidated proposal back to the full Committee: (Burns, Nations, Sanchez)
Latest Version of forms:
504.1 (Model Form of Verdict For Introduction To Contract Damages in Contract Claim) ...... p. 121 504.2 (Model Form of Verdict For Breach of Contract Damages in Contract Claim) ...... p. 122 504.3 (Lost Profits) ...... p. 123 504.4 (Model Form of Verdict For Verdict For Damages For Complete Destruction to Business in Contract Claim) ...... p. 124 504.6 (Model Form of Verdict For Verdict For Obligation to Only Pay Money in Contract Claim) ...... p.125 504.7 (Model Form of Verdict For Buyer’s Damages for Breach of Contract For Sale of Real Property) ...... p. 126 504.8 (Model Form of Verdict For Seller’s Damages for Breach of Contract To Purchase Real Property) ...... p. 128 504.9 (Form of Verdict For Seller’s Damages for Breach of Contract To Purchase Real Property) ...... p.130 504.10 (Model Form of Verdict For Present Cash Value of Future Damages in Contract Claim) ...... p. 132 504.11 (Model Form of Verdict For Nominal Damages in Contract Claim ...... p.133 New Form for consideration 504.5(Model Form of Verdict for Owner’s Damages for Breach of Contract to Construct Improvements on Real Property ...... p.134
F. Subcommittee Restrictive Covenants Subcommittee to review the state of the law on restrictive covenants to determine whether an instruction is needed and, if so, to draft a p proposal: (Osherow, Serafin, Rost) Subcommittee Report ...... p.136
G. Subcommittee Tortious Interference Subcommittee to review the state of the law on tortious interference and the applicable Civil instruction, and to consider any necessary proposals for the full Committee’s consideration, including whether that instruction should be tweaked and whether it should be moved to the Business instructions: (Turkel, Huey, Altenbernd, Boyle)
H. Subcommittee Independent Tort Doctrine Subcommittee to review the independent tort doctrine to determine whether an instruction is needed: (Burns, Boyle, Croom, Sanchez, Spector)
I. Subcommittee Unclean Hands Subcommittee to review the state of the law on unclean hands to determine whether an instruction is needed and, if so, to draft a proposal: (Haas, Palmer, Scaglione, Spector) Subcommittee Report ...... p.138
J. Subcommittee FDUTPA Subcommittee to review the state of the law on FDUTPA to determine whether an instruction is needed and, if so, to draft a proposal: (Bitman, Sipple, Soloman) Proposed Instruction ...... p.139 Case Law and Authorities ...... p.142
K. Subcommittee Trespass Subcommittee to review the state of the law on trespass to determine whether an instruction is needed and, if so, to draft a proposal: (Altenbernd, Gewirtz, Palmer, Gentile)
I. Subcommittee Unilateral Mistake Subcommittee to review the state of the law on unilateral mistake, in light of DePrince v. Starboard, to determine whether an instruction is needed and, if so, to draft a proposal, along with a proposed verdict form: (Altenbernd, Gentile, Gunn, Palmer)
6. New Business
A. Harry Payton CLE credit ...... p.218
B. New appointments and reappoints to the Committee will not be addressed until a liaison justice is assigned.
7. Announcements
A. Subcommittee Report Form- Available for use online; Follow link
B. Remember to copy liaison on all subcommittee correspondence and invite liaison for participation in subcommittee meetings.
B. Roster/SJI subcommittee list ...... p.220
C. Dinner tonight and Breakfast tomorrow
8. Upcoming Meeting Discussion
9. Adjournment SUPREME COURT COMMITTEE ON STANDARD JURY INSTRUCTIONS FOR CONTRACT AND BUSINESS CASES
Minutes for Committee meeting held on November 8-9, 2018 Orange County Courthouse, Orlando, FL
Members Present in Person: Members Appearing by Phone: Hon. Paul Huey, Chair Richard Benrubi Mark A. Boyle, Sr., Vice Chair Manuel Farach Chris W. Altenbernd Martin B. Sipple R. Lee Barrett Joshua B. Spector Ronnie Bitman Jeffrey L. Burns Hon. Janet Croom Ronald M. Gache Hon. Geoffrey Gentile Jerry M. Gewirtz Tracy R. Gunn Lee L. Haas Mark A. Nation Mark Osherow Mitchell O. Palmer Harry A. Payton Scott R. Rost Albert A. Sanchez Hon. Donald Scaglione Stephanie Serafin Donna G. Solomon Kenneth G. Turkel Steele T. Williams
Also: Joseph Eagleton, Committee Reporter Mikalla Davis, Bar Liaison
Members Excused: Members Absent: Hon. Lisa T. Munyon Teresa J. Verges Adina L. Pollan
1 1. Welcome
The Chair called the meeting to order at 1:36 p.m. on November 8, 2018. Recognizing that this was the first meeting since the appointment of many new members, the Chair asked everyone to introduce themselves. Following introductions, the Chair welcomed all members, both new and returning, and offered a brief overview of the Committee’s history. The Chair also emphasized his openness to input from members about the Committee’s ongoing and future projects.
2. Approval of Minutes
The Chair called for approval of the minutes from the Committee meeting on May 21, 2018. Boyle moved to amend the minutes, based on an email from Farach, to note that Farach was present at the May meeting, not absent as currently reflected. The Chair agreed. No additional comments were received. Gache moved to approve the minutes; Barrett seconded. The minutes, as amended, were unanimously approved by proclamation.
3. SJI Civil and SJI Contract and Business Joint Report on Fiduciary Duty
Several members of the Committee discussed how this Committee worked with the Civil Jury Instructions Committee to finalize a joint instruction on fiduciary duty. That proposed instruction was sent up to the Florida Supreme Court on 10/08/2018, was assigned case number SC18-1672, and was submitted for consideration without oral argument on 10/18/2018. The Committee is currently awaiting the Court’s opinion.
The Chair questioned the status of the corresponding verdict form for the fiduciary duty instruction. Serafin reported that the Committee approved that verdict form during the May 2018 meeting, and it will be sent up to the Court for approval.
4. SJI Contract and Business Filing of Various Instructions and Verdict Forms
Mikalla Davis noted that a late comment was received from Beth Coleman about the proposed model verdict form for breach of contract (416.4). This form is among those currently pending in case number SC18-867, which was submitted without oral argument on 08/23/2018 and currently awaits the Court’s opinion. Beth pointed out a potential typo in the Notes on Use for Form 416.4. Currently, Note on Use 2 states that “Question 3 should only be used . . . .” Beth believes this 2 should say that “Question 2 should only be used . . . .” In short, the “3” should be a “2.” The Chair and Rost both expressed agreement with Beth’s comment.
Boyle moved to amend the Notes on Use to fix the problem. The Committee expressed unanimous agreement with this amendment. However, Mikalla Davis observed a potential procedural hiccup with fixing the typo, given that the proposed verdict form is already pending with the Court. Davis suggested that the Committee wait to receive the Court’s opinion and have a subcommittee ready to review the opinion in its entirety for any errors that could potentially be fixed at that time.
Altenbernd proposed instead that, because this appears to just be a scrivener’s error, the Committee could perhaps file a notice with the Court and request that it be fixed when approved in the Court’s opinion. The Chair agreed with this approach and said that the Committee should file a notice of scrivener’s error right away. Davis will draft the notice for filing by the Chair. She continued to express her view that a subcommittee be formed for reviewing the Court’s ultimate opinion. The Chair agreed and asked for three volunteers. Gewirtz, Rost, and Solomon volunteered for this subcommittee.
5. Old Business
A. 416.27 Model Form of Verdict for Affirmative Defense—Undue Influence
The Committee reviewed an early draft of this proposed verdict form and engaged in a discussion about its status. Serafin reported on prior conversations about the draft form, including the Peacock case and concerns from some Committee members about opening a Pandora’s Box. The Chair asked Spector for his thoughts on this verdict form, and Spector explained that the Florida cases are less than clear on this topic. Altenbernd questioned the sequencing in the draft form and said that it is unusual to use letters rather than numbers.
The Chair ultimately stated that a subcommittee should be established to further study the concept of undue influence, determine the contexts in which the instruction should apply, and revise the proposed verdict form as needed. Spector volunteered as chair. Bitman, Serafin, and Turkel also volunteered for the subcommittee.
B. 416.28 Model Form of Verdict for Affirmative Defense—Fraud 3
The Committee reviewed an early draft of this proposed verdict form and engaged in a discussion about potential revisions. Rost noted a numbering error and said that the sequencing needs to be corrected. Serafin reported that the Committee had previously failed to reach an agreement about whether there should be a series of questions or a single question with subparts. Haas remembered some other disagreements and significant discussion about this proposal, including the interplay between elements 1 and 2.
The Chair once again determined that a subcommittee should be established to further study the affirmative defense of fraud, review the draft model form of verdict, and propose revisions as necessary. Payton volunteered as chair. Gunn and Osherow also volunteered for the subcommittee.
C. 416.30 Model Form of Verdict for Affirmative Defense—Waiver
The Committee reviewed an early draft of this proposed verdict form and engaged in a discussion about its status. Rost thought the burden was reversed in the draft. Haas and Altenbernd agreed that the draft did not appear to accurately recite Florida law. The Chair determined that a subcommittee should be established to look into this one, as well. Boyle, Judge Gentile, and Williams volunteered for the subcommittee.
D. 416.31 Model Form of Verdict for Affirmative Defense—Novation
The Committee reviewed an early draft of this proposed verdict form and engaged in a discussion about its status. Serafin did not think this was previously considered by the group. The Chair determined that a subcommittee should be established to review it. Barrett, Rost, Sanchez, and Judge Scaglione were appointed to the subcommittee.
E. 504.1-504.11 Various Model Forms of Verdict
The Committee reviewed and discussed various draft model forms of verdict for instructions beginning with the number 504, which are designed for joint use in the Civil and Contract and Business instructions. Boyle moved to refer these proposed verdict forms to a subcommittee to review; Haas seconded. The motion carried unanimously.
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The subcommittee will consist of Judge-Elect Burns, Nation, and Sanchez. After a discussion, the Chair clarified that this subcommittee’s work will include, but not be limited to, updating any notes on use, considering whether to create a verdict form for instruction 504.5, adding a third line for damages on proposed form 504.3, and considering any other revisions to the model forms of verdict as appropriate.
6. New Business
A. DePrince v. Starboard
The Chair introduced this recent en banc decision from the Third DCA, issued on August 1, 2018, in case number 3D16-1149. It is a case dealing with a unilateral mistake instruction that has a long procedural history, which the Chair briefly chronicled. This Committee had previously eliminated the instruction on unilateral mistake because Florida law was unclear. The Third DCA’s opinion now traces the various theories of mistake law and arguably clarifies the law in Florida. So the question posed by the Chair was whether, in light of this opinion, the law in Florida is now firmly established enough to warrant re-adopting a unilateral mistake instruction.
The Chair stated that the issue is of unilateral mistake only; there is still a mutual mistake instruction on the books. He thinks the Committee ought to relook at it because this is a common defense. Haas agreed. Haas said that the Third DCA appears to have endorsed this Committee’s prior view of the law. The Chair ultimately determined that a subcommittee should be formed to review the issue. Altenbernd, Judge Gentile, Gunn, and Palmer were appointed to the subcommittee, which was tasked with drafting a proposed instruction and corresponding verdict form, if appropriate.
B. Delisle v. Crane
The Chair introduced this recent Florida Supreme Court decision rejecting the Daubert standard and adhering to Frye as the test for the admissibility of expert testimony in Florida state courts. The opinion was issued on October 15, 2018, in case number SC16-2182.
The Committee briefly discussed the decision and some members speculated about what the future holds for this issue. However, no one immediately 5 noticed any particular impact of the decision on the Committee’s current instructions or ongoing work.
The Chair then adjourned the meeting at 4:03 p.m. on November 8, 2018, to be continued the following morning.
C. Brainstorming on Future Instructions and Verdict Forms
The Chair called the meeting back to order at 9:12 a.m. on November 9, 2018, and opened the floor to ideas from the Committee about areas of the law that might need instructions.
Turkel raised an issue about whether the Committee has ever examined the Civil instructions to determine if some of those instructions should instead be part of the Contract and Business packet. He cited tortious interference and defamation as two examples, saying that those are more conventional business torts that arise in commercial cases and might be better suited for this Committee’s purview than the Civil committee’s purview.
A discussion ensued in which several members expressed agreement with Turkel’s premise, noting that the Civil instructions are traditionally geared more for personal injury cases than commercial cases. Haas said that breach of fiduciary duty is currently a joint instruction all by itself and that there should be more of those. Other members suggested restrictive covenants and FDUTPA as additional areas of the law potentially more suited for this Committee than the Civil committee. Following the conversation, Turkel was appointed as chair of a subcommittee to review the Civil instructions and to consider their interplay with this Committee’s charge. The Chair, Altenbernd, and Boyle were appointed to join Turkel on this subcommittee.
Next, Judge-Elect Burns raised the independent tort doctrine as an area in need of a potential instruction. A discussion among the Committee ensued in which various members debated whether this is an issue that is for the judge or the jury to decide. A subcommittee was established to further study the issue and bring a proposal back to the full Committee for consideration, if deemed appropriate. Judge-Elect Burns was appointed as chair of the subcommittee and will be joined by Boyle, Judge Croom, Sanchez, and Spector.
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The Committee then engaged in a discussion about the need for employment- related instructions. Members expressed different views about whether this is an area of law within this Committee’s scope. The idea was tabled for now, with individual members to reach out to their contacts and keep exploring whether this is an area that should be brought back to the Committee for consideration.
Finally, based on additional informal discussions among the Committee’s members, the following subcommittees were established to examine the state of the law on various topics and to consider the viability of potential instructions:
• Restrictive Covenants: Subcommittee consisting of Osherow, Rost, and Serafin.
• Tortious Interference: Subcommittee consisting of Turkel (chair), Benrubi, Bitman, and Gache.
• Unclean Hands: Subcommittee consisting of Haas, Palmer, Judge Scaglione, and Spector.
• FDUTPA: Subcommittee consisting of Bitman, Sipple, and Solomon.
• Trespass: Subcommittee consisting of Altenbernd, Judge Gentile, Gewirtz, and Palmer.
7. Upcoming Meeting Discussion
The Committee engaged in a discussion about the timing of its next meeting. After a review of schedules, Boyle moved for March 7-8; Rost seconded. The Chair approved March 7 and March 8, 2019, as the next dates.
The Committee then engaged in a discussion about the location of the meeting. Following suggestions of Orlando, Tallahassee, Tampa, and West Palm Beach, the Chair conducted an informal vote of the membership and approved Tampa as the consensus choice. Davis will work to secure a meeting space and will send additional details as the date gets closer.
8. Adjournment
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The Chair adjourned the meeting at 11:07 a.m. on November 9, 2018.
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From: Scott Rost To: Davis, Mikalla Subject: RE: March 7 and March 8 meeting SJI Contract and Business Date: Tuesday, February 26, 2019 12:34:17 PM Attachments: image004.png
Mikalla, please accept this as the report of the subcommittee reviewing SC18-867. As I believe Judge Huey advised following our November meeting, the Court followed on December 6 with its Corrected Opinion. The Clerk then issued a Notice of Correction on January 4, which summarized the edits for the benefit of publishers. The subcommittee believes that the Court and the Clerk have now provided all needed corrections and guidance with these materials, so that no further action is required on the part of the Committee. Thank you Mikalla.
Scott R. Rost, B.C.S. SOUTH MILHAUSEN, P.A. Gateway Center 1000 Legion Place, Ste. 1200 Orlando, Florida 32801 Phone: (407) 539-1638 Fax: (407) 539- 2679 Website: www.southmilhausen.com Email: [email protected]
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IRS CIRCULAR 230 NOTICE: Pursuant to U.S. Treasury Department Regulations, we are required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
South Milhausen, P.A. is a debt collector and any information obtained will be used to effect the collection of the debt in accordance with the Fair Debt Collection Practices Act. FORM 416.27 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—UNDUE INFLUENCE
VERDICT
1. a. Did (defendant) prove that (claimant) used a relationship of trust and confidence to control, persuade, or pressure (defendant) into agreeing to the contract?
YES ...... NO ......
If your answer to question 1.a. is NO, please answer question 1.b. If your answer to question 1.a. is YES, please answer question 2.
1. b. Did (defendant) prove that (claimant) used (defendant)’s weakness of mind to control, persuade, or pressure (defendant) into agreeing to the contract?
YES ...... NO ......
If your answer to question 1.b. is NO, please answer question 1.c. If your answer to question 1.b. is YES, please answer question 2.
1. c. Did (defendant) prove that (claimant) used (defendant)’s needs or distress to control, persuade, or pressure (defendant) into agreeing to the contract?
YES ...... NO ......
If your answer to question 1.c. is NO, your verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.c. is YES, please answer question 2.
2. Did (defendant) prove that (defendant) would not have voluntarily agreed to the contract without (claimant) controlling, persuading, or pressuring (defendant) to agree to the contract?
YES ...... NO ...... If your answer to question 2 is NO, your verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, your verdict is for (defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. [Insert further instructions regarding proceeding to additional questions, as appropriate.] NOTES ON USE
1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.27 (Affirmative Defense—Undue Influence).
SUBCOMMITTEE REPORT FORM (Subcommittee Name/Subject)
Date: February9, 2019 Report/Writer Chair: Harry Payton Members Attending: Mark Osherow and Tracy Gunn Meeting dates:
I. History/Background: The verdict form for 416.28 had not been finalized. A review of the charge for 416.28 lent itself to improvement consistent with the language of cases involving fraudulent misrepresentations.
II. Summary of the Issues: As to the charge, the issues related to minor grammatical changes and in the third paragraph substituting “induce” in place of “persuade.” As to the verdict form, the issues were simplifying the language, improving grammar and replacing “persuade” with “induce” to be consistent with case law. The subcommittee recognized the charge and verdict form would have to be modified for use in cases involving fraud by concealment or omission.
III. Factors Considered by the Subcommittee: As to the charge the thought was to simplify the language and conform the third element of the charge to the language customarily used by the court—“inducing” action rather than “persuading” action.
IV. Majority Position: Unanimous agreement A. Rationale. B. Cite applicable case law. C. Summarize conclusion of any submitted memoranda, and attach as a referenced lettered or numbered exhibit. D. Consideration of the effect of the proposed change on other rules. E. State the voting result.
VI. Minority Position(s): None. A. Rationale. B. Alternative proposed amendments in legislative format.
VII. Time Considerations for Adopting Proposal: The charge appears to have been adopted by the Supreme Court. It is recommended the charge be reconsidered by the court and the proposed changes be submitted for consideration by the Court.
416.28 AFFIRMATIVE DEFENSE – FRAUD
To establish the defense of fraud, (defendant) must prove all of the following:
1. (Claimant) represented that (insert alleged fraudulent statement) and that representation was material to the transaction;
2. (Claimant) knew that the representation was false;
3. (Claimant) made the representation to persuade induce (defendant) to agree to the contract;
4. (Defendant) relied on the representation; and
5. (Defendant) would not have agreed to the contract if had [he] [she] [it] had known that the representation was false.
On this defense, (Defendant) may rely on a false statement, even though its falsity could have been discovered if (defendant) had made an investigation. However, (defendant) may not rely on a false statement if [he] [she] [it] knew it was false or its falsity was obvious to [him] [her] [it]. In making this determination, you should consider the totality of the circumstances surrounding the type of information transmitted, the nature of the communication between the parties, and the relative positions of the parties.
SOURCES AND AUTHORITIES FOR 416.28
1. Fraud must be pled as an affirmative defense or it is waived. Cocoves v. Campbell, 819 So.2d 910, 912 (Fla. 4th DCA 2002); Peninsular Fla. Dist. Council of Assemblies of God v. Pan Am. Inv. & Dev. Corp., 450 So.2d 1231, 1232 (Fla. 4th DCA 1984); Ash Chem., Inc. v. Dep’t of Envtl. Regulation, 706 So.2d 362, 363 (Fla. 5th DCA 1998).
2. In order to raise an affirmative defense of fraud, the “pertinent facts and circumstances constituting fraud must be pled with specificity, and all the essential elements of fraudulent conduct must be stated.” Zikofsky v. Robby Vapor Systems, Inc., 846 So.2d 684, 684 (Fla. 4th DCA 2003) (citation omitted).
3. The party seeking to use the defense of fraud must specifically identify misrepresentations or omissions of fact. Cocoves v. Campbell, 819 So.2d 910, 912-13 (Fla. 4th DCA 2002).
4. Fraud must be pled with particularity. Cocoves v. Campbell, 819 So.2d 910, 913 (Fla. 4th DCA 2002); Thompson v. Bank of New York, 862 So.2d 768 (Fla. 4th DCA 2003).
5. Mere statements of opinion are insufficient to constitute the defense of fraud. Thompson v. Bank of New York, 862 So.2d 768, 769 (Fla. 4th DCA 2003); Carefree Vills. Inc. v. Keating Props., Inc., 489 So.2d 99, 102 (Fla. 2d DCA 1986).
6. The elements of fraudulent misrepresentation are: “(1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation.” Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010).
7. “Justifiable reliance is not a necessary element of fraudulent misrepresentation.” Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010).
FORM 416.28 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE-FRAUD
VERDICT
1. a. Did (defendant) prove that (claimant) represented that (insert alleged fraudulent statement)?
YES ...... NO ......
If your answer to question 1.a. is NO, then verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.a. is YES, please answer question 1.b.
1. b. Was Did defendant prove the (alleged fraudulent statement) representation was false?
YES ...... NO ......
If your answer to question 1.b. is NO, then verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.b. is YES, please answer question-i 2 - /,<:!-'1.c. Formatted: Font: Not Italic
1. c. Did (defendant) prove that the representation was material to the contract?
YES ...... NO ......
If your answer to question 1.c. is NO, then verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.c. is YES, please answer question 2.
2. Did (defendant) prove that (claimant) knew that the representation was false?
YES ...... NO ......
If your answer to question 2 is NO, your verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, please answer question 3.
3. Did (defendant) prove that (claimant) made the representation to persuade induce (defendant) to agree to the contract?
YES ...... NO ......
If your answer to question 3 is NO, your verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 3 is YES, please answer question 4.
l ,/ 4.t-yf•.3: Did (defendant) prove that (defendant) relied on the representation?
YES ...... NO ......
If your answer to question 4 is NO, your verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 4 is YES, please answer question 5.
6 £ 5. Did (defendant) prove that (defendant) would not have agreed to the contract if (defendant) had known that the representation was false?
YES ...... NO ......
If your answer to question 5 is NO, your verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 5 is YES, your verdict is for (defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.
ljnsert further instructions regarding proceeding to additional questions, as appropriate. 7 NOTES ON USE
1. This model verdict form should be used in conjunction with Standard Jury Instruction-Contract and Business 416.28 (Affirmative Defense-Fraud).
2. This verdict form is for use in the case in which there is an alleged misrepresentation. Formatted: List Paragraph, Numbered + Level: 1 + Cases involving omissions or concealment require modification to the instruction and Numbering Style: 1, 2, 3, … + Start at: 1 + Alignment: Left + Aligned at: -0.41" + Indent at: 0.08" verdict form. o Other Committee members found cases holding that undue influence is an affirmative defense. o This verdict form was tabled until the June 2017 meeting. • The discussion turned to form 416.28 for the affirmative defense of fraud. o The Committee discussed whether element 2 is falsity or knowledge of falsity. o The Chair suggested breaking out the elements of making the representation and that the representation was false. o The Committee discussed when a statement by omission applies and whether the corresponding instruction applies broadly to fraud or just to fraudulent misrepresentation. o There was a suggestion to break out element 1 into: (a) representation; (b) falsity; and (c) materiality o The Chair tabled the rest of this discussion and the other verdict forms for the next meeting.
Old Business
• The Chair explained that the instructions listed in Agenda item 4 have been approved but not published. • Bar Liaison Krys Godwin explained that the goal is to get the approved instructions in the Florida Bar News for comment. • Godwin is working on the numbering for the fiduciary duty instructions with the Liaison for the SJI Civil Committee. As soon as both committees approve the fiduciary duty instructions, they are ready to file. • 451.1-451.4 will be placeholders for prefatory instructions.
Upcoming Meeting and Adjournment. The next Committee meeting was tentatively scheduled for June 1-2, 2017 in Orlando (exact location to be determined). The Chair adjourned the meeting at 12:05 p.m. on February 17, 2017.
14 Balaguer v. Physicians for the Hand, LLC, 199 So.3d 375 (Fla. App., 2016)
199 So.3d 375 Agreement, nor was she a party to the arbitration. Eric BALAGUER, M.D., Appellant, v. Allegedly, and unbeknownst to Balaguer, PHYSICIANS FOR THE HAND, LLC, Physicians was in the midst of a financial Appellee. meltdown and, within six months of the Agreement, terminated Balaguer's No. 3D15–847. employment. Physicians provided Balaguer with a termination letter that contained a “true District Court of Appeal of Florida, up” or reconciliation, pursuant to the terms of Third District. the Agreement. The letter indicated that Balaguer was required to pay Physicians a Aug. 17, 2016. shortfall of $222,973.00.1 Balaguer refused to pay, causing Physicians to invoke the Holland & Knight, Frances G. de la Guardia Agreement's arbitration clause so as to and Jesus E. Cuza, for appellant. determine how much Balaguer owed Physicians pursuant to the Agreement.2 Becker & Poliakoff and Steven M. Davis, for appellee. Several months prior to the litigation, the arbitrator issued an order closing the Before ROTHENBERG, EMAS and pleadings and determining the arbitration FERNANDEZ, JJ. would encompass Balaguer's claim alleging Physicians' breach of contract and failure to EMAS, J. repay Balaguer pursuant to the Agreement, as Dr. Eric Balaguer (“Balaguer”) appeals from a well as Physicians' response and counterclaim, final judgment confirming an arbitration in which Physicians also alleges breach of award and denying Balaguer's petition to contract for Balaguer's failure to pay the vacate the award. Balaguer contends that in shortfall. entering the award, the Thereafter, Balaguer filed with the arbitrator a [199 So.3d 376] motion for summary judgment, arguing that because Ouellette, and not Physicians, was the arbitrator went beyond her delegated party to whom any shortfalls were payable authority pursuant to the terms of the parties' under the Agreement, Balaguer was entitled to agreement and, in so doing, violated judgment in his favor. In response, Physicians Balaguer's constitutional rights. For the filed an affidavit of Ouellette, attesting to the reasons that follow, we affirm. fact that, upon Balaguer's termination in or around December of 2012, Ouellette orally The arbitration was commenced pursuant to assigned to Physicians her rights to and an arbitration clause in an Employment interest in any payments under the Agreement (the “Agreement”) between Agreement. Physicians also filed a written Balaguer and Physicians for the Hand, LLC, assignment executed by Ouellette and the appellee (“Physicians”). Pursuant to the assigning her rights to Physicians.3 In an email Agreement, Physicians employed Balaguer as to the arbitrator the following day, Balaguer an orthopedic surgeon. Dr. Elizabeth Ouellette withdrew his summary judgment motion (“Ouellette”) is also employed by Physicians as without prejudice to raising the issue at the the senior physician in the medical practice final hearing. with supervisory authority over Balaguer. Ouellette, however, is not a signatory to the -1-
Balaguer v. Physicians for the Hand, LLC, 199 So.3d 375 (Fla. App., 2016)
The final hearing was held on or about Balaguer has not provided a transcript of the December 3, 2013. However, no transcript of arbitration hearing, and the arbitrator's award this hearing exists in the record on appeal. On and order denying reconsideration (and the January 2, 2014, the arbitrator entered an trial court's final judgment confirming the award, in Physicians' favor, in the amount of award and its order denying the petition to $190,438.00. The vacate) provide no basis to conclude that this issue was actually raised and preserved. This [199 So.3d 377] failure is fatal to the appeal, as there is not a sufficient record before us to reach the merits award contained no findings of fact or of Balaguer's claim that the arbitrator conclusions of law.4 exceeded her powers under the Agreement when she awarded the shortfall to Physicians. Balaguer filed a motion for reconsideration We are unable to determine from this record which the arbitrator denied. He then filed a what evidence was introduced at the hearing, petition with the trial court seeking to vacate what arguments were raised or waived at the the award on the basis that (i) the arbitrator hearing, or what issues may have been tried by exceeded her powers under the Agreement the consent of the parties.6 We find no merit in when she awarded the shortfall to Physicians, the since under the Agreement the shortfall was payable only to Ouellette; and, in doing so, (ii) [199 So.3d 378] the arbitrator denied Balaguer due process. The trial court denied the petition to vacate the other claim raised by Balaguer in this appeal. award, and this appeal followed. Affirmed. “Appellate review of orders granting or denying a motion to vacate an arbitration ------award are governed by ‘the same standards as in any ordinary case, whereby findings of fact Notes: are reviewed under a competent and substantial evidence standard and legal 1 The termination letter provided that the questions are reviewed de novo.’ ” LeNeve v. shortfall was owed because Balaguer's Via S. Fla., L.L.C., 908 So.2d 530, 534 (Fla. 4th collected revenues were less than his paid DCA 2005). compensation, direct expenses and fifty percent of Physicians' overhead expenses. On appeal, Balaguer again contends that the arbitrator in the instant case exceeded her 2 Section 4(1) of the Agreement between the powers pursuant to section 682.13(1)(d), parties states, in full: Florida Statutes, which governs vacating an arbitration award.5 “An arbitrator exceeds her If this Agreement terminates or power when she ‘goes beyond the authority expires for any reason, and granted by the parties or the operative Employee's Collected Direct documents and decides an issue not pertinent Revenue is less than the sum of to the resolution of the issue submitted to Employee's Direct Expenses arbitration.’ ” LeNeve, 908 So.2d at 534 actually paid for by Employer (quoting Commc'ns Workers of Am. v. Indian and 50% of the Employer's River County Sch. Bd., 888 So.2d 96, 99 (Fla. Overhead, then the Employee 4th DCA 2004) ). agrees to repay Dr. Ouellette personally for such shortfall amount. Repayment shall be
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Balaguer v. Physicians for the Hand, LLC, 199 So.3d 375 (Fla. App., 2016)
made over a term of twelve (12) the final orders of the trial court, to indicate months, starting on the first day that Balaguer in fact raised and preserved the of the month following the issue at the final hearing. It is beyond month during which the peradventure that a bare allegation in a motion Employee's employment is not a substitute for the requirement of an terminated or expired. adequate record to establish that an issue has been properly raised and preserved for 3 The written assignment was executed after appellate review. In this fashion, we find Balaguer filed his motion for summary distinguishable the case of Chaiken v. judgment. Suchman, 694 So.2d 115 (Fla. 3d DCA 1997), relied upon by Balaguer. 4 The parties agreed the arbitration would involve a “standard” award, in which the ------arbitrator simply announces a result and need not make findings or provide reasons for the decision. This is in contrast to a “reasoned award” which, as the name implies, requires an arbitrator to explain the reasoning for the award. See, e.g., Cat Charter, LLC v. Schurtenberger, 646 F.3d 836, 844 (11th Cir.2011).
5 Section 682.13 states:
(1) Upon motion of a party to an arbitration proceeding, the court shall vacate and arbitration award if:
...
(d) An arbitrator exceeded the arbitrator's powers....
6 As indicated supra, Balaguer had filed a motion for summary judgment contending that because Physicians was not the party to whom any shortfalls were payable under the Agreement, Balaguer was entitled to judgment in his favor. Balaguer withdrew the motion, reserving the right to raise it at the final hearing. However, there is no record evidence that this issue was in fact raised at the final hearing. The only “evidence” that this issue was raised and preserved was Balaguer's post- award motion, which contains the same arguments made by counsel in his (previously withdrawn) motion for summary judgment. There is nothing in the arbitration award, or -3-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
248 So.3d 273 and we reverse and remand for further proceedings. CITY OF MIAMI, Appellant, v. BACKGROUND FRATERNAL ORDER OF POLICE LODGE #20, etc., Appellee. Prior to 2014, Ortiz and Lugo would routinely sign up to work extra duty at Ultra. During the No. 3D17–729 March 2011 Festival, the Officers were involved in the arrest of Jesse Campodonico, District Court of Appeal of Florida, who subsequently sued, alleging that the two Third District. Officers used excessive force. An indemnity agreement between the City and Ultra Opinion filed June 6, 2018 required Ultra to indemnify the City for any Rehearing Denied July 24, 2018 negligent acts committed by the City's police officers.1 In January 2014, Ultra's insurer Victoria Mendez, City Attorney, and Kevin R. agreed to pay $400,000.00 to settle Jones and Forrest L. Andrews, Assistant City Campodonico's claim. Attorneys, for appellant. In 2014 and 2015, Ultra contacted the City to Buschel Gibbons, P.A. and Robert C. Buschel request that the Officers not be assigned to and Eugene G. Gibbons (Ft. Lauderdale), for work at the 2014 and 2015 festivals. The City appellee. agreed to prohibit the Officers from working at Ultra but permitted them to work at any other Before SUAREZ, LAGOA, and SCALES, JJ. event during the larger Winter Music Festival. Following the denial of their requests to work SUAREZ, J. at Ultra, both Officers filed grievances. The City denied the grievances, and the parties2 This is an appeal from a final order of proceeded to arbitration pursuant to a dismissal, which upholds an arbitration award Collective Bargaining Agreement (the against Appellant, the City of Miami (the "Agreement").3 "City"), in favor of Appellee, the Fraternal Order of Police, Lodge 20 (the "FOP"). The The City participated in arbitration but argued City challenges the Arbitrator's authority to that the Arbitrator lacked the authority to decide whether the City consider the Officers' grievances because working an extra duty job was not a subject [248 So.3d 275] covered under the Agreement. The Arbitrator violated a Collective Bargaining Agreement by disagreed and concluded that he had authority precluding two police officers, Lieutenant to review the Officers' grievances. The Javier Ortiz and Sergeant Edward Lugo (the arbitration award ultimately sustained the "Officers"), from working extra duty grievances and ordered that the Officers be (commonly referred to as off-duty) at the Ultra compensated and allowed to pursue extra duty Music Festival ("Ultra"). Because we find that at future Ultra events. Following the award, the Arbitrator did not have the authority to the City filed a motion to vacate in the circuit hear a dispute concerning extra duty work, and court pursuant to section 682.13(1)(d), Florida that the City did not waive the issue of whether Statutes, claiming the Arbitrator exceeded his the Arbitrator had such authority, we hold that authority. The court denied the City's motion the trial court erred in denying the City's and granted the Officers' motion to confirm motion to vacate and in confirming the award, the arbitration award. This appeal follows.
-1-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
ANALYSIS authority by arbitrating any other issues. In the present case, Article 6.8, step 4 of the A trial court's role in determining arbitrability Collective Bargaining Agreement refers under the Revised Florida Arbitration Code is certain grievances to arbitration and limits the limited to the following inquiries: "(1) whether Arbitrator's authority to hear only those a valid written agreement to arbitrate exists; grievances: (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." 2. The arbitration shall be 3A Fla. Jur. 2d Arbitration and Award § 54 ; conducted under the rules set see also Lucky Star Horses, Inc. v. Diamond forth in this Agreement and not State Ins. Co., 233 So.3d 1159, 1161 (Fla. 3d under the rules of the American DCA 2017) (citing Seifert v. United States Arbitration Association. Subject Home Corp., 750 So.2d 633 (Fla. 1999) ). Here, to the following, the Arbitrator there is no dispute that a valid written shall have jurisdiction and agreement to arbitrate exists. We therefore authority to decide a grievance address the remaining two prongs: whether an as defined in this Agreement. arbitrable issue exists The Arbitrator shall have no authority to change, amend, [248 So.3d 276] add to, subtract from, or otherwise alter or and whether the City waived its objection to supplement this Agreement the Arbitrator's authority. , or any part thereof, or any amendment hereto. The 1. Whether an Arbitrable Issue Exists Arbitrator shall have no authority to consider or " Section 682.13(1) sets forth the only grounds rule upon any matter which upon which an award of an arbitrator in a is stated in this Agreement statutory arbitration proceeding may be not to be subject to vacated ...." Schnurmacher Holding, Inc. v. arbitration or which is not a Noriega, 542 So.2d 1327, 1328 (Fla. 1989) ; see grievance as defined in this also LeNeve v. Via S. Florida, L.L.C., 908 So.2d Agreement, or which is not 530, 534 (Fla. 4th DCA 2005) ("Where the covered by this Agreement ; party moving to vacate fails to prove one of the nor shall this Collective [statutory grounds set forth in § 682.13(1) ], Bargaining Agreement be ‘neither a circuit court nor a district court of construed by the Arbitrator to appeal has the authority to overturn the supersede any applicable laws. award.’ " (quoting Schnurmacher, 542 So.2d at 1328 ) ). The City relies on section (Emphasis added). Under this provision, the 682.13(1)(d), Florida Statutes (2017), which Arbitrator only has the authority to decide a provides that the court shall vacate an grievance, as defined in the Agreement.4 arbitration award if "[a]n arbitrator exceeded Article 6.2 defines the term "grievance" as the arbitrator's powers ...." follows:
Arbitration is a matter of contract. An 6.2 A grievance is any dispute, arbitrator's authority to conduct an arbitration controversy or difference and the issue(s) to be arbitrated are granted between (a) the parties, (b) the and limited by the operative document(s) in City and a bargaining unit question or by agreement of the parties member or bargaining unit themselves. The arbitrator exceeds his or her members on any issues with -2-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
respect to, on account of or chief of police evaluates off-duty requests concerning the meaning, pursuant to "the factors of existing laws, interpretation or ordinances, rules and regulations , application of this personnel scheduling availability, risk of harm Agreement or any terms or to personnel, and police department provisions thereof. efficiency." (Emphasis added). Based on the "rules and regulations" language from the (Emphasis added). In short, the Arbitrator is Ordinance, the Arbitrator looked to a second only given the authority to decide disputes source outside of the Agreement: over the meaning, interpretation, or Departmental Order 12, which describes the application of the provisions found in the process to sign up for extra duty work. Collective Bargaining Agreement. The Although the Departmental Order clearly Arbitrator is not granted the authority to states that "[w]orking special events or extra decide any other disputes. See Schnurmacher, duty jobs shall be considered a privilege, not a 542 So.2d at 1329 ("[A]n arbitrator exceeds his right," (emphasis added) the Arbitrator or her power ... when he or she goes beyond the concluded that extra duty jobs were in fact authority granted by the parties or the benefits (despite the explicit wording that operative documents and decides an issue not extra duty is a privilege). He then concluded pertinent to the that since Article 23 of the Collective Bargaining Agreement covered "Prevailing [248 So.3d 277] Benefits," a dispute as to extra duty work would be a grievance under the Collective resolution of the issue submitted to Bargaining Agreement and subject to arbitration."). arbitration.
Nowhere in the Collective Bargaining We have no difficulty concluding that the Agreement is there a provision concerning the Arbitrator exceeded his authority in privilege of extra duty work. As such, a dispute considering a matter that was not subject to concerning extra duty work is not a grievance arbitration pursuant to the provisions of the that is subject to arbitration. In the instant Collective Bargaining Agreement. In order to case, the Arbitrator found that he had the reach the issue, the Arbitrator went beyond the authority to arbitrate the Officers' grievances arbitration provisions of the Collective by engaging in a creative analysis of material Bargaining Agreement. The Arbitrator went outside of the Collective Bargaining from the Prevailing Benefits provision within Agreement having to do with extra duty the Agreement—which makes no mention of employment. Specifically, the Arbitrator first "extra duty"—to a City Ordinance, and finally relied on Article 23 of the Collective to a Departmental Order, both of which are Bargaining Agreement—the "Prevailing outside of the Collective Bargaining Benefits" provision—which states that all Agreement. Moreover, the Departmental benefits in effect when the Agreement was Order explicitly states that extra duty is a entered into, including benefits provided privilege and not a right. Consequently, we by ordinance , "shall remain in full force and find that the Arbitrator exceeded his powers. effect for the duration of this Agreement." See § 682.13(1)(d), Fla. Stat. But we next must Because Article 23 refers to "benefits provided address whether the City waived its objection by ordinance," the Arbitrator then to the Arbitrator determining the issue of impermissibly went outside of the four corners arbitrability. If the City did waive its objection, of the Collective Bargaining Agreement to the Arbitrator's findings must be affirmed section 42–8(a) of the City Code of even if the Arbitrator did exceed his authority. Ordinances, which essentially states that the -3-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
2. Whether the City Waived Its arbitrator, setting aside an award only in Objection to the Arbitrator's Authority certain narrow circumstances.").
The Officers' primary argument on appeal is In First Options of Chicago, Inc. v. Kaplan, 514 that the City waived the issue of arbitrability. U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 We are bound by the rule set forth in (1995), the United States Supreme Court Schnurmacher, which states that an explained that "[c]ourts should not assume arbitration award "cannot be set aside for mere that the parties agreed to arbitrate arbitrability errors of judgment either as to the law or as to unless there is ‘clea[r] and unmistakabl[e]’ the facts; if the award is within the scope of the evidence that they did so." See also Rintin submission, and the arbitrators are not guilty Corp., S.A. v. Domar, Ltd., 766 So.2d 407 (Fla. of the acts of misconduct set forth in the 3d DCA 2000). In the instant case, the trial statute, the award operates as a final and court determined that "[t]he City did not waive conclusive judgment." 542 So.2d at 1328 its objection to the Arbitrator's authority (quoting Cassara v. Wofford, 55 So.2d 102, 105 throughout the arbitration proceedings ...." (Fla.1951) ). If the City waived arbitrability, we We agree.
[248 So.3d 278] The Officers argue that the record "clearly shows" that the City consented to the would be compelled to uphold the arbitration Arbitrator's authority to decide the issue of award, even if the Arbitrator exceeded his arbitrability. They point us to the following authority under the Agreement. See LeNeve v. exchange at the beginning of the arbitration Via S. Florida, L.L.C., 908 So.2d 530, 534–35 hearing: (Fla. 4th DCA 2005) ("[U]nlike a court's subject matter jurisdiction which cannot be THE ARBITRATOR: My conferred by the parties, an arbitrator's question was not with regard to jurisdiction derives from the parties' that, but whether the City is agreement and can broaden during the course prepared and is basically of arbitration by waiver, failure to object and deferring the question of consent." (internal quotation marks omitted) arbitrability to the Arbitrator? ). [THE CITY]: I think it's a legal Most cases on waiver in the context of question. It's not necessarily a arbitration deal with the more common issue factual question. I think the facts of whether a party waives arbitration by in that issue are well- litigation; however, waiver can also work in established. reverse. That is, a party can waive its ability to litigate by engaging in arbitration. See 92 Am. THE ARBITRATOR: I Jur. Proof of Facts 3d 1 ("Although a court is understand that. usually the proper venue for decisions about arbitrability, if the parties clearly and [THE CITY]: But we can defer unmistakably submit the issue to the it, if you'd like, and proceed, arbitrator without reservation, then the parties and we'll bring it up at the have waived their right to have a court make end, if you'd like. I mean— the decision. When the parties to an arbitration agreement have agreed to allow the THE ARBITRATOR: I'm arbitrator to decide arbitrability, the court prepared to hear evidence with should give considerable leeway to the regards to the procedural question of arbitrability, but I -4-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
need some clarification that Based on the record evidence as a whole, the indeed the City is deferring the City's agreement to defer is far from a "clear matter of arbitrability for and unmistakable" agreement to waive the resolution to the Arbitrator. issue of arbitrability. Instead, the City allowed arbitration to go forward while explicitly and [THE CITY]: I see. Sure. I'll repeatedly reserving on the issue of defer it . arbitrability.
(Emphasis added). The Officers also argue that the City should have done more if it wanted the option to While this statement may seem to indicate that litigate arbitrability. They rely on Infinity the City waived its objection to arbitrability, Design Builders, Inc. v. Hutchinson, 964 So.2d the transcript as a whole suggests that the City 752 (Fla. 5th DCA 2007), one of the few Florida consistently maintained its position that the cases addressing waiver of litigation by Arbitrator was without authority to decide the engaging in arbitration.5 In Hutchinson, issue. During the hearing, the City also made Infinity took a number of preliminary steps the following statements: consistent with its participation in arbitration. Before the actual arbitration, however, it filed But, I think, for the two an objection, asserting that no arbitration watershed issues, One, they have agreement existed between it and Hutchinson. to establish that they have a right Infinity also moved to stay the arbitration to this. They have to put on some proceedings. Although the circuit court found evidence to demonstrate or show that the arbitration provision had been struck somebody that they had a right from the agreement, it denied the motion to that was contravened, if we get stay based on Infinity's participation in the beyond the arbitrability arbitration process. The Fifth District part, which I've already reversed, finding that although Infinity agreed that we will move participated, it did not knowingly intend to forward relinquish its right to litigate because it immediately acted to enforce its rights once it [248 So.3d 279] knew that the contract did not contain an arbitration provision. Id. at 756. and we will reserve on that issue . Hutchinson does not stand for the proposition that a party waives its right to litigate unless it .... refuses to participate in arbitration or files a motion to stay. Rather, the decisive inquiry is After you finish [r]edirecting whether a party voluntarily and knowingly Lieutenant Ortiz, I'd like to call intended to waive its right to litigate them out of turn, still arbitration. Id. at 755 ("Waiver is the voluntary reserving on the issue of and intentional relinquishment of a known arbitrability and whether or right or conduct which implies the voluntary not they've proven anything and intentional relinquishment of a known in regard to a right or a right." (internal quotation marks omitted) ). privilege that's arbitrable , they've got to go somewhere else. Here, although the City participated in So I want to get them on the arbitration, it consistently and repeatedly record— raised the issue of arbitrability. See Kaplan, 514 U.S. at 946, 115 S.Ct. 1920 ("[M]erely -5-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
arguing the arbitrability issue to an arbitrator waived its right to litigate in the courts." Id. at does not indicate a clear willingness to 756. Those cases are also distinguishable from arbitrate that issue, i.e., a willingness to be the case before us. In LeNeve, 908 So.2d 530, effectively bound by the arbitrator's decision LeNeve waived, in writing, his right to submit on that point."). We therefore agree with the arbitrability to the circuit court. In Victor v. trial court that City did not waive its objection Dean Witter Reynolds, Inc., 606 So.2d 681 to the Arbitrator's power. (Fla. 5th DCA 1992), the Fifth District found that a brokerage firm had waived its right to Because the Arbitrator exceeded his authority have the courts decide a statute of limitations to decide the Officers' grievances and the City issue because of its long, active, did not waive its objection to arbitrability, we knowledgeable, and intentional participation affirm the trial court's determination on in the arbitration process. waiver but reverse with respect to the court's denial of the City's motion to vacate the ------arbitration award.
[248 So.3d 280]
Affirmed in part, reversed in part, and remanded for further proceedings.
------
Notes:
1 Following an internal affairs investigation, the Officers were exonerated of any wrongdoing.
2 FOP is the exclusive bargaining representative of the Officers.
3 There are actually two collective bargaining agreements: (1) a 2012–2014 Agreement and (2) a 2014–2015 Agreement. The relevant language in the two agreements is the same.
4 Relatedly, Article 4.4 of the Agreement provides as follows: "Those inherent managerial functions, prerogatives, and policy making rights which the City has not expressly modified or restricted by a specific provision of this Agreement are not in any way, directly or indirectly, subject to the Grievance Procedure contained in this Agreement."
5 The Fifth District in Hutchinson distinguishes its decision from "two significant cases in Florida in which a participant in arbitration has been determined to have
-6-
Israel v. Costanzo, 216 So.3d 644 (Fla. App., 2017)
216 So.3d 644 Employee requested an indefinite postponement from the arbitrator so that he Scott ISRAEL, in his official capacity as could appeal his conviction. Although the Sheriff of Broward County, Florida, record suggests that this request was granted Appellant, for a time, the postponement was apparently v. no longer in effect in March of 2014. On March Anthony COSTANZO, Appellee. 15, 2014, the arbitrator dismissed Employee's grievance because Employee was a convicted No. 4D16–2302 felon and therefore was unable to work as a law enforcement officer. District Court of Appeal of Florida, Fourth District. On December 3, 2014, we released our opinion in Costanzo v. State , 152 So.3d 737 (Fla. 4th [April 12, 2017] DCA 2014), which reversed Employee's conviction. The State's motion for rehearing in Carmen Rodriguez of Law Offices of Carmen that case was denied on December 29, 2014, Rodriguez, P.A., Miami, for appellant. and the mandate issued on January 16, 2015.
Walter G. Campbell, Jr. and Kelley B. Stewart On April 13, 2015, Employee filed a Petition to of Krupnick, Campbell, Malone, Buser, Slama, Vacate Arbitration Award and for Damages. In Hancock, Liberman & McKee, P.A., Fort the petition, Employee argued that his rights Lauderdale, for appellee. were violated "when BSO refused to continue the arbitration hearing" and that the award Forst, J. should be vacated because "the Arbitrator made rendered [sic] his decision without This appeal involves a trial court's jurisdiction allowing [Employee] to testify and defend to vacate an arbitration award. In a literal against his wrongful termination." This latter example of "too late, too little"—because argument was based on Employee's Fifth appellee Costanzo's petition to vacate the Amendment right not to incriminate himself award was not filed within the requisite time in his then-ongoing criminal case. frame for one of the alleged grounds, and because he has not alleged any facts [216 So.3d 646] supporting the second ground that was timely pled—we reverse the trial court's vacation and Following a hearing, the trial court granted remand for the trial court to confirm the Employee's motion, vacated the arbitration award. award, and ordered that the case be re- arbitrated. The trial court found that there was Background a "new fact" in play—namely, that Employee was no longer a felon. BSO appealed. The appellee, Anthony Costanzo ("Employee"), was a deputy with the Broward Analysis County Sheriff's Office ("BSO"). He was arrested on evidence tampering charges and This Court reviews orders on a petition to was fired. Employee filed a grievance petition vacate an arbitration award under a mixed pursuant to his collective bargaining standard: facts are reviewed for competent agreement and proceeded to arbitration. and substantial evidence and legal questions Approximately one year after his termination, are reviewed de novo. LeNeve v. Via S. Fla., Employee was convicted of one of the criminal L.L.C. , 908 So.2d 530, 534 (Fla. 4th DCA charges against him. 2005).
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Israel v. Costanzo, 216 So.3d 644 (Fla. App., 2017)
"Absent a timely motion to vacate ... [an Employee therefore argues that the March 15, arbitration] award, [a] trial court ha[s] no 2014 dismissal was procured by undue means, discretion but to confirm the award as which would allow his petition to be filed rendered." Broward Cty. Paraprof'l Ass'n v. within 90 days "after the ground is known or Sch. Bd. of Broward Cty. , 406 So.2d 1252, by the exercise of reasonable care would have 1253 (Fla. 4th DCA 1981) ; see also been known." § 682.13(2). BSO argues that the Schnurmacher Holding, Inc. v. Noriega , 542 ground was known upon this Court's release of So.2d 1327, 1328 (Fla. 1989) ("Section the opinion reversing Employee's conviction 682.13(1) sets forth the only grounds upon on December 3, 2014, and therefore that the which an award of an arbitrator ... may be 90–day time period expired before Employee's vacated ...."). "A motion [to vacate] must be April 13, 2015 petition. BSO confuses the filed within 90 days after the movant receives release of an opinion with the actual legal notice of the award ...." § 682.13(2), Fla. Stat. effect of an opinion. This Court's reversal of (2014). The only exception to this rule is when Employee's conviction did not take effect until "the movant alleges that the award was the mandate issued on January 16, 2015. See procured by corruption, fraud, or other undue Reed v. State , 565 So.2d 708, 709 (Fla. 5th means, in which case the motion must be made DCA 1990) (noting "[t]he appellate process is within 90 days after the ground is known or by not completed until a mandate is issued."). the exercise of reasonable care would have Before that date, Employee's conviction was been known by the movant." Id. still in effect. Although Employee may have known that he would soon have his conviction The arbitration award in this case (the reversed upon the release of our opinion and dismissal) was entered on March 15, 2014, and the denial of the State's motion Employee has not argued that there was any significant delay in his receipt of notice of this [216 So.3d 647] award. Employee's petition to vacate was filed on April 13, 2015—over a year later. Due to for rehearing, he could not have known for Employee's failure to file the petition to vacate certain that he was not a felon until such time within 90 days of the March 15, 2014 as the mandate issued. Employee's April 13, dismissal, his petition was untimely filed 2015 petition was therefore timely filed to raise unless he can establish that "the award was the grounds that the reversal of Employee's procured by corruption, fraud, or other undue conviction on January 16, 2015 constituted means." § 682.13(2). The statute dealing with "undue means." the vacation of awards specifically allows an award to be vacated because "[a]n arbitrator Although Employee's petition was timely to refused to postpone the hearing upon showing raise the grounds of undue means, he has not of sufficient cause for postponement ... so as to made the necessary showing to receive relief. " prejudice substantially the rights of a party." § ‘[U]ndue means' refers to such matters as ex 682.13(1)(c). However, this is a separate parte communications or undisclosed ground from that of "corruption, fraud, or relationships between an arbitrator and one of other undue means," and it is therefore subject the contestants." Sorren v. Kumble , 578 So.2d to the 90–day filing rule of section 682.13(2). 836, 836 (Fla. 3d DCA 1991). Like the Third Thus, to the extent that Employee is District in Sorren , we need not "attempt[ ] a attempting to rely on the arbitrator's refusal to comprehensive definition" of the term "undue postpone the proceedings during Employee's means"; we merely hold that the existence of a criminal appeal, his petition is untimely fact true at the time of the arbitration which because it should have been brought within 90 later ceases to be true is not within the scope days of March 15, 2014. of that definition. Here, the trial court did not err in its determination that, at the time of the -2-
Israel v. Costanzo, 216 So.3d 644 (Fla. App., 2017)
hearing, Employee was a convicted felon, but even if the later change in that circumstance were viewed as invalidating the previous determination, the factual error would not be grounds to vacate the order. See Commc'ns Workers of Am. v. Indian River Cty. Sch. Bd. , 888 So.2d 96, 99 (Fla. 4th DCA 2004) ("[A]rbitration proceedings cannot be set aside for mere errors of judgment either as to the law or as to the facts ...." (emphasis added) (quoting Noriega , 542 So.2d at 1328 )). Employee has failed to identify any fact or circumstance that would fall under the definition of "undue means."
Conclusion
Employee's petition to vacate was untimely insofar as it raised an objection to the arbitrator's failure to continue the proceedings, and is timely but without merit on the allegation of the result being procured by undue means. As such, the trial court erred in vacating the arbitration award. We reverse and remand with instructions for the trial court to confirm that award.
Reversed and remanded .
Taylor and Conner, JJ., concur.
-3-
Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670 (Fla. App., 2014)
136 So.3d 670 from December 2009 through December 2010. As the result of 2010 sinkhole damage to CITIZENS PROPERTY INSURANCE the property and a dispute between Citizens' CORPORATION, a Florida government retained engineer and Mr. Trapeo's retained entity, Petitioner, engineer as to the appropriate remedial action, v. Mr. Trapeo filed a lawsuit against Citizens in Gary TRAPEO, Respondent. March 2012. In December 2012, after engaging in discovery, Citizens filed a request No. 2D13–2078. for neutral evaluation with the Department of Financial Services (“Department”) pursuant to District Court of Appeal of Florida, section 627.7074(4), Florida Statutes (2012). Second District. Section 627.7074 is titled “Alternative procedure for resolution of disputed sinkhole Jan. 31, 2014. insurance claims.” The statute defines and Rehearing Denied April 1, 2014. establishes the right to neutral [136 So.3d 673] [136 So.3d 674]
evaluation along with the procedures for Kara Berard Rockenbach and Kristi neutral evaluation. “Neutral evaluation” is Bergemann Rothell of Methe & Rockenbach, defined as “the alternative dispute resolution P.A., West Palm Beach, for Petitioner. provided in s. 627.7074.” § 627.706(2)(b). Amy S. Farrior and Raymond T. Elligett, Jr. of Citizens also filed a “Notice of Automatic Buell & Elligett, P.A., Tampa; and Michael A. Stay” with the trial court, advising the court Giasi and Matthew R. Danahy of Danahy & that it had filed its request for neutral Murray, P.A., Tampa, for Respondent. evaluation with the Department and that section 627.7074 mandated a stay of the court
proceedings “pending completion of the BLACK, Judge. neutral evaluation and for 5 days after the filing of the neutral evaluator's report with the Citizens Property Insurance Corporation court.” See§ 627.7074(10). (“Citizens”) seeks certiorari review of the trial court's order denying it a stay pending neutral In response, Mr. Trapeo filed a “Response evaluation of the sinkhole claim that forms the and Objection to Defendant's Notice of Stay of basis for the underlying lawsuit. Citizens Litigation Pending Completion of Neutral argues that the statute governing neutral Evaluation and Memorandum of Law.” Mr. evaluation mandates a stay of court Trapeo alleged that Citizens “waived its right proceedings and that the statutory right to to demand participation in [the Department's] neutral evaluation cannot be waived by neutral evaluation program based upon its participating in litigation. Based on the nature denials contained within its Answer, its of the order on review and the relief requested, assertion of Affirmative Defenses and its we treat Citizens' petition as one for writ of participation in this litigation for certiorari, in part, and writ of mandamus, in approximately ten (10) months.” In the part. The petition is granted. memorandum of law, Mr. Trapeo argues that “Citizens failed to protect and safeguard its I. Background contractual right to neutral evaluation” and Citizens issued an insurance policy to that “it has waived such right to participate in Gary Trapeo in 2009. The policy was effective such process.” -1-
Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670 (Fla. App., 2014)
In addition to the response, Mr. Trapeo right, can be waived and that waiver did occur filed a “Motion to Prevent the Retroactive in the instant action.” Application of Florida Statutes 627.706 through 627.7074” and a motion to determine II. Statute the constitutionality of section 627.7074. Neither of these motions is included in the Mr. Trapeo's arguments and the court's records provided to this court but both are ruling confuse the central issue. First, Mr. discussed in the transcript of the hearing on Trapeo's objection was to the stay but his the objection to notice of stay. Only the former argument centered on Citizens' is relevant to our review. [136 So.3d 675] At the hearing on the stay issue, Mr. Trapeo argued that Citizens waived its right to ability to request or participate in neutral neutral evaluation based upon its participation evaluation. Second, the court's order purports in the circuit court litigation. Mr. Trapeo to sustain the objection to the stay but it also acknowledged that neutral evaluation is not finds that neutral evaluation has been waived. only a contractual process but also statutory As a result, the 2011 amendments to the and that Citizens' request was made pursuant neutral evaluation statute are intertwined with to statute. He nonetheless argued that the issues presented in Citizens' petition for participation in neutral evaluation is a right writ of certiorari. Therefore before reaching that can be waived by litigating a case in court. the issues directly before us, we must consider Citizens countered with the argument that whether the 2009 or 2012 version of section neutral evaluation is a statutory right which 627.7074 is applicable to this case. cannot be waived. It argued that neutral Section 627.7074 was enacted in 2006 evaluation is unlike arbitration in that it is not and substantially amended in 2011. The an “opt out” of litigation. Citizens' counsel also relevant amendment for our purposes was to stated that he objected to his required the stay provision of the statute. Previously, presence at the hearing because the case section 627.7074 provided: “Any court should have been automatically stayed. proceeding related to the subject matter of the Finally, Citizens argued that Mr. Trapeo's neutral evaluation shall be stayed pending analogizing waiver of neutral evaluation to a completion of the neutral evaluation.” § defendant waiving his right to jury trial was inapplicable because a criminal defendant 627.7074(11), Fla. Stat. (2006); see ch. 2006– 12, § 29, Laws of Fla. (2006). Effective May 17, must knowingly do so and in this case Citizens did not knowingly waive any right. 2011, the stay provision was renumbered to section 627.7074(10) and substantively At the close of the hearing, the trial court provided: “ Regardless of when noticed, any specifically ruled that “like contractual rights, court proceeding related to the subject matter constitutional rights or anything else, of the neutral evaluation shall be stayed [statutory rights] can be waived. And, in this pending completion of the neutral evaluation case, by participating in discovery pursuant to and for 5 days after the filing of the neutral the litigation [the right to neutral evaluation] evaluator's report with the court.” § was, in fact, waived.” The court “sustained the 627.7074(10) (emphasis added); see ch. 2011– objection to neutral evaluation.” The written 39, § 27, Laws of Fla. (2011). order provides that Mr. Trapeo's objection is Mr. Trapeo argues that the 2009 version sustained “as [Citizens] waived its right to of section 627.7074 is applicable in neutral evaluation when it participated in determining whether waiver occurred because litigation” and that “the right to neutral Citizens issued his insurance policy in 2009. evaluation, like any statutory or contractual -2-
Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670 (Fla. App., 2014)
He also contends that Citizens was required to statute as procedural: “[T]he stay provision is request neutral evaluation “at the beginning of sufficiently intertwined with substantive the case” and that its failure to do so amounted provisions so that it is not an unconstitutional to waiver. Citizens contends that the 2012 violation of separation of amended version containing the phrase “regardless of when noticed” is applicable. [136 So.3d 676]
“ ‘[T]he statute in effect at the time an powers.” Cruz v. Cooperativa De Seguros insurance contract is executed governs Multiples De Puerto Rico, Inc., 76 So.3d 394, substantive issues arising in connection with 398 (Fla. 2d DCA 2011). that contract.’ ” Menendez v. Progressive Express Ins. Co., Inc., 35 So.3d 873, 876 Staying litigation is a means to enforce (Fla.2010) (quoting Hassen v. State Farm neutral evaluation and “serve the legislative Mut. Auto. Ins. Co., 674 So.2d 106, 108 purpose underlying the statutory requirement (Fla.1996)). However, procedural issues are of neutral evaluation.” Morejon, 829 governed by the laws in effect at the time the F.Supp.2d at 1260.Section 627.7074(10) does issues arise, for example, at the time suit is not create new rights or impede existing filed or at trial. See generally Alamo Rent–A– rights; it is not substantive. And procedural Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 statutes “should be applied to pending cases in (Fla.1994) (“Procedural or remedial statutes ... order to fully effectuate the legislation's are to be applied ... to pending cases.”); intended purpose.” Smiley v. State, 966 So.2d Sottilaro v. Figueroa, 86 So.3d 505, 508 n. 1 330, 334 (Fla.2007). Thus, the amended (Fla. 2d DCA 2012) (“[T]he issue on appeal is version of the stay provision of section a procedural issue; thus, the statute in effect at 627.7074 applies to a lawsuit filed after its the time of the trial is the applicable statute.”); effective date and until and unless a Butler v. Bay Ctr./Chubb Ins. Co., 947 So.2d procedural change is made during the 570, 572 (Fla. 1st DCA 2006) (“[P]rocedural or pendency of the lawsuit. See Sottilaro, 86 remedial changes to law apply without regard So.3d at 508 n. 1. to the date of a claimant's accident.”). III. Certiorari Section 627.7074 contains both procedural and substantive aspects. The right In reviewing an interlocutory order in a to neutral evaluation is clearly substantive. certiorari proceeding, this court must first State Farm Fla. Ins. Co. v. Buitrago, 100 determine whether the lower court's ruling So.3d 85, 88 (Fla. 2d DCA 2012) (quoting causes “material injury for the remainder of Morejon v. Am. Sec. Ins. Co., 829 F.Supp.2d the trial” which “cannot be corrected on 1258, 1260–61 (M.D.Fla.2011) (“Section postjudgment appeal,” giving this court 627.7074 provides a substantive right of certiorari jurisdiction. Parkway Bank v. Fort parties to have a neutral evaluator review the Myers Armature Works, Inc., 658 So.2d 646, claim and render a nonbinding report before 648 (Fla. 2d DCA 1995). Provided the the matter is adjudicated by a court .... [T]he jurisdictional prongs are met, we next consider statute is substantive rather than procedural whether the lower court departed from the inasmuch as it will not impact in any manner essential requirements of the law. Buitrago, Plaintiffs' method of proceeding with litigation 100 So.3d at 88 (citing Fassy v. Crowley, 884 once the condition precedent of neutral So.2d 359, 363 (Fla. 2d DCA 2004)). “[T]he evaluation is met.”)). However, the means by law is clear that certiorari relief is intended to which neutral evaluation occurs are be available only in very limited circumstances procedural. And although not expressly stated, ....” Nader v. Fla. Dep't of Highway Safety & this court has viewed the stay subsection of the Motor Vehicles, 87 So.3d 712, 722 (Fla.2012). -3-
Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670 (Fla. App., 2014)
“It is only in exceptional cases, such as those Miami–Dade Cnty., 117 So.3d 400, 405 where the lower court acts without or in excess (Fla.2013). of jurisdiction, or where the interlocutory order does not conform to the essential To the extent that the trial court's order in requirements of law” that certiorari relief is this case attempts to prohibit neutral appropriate. Kauffman v. King, 89 So.2d 24, evaluation through its finding that Citizens 26 (Fla.1956). The failure to conform to the waived its right to the process, the order meets essential requirements of the law has often the jurisdictional prongs for certiorari review. been rephrased as “a violation of a clearly See Buitrago, 100 So.3d at 88. “[T]he circuit established principle of law resulting in a court's prohibition [of neutral evaluation miscarriage of justice.” See, e.g., Custer Med. under section 627.7074] materially harms [the Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, petitioner] for the remainder of the 1092 (Fla.2010); Combs v. State, 436 So.2d proceedings by preventing it from 93, 95 (Fla.1983). participating in a neutral evaluation process, the results of which could favor [the A. Jurisdiction petitioner].” Id.
The majority of Citizens' petition for writ B. Departure from the law of certiorari addresses the court's failure to recognize the mandatory nature of the While “certiorari jurisdiction cannot be statute's stay provision.1 However, although used to create new law where the decision the denial of the stay is based upon the court's below recognizes the correct general law and finding that neutral evaluation has been applies the correct law to a new set of facts to waived, the denial itself does not meet the which it has not been previously applied[,] ... jurisdictional prongs of certiorari review. If [t]his does not mean ... that clearly established neutral evaluation were to proceed in the law consists only of prior judicial precedent.” absence of a stay, either party could still seek Nader, 87 So.3d at 723. As reiterated in Nader, to introduce the neutral evaluator's report in the circuit court case. See§ 627.7074(13) (“The [the supreme court has] held that “ ‘clearly neutral evaluator's written recommendation, established’ law can derive from a variety of oral testimony, and full report shall be legal sources, including recent controlling admitted in any action, litigation, or case law, rules of court, statutes, and proceeding relating to the claim or to the cause constitutional law.” Accordingly, a district of action giving rise to the claim.”). The only court may grant a writ of certiorari after damage would be the potential for increased determining that the decision is in conflict costs and protracted litigation, and this is with the relevant statute, so long as the legal tacitly acknowledged by error is also “sufficiently egregious or fundamental to fall within the limited scope” [136 So.3d 677] of certiorari jurisdiction.
Citizens in its petition. Cf. Cruz, 76 So.3d at Id. (quoting Allstate Ins. Co. v. Kaklamanos, 397–98 (dismissing petition for writ of 843 So.2d 885, 890 (Fla.2003)). Further, certiorari where motion to lift stay was denied denial of a statutorily mandated process may and no irreparable harm had been shown). be grounds for certiorari relief. See Williams v. And “the continuation of litigation and any Oken, 62 So.3d 1129, 1135–36 (Fla.2011) ensuing costs, time, and effort in defending (discussing the holdings of Globe Newspaper such litigation does not constitute irreparable Co. v. King, 658 So.2d 518, 519–20 harm. Thus, the use of certiorari review is (Fla.1995)). improper in such an instance.” Rodriguez v. -4-
Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670 (Fla. App., 2014)
provides neutral evaluation as both a potential precursor to litigation and as a parallel, Citizens correctly argues that neutral contemporaneous process. It is not an “either evaluation, once requested, is mandatory. The or” or “opt out of litigation” procedure, unlike trial court's determination that neutral contractual arbitration provisions. Cf. ch. 682, evaluation was waived conflicts with the Fla. Stat. (2011) (applying to those instances express language of the statute. “Neutral where the parties have an arbitration evaluation is available to either party,” agreement). It is also not a process that occurs “supersedes the alternative dispute resolution as part of a civil proceeding, unlike court- process under s. 627.7015,” and is “mandatory ordered mediation, nor is it a presuit if requested by either party.” § 627.7074(2), requirement. (3), (4). The statute's language is compulsory; it repeatedly and almost exclusively directs There has also been a departure from the that acts “shall” occur. There is no waiver essential requirements of the law in that the provision and no timeframe for requesting circuit court acted in excess of its jurisdiction. neutral evaluation.2 It is an optional but The circuit court does not have authority over statutorily guaranteed process. That is, once the neutral evaluation process. The the request for neutral evaluation has been Department does. Chapter 627 is part of filed with the Department, participation in Florida's Insurance Code. § 624.01, Fla. Stat. neutral evaluation is mandatory and (2009). And as used in the code, “department” guaranteed. See§ 627.7074(4); cf. Williams, 62 means the Department of Financial Services. § So.3d at 1135–36. Certiorari relief is 624.05(1). Section 624.307 provides that the appropriate because the trial court's order Department “shall enforce the provisions of purports to deprive Citizens of a statutory this code and shall execute the duties imposed process to which it is entitled resulting in upon” it and “shall have the powers and material harm. Cf. Williams, 62 So.3d at 1136– authority expressly conferred upon it by, or 37. This conclusion is supported by language reasonably implied from, the provisions of this of the statute applicable at the time the lawsuit code.” § 627.307(1), (2). It is clear that the was filed. The 2012 statute specifically legislature intended that the procedure for the provides, “ Regardless of neutral evaluation of sinkhole claims be administered through the Department. See [136 So.3d 678] State Farm Fla. Ins. Co. v. Colella, 95 So.3d 891, 893 (Fla. 2d DCA 2012) (“A request for when noticed, any court proceeding related to neutral evaluation is actually made to the the subject matter of the neutral evaluation Florida Department of Financial Services.”). shall be stayed pending completion of the The Department certifies and maintains a list neutral evaluation and for 5 days after the of qualified neutral evaluators; receives the filing of the neutral evaluator's report with the request for neutral evaluations; may disqualify court.” § 627.7074(10) (emphasis added); cf. neutral evaluators; may appoint a neutral Cruz, 76 So.3d at 398 n. 1 (“We also note that evaluator in cases where the parties cannot section 627.7074 does not impose a waiver or agree upon one; and has adopted rules of other penalty when a neutral evaluation is not procedure for the neutral evaluation process. § completed within forty-five days. Its proviso 627.7074(1), (4), (7), (18); see also SB 408 that ‘[n]eutral evaluation shall be conducted as (2011), Staff analysis (Jan. 24, 2011), http:// an informal process in which formal rules of www. flsenate. gov/ Session/ Bill/ 2011/ evidence and procedure need not be observed,’ 0408/ Analyses/ 2011 s 0408. pre. bi. PDF § 627.7074(5), suggests that the legislature (“Section 24. Amends, s. 627.7074, F.S., which intended no sanction for failure to strictly provides the procedure for the neutral adhere to the time period.”). The statute evaluation of sinkhole claims administered -5-
Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670 (Fla. App., 2014)
through the Department of Financial Services Mandamus relief is warranted. The (DFS).”). language of the statute is mandatory, requiring that the court proceedings “shall be stayed The right to request neutral evaluation pending completion of the neutral evaluation.” through the Department stems from section § 627.7074(10); see Fla. Caucus of Black State 627.7074(4), which has remained unchanged Legislators, Inc. v. Crosby, 877 So.2d 861, 863 since 2006. Section 627.7074(4) provides that (Fla. 1st DCA 2004) (“Because the legislature neutral evaluation is mandatory if requested chose to use the word ‘shall’ ... the by either party. Whether a party can or has Department's obligations are not waived neutral evaluation is a determination discretionary.”). The circuit court is required within the Department's authority and power, to recognize the automatic stay created by as reasonably implied from the statute's section 627.7074. Staying the court express language. As a result, the circuit court proceedings is a ministerial act with no room is not in a position to determine whether for discretion and is also a duty imposed on the neutral evaluation can or has been waived. court by law. See Polley v. Gardner, 98 So.3d This is true despite the fact that nothing in the 648, 649 (Fla. 1st DCA 2012) (granting applicable statute addresses waiver. Cf. petition for writ of mandamus where statute Asbury Arms Dev. Corp. v. Fla. Dep't of Bus. governing confirmation of arbitration award Regulation, 456 So.2d 1291, 1293 (Fla. 2d DCA contained mandatory language); cf. Lee Cnty. 1984). v. State Farm Mut. Auto. Ins. Co., 634 So.2d 250, 251 (Fla. 2d DCA 1994) (quashing writ of IV. Mandamus mandamus where action required discretion). Section 627.7074(10) is a dictate. And it We convert that portion of the certiorari provides a clear legal right as well as a duty. petition addressing the trial court's denial of a See Woodland v. Lindsey, 586 So.2d 1255, stay to a petition for 1256 (Fla. 4th DCA 1991).
[136 So.3d 679] The notice of stay in this case was all that was necessary to effectuate the stay. Although writ of mandamus and grant it. SeeFla. R. App. not the issue presented to this court in Cruz, P. 9.040(c). Citizens argues that the trial court we consistently referred to the stay provision is required to stay court proceedings related to as “mandatory” and “automatic.” See76 So.3d the subject sinkhole once neutral evaluation is at 398 (“The statute reflects a legislative intent requested. It contends that a “plain reading of to encourage early resolution of a sinkhole section 627.7074(10) provides for a non- claim where the parties disagree on valuation; discretionary, automatic stay of litigation, the automatic stay and the other provisions of regardless of the stage of litigation or the the statute combine to facilitate this intent.”). extent of the parties' litigation conduct without Further supporting the clear meaning of the judicial approval,” and that “the trial court is statute, the Middle District “routinely stay[s] without authority or requirement to act, or close[s] cases pending completion of the whether before a lawsuit or after, to prevent neutral evaluation process,” treating the notice the suspension of litigation.” It further argues of stay as automatic or administrative. that section 627.7074(4) supports its Morejon, 829 F.Supp.2d at 1261 (and cases automatic stay position because “[f]iling a cited therein); see, e.g., Gonzalez v. Am. Sec. request for neutral evaluation tolls the Ins. Co., No. 8:11–CV–2199–T–27AEP, 2011 applicable time requirements for filing suit” WL 8318490 (M.D.Fla. Oct. 7, 2011). The fact and the trial court is without power to order that the amended statute uses the phrase otherwise. “regardless of when noticed” is also instructive. The legislature chose not to use the -6-
Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670 (Fla. App., 2014)
word “requested” or otherwise indicate that a motion for stay should be filed. Rather, the ------stay is to be noticed. This comports with the mandatory nature of neutral evaluation once it Notes: is requested. Finally, the 2011 amendment clarified that “[t]he mandatory stay of court 1. Although Citizens does not raise the proceedings pending completion of neutral issue, the court clearly departed from the evaluation is automatically lifted 5 days after essential requirements of the law by failing to the filing of the neutral evaluator's report with consider the factors necessary to determine the court.” SB 408, Staff analysis; cf.§ waiver of a right. To prove waiver, Mr. Trapeo 120.56(4)(b), Fla. Stat. (2011) (providing for was required to establish “the existence at the stay of administrative proceedings during time of the waiver of a right, privilege, or rulemaking process). advantage; the actual or constructive knowledge thereof; and an intention to The statute also expressly states that relinquish that right, privilege, or advantage.” “[n]eutral evaluation supersedes the See Winans v. Weber, 979 So.2d 269, 274 (Fla. alternative dispute resolution process under s. 2d DCA 2007). 627.7015.” § 627.7074(3). Section 627.7015 discusses its “nonadversarial alternative dispute resolution procedure” as a substitute 2. We recognize the trial court's concern that a notice of stay of litigation pending [136 So.3d 680] neutral evaluation could be filed on the eve of trial, thereby temporarily halting litigation at for litigation where the dispute is resolved or an inopportune time. However, the current as a precursor to litigation where it is not. See language of the statute is clear. Fla. Ins. Guar. Ass'n, Inc. v. Shadow Wood Condo. Ass'n, 26 So.3d 610, 614 (Fla. 4th DCA 2009). There would be no need for neutral evaluation to supersede section 627.7015 if the two provided the same process.
V. Conclusion
Citizens' petition for writ of certiorari is granted in part; the trial court's order is quashed to the extent that it prohibits neutral evaluation pursuant to section 627.7074. The petition is converted, in part, to a petition for writ of mandamus and is granted. The trial court is directed to stay the circuit court proceedings pursuant to section 627.7074.
Petition granted; order quashed in part; remanded with directions.
NORTHCUTT and KHOUZAM, JJ., Concur.
-7-
City of Dania Beach v. Zipoli, 204 So.3d 52 (Fla. App., 2016)
204 So.3d 52 The E/C concedes that it was dilatory in paying one of the IB installments and admits it never CITY OF DANIA BEACH and PGCS, paid the penalties and interest related to this Appellants, late payment. See §§ 440.20(6) (penalties) & v. 440.20(8) (interest), Fla. Stat. (2008). The David ZIPOLI, Appellee. last payment of the fourteen weeks' worth of IBs to which the Claimant was entitled—the No. 1D16–0693. most recent provision of any indemnity benefits to the Claimant—was made on District Court of Appeal of Florida, November 3, 2009. First District. The medical benefits provided to the Claimant Oct. 10, 2016. included treatment with Dr. Christopher Rehearing Denied Nov. 19, 2016. Brown. The Claimant's last visit with Dr. Brown—the most recent provision of any [204 So.3d 53] claim-related medical benefit to the Claimant—took place in May of 2010. George W. Boring, III, Public Entity Legal Important to our analysis, when the Claimant Solutions, Lake Mary, for Appellants. later called Dr. Brown's office to schedule a follow-up appointment, he was "erroneously" Kimberly A. Hill of Kimberly A. Hill, P.L., Fort advised that his case was closed and that he Lauderdale, for Appellee. was no longer authorized to receive treatment PER CURIAM. from Dr. Brown. This turned out to be a critical component in the untimely advancement of In this workers' compensation case, the his claim because, as discussed below, the only Employer/Carrier (E/C) appeals an order of evidence of reliance in this record is that the the Judge of Compensation Claims (JCC) Claimant believed—mistakenly—that Dr. finding that it was estopped from asserting a Brown or his staff was in charge of his case. statute of limitations defense against the Claimant's request for benefits. Because the Litigation elements of estoppel were not established in On December 22, 2014, more than four years this case, we reverse. after the Claimant last received any workers' Background compensation benefits, the Claimant filed a petition for benefits (PFB) seeking The Claimant sustained a compensable low- authorization of medical care, IBs "at the back injury on January 16, 2009. The E/C correct rate," penalties and interest on any late provided both medical treatment and payment of indemnity benefits, and attorney's indemnity benefits. In September 2009, the fees and costs. The E/C contested the claims, E/C sent the Claimant a letter stating that he asserting, among other defenses, that the had reached maximum medical improvement claims were barred by the statute of limitations (MMI) with a permanent impairment rating found in section 440.19, Florida Statutes, (PIR), that he was entitled to impairment which provides that a PFB must be filed within income benefits (IBs) under section 440.15(3), two years after the date a claimant knew or Florida Statutes, and that his "medical should have known that his injury arose out of treatment [was] subject to a one-year Statute a compensable, work-related event, with the of Limitations."1 The parties have since exception that the two-year period is tolled for stipulated that the Claimant reached MMI on one year following the date any indemnity July 28, 2009, with a 7% PIR. -1-
City of Dania Beach v. Zipoli, 204 So.3d 52 (Fla. App., 2016)
benefit is paid or medical treatment is unique set of facts substantially similar to the furnished. facts of Gauthier.
In response to the E/C's statute of limitations In Gauthier, the claimant "showed by defense, the Claimant argued four uncontested evidence that the E/C failed to act when it was under a duty to do so and that [204 So.3d 54] [the] claimant was misled to her detriment due to the E/C's omission." 38 So.3d at 225. Thus, grounds, albeit intertwined, upon which the in that case, the elements of estoppel— E/C was allegedly estopped from asserting the detrimental reliance on a party's limitations defense—1.) Although IBs were misrepresentation—were established. See paid to the Claimant, one payment was late Deere v. Sarasota Cty. Sch. Bd., 880 So.2d and should have included penalties and 825, 826 (Fla. 1st DCA 2004) ("To interest; 2.) IBs were not paid at correct rate demonstrate estoppel, Appellant must show based on average weekly wages (AWW) and that (1) the E/C misrepresented a material earnings considerations at the time of IB fact; (2) Appellant relied on the payment; 3.) The September of 2009 letter to misrepresentation; and (3) Appellant changed the Claimant was a misstatement of the her position to her detriment because of the applicable statute of limitations (SOL)2 ; and misrepresentation."); accord Winans v. 4.) Dr. Brown's office advised the Claimant Weber, 979 So.2d 269, 275 (Fla. 2d DCA 2007) that his case was closed. The Claimant (holding that there can be no estoppel when asserted, under grounds one and two, that the the party seeking estoppel "was not misled by E/C was estopped from asserting the statute of the other party's conduct"). limitations because the E/C failed to fulfill its mandatory duty to pay, thus leaving the In Gauthier, the claimant suffered a serious Claimant unaware of his entitlement to certain and catastrophic-type injury when she lost classes of benefits—i.e., to penalties and vision in her right eye.3 Following surgery and interest and/or the higher rate of IB payments. recovery, the claimant attended appointments Among other cases provided to the JCC, the every other month through June of 2007, Claimant relied on Gauthier v. Florida when she was instructed to return for annual International University, 38 So.3d 221 (Fla. visits only. She attended an appointment on 1st DCA 2010), where this Court concluded June 21, 2007. She later called in July of 2008 that the claimant had detrimentally relied on and obtained an annual follow-up the E/C's failure to comply with its statutory appointment for August 5, 2008. When she duties—specifically, to obtain an MMI and PIR appeared for the August appointment, she was and pay IBs based on that PIR—leaving the advised that the E/C refused authorization. On claimant unaware of her potential entitlement these facts, this Court found that the E/C failed to benefits and foreclosing her ability to toll to advise claimant of her undisputed the statute of limitations. Ultimately, the JCC entitlement to significant impairment agreed with the Claimant's Gauthier argument and found that the E/C was estopped from [204 So.3d 55] raising its limitations defense. benefits, failed to acquire MMI and an Analysis impairment rating from the doctors it had authorized, and failed to pay the impairment We find that the facts in Gauthier are benefits. Of note, payment of the impairment distinguishable from the facts of this case. benefits would have tolled the statute of Furthermore, the holding in Gauthier must be limitations defense. Therefore, the absence of narrowly construed and only applies to a the filing of a PFB by the claimant was due to -2-
City of Dania Beach v. Zipoli, 204 So.3d 52 (Fla. App., 2016)
the E/C's failure to acquire MMI and PIR obligation. Simply stated, in this case, the JCC information, failure to file appropriate DWC construed Gauthier too broadly. forms, and failure to convey accurate information concerning claimant's PIR or to Conclusion initiate IB payments to claimant—which the E/C was on actual notice were due pursuant to For all of these reasons, we reverse the the serious and permanent nature of her estoppel of the E/C's statute of limitations injuries. defense and find that the defense bars compensability and any further entitlement to By contrast, in this case, there is no record benefits. evidence that the Claimant detrimentally relied on a misrepresentation or omission REVERSED. made by the E/C. Instead, the only documented detrimental reliance was the MAKAR, JAY, and M.K. THOMAS, JJ., Claimant's reliance on the comments of Dr. concur. Brown's office staff, comments unconnected to the E/C. See Dep't of Revenue ex rel. Thorman ------v. Holley, 86 So.3d 1199, 1203 (Fla. 1st DCA Notes: 2012) ("To satisfy the reliance prong of equitable estoppel, the party asserting the 1 The Claimant acknowledges that the E/C defense must prove that he ... made a timely mailed the informational brochure detrimental change of position based on a required by section 440.185(4), Florida belief in the misrepresented fact."). As to Statutes, detailing the applicable one- and ground four of the Claimant's asserted two-year statutes of limitations. estoppel arguments, there is no evidence that the E/C knew about the discussion between 2 The record on appeal documents that at the the Claimant and Dr. Brown's office or in any hearing, the Claimant stipulated that he way gave momentum to the Claimant's received the full informational brochure from mistaken belief that his case had been the E/C as required by section 440.185, Fla. terminated. Here, the E/C acquired the MMI Stat. Accordingly, any argument under this and PIR, filed the appropriate forms ground lacks merit. documenting the assignment and change of 3 medical status, sent a letter to the claimant The claimant later regained some level of advising of entitlement to IBs, and initiated vision after surgery, but ultimately suffered payment of the IBs. significant and permanent vision loss in the right eye. Further, the Claimant stipulated that the E/C ------timely raised the affirmative defense of statute of limitations and that he received notice of the statute of limitations via an informational brochure compliant with section 440.185, Florida Statutes. The merits hearing was bifurcated to address the issue of compensability with a reservation of jurisdiction over benefits due, if warranted.
Gauthier does not permit an inference of detrimental reliance whenever and wherever an E/C has failed to meet a statutory -3-
Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
116 So.3d 492 I. Background
TARA WOODS SPE, LLC, Appellant, In August 2007 Ms. Cashin purchased a v. mobile home in Tara Woods Mobile Home Louella CASHIN, Appellee. Park. Tara Woods owns the park, which is regulated by the Act. Ms. Cashin's mobile No. 2D12–3854. home was a resale; she purchased the home from the trustee of a deceased resident's trust District Court of Appeal of Florida, (Seller). Second District. A. Documents May 24, 2013. Rehearing Denied July 15, 2013. On August 8, 2007, Ms. Cashin executed a Rental Assumption Agreement acknowledging [116 So.3d 494] and agreeing to assume the remaining term of the rental agreement between Tara Woods and the Seller. In addition, she executed a Rental Jody B. Gabel and J. Allen Bobo of Lutz, Bobo, Agreement to be effective for the period Telfair, Eastman, Gabel & Lee, Sarasota, for assumed—September 1, 2007 through Appellant. December 31, 2007. The Rental Agreement included a rent increase provision identical to Robert B. Burandt of Burandt, Adamski & the rent increase provision in the Seller's Feichthaler, PL, Cape Coral, for Appellee. original rental agreement, to wit: “The LANDLORD may raise the amount of base
rent and special use fees and other charges BLACK, Judge. annually effective the 1st day of January, ____. Increases in the base rent and other fees Tara Woods SPE, LLC, appeals the final and charges will be determined in the manner judgment and supplemental final judgment disclosed in the Prospectus.” entered in favor of Louella Cashin. Collectively, the judgments interpret On the same day, Ms. Cashin signed an provisions of Florida's Mobile Home Act, acknowledgment stating that she received a chapter 723, Florida Statutes (2007), and copy of Tara Woods' Prospectus and a Lifetime permit Ms. Cashin to rescind her lease Lease. The Prospectus provided to Ms. Cashin contract. Presented with an issue of first was approved by the Department of Business impression, we must determine whether Tara and Professional Regulation (Department) in Woods SPE, LLC (Tara Woods), a mobile 1994, pursuant to the Act. See §§ 723.006(8), home park owner, complied with the .011(1); Vill. Park Mobile Home Ass'n., Inc. v. disclosure requirements of the Mobile Home Fla. Dep't. of Bus. Reg., 506 So.2d 426, 426 Act (Act) as it relates to resale purchasers. Ms. (Fla. 1st DCA 1987). The Lifetime Lease, as an Cashin persuaded the circuit court that the attachment to the Prospectus, had been park owner did not comply with the Act; Tara approved by the Department on March 28, Woods contends that the circuit court 2006. See§§ 723.011(2), .012(14)(d). erroneously concluded that the park owner did not do enough to comply with the Act and The first page of the Prospectus contains further contends that Ms. Cashin waived four paragraphs, each of which is typed in certain rights. As we will explain in detail, we capital letters and required under the Act. See agree with Tara Woods' arguments and § 723.012(1)(b). As relevant to this appeal, therefore reverse the judgments on appeal. paragraphs one, two, and four provide: -1-
Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
THIS PROSPECTUS CONTAINS VERY charges in the year prior to the effective date of IMPORTANT INFORMATION REGARDING the increase. YOUR LEGAL RIGHTS AND YOUR FINANCIAL OBLIGATIONS IN LEASING A Paragraph E of the Prospectus, under the same MOBILE HOME LOT. MAKE SURE THAT section and heading, addresses “Additional YOU READ THE ENTIRE DOCUMENT Considerations” and provides, in relevant part:
[116 So.3d 495]
AND SEEK LEGAL ADVICE IF YOU HAVE Tenants assuming the remaining portion ANY QUESTIONS REGARDING THE of a rental agreement as prescribed by § INFORMATION SET FORTH IN THIS 723.059(3), F.S., are hereby notified that upon DOCUMENT. the expiration of the assumed rental agreement, the Park Owner expressly reserves THE STATEMENTS CONTAINED the right to increase lot rental amount in an HEREIN ARE ONLY SUMMARY IN amount deemed appropriate by the Park NATURE. A PROSPECTIVE LESSEE Owner with such increase being imposed in SHOULD REFER TO ALL REFERENCES, the manner disclosed in the Prospectus ALL EXHIBITS HERETO, THE CONTRACT delivered to the initial recipient. The increase DOCUMENTS, AND ALL SALES must be disclosed and agreed to by the MATERIALS. purchaser in writing prior to occupancy.
.... Also on August 8, 2007, Ms. Cashin signed an acknowledgement stating that Tara Woods UPON DELIVERY OF THE provided her with an approved Prospectus and PROSPECTUS TO A PROSPECTIVE LESSEE, that she had not been supplied with the THE RENTAL AGREEMENT IS VOIDABLE original prospectus delivered to the Seller. BY THE LESSEE FOR A PERIOD OF That document reads: FIFTEEN (15) DAYS.
Section VIII, paragraph D of the Prospectus, under the heading “Increases in Lot Rental The owner of the home I purchased on Lot Amount,” addresses factors affecting rent 143 did not supply me (we) or the Sales Office increases: with the original Prospectus which was delivered to the previous owner(s), per the terms specified in Chapter 723, Florida Statutes, Department of Business Regulation, Factors which may affect the level of Division of Florida Land Sales, Condominiums increases in the lot rental amount or user fees and Mobile Homes. are as follows: Tara Woods Community Management Consumer Price Index (CPI): [Tara furnished me (us) with a current approved Woods] will consider increases in the level of Prospectus, which is now being delivered to CPI for the twelve-month (12–mo.) period new residents who purchase new homes. I(we) immediately preceding the notice of increase. were informed that it may or may not be the Rent and other charges may be increased by a same form as the original Prospectus delivered percentage equal to the increase in the level of to the previous owner(s). I(we) the buyer(s) CPI but such increase will not exceed ten Louella Cashin accept the current Prospectus percent (10%) of the level of rent or other given to me (us) at the time of the signing of
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Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
the Lease Agreement to be used as a guide for MAY AFFECT THE LOT RENTAL AMOUNT information purposes. OF OTHER PROVISIONS.
The final document signed by Ms. Cashin THIS RENTAL AGREEMENT APPLIES is her lot rental agreement (Lifetime Lease). ONLY TO THOSE HOMEOWNERS WHO Although the date Ms. Cashin signed the CONSENT TO IT. Lifetime Lease is unclear—two executed Lifetime Leases were introduced into evidence B. Lawsuit below—it is clear Ms. Cashin signed a Lifetime Lease.1 Section C, On June 24, 2010, almost three years after executing her Lifetime Lease, and after two [116 So.3d 496] annual rent increases, Ms. Cashin filed a two- count complaint against Tara Woods. In count paragraph 3(C), of the Lifetime Lease I, Ms. Cashin sought declaratory relief, asking addresses factors affecting increases in rent the court to declare the Prospectus the and reads: “supreme governing document” such that any provision in Ms. Cashin's Lifetime Lease which Effective the first day of every calendar conflicted with the Prospectus was year the base rent shall be adjusted by the unenforceable. In count II, she claimed percentage increase in the CPI; however, if the damages based on the difference between the percentage increase in the CPI is less than rent she paid under the Lifetime Lease and three percent for any year, the base rent shall what she would have been obligated to pay be increased by three percent. Alternatively, at under a lease identical to the Seller's. the sole discretion of Community Owner, effective the first day of each calendar year, the Tara Woods answered the complaint and base rent shall be adjusted to the market rent, filed affirmative defenses including (1) that but in no year by more than the percentage Ms. Cashin accepted the Rental Assumption increase in the CPI plus two percent. Agreement, Rental Agreement, and Lifetime Lease without question, protest, or dispute; (2) On the last page of the Lifetime Lease, that Ms. Cashin executed an acknowledgment section V, Homeowner Acknowledgement of stating that she had not received the Seller's Understanding, provides: “Homeowner prospectus and had accepted the current hereby acknowledges that [s]he has read the Prospectus; (3) that Ms. Cashin voluntarily foregoing Lot Rental Agreement and that prior agreed to the Lifetime Lease which includes to executing this Lot Rental Agreement [s]he conspicuous language indicating that it was has had a reasonable opportunity to read and optional; and (4) that Ms. Cashin waived any review it....” Finally, immediately preceding claim asserting an entitlement to a different the signature lines on the last page of the lease, rental agreement by her voluntary execution of and typed in bolded, all capital letters appears the Lifetime Lease and the thirty-four-month the following disclosure: period in which it had governed the parties' relationship. YOU DO NOT HAVE TO ACCEPT THIS RENTAL AGREEMENT. C. Judgments
THIS RENTAL AGREEMENT Following an unsuccessful mediation, the CONTAINS PROVISIONS WHICH ARE matter went to nonjury trial on May 27, 2011. DIFFERENT FROM THE PROSPECTUS On January 30, 2012, the court issued its final DISCLOSURE. THESE DIFFERENCES MAY judgment, concluding in pertinent part: INCLUDE FEES AND FACTORS WHICH
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Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
Assuming ... a prospectus can be amended manner consistent with the initial prospectus by attaching a rental agreement given to her Seller, and if she chooses, to a lot rental agreement in accordance with those [116 So.3d 497] terms, restorative to the date of her purchase, together with damages equal to the amounts as an exhibit with provisions which conflict paid by [Ms. Cashin] in excess of the amounts with those in the prospectus, as was the so determined, and prejudgment interest situation in this case, the prospectus, as thereon. amended, the disclosures made, and the manner in which it is presented to prospective Thereafter, the court entered its purchasers of existing homes, must, at a supplemental final judgment reflecting that minimum, in order to comply with the full and Ms. Cashin had elected to rescind her Lifetime fair disclosure requirements set forth in Lease pursuant to the final judgment, which Chapter 723, Florida Statutes, clearly inform “provided for an election by [Ms. Cashin] to [Ms. Cashin] of her rights under Fla. Stat. rescind her [Lifetime Lease] and, if she elected 723.059 and choice to enter into a lot rental to rescind, for damages equal to the amounts agreement on the terms and conditions paid ... in excess of the amount payable based consistent with her Seller's prospectus. On the on the terms of her seller's prospectus and facts of this case, [Ms. Cashin] was not given lease.” that disclosure and choice. Here, [Ms. Cashin] was not even provided with a copy of the II. Discussion optional lease she had the right to elect to enter into and informed of the amount of the base In a declaratory judgment action, this rent, if different, she would have to pay under court defers to the circuit court's findings of that option. fact, provided they are supported by competent, substantial evidence. See Fortune [Ms. Cashin] did not voluntarily consent v. Hutchinson, 20 So.3d 476, 477 (Fla. 2d DCA to the Lifetime Lease and waive her rights 2009). However, the circuit court's under Florida Statute 723.59(3) & (4). Instead, conclusions of law, when based on its the Lifetime Lease was simply imposed on interpretation of statutes and written [Ms. Cashin] by [Tara Woods] by presenting agreements and contracts, are reviewed de her with only with [sic] that lease, with the novo. See J.S.U.B., Inc. v. U.S. Fire Ins. Co., confusing and conflicting language used in the 906 So.2d 303, 306 (Fla. 2d DCA 2005). documents prepared by [Tara Woods], and presented to [Ms. Cashin], without giving her A. Relief requested any meaningful understandable choice. In order to have a valid waiver, there must be a Although not raised by Tara Woods on voluntary and intentional relinquishment of a appeal, we must note that the circuit court's known right. final and supplemental final judgments grant relief not requested by Ms. Cashin—the right .... to rescind her Lifetime Lease. Nothing in our record indicates that a motion for ORDERED AND ADJUDGED, [Ms. supplemental relief was filed. See§ 86.061, Fla. Cashin] is entitled to the benefits provided by Stat. (2011). Further, to the extent Ms. Florida Statute 723.59(3) & (4), to rely on the Cashin's declaratory action seeks, in part, a terms and conditions of her Seller's determination that she had a right to rely on prospectus, and to have the increase in her the rent-increase provision in the Prospectus annual rent, after expiration of the assumed she rental agreement of her Seller, imposed in a -4-
Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
[116 So.3d 498] the Act. Section 723.011, titled “Disclosure prior to rental of a mobile home lot; was given, the court so determined. However, prospectus, filing, approval,” states that “[t]he the specific prayer of the declaratory action prospectus ... together with its exhibits is a was effectually denied. The court did not find disclosure document intended to afford “that the Prospectus is the supreme governing protection to homeowners and prospective document and that anything contained in [Ms. homeowners in the mobile home park. The Cashin's] lease that is contrary to the purpose of the document is to disclose the Prospectus is unenforceable” or “that the representations of the mobile home park minimum increase of 3% contained in the owner concerning the operations of the mobile [Lifetime Lease] is unenforceable because it home park.” § 723.011(3); see Sun Coast Int'l., conflicts with [Ms. Cashin's] Prospectus.” Inc. v. Dep't. of Bus. Reg., 596 So.2d 1118, 1120 n. 1 (Fla. 1st DCA 1992) (“The purpose of the Nonetheless, because Ms. Cashin was prospectus is to disclose to the tenants certain “entitled to a judicial determination of the information regarding the operation of the rights at issue,” see Meadows Cmty. Ass'n., mobile home park ....”); see also Vill. Park, 506 Inc. v. Russell–Tutty, 928 So.2d 1276, 1279 So.2d at 428 (listing the statutory disclosure (Fla. 2d DCA 2006), the court determined that requirements). Section 723.012, detailing the Tara Woods had specific obligations pursuant requirements of the prospectus, mandates that to section 723.059 of the Act, which were not the prospectus include, “in conspicuous type,” met. The court further found that the manner the admonition that “[t]he statements in which rent was increased under the Lifetime contained herein are only summary in nature. Lease conflicted with the manner in which rent A prospective lessee should refer to all was increased under the Prospectus. Based on references, all exhibits hereto, the contract these determinations, the court granted Ms. documents, and sales materials.” § Cashin the right to rescind her Lifetime Lease. 723.012(1)(b)(2) (emphases added). In addition, a “prospectus must be delivered B. Issues raised on appeal prior to the creation of an enforceable rental agreement.” Fed'n. of Mobile Home Owners of 1. Statutory interpretation Fla., Inc. v. Fla. Manufactured Hous. Ass'n., Inc., 683 So.2d 586, 588 (Fla. 1st DCA 1996). The first three points on appeal address Quite clearly the legislature did not intend the the circuit court's interpretation of the Act as prospectus to create rights or duties not reflected in the final judgment. It is upon these already imposed by the Act, nor did it intend issues that the case presented is one of first the prospectus to be a contract. The impression. Because of this, we have Department's rules align with our reading of endeavored to discuss each relevant provision the Act. SeeFla. Admin. Code R. 61B–31.001(1) of the documents signed by Ms. Cashin, as well (“The prospectus shall clearly describe all as the relevant statutes. In doing so, it became matters required by Chapter 723, Florida apparent that the circuit court misinterpreted Statutes, and shall not contain other the Act such that the court elevated the information except as permitted by the Prospectus beyond the status intended by the [Department] legislature, affording it greater weight than the Lifetime Lease. [116 So.3d 499] The Prospectus, whether the Seller's or to fully and fairly disclose all aspects of the Ms. Cashin's, “is fundamentally a disclosure park and the offer.”). The Act makes the document.” Vill. Park, 506 So.2d at 428. This prospectus “part of the contract between the is made abundantly clear by the language of mobile home park owner and the mobile home -5-
Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
owner,” Fed'n. of Mobile Home Owners, 683 imposing duties upon Tara Woods. In doing So.2d at 591, but not an independent contract so, the court read section 723.059 as requiring and certainly not the “supreme governing Tara Woods to (1) “clearly inform [Ms. Cashin] document.” of her rights under Fla. Stat. 723.059 and her prospectus”; (2) “provide her with a copy of the As a result, Ms. Cashin has no optional lease she had the right to elect to enter independent rights under the Prospectus. Her into”; and (3) inform Ms. Cashin “of the rights are provided by the Act and the Lifetime amount of the base rent, if different, she would Lease. Thus, one of the questions before us is have to pay under that option.” Tara Woods whether the Act requires Tara Woods, as the argues that these obligations are not part of the mobile home park owner, to “clearly inform” a Act but are creations of the circuit court. resale home buyer of her rights under section 723.059 of the Act. Both parties agree that Ms. Cashin exercised her right to assume the remaining As a statutory basis for her lawsuit, Ms. term of her Seller's rental agreement and all Cashin relies on section 723.059(3). Section rights provided thereunder, in accordance 723.059, titled “Rights of purchaser,” defines with section 723.059(3). They also agree that the rights of a resale purchaser within a mobile pursuant to section 723.059(4), Ms. Cashin home park: had a right to be informed of any rental increase prior to her occupancy. That is, Tara (3) The purchaser of a mobile home who Woods had a duty to disclose any rental becomes a resident of the mobile home park in increase to Ms. Cashin prior to her occupancy. accordance with this section has the right to Additionally, any disclosed rent increase was assume the remainder of the term of any rental required to be imposed “in a manner agreement then in effect between the mobile consistent with” the Prospectus. § 723.059(4). home park owner and the seller and shall be entitled to rely on the terms and conditions of Here, although the Prospectus provided the prospectus or offering circular as delivered to Ms. Cashin was not identical to the to the initial recipient. prospectus provided to her Seller, it is undisputed that it contained an identical (4) However, nothing herein shall be “Increases in Lot Rental Amount” provision. construed to prohibit a mobile home park As a result, Ms. Cashin was entitled to rely on owner from increasing the rental amount to be that provision of her Prospectus. The paid by the purchaser upon the expiration of Prospectus provides that a rent increase is the assumed rental agreement in an amount subject to several factors, one of which is CPI. deemed appropriate by the mobile home park Other factors affecting the lot rental amount owner, so long as such increase is disclosed to include “[t]he imposition of and/or increases the purchaser prior to his or her occupancy in special use fees, government and utility and is imposed in a manner consistent with the charges, pass-through charges, recouped initial offering circular or prospectus and this costs, and pass-on charges.” Ms. Cashin's act. Lifetime Lease provides that rent increases are affected § 723.059(3), (4). [116 So.3d 500]
by CPI or market rent. The manner in which In the final judgment, the circuit court rent may be increased is affected, in both interpreted section 723.059 not as a statute instances, by CPI—making the provisions delineating Ms. Cashin's rights but as a statute consistent. Further, the Department approved -6-
Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
the Lifetime Lease executed by Ms. Cashin as of section 723.059. Cf.§ 627.727(1), Fla. Stat. part of its statutory duties pursuant to the Act. (2011) (requiring insurance policies to include See§ 723.011(1)(d) (tasking the Department certain coverage unless insured rejects in with approving amendments to prospectuses writing the coverage such that insured has the and their attachments); § 723.012(14) “privilege of rejecting” it). Nor does the Act (requiring lease agreements to be attached to support the court's conclusion that Tara prospectuses). Thus, Ms. Cashin's rights under Woods was required to inform Ms. Cashin of section 723.059, as applicable to the facts of the difference in lot rental amount between the this case, were the right to assume the Lifetime Lease and the Seller's lease. See remaining term of her Seller's lease and rights Wexler v. Rich, 80 So.3d 1097, 1101 (Fla. 4th thereunder and the right to rely on the terms DCA 2012) (concluding bank was not required of her Seller's prospectus. to explain significance between types of account ownership where account agreements To the extent the court's order requires contained options); Beckett v. Dep't. of Fin. Tara Woods to provide a copy of a seller's Servs., 982 So.2d 94, 101 (Fla. 1st DCA 2008) prospectus to a resale home buyer, that is (“If the [l]egislature had intended to require error. Section 723.011(2) requires the mobile particular means or procedures for obtaining home park owner to provide a copy of an informed consent, it could have done so”). approved prospectus, along with all attachments thereto, to each prospective In reaching these conclusions, we lessee. See Fed'n. of Mobile Home Owners, reiterate what Florida courts have long held: 683 So.2d at 593 (“The mobile home park the legislature is presumed to understand the owner is statutorily obligated to provide meaning of the words it chooses, Overstreet v. tenants with an ‘approved’ prospectus, and State, 629 So.2d 125, 126 (Fla.1993), and those cannot enter into a binding rental agreement words are to be ascribed their plain and until after providing the prospective tenant ordinary meaning, see Velez v. Miami–Dade with an ‘approved’ prospectus”); see also§ Cnty. Police Dep't., 934 So.2d 1162, 1164–65 723.014(1) (“If a prospectus ... was not (Fla.2006). Here it is obvious that the provided to the prospective lessee prior to legislature understands the differences execution of the lot rental agreement ... the between rights and obligations; section rental agreement is voidable by the lessee until 723.022 defines the mobile home park owner's 15 days after the receipt by the lessee of the general obligations and sections 723.054, prospectus....”). Section 723.059(3) states only 723.055, and 723.059 define various rights of that a resale home buyer “shall be entitled to the mobile home owner. And because the rely on the terms and conditions of the legislature used [seller's] prospectus”; it imposes no affirmative duty upon the mobile home park [116 So.3d 501] owner. Section 723.059(4) imposes a disclosure obligation on the mobile home park words with clear meanings—rights, owner as to increases in rent and requires that obligations, disclose, and provide—the courts an increase conform with the manner “may not invade the province of the legislature prescribed in the seller's prospectus. It does and add words which change the plain not impose an affirmative duty to provide the meaning of the statute.” Metro. Dade Cnty. v. resale home buyer with the seller's prospectus. Bridges, 402 So.2d 411, 414 (Fla.1981). Nor may the courts otherwise extend or modify the The second duty imposed by the court is words or their meanings. Velez, 934 So.2d at to provide Ms. Cashin with a copy of the 1164–65. optional lease she had the right to elect to enter into. Nothing in the Act supports this reading -7-
Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
Because we do not read the circuit court's Arbogast v. Bryan, 393 So.2d 606, 608 (Fla. order as requiring a mobile home park owner 4th DCA 1981)). Knowledge of the right is to provide legal advice regarding the mobile critical. Id. home owner's rights, we need not address that issue. We note, however, that by requiring As discussed above, for purposes of this every prospectus to include, “in conspicuous appeal, the only statutory right Ms. Cashin had type,” the admonition to “seek legal advice” was the right to rely on the terms of her Seller's should any questions arise regarding a mobile prospectus. And again, it is undisputed that home owner's legal rights, the legislature the relevant provisions pertaining to rental clearly contemplated a mobile home owner's increases in both the Seller's prospectus and potential need for such advice. See § the approved Prospectus given to Ms. Cashin 723.012(1). contained identical language.
2. Waiver As to Ms. Cashin's “actual or constructive knowledge” of her right, “Florida law has long Tara Woods' final argument on appeal held that a party to a contract is ‘conclusively addresses the circuit court's conclusion that presumed to know and understand the Ms. Cashin did not voluntarily consent to the contents, terms, and conditions of the Lifetime Lease and did not waive her statutory contract.’ ” Rocky Creek Ret. Props., Inc. v. rights. As discussed above, the circuit court Estate of Fox, 19 So.3d 1105, 1108–09 (Fla. 2d granted Ms. Cashin rights and extended Tara DCA 2009) (quoting Stonebraker v. Reliance Woods' obligations beyond those provided by Life Ins. Co. of Pittsburgh, 123 Fla. 244, 166 the Act. By doing so, the court complicated So. 583, 584 (1936)). “Florida adheres to the what would otherwise have been a simple principle that a ‘party has a duty to learn and waiver case. know the contents of a proposed contract before [s]he signs' it.” Wexler, 80 So.3d at Because the circuit court's findings of fact 1100–01 (quoting Mfrs.’ Leasing, Ltd. v. Fla. are supported by competent, substantial Dev. & Attractions, Inc., 330 So.2d 171, 172 evidence in the record, and are largely (Fla. 4th DCA 1976)). Therefore, a party is “ included in the background herein, we do not ‘assumed to have known, and [is] charged with address them. the knowledge, of the provisions incorporated into the contract [she] executed.’ ” Although not conceding that Ms. Cashin had rights beyond those delineated by the Act, [116 So.3d 502] Tara Woods contended in its affirmative defenses and at trial that Ms. Cashin had Breckenridge v. Farber, 640 So.2d 208, 211 waived any rights she may have had with (Fla. 4th DCA 1994) (quoting Marthame regard to the terms of her Lifetime Lease. And Sanders & Co. v. 400 West Madison Corp., as Lifetime Leases governed by the Act are 401 So.2d 1145, 1146 (Fla. 4th DCA 1981)). contracts like any other, general contract law “[The] alleged inability to understand the applies. See Miren Int'l. Lodging Corp. v. Agreement does not vitiate her assent to that Manley, 982 So.2d 1203, 1204 (Fla. 5th DCA Agreement in the absence of some evidence 2008). To prove waiver, Tara Woods was that she was prevented from knowing its required to establish “the existence at the time contents.” Rocky Creek, 19 So.3d at 1108–09. of the waiver of a right, privilege, or advantage; the actual or constructive knowledge thereof; Citing section 723.059(3), Ms. Cashin's and an intention to relinquish that right, Prospectus expressly notified her “that upon privilege, or advantage.” See Winans v. Weber, the expiration of the assumed rental 979 So.2d 269, 274 (Fla. 2d DCA 2007) (citing agreement,” Tara Woods reserved the right to -8-
Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
increase rent “with such increase being documents she signed. In fact, testimony at imposed in the manner disclosed in the trial supports the finding that Ms. Cashin Prospectus delivered to the initial recipient.” signed the Lifetime Lease on August 29, 2007, Although the Prospectus does not indicate it, twenty-one days after she first received it. this language is a quote from section Testimony also established that Ms. Cashin 723.059(4). As a result, Ms. Cashin was put on did not ask questions about the documents she notice that any rent increase subsequent to the received and signed. And Ms. Cashin does not expiration of her Rental Assumption argue that she was under pressure to execute Agreement would be made in a manner the documents. Ms. Cashin's signatures on consistent with the terms of the Prospectus. each of the pertinent documents, but And nothing in sections 723.059(3) or (4) particularly on the Lifetime Lease, evince her requires a verbal explanation of the resale intention to relinquish her right and consent to buyer's rights. Therefore, the circuit court's the Lifetime Lease. conclusion that “the right to rely on her Seller's prospectus” was not disclosed to Ms. Cashin is III. Conclusion in error. This error is compounded by the court's conclusion that Ms. Cashin did not Tara Woods complied with its statutory voluntarily consent to the terms of the Lifetime obligations to Ms. Cashin, a resale home Lease and waive her right under section buyer, under Florida's Mobile Home Act. The 723.059(3). documents presented to and executed by Ms. Cashin met the requirements of the Act. As a We reiterate that the Department result, and notwithstanding the circuit court's approved not only the Prospectus provided to erroneous interpretation of the Act, the issue Ms. Cashin but also the Lifetime Lease in this case is simply one of waiver. The rent attached to it. The final page of that Lifetime increase between Ms. Cashin's assumption of Lease expressly, unambiguously, and the Seller's lease and her execution of the conspicuously advised Ms. Cashin that she did Lifetime Lease was clearly disclosed, and the not have to accept the Lifetime Lease, that it Lifetime Lease conspicuously advised that it only applied to those homeowners who was consented to it, that the Lifetime Lease contained provisions different from those of [116 So.3d 503] the Prospectus, and that those differences “may affect the lot rental amount.” The optional. Ms. Cashin was in no sense Lifetime Lease also provides that “[t]he pressured into signing the Lifetime Lease; she relationship between Homeowner and took three weeks to review and execute it. She Community Owner shall be subject to the had the time, and indeed was admonished, to terms of Chapter 723, Florida Statutes.” seek legal advice should she have any Moreover, by reading the terms of the Rental questions. Ms. Cashin was specifically advised Assumption Agreement and those of the of the matter about which she now complains, Lifetime Lease it is clear that the rent and she acknowledged her awareness in provisions differed in a minor way not writing. Ms. Cashin voluntarily consented to impacting the overall manner in which rent the Lifetime Lease. For these reasons, we increases could be imposed. reverse the final judgment and supplemental final judgment and remand with directions “Freedom of contract ‘includes freedom that judgment be entered in favor of Tara to make a bad bargain.’ ” Wexler, 80 So.3d at Woods. 1100 (quoting Posner v. Posner, 257 So.2d 530, 535 (Fla.1972)). Ms. Cashin does not Reversed and remanded with contend she had no opportunity to read the instructions. -9-
Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013)
KHOUZAM, J., and MAKAR, SCOTT D., Associate Judge, Concur.
------
Notes:
1. Ms. Cashin's lot rental agreement is referred to as a Lifetime Lease because the term of the agreement is the lifetime of the Homeowner and the lease is to remain in effect until the Homeowner's or Homeowner's spouse's death or until the sale of the home or transfer of title to the home.
-10-
See Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) ("Under the tipsy coachman rule, 'if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is anyPage 7 basis which would support judgment in the record.' ") (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)). Allan J. Dinnerstein M.D., P.A. v. Fla. Dep't of Health (Fla. App., 2018) City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
248 So.3d 273 and we reverse and remand for further proceedings. CITY OF MIAMI, Appellant, v. BACKGROUND FRATERNAL ORDER OF POLICE LODGE #20, etc., Appellee. Prior to 2014, Ortiz and Lugo would routinely sign up to work extra duty at Ultra. During the No. 3D17–729 March 2011 Festival, the Officers were involved in the arrest of Jesse Campodonico, District Court of Appeal of Florida, who subsequently sued, alleging that the two Third District. Officers used excessive force. An indemnity agreement between the City and Ultra Opinion filed June 6, 2018 required Ultra to indemnify the City for any Rehearing Denied July 24, 2018 negligent acts committed by the City's police officers.1 In January 2014, Ultra's insurer Victoria Mendez, City Attorney, and Kevin R. agreed to pay $400,000.00 to settle Jones and Forrest L. Andrews, Assistant City Campodonico's claim. Attorneys, for appellant. In 2014 and 2015, Ultra contacted the City to Buschel Gibbons, P.A. and Robert C. Buschel request that the Officers not be assigned to and Eugene G. Gibbons (Ft. Lauderdale), for work at the 2014 and 2015 festivals. The City appellee. agreed to prohibit the Officers from working at Ultra but permitted them to work at any other Before SUAREZ, LAGOA, and SCALES, JJ. event during the larger Winter Music Festival. Following the denial of their requests to work SUAREZ, J. at Ultra, both Officers filed grievances. The City denied the grievances, and the parties2 This is an appeal from a final order of proceeded to arbitration pursuant to a dismissal, which upholds an arbitration award Collective Bargaining Agreement (the against Appellant, the City of Miami (the "Agreement").3 "City"), in favor of Appellee, the Fraternal Order of Police, Lodge 20 (the "FOP"). The The City participated in arbitration but argued City challenges the Arbitrator's authority to that the Arbitrator lacked the authority to decide whether the City consider the Officers' grievances because working an extra duty job was not a subject [248 So.3d 275] covered under the Agreement. The Arbitrator violated a Collective Bargaining Agreement by disagreed and concluded that he had authority precluding two police officers, Lieutenant to review the Officers' grievances. The Javier Ortiz and Sergeant Edward Lugo (the arbitration award ultimately sustained the "Officers"), from working extra duty grievances and ordered that the Officers be (commonly referred to as off-duty) at the Ultra compensated and allowed to pursue extra duty Music Festival ("Ultra"). Because we find that at future Ultra events. Following the award, the Arbitrator did not have the authority to the City filed a motion to vacate in the circuit hear a dispute concerning extra duty work, and court pursuant to section 682.13(1)(d), Florida that the City did not waive the issue of whether Statutes, claiming the Arbitrator exceeded his the Arbitrator had such authority, we hold that authority. The court denied the City's motion the trial court erred in denying the City's and granted the Officers' motion to confirm motion to vacate and in confirming the award, the arbitration award. This appeal follows.
-1-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
ANALYSIS authority by arbitrating any other issues. In the present case, Article 6.8, step 4 of the A trial court's role in determining arbitrability Collective Bargaining Agreement refers under the Revised Florida Arbitration Code is certain grievances to arbitration and limits the limited to the following inquiries: "(1) whether Arbitrator's authority to hear only those a valid written agreement to arbitrate exists; grievances: (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." 2. The arbitration shall be 3A Fla. Jur. 2d Arbitration and Award § 54 ; conducted under the rules set see also Lucky Star Horses, Inc. v. Diamond forth in this Agreement and not State Ins. Co., 233 So.3d 1159, 1161 (Fla. 3d under the rules of the American DCA 2017) (citing Seifert v. United States Arbitration Association. Subject Home Corp., 750 So.2d 633 (Fla. 1999) ). Here, to the following, the Arbitrator there is no dispute that a valid written shall have jurisdiction and agreement to arbitrate exists. We therefore authority to decide a grievance address the remaining two prongs: whether an as defined in this Agreement. arbitrable issue exists The Arbitrator shall have no authority to change, amend, [248 So.3d 276] add to, subtract from, or otherwise alter or and whether the City waived its objection to supplement this Agreement the Arbitrator's authority. , or any part thereof, or any amendment hereto. The 1. Whether an Arbitrable Issue Exists Arbitrator shall have no authority to consider or " Section 682.13(1) sets forth the only grounds rule upon any matter which upon which an award of an arbitrator in a is stated in this Agreement statutory arbitration proceeding may be not to be subject to vacated ...." Schnurmacher Holding, Inc. v. arbitration or which is not a Noriega, 542 So.2d 1327, 1328 (Fla. 1989) ; see grievance as defined in this also LeNeve v. Via S. Florida, L.L.C., 908 So.2d Agreement, or which is not 530, 534 (Fla. 4th DCA 2005) ("Where the covered by this Agreement ; party moving to vacate fails to prove one of the nor shall this Collective [statutory grounds set forth in § 682.13(1) ], Bargaining Agreement be ‘neither a circuit court nor a district court of construed by the Arbitrator to appeal has the authority to overturn the supersede any applicable laws. award.’ " (quoting Schnurmacher, 542 So.2d at 1328 ) ). The City relies on section (Emphasis added). Under this provision, the 682.13(1)(d), Florida Statutes (2017), which Arbitrator only has the authority to decide a provides that the court shall vacate an grievance, as defined in the Agreement.4 arbitration award if "[a]n arbitrator exceeded Article 6.2 defines the term "grievance" as the arbitrator's powers ...." follows:
Arbitration is a matter of contract. An 6.2 A grievance is any dispute, arbitrator's authority to conduct an arbitration controversy or difference and the issue(s) to be arbitrated are granted between (a) the parties, (b) the and limited by the operative document(s) in City and a bargaining unit question or by agreement of the parties member or bargaining unit themselves. The arbitrator exceeds his or her members on any issues with -2-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
respect to, on account of or chief of police evaluates off-duty requests concerning the meaning, pursuant to "the factors of existing laws, interpretation or ordinances, rules and regulations , application of this personnel scheduling availability, risk of harm Agreement or any terms or to personnel, and police department provisions thereof. efficiency." (Emphasis added). Based on the "rules and regulations" language from the (Emphasis added). In short, the Arbitrator is Ordinance, the Arbitrator looked to a second only given the authority to decide disputes source outside of the Agreement: over the meaning, interpretation, or Departmental Order 12, which describes the application of the provisions found in the process to sign up for extra duty work. Collective Bargaining Agreement. The Although the Departmental Order clearly Arbitrator is not granted the authority to states that "[w]orking special events or extra decide any other disputes. See Schnurmacher, duty jobs shall be considered a privilege, not a 542 So.2d at 1329 ("[A]n arbitrator exceeds his right," (emphasis added) the Arbitrator or her power ... when he or she goes beyond the concluded that extra duty jobs were in fact authority granted by the parties or the benefits (despite the explicit wording that operative documents and decides an issue not extra duty is a privilege). He then concluded pertinent to the that since Article 23 of the Collective Bargaining Agreement covered "Prevailing [248 So.3d 277] Benefits," a dispute as to extra duty work would be a grievance under the Collective resolution of the issue submitted to Bargaining Agreement and subject to arbitration."). arbitration.
Nowhere in the Collective Bargaining We have no difficulty concluding that the Agreement is there a provision concerning the Arbitrator exceeded his authority in privilege of extra duty work. As such, a dispute considering a matter that was not subject to concerning extra duty work is not a grievance arbitration pursuant to the provisions of the that is subject to arbitration. In the instant Collective Bargaining Agreement. In order to case, the Arbitrator found that he had the reach the issue, the Arbitrator went beyond the authority to arbitrate the Officers' grievances arbitration provisions of the Collective by engaging in a creative analysis of material Bargaining Agreement. The Arbitrator went outside of the Collective Bargaining from the Prevailing Benefits provision within Agreement having to do with extra duty the Agreement—which makes no mention of employment. Specifically, the Arbitrator first "extra duty"—to a City Ordinance, and finally relied on Article 23 of the Collective to a Departmental Order, both of which are Bargaining Agreement—the "Prevailing outside of the Collective Bargaining Benefits" provision—which states that all Agreement. Moreover, the Departmental benefits in effect when the Agreement was Order explicitly states that extra duty is a entered into, including benefits provided privilege and not a right. Consequently, we by ordinance , "shall remain in full force and find that the Arbitrator exceeded his powers. effect for the duration of this Agreement." See § 682.13(1)(d), Fla. Stat. But we next must Because Article 23 refers to "benefits provided address whether the City waived its objection by ordinance," the Arbitrator then to the Arbitrator determining the issue of impermissibly went outside of the four corners arbitrability. If the City did waive its objection, of the Collective Bargaining Agreement to the Arbitrator's findings must be affirmed section 42–8(a) of the City Code of even if the Arbitrator did exceed his authority. Ordinances, which essentially states that the -3-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
2. Whether the City Waived Its arbitrator, setting aside an award only in Objection to the Arbitrator's Authority certain narrow circumstances.").
The Officers' primary argument on appeal is In First Options of Chicago, Inc. v. Kaplan, 514 that the City waived the issue of arbitrability. U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 We are bound by the rule set forth in (1995), the United States Supreme Court Schnurmacher, which states that an explained that "[c]ourts should not assume arbitration award "cannot be set aside for mere that the parties agreed to arbitrate arbitrability errors of judgment either as to the law or as to unless there is ‘clea[r] and unmistakabl[e]’ the facts; if the award is within the scope of the evidence that they did so." See also Rintin submission, and the arbitrators are not guilty Corp., S.A. v. Domar, Ltd., 766 So.2d 407 (Fla. of the acts of misconduct set forth in the 3d DCA 2000). In the instant case, the trial statute, the award operates as a final and court determined that "[t]he City did not waive conclusive judgment." 542 So.2d at 1328 its objection to the Arbitrator's authority (quoting Cassara v. Wofford, 55 So.2d 102, 105 throughout the arbitration proceedings ...." (Fla.1951) ). If the City waived arbitrability, we We agree.
[248 So.3d 278] The Officers argue that the record "clearly shows" that the City consented to the would be compelled to uphold the arbitration Arbitrator's authority to decide the issue of award, even if the Arbitrator exceeded his arbitrability. They point us to the following authority under the Agreement. See LeNeve v. exchange at the beginning of the arbitration Via S. Florida, L.L.C., 908 So.2d 530, 534–35 hearing: (Fla. 4th DCA 2005) ("[U]nlike a court's subject matter jurisdiction which cannot be THE ARBITRATOR: My conferred by the parties, an arbitrator's question was not with regard to jurisdiction derives from the parties' that, but whether the City is agreement and can broaden during the course prepared and is basically of arbitration by waiver, failure to object and deferring the question of consent." (internal quotation marks omitted) arbitrability to the Arbitrator? ). [THE CITY]: I think it's a legal Most cases on waiver in the context of question. It's not necessarily a arbitration deal with the more common issue factual question. I think the facts of whether a party waives arbitration by in that issue are well- litigation; however, waiver can also work in established. reverse. That is, a party can waive its ability to litigate by engaging in arbitration. See 92 Am. THE ARBITRATOR: I Jur. Proof of Facts 3d 1 ("Although a court is understand that. usually the proper venue for decisions about arbitrability, if the parties clearly and [THE CITY]: But we can defer unmistakably submit the issue to the it, if you'd like, and proceed, arbitrator without reservation, then the parties and we'll bring it up at the have waived their right to have a court make end, if you'd like. I mean— the decision. When the parties to an arbitration agreement have agreed to allow the THE ARBITRATOR: I'm arbitrator to decide arbitrability, the court prepared to hear evidence with should give considerable leeway to the regards to the procedural question of arbitrability, but I -4-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
need some clarification that Based on the record evidence as a whole, the indeed the City is deferring the City's agreement to defer is far from a "clear matter of arbitrability for and unmistakable" agreement to waive the resolution to the Arbitrator. issue of arbitrability. Instead, the City allowed arbitration to go forward while explicitly and [THE CITY]: I see. Sure. I'll repeatedly reserving on the issue of defer it . arbitrability.
(Emphasis added). The Officers also argue that the City should have done more if it wanted the option to While this statement may seem to indicate that litigate arbitrability. They rely on Infinity the City waived its objection to arbitrability, Design Builders, Inc. v. Hutchinson, 964 So.2d the transcript as a whole suggests that the City 752 (Fla. 5th DCA 2007), one of the few Florida consistently maintained its position that the cases addressing waiver of litigation by Arbitrator was without authority to decide the engaging in arbitration.5 In Hutchinson, issue. During the hearing, the City also made Infinity took a number of preliminary steps the following statements: consistent with its participation in arbitration. Before the actual arbitration, however, it filed But, I think, for the two an objection, asserting that no arbitration watershed issues, One, they have agreement existed between it and Hutchinson. to establish that they have a right Infinity also moved to stay the arbitration to this. They have to put on some proceedings. Although the circuit court found evidence to demonstrate or show that the arbitration provision had been struck somebody that they had a right from the agreement, it denied the motion to that was contravened, if we get stay based on Infinity's participation in the beyond the arbitrability arbitration process. The Fifth District part, which I've already reversed, finding that although Infinity agreed that we will move participated, it did not knowingly intend to forward relinquish its right to litigate because it immediately acted to enforce its rights once it [248 So.3d 279] knew that the contract did not contain an arbitration provision. Id. at 756. and we will reserve on that issue . Hutchinson does not stand for the proposition that a party waives its right to litigate unless it .... refuses to participate in arbitration or files a motion to stay. Rather, the decisive inquiry is After you finish [r]edirecting whether a party voluntarily and knowingly Lieutenant Ortiz, I'd like to call intended to waive its right to litigate them out of turn, still arbitration. Id. at 755 ("Waiver is the voluntary reserving on the issue of and intentional relinquishment of a known arbitrability and whether or right or conduct which implies the voluntary not they've proven anything and intentional relinquishment of a known in regard to a right or a right." (internal quotation marks omitted) ). privilege that's arbitrable , they've got to go somewhere else. Here, although the City participated in So I want to get them on the arbitration, it consistently and repeatedly record— raised the issue of arbitrability. See Kaplan, 514 U.S. at 946, 115 S.Ct. 1920 ("[M]erely -5-
City of Miami v. Fraternal Order of Police Lodge #20, 248 So.3d 273 (Fla. App., 2018)
arguing the arbitrability issue to an arbitrator waived its right to litigate in the courts." Id. at does not indicate a clear willingness to 756. Those cases are also distinguishable from arbitrate that issue, i.e., a willingness to be the case before us. In LeNeve, 908 So.2d 530, effectively bound by the arbitrator's decision LeNeve waived, in writing, his right to submit on that point."). We therefore agree with the arbitrability to the circuit court. In Victor v. trial court that City did not waive its objection Dean Witter Reynolds, Inc., 606 So.2d 681 to the Arbitrator's power. (Fla. 5th DCA 1992), the Fifth District found that a brokerage firm had waived its right to Because the Arbitrator exceeded his authority have the courts decide a statute of limitations to decide the Officers' grievances and the City issue because of its long, active, did not waive its objection to arbitrability, we knowledgeable, and intentional participation affirm the trial court's determination on in the arbitration process. waiver but reverse with respect to the court's denial of the City's motion to vacate the ------arbitration award.
[248 So.3d 280]
Affirmed in part, reversed in part, and remanded for further proceedings.
------
Notes:
1 Following an internal affairs investigation, the Officers were exonerated of any wrongdoing.
2 FOP is the exclusive bargaining representative of the Officers.
3 There are actually two collective bargaining agreements: (1) a 2012–2014 Agreement and (2) a 2014–2015 Agreement. The relevant language in the two agreements is the same.
4 Relatedly, Article 4.4 of the Agreement provides as follows: "Those inherent managerial functions, prerogatives, and policy making rights which the City has not expressly modified or restricted by a specific provision of this Agreement are not in any way, directly or indirectly, subject to the Grievance Procedure contained in this Agreement."
5 The Fifth District in Hutchinson distinguishes its decision from "two significant cases in Florida in which a participant in arbitration has been determined to have
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AMENDMENTS TO STANDARD JURY INSTRUCTIONS IN CONTRACT AND BUSINESS CASES
May 1, 2017 Notices
Amendments to Standard Jury Instructions in Contract and Business Cases
The Supreme Court Committee on Standard Jury Instructions—Contracts and Business publishes these new or amended Standard Jury Instructions—Contracts and Business. The Committee proposes amending or creating the following: 416.xx, Torts—Breach of Duty to Disclose—Residential; 416.xx, Piercing the Corporate Veil; 416.xx, Legal Status of Entities; 416.xx, Legal Cause; 416.xx, Promissory Estoppel; 416.20, Interpretation—Construction Against Drafter; 416.26, Affirmative Defense—Unilateral Mistake of Fact; Form 416.27, Model Form of Verdict For Affirmative Defense—Undue Influence; 416.28, Model Form of Verdict for Affirmative Defense—Fraud; 416.30, Model Form of Verdict for Affirmative Defense—Waiver; Form 416.31, Model Form of Verdict for Affirmative Defense—Novation; Form 416.32, Model Form of Verdict For Affirmative Defense—Statute of Limitations.
< p>Interested parties have until May 31, 2017, to submit comments electronically or by mail to the Contract and Business Committee at [email protected], or to the chair of the Contract and Business Committee, Manuel Farach, McGlinchey Stafford, PLLC, 1 East Broward Boulevard, Suite 1400, Fort Lauderdale, FL 33301-1834, [email protected], and a copy to The Florida Bar liaison for the committee, Krys Godwin, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-6523, [email protected].
416.xx TORTS—BREACH OF DUTY TO DISCLOSE— RESIDENTIAL To [recover damages from] [be entitled to rescind the transaction with]
(defendant) for nondisclosure in connection with the purchase of residential▲ real property, (claimant) must prove all of the following: 1. There was a condition in the property that:
A. Materially and adversely affected the value of the property; and
B. Was not readily observable and was not otherwise known to (claimant).
2. (Defendant) knew of the condition and did not disclose it to (claimant) .
NOTES ON USE FOR 416.xx 1. Johnson v. Davis , 480 So. 2d 625 (Fla. 1985), held that “where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used.”
2. “As crafted by the supreme court [in Johnson v. Davis], the materiality of a fact is to be determined objectively by focusing on the relationship between the undisclosed fact and the value of the property.” Billian v. Mobil Corp., 710 So. 2d 984, 987 (Fla. 4th DCA 1998).
< p>3. The committee takes no position on the precise parameters of the “readily observable” standard as that is generally a question of fact for the jury to determine. Compare Nelson v. Wiggs, 699 So. 2d 258 (Fla. 3d DCA 1997); M/I Schottenstein Homes, Inc. v. Azam, 813 So. 2d 91 (Fla. 2002); Newbern v. Mansbach, 777 So. 2d 1044 (Fla. 1st DCA 2001)
416.xx PIERCING THE CORPORATE VEIL A (form of business entity) is a legal entity separate from its owner(s). An owner can be an/a [individual] [ (form of business entity) ]. The owner(s) are not liable for the acts of the (form of business entity) unless there is a piercing of the corporate veil. In this case, (Claimant) seeks to “pierce the corporate veil” between (form of business entity) and (Owner) so as to impose obligations upon (Owner) which otherwise would be owing, if at all, solely from (form of business entity) .
▲ In order to pierce the corporate veil and hold (Owner) liable for obligations of (form of business entity), (Claimant) must show that:
1. (Owner) dominated and controlled (form of business entity) such that:
a. (form of business entity) ’s separate identity was not sufficiently maintained, and
b. (form of business entity) lacked an existence independent from (Owner); and
2. The corporate form of (business entity) was [formed] [used] for a fraudulent or improper purpose; and
3. (Claimant) was harmed by the fraudulent or improper [formation] [use] of the corporate form of (business entity).
NOTES ON USE FOR 416.xx 1. The context of each case dictates what terms should be inserted into the bracketed spaces. Sometimes, plaintiffs or other claimants sue both the business entity and the individual who are the subjects of the veil piercing claim, so the form instruction identifies the defendants as “(form of business entity)” and “Owner,” but this may not be appropriate in all cases. There may also be more than one entity or individual in any particular case.
2. “The mere fact that one or two individuals own and control the stock structure of a corporation does not lead inevitably to the conclusion that the corporate entity is a fraud or that it is necessarily the alter ego of its stockholders to the extent that the debts of the corporation should be imposed upon them personally.” Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120 (Fla. 1984).
< p>3. Although this doctrine arose in the corporate context, case law appears to apply this doctrine to other business entities such as limited liability companies. See, e.g., Houri v. Boaziz, 196 So. 3d 383 (Fla. 3d DCA 2016) (discussing piercing the veil of limited liability companies).
SOURCES AND AUTHORITIES FOR 416.xx ▲ Dania Jai-Alai Palace, Inc. v. Sykes , 450 So. 2d 1114, 1120 (Fla. 1984) (citing Advertects v. Sawyer Industries, Inc. , 84 So. 2d 21, 23, 24 (Fla. 1955)), is the seminal case on this topic; Beltran v. Miraglia , 125 So. 3d 855 (Fla. 4th DCA 2013) (causality of harm arose from improper conduct of the defendant); Gasparini v. Pordomingo , 972 So. 2d 1053 (Fla. 3d DCA 2008) (only one or few owners would not permit piercing of corporate veil even if it were the alter ego of the shareholder); Steinhardt v. Banks , 511 So. 2d 336 (Fla. 4th DCA 1987) (illegal purpose, fraud, or evading existing obligations).
416.xx LEGAL STATUS OF ENTITIES [Plaintiff] [Defendant] is a (type of business entity) . A (type of business entity) is a person under the law. All persons, whether (type of business entity) or individuals, are entitled to equal treatment under the law.
A (type of business entity) can act only through its [agent(s)] [employee(s)] [officer(s)] [director(s)] [manager(s)] [member(s)] [partner(s)].
NOTE ON USE FOR 416.xx 1. Not every entity ( e.g ., sole proprietorships and general partnerships) may constitute a legal person, and the court should only give this instruction when the entity is recognized under the law as a separate legal person. A government organization may be a separate legal person under the law and, as determined by the court, may be deemed a business entity within the meaning of this instruction.
2. The list of individuals through which an entity can act is not exhaustive. Additionally, individuals may act in more than one capacity on behalf of an entity, and an entity may act through more than one individual. The court should tailor this instruction as the circumstances of the case require when the entity is recognized under the law as a legal person.
< p>3. In an appropriate situation, it may be necessary for the court to instruct the jury whether the agent, employee, officer, director, manager, member, or partner of the entity is testifying on behalf of himself/herself, the entity, or both.
416.xx LEGAL CAUSE ▲ a. Legal cause generally: Breach of a fiduciary duty is a legal cause of [loss] [injury] [or] [damage] if it directly and in natural and continuous sequence produces or contributes substantially to producing such [loss] [injury] [or] [damage], so that it can reasonably be said that, but for the breach of fiduciary duty, the [loss] [injury] [or] [damage] would not have occurred.
b. Concurring cause:
In order to be regarded as a legal cause of [loss] [injury] [or] [damage] a breach of the fiduciary duty need not be the only cause. A breach of a fiduciary duty may be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] if the breach of fiduciary duty contributes substantially to producing such [loss] [injury] [or] [damage]. c. Intervening cause:
< p>Do not use the bracketed first sentence if this instruction is preceded by the instruction on concurring cause:*
< p>*[In order to be regarded as a legal cause of [loss] [injury] [or] [damage], breach of fiduciary duty need not be its only cause.] Breach of fiduciary duty may also be a legal cause of [loss] [injury] [or] [damage] even though it operates in combination with [the act of another] [some natural cause] [or] [some other cause] occurring after the breach of fiduciary duty occurs if [such other cause was itself reasonably foreseeable and the breach of fiduciary duty contributes substantially to producing such [loss] [injury] [or] [damage]] [or] [the resulting [loss] [injury] [or] [damage] was a reasonably foreseeable consequence of the breach of fiduciary duty and the breach of fiduciary duty contributes substantially to producing it].
416.xx PROMISSORY ESTOPPEL A party who has not entered a contract to do something, but who has promised to do something, sometimes has a legal obligation to fulfill the promise, but only when specific conditions are met. This is sometimes called “promissory estoppel.” To recover damages from (defendant) for promissory▲ estoppel, (claimant) must prove all of the following: 1. (Defendant) promised to [describe subject matter of alleged promise];
2. (Defendant) should have expected the promise to change (claimant)’s behavior;
< p>3. In reliance on (defendant)’s promise, (claimant) changed [his] [her] [its] behavior; and
< p>4. Injustice can be avoided only if the promise is enforced.
To “change behavior” means to do something of significance that the person otherwise would not have done, or to refrain from doing something of significance that the person otherwise would have done.
A claim of this kind must be proved by clear and convincing evidence, not just by the greater weight of the evidence. Your verdict will be for (claimant) on this claim only if you find by clear and convincing evidence each of the elements that I just described to you.
NOTE ON USE FOR 416.xx 1. The definition of the clear and convincing evidence standard is set forth in Standard Jury Instruction—Civil 405.4.
2. No Florida court has directly decided the issue of whether the court or a jury should decide the issues related to a promissory estoppel claim; however, there are several Florida appellate decisions that have indicated that it is appropriate to submit such a claim to a jury. See, e.g., Sunshine Bottling Co. v. Tropicana Prods. Inc., 757 So. 2d 1231, 1232 (Fla. 3d DCA 2000) (concluding that trial court erred in entering a judgment notwithstanding the verdict and reversing and remanding for reinstatement of the jury’s award on the promissory estoppel claim); W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297, 306 (Fla. 1st DCA 1999) (reversing order dismissing promissory estoppel claim and remanding with instructions for a jury trial).
SOURCES AND AUTHORITIES FOR 416.xx
▲ 1. The Florida Supreme Court recognized the existence of an affirmative cause of action for promissory estoppel in W.R. Grace & Co. v. Geodata Servs., Inc ., 547 So. 2d 919 (Fla. 1989). The Court held that the doctrine applies “where the promise is definite, of a substantial nature, and established by clear and convincing evidence.” Id . at 920. The Court further stated that “[t]he basic elements of promissory estoppel are set forth in Restatement (Second) of Contracts sec. 90 (1979),” and quoted the following from the Restatement: “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promise or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Id . at 924. But see , State, Dep’t of Health and Rehabilitative Servs. v. Law Offices of Donald W. Belveal , 663 So. 2d 650, 652 (Fla. 2d DCA 1995) (“The law of this state recognizes that the theory of promissory estoppel applies to the sovereign only under exceptional circumstances.”).
2. In Doe v. Univision Television Grp., Inc., 717 So. 2d 63, 65 (Fla. 3d DCA 1998), the court held that “the doctrine of promissory estoppel comes into play where the requisites of contract are not met, yet the promise should be enforced to avoid injustice.”
< p>3. A cause of action for promissory estoppel is not available where the claim would be barred by the statute of frauds. Coral Reef Drive Land Dev., LLC v. Duke Realty Ltd. P’ship, 45 So. 3d 897, 906 n. 8 (Cope, J., dissenting), citing Tannenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So. 2d 777, 779 (Fla. 1966).
416.20 INTERPRETATION—CONSTRUCTION AGAINST DRAFTER You must first attempt to determine the meaning of the ambiguous term[s] in the contract from the evidence presented and the previous instructions. If you cannot do so, only then should you consider which party drafted the disputed term[s] in the contract and then construe the language against that party.
NOTES ON USE FOR 416.20
▲ 1. This instruction endeavors to explain to the jury that this principle should be secondary to the consideration of other means of interpretation, principally the consideration of parol evidence that may explain the parties’ intent at the time they entered into the contract. See W. Yellow Pine Co. v. Sinclair , 90 So. 828, 831 (Fla. 1922) (the rule to construe against the drafter should not be used if other rules of construction reach the intent of the parties); The School Bd. of Broward Cnty. v. The Great Am. Ins. Co ., 807 So. 2d 750 (Fla. 4th DCA 2002) (the rule to construe against the drafter is a secondary rule of interpretation and should be used as a last resort when all ordinary interpretive guides have been exhausted); DSL Internet Corp. v. TigerDirect, Inc ., 907 So. 2d 1203, 1205 (Fla. 3d DCA 2005) (the against-the- drafter rule is a rule of last resort and is inapplicable if there is evidence of the parties’ intent). There is a risk that the jury may place too much emphasis on this rule, to the exclusion of evidence and other approaches; therefore, this instruction should be given with caution. One district court of appeal has held that express contractual provisions prohibiting use of this principle must be enforced. Agile Assur. Group, Ltd. v. Palmer , 147 So. 3d 1017 (Fla. 2d DCA 2014).
2. The Committee has been unable to find case law authority applying this principle when the contract contains language stating the contract will not be interpreted against the drafter. If the contract at issue or an applicable statute provides that the contract will not be construed against the drafter, the Committee would suggest that this be taken into consideration before this instruction is used, particularly given the secondary rule of interpretation principle expressed in the preceding paragraph and established Florida law that every provision in a contract should be given meaning and effect. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938, 941 (Fla. 1979) (holding that every provision in a contract should be given meaning); see also section 542.335(1)(h), Florida Statutes (providing an example in the context of not construing a restrictive covenant against the drafter).
< p>3. The Committee strongly recommends the use of this instruction in connection with a verdict form that clarifies, by special interrogatory, what the term or phrase is that the court has declared to be ambiguous. See First Nat’l Bank of Lake Park v. Gay, 694 So. 2d 784, 789 (Fla. 4th DCA 1997) (discussing ▲ that interrogatory verdict forms should track the same issues and defenses in the jury instructions).
SOURCES AND AUTHORITIES FOR 416.20
1. The existence of this interpretation principle is well established. “An ambiguous term in a contract is to be construed against the drafter.” City of Homestead v. Johnson, 760 So. 2d 80, 84 (Fla. 2000). “Generally, ambiguities are construed against the drafter of the instrument.” Hurt v. Leatherby Ins. Co., 380 So. 2d 432, 434 (Fla. 1980). “[A] provision in a contract will be construed most strongly against the party who drafted it ….” Sol Walker & Co. v. Seaboard Coast Line R.R. Co., 362 So. 2d 45, 49 (Fla. 2d DCA 1978). Where the language of contract is ambiguous or doubtful, it should be construed against the party who drew the contract and chose the wording. Vienneau v. Metropolitan Life Ins. Co., 548 So. 2d 856 (Fla. 4th DCA 1989); Am. Agronomics Corp. v. Ross, 309 So. 2d 582 (Fla. 3d DCA 1975). “To the extent any ambiguity exists in the interpretation of [a] contract, it will be strictly construed against the drafter.” Goodwin v. Blu Murray Ins. Agency, Inc., 939 So. 2d 1098 (Fla. 5th DCA 2006); Russell v. Gill, 715 So. 2d 1114 (Fla. 1st DCA 1998).
2. If only one party drafted a contract, then the jury should consider that party to be the drafter in the context of this instruction. However, if more than one party contributed to drafting a contract, provision, or term, then the jury should consider the drafter to be the party that actually chose the wording at issue. Finberg v. Herald Fire Ins. Co., 455 So. 2d 462 (Fla. 3d DCA 1984); Bacon v. Karr, 139 So. 2d 166 (Fla. 2d DCA 1962). An additional tool the jury can utilize to determine who is the drafter is they can interpret the language at issue against the party which benefits from the language. Belen School, Inc. v. Higgins, 462 So. 2d 1151 (Fla. 4th DCA 1984); Watson v. Poe, 203 So. 2d 14 (Fla. 4th DCA 1967).
416.26 AFFIRMATIVE DEFENSE—UNILATERAL MISTAKE OF FACT (Defendant) claims that [he] [she] [it] should be able to set aside the contract because [he] [she] [it] was mistaken about (insert description of mistake) . To establish this defense, (defendant) must prove all of the following: ▲ 1. (Defendant) was mistaken about (insert description of mistake) at the time the parties made the contract;
2. [The effect of the mistake is such that enforcement of the contract would be unconscionable]
[or]
[(Claimant) had reason to know of the mistake or [he] [she] [it] caused the mistake.]
< p>and
3. (Defendant) did not bear the risk of mistake. A party bears the risk of a mistake when
[the parties’ agreement assigned the risk to [him] [her] [it]]*
[or]
< p>[[he] [she] [it] was aware, at the time the contract was made, that [he] [she] [it] had only limited knowledge about the facts relating to the mistake but decided to proceed with the contract].**
* The court should give the first option only if the court finds that the contract is ambiguous regarding whether the contract assigns the risk to the defendant. ** The court should give the second option only if there is competent, substantial evidence that, at the time the contract was made, the defendant had only limited knowledge with respect to the facts relating to the mistake but treated the limited knowledge as sufficient.
RESERVED
NOTES ON USE FOR 416.26
1. The court should not give this instruction if it determines that the alleged mistake was not material. The Committee does not find there is sufficient clarity▲ in the law at this time that warrants a standard instruction on the affirmative defense of unilateral mistake to a breach of contract action. In Maryland Casualty Co. v. Krasnek , 174 So. 2d 541, 542 (Fla. 1965), the Florida Supreme Court recognized unilateral mistake as an equitable defense to a breach of contract action. In that case, the Court indicated that the defense applies if: (1) the mistake did not result from an inexcusable lack of due care in the circumstances; and (2) the non-mistaken party’s position had not been so changed in reliance on the contract that it would be unconscionable to order rescission. Id. at 543.
2. The court should not give this instruction if it finds that the contract unambiguously assigns the risk to the defendant or if the court assigns the risk of mistake to the defendant on the ground that it is reasonable under the circumstances to do so.Florida’s district courts of appeal have interpreted the Krasnek test for unilateral mistake in different ways. For example, in Rachid v. Perez, 26 So. 3d 70, 72 (Fla. 3d DCA 2010), the Third District Court of Appeal articulated the elements of the defense as a four-part test as follows:
(1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust.
3. contrast, in Garvin v. Tidwell , 126 So. 3d 1224, 1228 (Fla. 4th DCA 2012), the Fourth District Court of Appeal articulated the elements of the defense as follows:
a trial court may rescind an agreement based on unilateral mistake if “(1) the mistake did not result from an inexcusable lack of due care, and (2) defendant’s position did not so change in reliance that it would be unconscionable to set aside the agreement.” [Quoting Stamato v. Stamato , 818 So. 2d 662, 664 (Fla. 4th DCA 2002).] Additionally, we will look at whether the unilateral mistake goes to the “very substance of the agreement.” [Quoting Rock Springs Land Co. v. West , 281 So. 2d 555, 556
(Fla. 4th DCA 1973); Langbein v. Comerford , 215 So. 2d 630, 631 (Fla. 4th DCA▲ 1968).] 4. Finally, in Orkin Exterminating Co. v. Palm Beach Hotel Condominium Association, Inc. , 454 So. 2d 697 (Fla. 4th DCA 1984), a different panel of the Fourth District quoted with approval the test for unilateral mistake set forth in the Restatement (Second) of Contracts, secs. 153, 154 (1979). See also DePrince v. Starboard Cruise Services, Inc. , 163 So. 3d 586 (Fla. 3d DCA 2015) (collecting cases and discussing the various formulations of the test for the unilateral mistake defense).
5. Based on the foregoing, and pending further development in the law, the Committee offers no standard instruction on the unilateral mistake defense.
SOURCES AND AUTHORITIES FOR 416.26 1. A contract may be “set aside on the basis of unilateral mistake unless (a) the mistake is the result of an inexcusable lack of due care or (b) the other party has so changed its position in reliance on the contract that rescission would be unconscionable.” BMW of N. Am. v. Krathen , 471 So.2d 585, 588 (Fla. 4th DCA 1985) (citing Maryland Cas. Co. v. Krasnek , 174 So.2d 541 (Fla. 1965); Orkin Exterminating Co. v. Palm Beach Hotel Condo. Ass’n, Inc. , 454 So.2d 697 (Fla. 4th DCA 1984); Pennsylvania Nat’l Mutual Cas. Ins. Co., v. Anderson , 445 So.2d 612 (Fla. 3d DCA 1984)).
2. Sections 153 and 154 of the Restatement (Second) of Contracts (1979) provide:
§ 153. When Mistake of One Party Makes a Contract Voidable.
Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake under the rule stated in § 154, and
< p>(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or
< p>(b) the other party had reason to know of the mistake or his fault caused the mistake. ▲ < p>§ 154. When a Party Bears the Risk of a Mistake.
< p>A party bears the risk of a mistake when
< p>(a) the risk is allocated to him by agreement of the parties, or
< p>(b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or
< p>(c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.
FORM 416.27 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—UNDUE INFLUENCE
We, the Jury, return the following verdict:
1. a. Did (Defendant) prove that (Claimant) used a relationship of trust and confidence to control, persuade, or pressure (Defendant) into agreeing to the contract?
YES. …….. NO. ………
If your answer to question 1.a. is NO, please answer question 1.b. If your answer to question 1.a. is YES, please answer question 2.
1. b. Did (Defendant) prove that (Claimant) used (Defendant) ’s weakness of mind to control, persuade, or pressure (Defendant) into agreeing to the contract?
YES. ……… NO. ………
If your answer to question 1.b. is NO, please answer question 1.c. If your answer to question 1.b. is YES, please answer question 2.
1. c. Did (Defendant) prove that (Claimant) used (Defendant) ’s needs or
distress to control, persuade, or pressure (Defendant) into agreeing to▲ the contract? YES. ……… NO. ………
If your answer to question 1.c. is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.c. is YES, please answer question 2.
2. Did (Defendant) prove that (Defendant) would not have voluntarily agreed to the contract without (Claimant) controlling, persuading, or pressuring (Defendant) to agree to the contract?
YES. ……… NO. ………
If your answer to question 2 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.
SO SAY WE ALL, this ______day of ______, 2____.
FOREPERSON
NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.27 (Affirmative Defense—Undue Influence).
FORM 416.28 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—FRAUD We, the Jury, return the following verdict:
1. a. Did (Defendant) prove that (Claimant) represented that (insert alleged fraudulent statement) ?
YES. ……… NO. ……… ▲ If your answer to question 1.a. is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.a. is YES, please answer question 1.b.
1. b. Was the (alleged fraudulent statement) false?
YES. ……… NO. ………
If your answer to question 1.b. is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.b. is YES, please answer question 2.
1. c. Did (Defendant) prove that the representation was material to the contract?
YES. ……… NO. ………
If your answer to question 1.c. is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1.c. is YES, please answer question 2.
2. Did (Defendant) prove that (Claimant) knew that the representation was false?
YES. ……… NO. ………
If your answer to question 2 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, please answer question 3.
Did (Defendant) prove that (Claimant) made the representation to persuade (Defendant) to agree to the contract?
▲ YES. ……… NO. ……… If your answer to question 3 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 3 is YES, please answer question 4.
3. Did (Defendant) prove that (Defendant) relied on the representation?
YES. ……… NO. ………
If your answer to question 4 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 4 is YES, please answer question 5.
4. Did (Defendant) prove that (Defendant) would not have agreed to the contract if (Defendant) had known that the representation was false?
YES. ……… NO. ………
If your answer to question 5 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 5 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.
SO SAY WE ALL, this ______day of ______, 2____.
FOREPERSON
NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.28 (Affirmative Defense—Fraud).
FORM 416.30 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—WAIVER
We, the Jury, return the following verdict: ▲ 1. Did (Defendant) prove that (Claimant’s) right to have (Defendant) (insert description of performance) actually existed?
YES. ……. NO. …….
If your answer to question 1 is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, please answer question 2.
2. Did (Defendant) prove that (Claimant) knew or should have known (Claimant) had the right to have (Defendant) (insert description of performance) ?
YES. ……. NO. …….
If your answer to question 2 is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, please answer question 3.
3. Did (Defendant) prove that (Claimant) freely and intentionally gave up (Claimant’s) right to have (Defendant) (insert description of performance) ?
YES. ……. NO. …….
If your answer to question 3 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 3 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.
SO SAY WE ALL, this ______day of ______, 2______.
______
FOREPERSON ▲ NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.30 (Affirmative Defense—Waiver).
FORM 416.31 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—NOVATION We, the Jury, return the following verdict:
1. Did (Defendant) prove that all parties to the contract agreed, by words or conduct, to cancel the original contract and to submit a new contract in its place?
YES. ……. NO. …….
If your answer to question 1 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.
SO SAY WE ALL, this ______day of ______, 2______.
______FOREPERSON
NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.31 (Affirmative Defense—Novation).
FORM 416.32 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—STATUTE OF LIMITATIONS We, the Jury, return the following verdict:
If a breach of contract occurred, did (Defendant) prove that such breach occurred before (insert date four or five years before date of filing suit)? ▲ YES. ……. NO. ……. If your answer to question 1 is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.
SO SAY WE ALL, this ______day of ______, 2______.
FOREPERSON
NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.32 (Affirmative Defense—Statute of Limitations).
▲ Authority Check Report Generated on February 7, 2019
Bueno v. Workman, 20 So.3d 993 (Fla. App., 2009)
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No appearance for remaining Appellees. ROTHSTEIN–YOUAKIM, Judge. HSBC Bank USA, N.A., as trustee for Deutsche Alt–A Securities Mortgage Loan Trust, Series 2007–OA5 (HSBC), appeals an order dismissing HSBC's foreclosure action without prejudice. Because the trial court erred in concluding that Bartram v. U.S. Bank National... 8. Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383 (Fla. App., 2018) April 20, 2018 Thomas J. Guilday, Robert D. Fingar, George W. Hatch, III, and Catherine B. Chapman of Guilday, Simpson, West, Hatch, Lowe & Roane, P.A., Tallahassee, for Appellant. Christine A. Marlewski of Gray|Robinson, P.A., Tampa (withdrew after briefing); Andrew J. Mayts and Alissa M. Ellison of Gray|Robinson, P.A., Tampa (substituted as counsel of record), for Appellee. MORRIS, Judge. Tank Tech, Inc., appeals a final summary judgment entered in favor of Valley Tank Testing, L.L.C. (Valley Tank), on... 9. Catalo v. Llano Fin. Grp., LLC, 238 So.3d 885 (Fla. App., 2018) February 14, 2018 Roy W. Jordan, Jr. of Roy W. Jordan, P.A., West Palm Beach, for appellants. Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for appellee. Gross, J. [238 So.3d 886] This is an appeal from an order denying attorneys' fees based on a proposal for settlement filed by the defendants. Due to the untimeliness of appellants' motions for attorneys' fees in the circuit court, we affirm in part. We reverse and remand as to appellate attorneys' fees, which were not dependent on an award of fees... 10. Harris v. State, 238 So.3d 396 (Fla. App., 2018) January 17, 2018 Carlos J. Martinez, Public Defender, and Natasha Baker–Bradley, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee. Before SUAREZ, LAGOA, and SCALES, JJ. LAGOA, J. [238 So.3d 398] Appellant, Bryan Harris ("Harris"), appeals his final judgment of conviction and sentence, challenging the denial of his motion to suppress physical evidence from the warrantless search of his backpack following his arrest. Because... 11. Anfriany v. Deutsche Bank Nat'l Trust Co., 232 So.3d 425 (Fla. App., 2017) December 6, 2017 Brian K. Korte and Scott J. Wortman of Korte & Wortman, P.A., West Palm Beach, for appellants. Julissa Rodriguez and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, and C. Wade Bowden and Tyrone Adras of Greenberg Traurig, P.A., West Palm Beach, for appellee. Conner, J. [232 So.3d 426] The appellants (collectively "Anfriany") petitioned for certiorari to review the trial court's order vacating their entitlement to attorney's fees and costs in the underlying foreclosure action initiated... 12. Salazar v. Hometeam Pest Def., Inc., 230 So. 3d 619 (Fla. App., 2017) November 17, 2017 Brooke A. Bach and Jonathan E. Pollard of Pollard, PLLC, Fort Lauderdale, for Appellants. Simona V. Popova and Mark E. Grimes of Golden & Grimes LLP, Miami, for Appellee. LaROSE, Chief Judge. Baltazar Salazar, a former pest control technician with Hometeam Pest Defense, Inc., appeals the trial court's nonfinal order granting Hometeam's motion for temporary injunction. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B). We reverse and remand for the trial court to enter an order consistent... 13. Lana v. Assimakopoulos-Panuthos (In re Estate of Assimakopoulos), 228 So.3d 709 (Fla. App., 2017) October 20, 2017 Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellant. George J. Felos of Felos & Felos, Dunedin, for Appellees Alexander P. Alexander and Plato J. Alexander. Jeffrey A. Eisel and Hamden H. Baskin, III, of Baskin Fleece, Clearwater, for Appellee Nicolle Assimakopoulos–Panuthos. No appearance for Gary M. Fernald. BY ORDER OF THE COURT: The "Motion for Rehearing or in the alternative Motion for Clarification" filed by Appellees Alexander P. Alexander and Plato J. Alexander is denied in all... 14. In re Print Harmony, LLC, 567 B.R. 632 (Bankr. M.D. Fla., 2017) April 4, 2017 [567 B.R. 633] Charles W Gerdes, Esq., Keane, Reese, & Vesely & Gerdes, PA, Counsel for the Debtor Michael C. Markham, Esq., Angelina E. Lim, Esq., Johnson, Pope, Bokor, Ruppel & Burns, LLP, Counsel for Rubin Automobile Boulevard, LLC [567 B.R. 634] ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW Michael G. Williamson, Chief United States Bankruptcy Judge The Debtor leased commercial space from Rubin Automobile Boulevard, LLC under a triple net lease. Rubin filed a proof of claim in this case... 15. Wells Fargo Bank, N.A. v. Gonzalez, 186 So.3d 1092 (Fla. App., 2016) March 2, 2016 Jessica Zaiger Wallace of Carlton Fields Jorden Burt, Miami, and Michael K. Winston and Dean A. Morande of Carlton Fields Jorden Burt, West Palm Beach, for appellant. Thais Hernandez of The Law Firm of Thais Hernandez, Esq., Miami Lakes, for Appellees Alfredo Gonzalez, Alexandra Gonzalez and Magaly M. Gonzalez. TAYLOR, J. Wells Fargo Bank, N.A. ("Wells Fargo") appeals the final judgment entered in favor of the defendants below, Alfredo, Alexandra, and Magaly Gonzalez (the "Gonzalezes"), after... 16. Cleveland v. Crown Fin., LLC, 183 So.3d 1206 (Fla. App., 2016) January 15, 2016 Jeffrey U. Beaverstock and Daniel L. Burkard of Burr & Forman, LLP, Mobile, AL, for Appellants. Robert J. Powell and Matthew T. Davidson of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellee. LEWIS, J. Appellants, Scott and Stephanie Cleveland, appeal a foreclosure judgment entered in favor of Appellee, Crown Financial, LLC, raising three arguments, only one of which warrants discussion. Appellants contend that the trial court erred in its calculation of indebtedness... 17. Wood v. Blunck, 152 So. 3d 693 (Fla. App., 2014) November 24, 2014 [152 So.3d 694] Brian P. North of Kenny Leigh & Associates, Mary Esther, and Stefani K. Nolan, and Shachar D. Spiegel of Kenny Leigh & Associates, Jacksonville, for Appellant. Clyde M. Taylor III of Taylor, & Taylor, P.A., St. Augustine, and L.J. Arnold IV of Arnold Law, Green Cove Springs, for Appellee. Opinion RAY, J. Talbert John Wood, the former husband, appeals an order denying his petition to modify an alimony award in favor of Margaret Blunck, the former wife. The former... 18. Boyles v. A&G Concrete Pools, Inc., 149 So.3d 39 (Fla. App., 2014) July 2, 2014 [149 So.3d 40] Bard D. Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach; Steven Mitchel and Christopher I. Pezon of Steinger, Iscoe, Greene & McAfee, Fort Lauderdale, for appellant. John A. Wilkerson of John A. Wilkerson, P.A., Daytona Beach, for appellees. Opinion WARNER, J. Appellant challenges a final judgment for the appellee in his personal injury action. He claims that the court erred when it admitted a physician's testimony that the surgery... 19. Boyles v. A&G Concrete Pools, Inc. (Fla. App., 2014) July 2, 2014 Appeal from the circuit court for the Nineteenth Judicial circuit, Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 312009CA 011849XXXX. Bard D. Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West Palm Beach; Steven Mitchel and Christopher I. Pezon of Steinger, Iscoe, Greene & McAfee, Fort Lauderdale, for appellant. John A. Wilkerson of John A. Wilkerson, P.A., Daytona Beach, for appellees. WARNER, J. Appellant challenges a final judgment for the appellee in his... 20. Powell v. State, 120 So. 3d 577 (Fla. App., 2013) August 1, 2013 [120 So.3d 579] Nancy A. Daniels, Public Defender, Glenna Joyce Reeves and Steven L. Seliger, Assistant Public Defenders, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, Angela R. Hensel and [120 So.3d 580] Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Appellee. MAKAR, J. Our state and federal constitutions declare that homes—whether castles or cabins, mansions or mobile homes—are protected spaces that require a warrant or other lawful basis to justify a... 21. In re Standard Jury Instructions—Contract & Business Cases, 116 So.3d 284 (Fla., 2013) June 6, 2013 Original Proceeding—Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases. Honorable Jonathan D. Gerber, Committee Chair, and Manuel Farach, Committee Vice–Chair, West Palm Beach, FL; and Brian F. Spector, Committee Vice–Chair, Miami, FL, for Petitioner. [116 So.3d 285] LEWIS, J. This matter is before the Court upon the report, recommendation and proposal of the Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases and a printed book of... 22. Branch Banking & Trust Co. v. Hamilton Greens, LLC (S.D. Fla., 2013) April 29, 2013 OPINION AND ORDER... This cause is before the Court upon Plaintiff Branch Banking and Trust Company's Amended Motion for Final Summary Judgment with Supporting Memorandum of Law (DE 196). 1 Defendant Richard Bellinger responded. (DE 197). Plaintiff replied. (DE 202). The Court has considered the briefs of the parties and the record, and is otherwise advised in the premises... I. Background... The relevant facts are undisputed. On September 1, 2006, Hamilton Greens, LLC ("Hamilton Greens"),... 23. Branch Banking & Trust Co. v. Hamilton Greens, LLC, 942 F.Supp.2d 1290 (S.D. Fla., 2013) April 29, 2013 [942 F.Supp.2d 1292]... William Glenn Jensen, Shayne Ashley Thomas, Roetzel & Andress, LPA, Orlando, FL, for Plaintiff. Lance Wayne Shinder, Lance W. Shinder, P.A., Boca Raton, FL, Steven Anthony Mayans, Fitzgerald Mayans & Cook, P.A., West Palm Beach, FL, for Defendants. OPINION AND ORDER... KENNETH A. MARRA, District Judge... This cause is before the Court upon Plaintiff Branch Banking and Trust Company's Amended Motion for Final Summary Judgment with Supporting Memorandum of Law (DE... 24. Progressive Express Ins. Co. v. Camillo, 80 So.3d 394 (Fla. App., 2012) March 20, 2012 [80 So.3d 396] Valerie A. Dondero and Robert J. Squire of Houck Anderson, P.A., Miami, for appellant.Mark Perlman of Mark Perlman, P.A., Hallandale Beach, for appellees.TAYLOR, J. Appellant, Progressive Express Insurance Company (“Progressive”), appeals a final declaratory judgment, which determined that insurance coverage existed under an automobile policy for an accident that occurred on July 26, 2008. The trial court entered summary judgment in favor of the insureds and ruled that... 25. Progressive Express Ins. Co. v. Camillo (Fla. App., 2012) February 8, 2012 TAYLOR, J... Appellant, Progressive Express Insurance Company ("Progressive"), appeals a final declaratory judgment, which determined that insurance coverage existed under an automobile policy for an accident that occurred on July 26, 2008. The trial court entered summary judgment in favor of the insureds and ruled that Progressive's unconditional acceptance of premiums waived its right to claim that there had been a lapse in coverage. Under the circumstances of this case, we disagree and hold... 26. DRD Marine Corp. v. Byrd Techs., Inc., 77 So.3d 867 (Fla. App., 2012) January 18, 2012 [77 So.3d 868] Patricia Leigh McMillan Minoux of Hayden Milliken & Boeringer, P.A., Miami, for appellant.Vincent O'Brien and Julie Rannik Houston of DeOrchis, Hillenbrand & O'Brien LLP, Fort Lauderdale, for appellee.GERBER, J. The plaintiff appeals: (1) the circuit court's July 17, 2006 “Directions to the Clerk” to close the file because of the lack of record activity; and (2) the circuit court's October 25, 2010 order granting the defendant's motion to dismiss for failure to prosecute. The... 27. Delivorias v. Delivorias, 80 So.3d 352 (Fla. App., 2011) December 12, 2011 [80 So.3d 353] E. Jane Brehany, Pensacola, for Appellant.Michael T. Webster, Shalimar; and Kristin Adamson, Tallahassee, for Appellee.CLARIFYING OPINION ON MOTIONS FOR REHEARING AND REHEARING EN BANCPER CURIAM. Appellant, the former wife, moved for rehearing and rehearing en banc of our per curiam affirmance of the trial court's order granting Appellee's (the former husband) motion for contempt and providing temporary relief on Appellee's counter-petition for modification of primary residential... 28. Thaddeus Freeman, PLLC v. Summit View, LLC (In re Summit View, LLC) (M.D. Fla., 2011) August 1, 2011 ORDER... This cause comes before the Court on an appeal from an order of the Middle District of Florida Bankruptcy Court dated February 15, 2011, in which the bankruptcy court granted the debtors' Motion to Enforce Settlement Agreement in favor of the Appellees, Summit View, LLC, Ashley Glen, LLC, and Riverwood, LLC, and over the objection of the Appellant, Thaddeus Freeman, PLLC ("Freeman" or "Appellant"). Freeman, counsel for the creditor, WDG Construction, Inc. ("WDG"), opposed the... 29. Featured Properties Llc v. Blky Llc, 65 So.3d 135 (Fla. App., 2011) July 7, 2011 [65 So.3d 136] Michael C. Rayboun and Jessica L. Slatten of Rayboun Mulligan, PLLC, Tallahassee, for Appellant.John R. Dowd, Jr. and Charles G. Brackins of Dowd Law Firm, P.A., Ft. Walton Beach, for Appellee.LEWIS, J. Featured Properties, LLC, Appellant, appeals the trial court's final judgment awarding BLKY, LLC, Appellee, $377,555.56 in damages. Because the trial court failed to state the basis for its ruling and to include factual findings in its order, we are unable to conduct a meaningful... 30. Pncef Llc v. South Aviation Inc., 60 So.3d 1120 (Fla. App., 2011) May 11, 2011 [60 So.3d 1121] Thomas A. Dye and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellant.Charles R. Morgenstein of Mmo Legal Services, LLC, Boca Raton, for appellees.GERBER, J. The appellant lender moved for a prejudgment writ of replevin pursuant to Section 78.055, Florida Statutes (2010), to recover four aircraft which the borrowers' lessee maintained in Broward County. The circuit court denied the motion. We reverse, concluding that the lender met its burden of showing that... 31. Land & Sea Petroleum Inc. v. Bus. Specialists Inc., 53 So.3d 348 (Fla. App., 2011) January 19, 2011 [53 So.3d 351] Shawn R. Horwick and Gregory J. Ritter of Ritter, Chusid, Bivona & Cohen, LLP, Coral Springs, for appellant.Stanley Dale Klett, Jr. and Jill G. Weiss of Rutherford Mulhall, P.A., Palm Beach Gardens, for appellees.GERBER, J. Land & Sea Petroleum, Inc. (the “seller”) appeals the denial of its motion to recover its attorney's fees and costs from brokers Business Specialists, Inc. (“Specialists”) and Continental Business, Inc. (“Continental”). We find that the seller is... © 1999-2019 Fastcase, Inc. Privacy Policy | Terms of Service | Scope of Coverage Bueno v. Workman, 20 So.3d 993 (Fla. App., 2009)
20 So.3d 993 [20 So.3d 996] Claudia BUENO, Appellant, v. revise the report's reference to a third vehicle. Ilene WORKMAN, Appellee. No. 4D08-2838. Seven months after the accident, the District Court of Appeal of Florida, plaintiff's attorney sent the defendant's Fourth District. insurer a letter seeking injury compensation October 28, 2009. from the defendant's $100,000 liability policy. The letter stated: [20 So.3d 995] Our theory of liability is that [the Diana L. Martin of Leopold~Kuvin, P.A., defendant] rear ended [the Palm Beach Gardens, and Joseph C. Schulz of plaintiff] and her son while [the Vastola, Schulz, Harvey & Crane, North Palm plaintiff] was waiting for an Beach, for appellant. ambulance to cross the intersection. Please be aware Julie A. Taylor of Julie A. Taylor & that [the plaintiff] speaks Associates, Fort Lauderdale, and Elizabeth English as a second language. Russo of Russo Appellate Firm, P.A., Miami, The investigating officer did not for appellee. interrogate [the plaintiff] and got all of the information about GERBER, J. the alleged phantom vehicle from [the defendant]. [The The circuit court dismissed the plaintiff's plaintiff] never took the position motor vehicle negligence action against the that there was a phantom defendant. The court based its dismissal on the vehicle. As you probably know, theories of estoppel, waiver, and election of police reports are inadmissible. remedies. Because the record does not support those theories, we reverse. It is undisputed that [the defendant's] vehicle slammed The plaintiff stopped her vehicle at an into the rear of [the plaintiff]. It intersection, waiting for an ambulance to pass. appears very unlikely that Her minor son sat in the front passenger seat. another vehicle could have The defendant's vehicle then rear-ended the slammed into [the defendant] plaintiff's vehicle. The police aide who with enough velocity to also investigated the accident reported that both force [the defendant] into [the the defendant and the plaintiff said that a third plaintiff] and then still have a vehicle rear-ended the defendant's vehicle, drivable vehicle to make a which then rear-ended the plaintiff's vehicle, speedy `getaway'. There are no and that the third vehicle left the scene. The disinterested witnesses to police aide indicated he asked the parties support this `phantom vehicle' whether they were okay, and they replied that theory. As such, it appears that they were. the presumption of negligence of [the defendant] for rear ending Six days after the accident, the plaintiff [the plaintiff] cannot be requested the police aide to revise his report overcome. It is also curious that because it did not mention that her son sat in although [the defendant] claims the front passenger seat. The plaintiff did not a phantom vehicle collided with ask the police aide to her vehicle, she apparently could -1-
Bueno v. Workman, 20 So.3d 993 (Fla. App., 2009)
not identify the vehicle in any accident when completing the report; and (4) way to the officer, i.e., make, she did not understand the report's reference color, model. to a third vehicle because English was her second language. The plaintiff further stated When the defendant's insurer did not that, since the accident, she has maintained settle, the plaintiff sued the defendant. The she never saw a third vehicle leave the scene. complaint alleged that the defendant negligently operated her vehicle so that it One week before the hearing on the collided with the plaintiff's vehicle, causing defendant's fraud motion, the defendant filed damages to the plaintiff and her son. One of a supplemental motion and memorandum the defendant's affirmative defenses was that arguing the court should dismiss the case on any damages were the result of third party the alternative basis of estoppel. According to negligence. During the suit's discovery phase, the defendant's view of estoppel, the plaintiff maintained that no third vehicle was involved in the accident. [20 So.3d 997]
While the plaintiff was pursuing the the plaintiff could collect damages for only one defendant, the plaintiff's attorney sent the theory on the same set of facts. plaintiff's uninsured motorist (UM) carrier a letter seeking injury compensation under the After a brief hearing on the motion, the plaintiff's $30,000 UM policy. That letter court stated to the plaintiff's counsel: stated, in pertinent part: I'm going to dismiss this case An unidentified driver ... based on the estoppel argument. slammed into ... [the defendant] You're estopped from [alleging forcing a collision between [the the defendant was liable]. You defendant] and [the plaintiff]. haven't brought me anything, The driver then sped away. and by your own admission to Clearly, [the plaintiff] has no this Court that [a phantom liability whatsoever for this vehicle] was the basis of your accident and therefore is entitled UM claim by which you gained to her uninsured motorist substantial compensation for. benefits. The court then stated to the defendant's In response, the plaintiff's UM carrier counsel: paid the $30,000 policy limit for the plaintiff's injuries, and $5,000 for her son's injuries. I'm not finding fraud, I'm finding that they are estopped. After the defendant discovered the UM I'd have to have a hearing on the letter and payment, the defendant filed a fraudulent issue, and I didn't motion to dismiss for fraud on the court. The have enough time for that. I'm defendant relied on the conflicting letters making that ruling based upon ... which the plaintiff's attorney sent to the the doctrine of waiver and defendant's insurer and the plaintiff's UM estoppel. carrier. The plaintiff responded with an affidavit alleging: (1) there was no phantom The court later entered a final judgment vehicle which left the accident; (2) she did not which stated, in pertinent part: speak to the police aide at the scene; (3) the police aide used the defendant's version of the -2-
Bueno v. Workman, 20 So.3d 993 (Fla. App., 2009)
The Plaintiff is legally barred evidence of the plaintiff's alleged contrary from two (2) recoveries for the representations regarding the third vehicle's same claim, for the same loss, on existence or lack thereof, the defendant did not the same set of facts. She has present evidence that she relied on those chosen and elected her remedy representations or that she detrimentally and collected on same. The changed her position because of any such factual setting justifies the reliance. application of the doctrine of waiver and estoppel. "Judicial estoppel is an equitable doctrine that is used to prevent litigants from taking On appeal, the plaintiff argues the court totally inconsistent positions in separate erred in dismissing the case on the theories of judicial, including quasi-judicial, estoppel, waiver, and election of remedies. We proceedings." Blumberg v. USAA Cas. Ins. Co., have a mixed standard of review. "To the 790 So.2d 1061, 1066 (Fla. 2001) (citation extent the trial court's order is based on factual omitted). The elements of judicial estoppel are findings, we will not reverse unless the trial the same as equitable estoppel, with the added court abused its discretion; however, any legal elements of successfully maintaining a conclusions are subject to de novo review." position in one proceeding, while taking an Foreclosure FreeSearch, Inc. v. Sullivan, 12 inconsistent position in a later proceeding, in So.3d 771, 774 (Fla. 4th DCA 2009) (citation which the same parties and questions are omitted). involved. Id. Here, there have been no separate judicial proceedings. The recipients of the We find the trial court erred as a matter of letters were not the same. And, as stated law in applying the theories of estoppel, above, the second and third elements of waiver, and election of remedies. We will equitable estoppel have not been satisfied. address each in turn. Because the trial court's reference to estoppel was non-specific, we will [20 So.3d 998] address both equitable estoppel and judicial estoppel. "Waiver is `the intentional relinquishment of a known right.'" WSG W. "Equitable estoppel is based on principles Palm Beach Dev., LLC v. Blank, 990 So.2d of fair play and essential justice and arises 708, 715 (Fla. 4th DCA 2008) (citations when one party lulls another party into a omitted). "Breaking down waiver into disadvantageous legal position[.]" Fla. Dep't of elements, this court has recognized that three Health & Rehab. Servs. v. S.A.P., 835 So.2d circumstances give rise to a waiver: (1) the 1091, 1096 (Fla. 2002) (citation omitted). "The existence of a right which may be waived; (2) elements of equitable estoppel are `(1) a actual or constructive knowledge of the right; representation as to a material fact that is and (3) the intent to relinquish the right. Proof contrary to a later-asserted position, (2) of these elements `may be express, or implied reliance on that representation, and (3) a from conduct or acts that lead a party to change in position detrimental to the party believe a right has been waived.'" LeNeve v. claiming estoppel, caused by the Via S. Fla., L.L.C., 908 So.2d 530, 535 (Fla. 4th representation and reliance thereon.'" Curci DCA 2005) (citations omitted). Although the Village Condo. Ass'n v. Maria, 14 So.3d 1175, first two elements exist here, the third element 1177 (Fla. 4th DCA 2009) (quoting State v. does not. The fact that the plaintiff sought Harris, 881 So.2d 1079, 1084 (Fla.2004)). The compensation from her UM carrier does not defendant's evidence satisfied the first imply that she intended to relinquish her right element, but not the second and third to seek compensation from the defendant. elements. Although the defendant presented -3-
Bueno v. Workman, 20 So.3d 993 (Fla. App., 2009)
The purpose of the election of remedies On remand, an evidentiary hearing on the doctrine "is to `prevent double recoveries for a defendant's fraud argument is required, as the single wrong.'" Ehrman v. Mann, 979 So.2d lower court recognized. Villasenor v. 1011, 1012 (Fla. 4th DCA 2008) (citation Martinez, 991 So.2d 433, 436 (Fla. 5th DCA omitted). "Under Florida law, however, the 2008) (meeting burden of establishing election of remedies doctrine applies only fraudulent conduct warranting dismissal by where the remedies in question are coexistent clear and convincing evidence "will almost and inconsistent." Id. (citations omitted). That always require an evidentiary hearing"). It is, "[i]f the allegations of facts necessary to would be premature for us to express any support one remedy are substantially opinion on the admissibility of evidence or inconsistent with those necessary to support possible outcomes of that hearing. the other, then the adoption of one remedy waives the right to the other." Id. Here, the Reversed and remanded. remedies of the defendant's liability coverage and the plaintiff's UM coverage are not POLEN and STEVENSON, JJ., concur. inconsistent. UM coverage does not necessarily duplicate liability coverage. See § 627.727(1), Fla. Stat. (2008) (uninsured and underinsured vehicle coverage "shall be over and above, but shall not duplicate, the benefits available to an insured under any ... motor vehicle liability insurance coverage ... and such coverage shall cover the difference, if any, between the sum of such benefits and the damages sustained. ... The amount of [UM] coverage ... shall not be reduced by a setoff against any coverage, including liability insurance.").
The defendant argues we should employ the "tipsy coachman" rule and affirm on the ground that the plaintiff committed a fraud on the court. Under the tipsy coachman rule, "if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support judgment in the record." Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999). However, an appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so. See Bryant v. Fla. Parole Comm'n, 965 So.2d 825, 825 (Fla. 1st DCA 2007) (declining to employ tipsy coachman rule). Here, because the lower court did not make factual findings on the defendant's fraud argument, it would be inappropriate for us to consider that argument in this appeal. -4-
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LR v. Department of Children & Families, 822 So.2d 527 (Fla. App., 2002)
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1 to 9 of 9 results 1. Starbuck v. R.J. Reynolds Tobacco Co. (M.D. Fla., 2018) November 16, 2018 MEMORANDUM OF DECISION Young, D.J. 1 This Engle -progeny tobacco case has gone to trial three times. The first trial (" Starbuck I ") ended in a mistrial because the jury was deadlocked. See Clerk's Mins., ECF No. 98; Order, ECF No. 127. The second trial (" Starbuck II ") resulted in a verdict against William Starbuck, 2 but the presiding judge granted a new...... trial because the jury's finding that Mr. Starbuck was not addicted to cigarettes was against the great weight of the evidence.... 2. In re Standard Jury Instructions—Contract & Business Cases, 116 So.3d 284 (Fla., 2013) June 6, 2013 Original Proceeding—Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases. Honorable Jonathan D. Gerber, Committee Chair, and Manuel Farach, Committee Vice–Chair, West Palm Beach, FL; and Brian F. Spector, Committee Vice–Chair, Miami, FL, for Petitioner. [116 So.3d 285] LEWIS, J. This matter is before the Court upon the report, recommendation and proposal of the Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases and a printed book of... 3. Mid–continent Cas. Co. v. Basdeo, 742 F.Supp.2d 1293 (S.D. Fla., 2010) September 27, 2010 [742 F.Supp.2d 1299] Andrew Edward Grigsby, Jr., Melissa Anne Gillinov, Hinshaw & Culbertson, Miami, FL, for Plaintiff.David Bierman, Russel Lazega P.A., Patricia Diane Amaducci, Fowler White Burnett, Miami, FL, Mitchell B. Haller, Katzman Garfinkel, John David Mallah, Maitland, FL, for Defendants. [742 F.Supp.2d 1300] ORDERDONALD L. GRAHAM, District Judge. THIS CAUSE came before the Court upon the Report of the Magistrate Judge [D.E. 251] regarding Defendant/Counter –Claimant Southgate... 4. Husky Rose, Inc. v. Allstate Ins. Co., 19 So.3d 1085 (Fla. App., 2009) October 7, 2009 The trial court entered a final summary judgment in a dispute between a landlord and its tenant, concluding that the tenant breached the lease by failing to add the landlord as an additional insured on the tenant's insurance policy. This precluded the landlord from obtaining compensation when the building burned down. The court rejected the tenant's claim that the provision of the contract was waived by the landlord's agent. We reverse, as material issues of fact remain on the issue of... 5. R.H. v. Department of Children and Families, 988 So.2d 673 (Fla. App., 2008) July 23, 2008 The appellants, Mr. and Mrs. H, biological relatives of the child, M.S., appeal a final order finding the Department of Children and Families' ("DCF") selection of Mr. and Mrs. X as an adoptive placement for M.S. an appropriate placement. They contend that the court erred in limiting its review to the appropriateness of DCF's selection of the X's as adoptive parents instead of determining which of the two competing petitions for adoption was in the best interests of M.S. We hold that... 6. The Florida Bar v. Dove, 985 So.2d 1001 (Fla., 2008) June 12, 2008 We have for review a referee's report recommending that Joyce Sibson Dove be found guilty of professional misconduct for her actions in an adoption case. The referee recommended that Dove be disciplined by public reprimand, receive two years of probation, and forfeit fees of $8,388.84 to The Florida Bar Foundation. We have jurisdiction. See art. V, § 15, Fla. Const. We disapprove the referee's recommended sanction of a public reprimand. We also disapprove the Bar's request for a one-year... 7. Winans v. Weber, 979 So.2d 269 (Fla. App., 2007) December 14, 2007 Gordon and Kathy Winans appeal the final judgment on interpleader which awarded Jed Weber, M.D., the full amount of his bill for medical services rendered. Because the trial court's findings are not supported by the evidence presented at the hearing and because the evidence does not establish that the Winanses waived their rights as third-party beneficiaries under the contract between Dr. Weber and United HealthCare, we reverse and remand for entry of judgment in favor of the Winanses... The... 8. DEPT. OF CHILDREN AND FAMILY SERVICES v. BY, 863 So.2d 418 (Fla. App., 2003) December 31, 2003 Jeffrey Dana Gillen, West Palm Beach, for appellant. Kirsten A. Herndon, William Booth, and Michelle Hankey of the Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellee. ON MOTION FOR RECONSIDERATION AND REHEARING AND MOTION FOR REHEARING EN BANC PER CURIAM. We grant the Department of Children and Families' (DCF) motion for reconsideration and rehearing, but deny the motion for rehearing en banc. As a result, we withdraw our previous opinion... 9. BB v. Department of Children and Families, 854 So.2d 822 (Fla. App., 2003) September 19, 2003 [854 So.2d 823] Gwendolyn P. Adkins, Coppins & Monroe, P.A., Tallahassee, for Appellant. Avron Bernstein, Child Welfare Attorney, Department of Children and Families, Tallahassee, for Appellee. HAWKES, J. In these two consolidated appeals, Appellant appeals from final orders denying her motion to intervene in a dependency action involving her twin grandchildren and her subsequent petition for adoption of those children, without addressing the adoption petition on the merits. We reverse the... © 1999-2019 Fastcase, Inc. Privacy Policy | Terms of Service | Scope of Coverage 822 So.2d 527L.R. and L.R., Appellants,
v.
DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
No. 4D01-3289.
District Court of Appeal of Florida, Fourth District.
July 17, 2002.
[822 So.2d 528] Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Amy Hickman of Hausman & Hickman, P.A., for appellants.
Charles D. Peters and Jeffrey Dana Gillen, West Palm Beach, for appellee.
POLEN, C.J.
Appellants L.R. ("Grandmother") and L.R. ("Step-grandfather") timely appeal the trial court's dismissal of their petition for the adoption of the minor children B.T. and M.W., currently five and three years old, respectively. We reverse, holding L.R. and L.R. ("the grandparents"), who had filed a petition for the adoption of the children, were entitled to participate in an adjudicatory hearing where the trial court is to determine adoptive placement in the "best interests" of the children.
The present case began when the minor children were taken into shelter by the Department of Children and Families ("DCF") in November of 1998. The children were subsequently placed in temporary relative placement with their paternal grandparents, L.R. and L.R., in January of 1999. The children remained in the grandparents' care up to and through October of 2000, when the parental rights of their parents were terminated via the execution [822 So.2d 529] of voluntary surrenders. The children were hence placed in the permanent care of DCF for subsequent adoption, however, temporary physical custody continued with the grandparents.
Sometime around November of that year the grandparents were informed by a DCF caseworker that the children's case had been transferred to the adoption unit. November 29, 2000, the grandparents received a letter from a new caseworker, requesting they provide various information regarding the children's interests and needs in order to facilitate their eventual adoption. The grandmother answered the caseworker's inquiries and composed a letter to the new caseworker on its reverse side. In pertinent part, the letter provided:
We are not willing to adopt the children to a family we have not first met and agreed to. The children are very important to us and we are not willing to give up our relationship with them. We are seeking an open adoption with a family in California. I was told by [initial caseworker] that you have been advised of that.... We want to remain in some contact with the children after they have been adopted. If this is not a possibility or if this cannot be guaranteed then we would like to proceed with the adoption ourselves.... We are ready to adopt if these principles/guidelines cannot be met.
(Emphasis added.) The aforementioned family in California was rejected by DCF since they were in the process of finalizing a separate adoption. Sometime around mid-December/early-January, DCF informed the grandparents they had selected a non-relative married couple ("non-relatives") as a prospective adoptive placement. Testimony is conflicting regarding the representations DCF made to the grandparents at this time. According to the grandmother, DCF told her the non-relative family was very open to visits (by the grandparents), and that she would "still be Grandma and they would still be my grandchildren." However, according to the new caseworker, she testified she had never told the grandparents that DCF could "guarantee" an "open adoption."
In any event, the non-relatives were introduced to the children, and the grandparents, January 13, Relatively speaking, the parties "hit it off," and the grandparents told DCF they "approved" of the nonrelatives as prospective adoptive parents. The non-relatives commenced progressively more intensive visitations with the children over the course of the next month, working up to overnight visits with the children. Sometime in early February, the grandparents invited the non-relatives and the (new) caseworker to their home, to discuss the speed with which the adoption process was moving. The grandparents voiced concerns everything was moving too fast, and stated they needed a longer comfort period to build up a relationship with the non-relatives. Shortly thereafter, on February 6, the step- grandfather attended a meeting set up by DCF to address some corollary concerns regarding past visitations that had occurred while the children were under the grandparents' care. At this meeting, DCF informed him that the Department did not have any policy for "open" adoptions; DCF further informed him that the children would be handed-off to the non-relatives on February 17, less than eleven days away. After this meeting the grandparents decided to seek the advice of counsel. Counsel informed them once the children were adopted by another family, they would no longer have any cognizable legal rights as to the grandchildren, and any future relationship with the children would be at the sole discretion of [822 So.2d 530] the adoptive parents. See § 63.172, Fla. Stat. (2001).
Immediately thereafter, the grandparents filed a pleading in the circuit court entitled "Petition for Adoption and for Temporary Injunctive Relief" on February 13. In this pleading they sought to adopt the children and moved for injunctive relief from the February 17 hand-off date on the grounds their petition had a "strong likelihood" of being approved of since they had a statutory priority to adopt under section 63.0425, Florida Statutes.1 DCF refused to hold off on the February 17 hand-off and the children were turned over to the non-relatives on that date.
On March 19, 2001, a hearing was held in the circuit court, juvenile division, on the grandparents motion for injunctive relief. The court denied their motion for injunctive relief on the grounds they still had an adequate remedy at law vis-a-vis their simultaneously filed petition for adoption which was still outstanding. The court ordered the grandparents have no contact with the children or the non-relatives, and the remainder of the case, i.e., the grandparents' petition for adoption, was set on an expedited schedule for a mid-April trial. However, the April trial date was subsequently cancelled due to the illness of the grandparents' counsel.
Thereafter, DCF filed a motion to dismiss the grandparents' adoption petition, alleging inter alia, they had waived their statutory priority to adopt and that they lacked standing since DCF refused to consent to their petition. A hearing was set for DCF's motion to dismiss for May 24, 2001. The day before the hearing DCF officially consented to adoption by the non-relatives. Argument at the May 24 hearing before Judge Baker was quite brief. DCF primarily argued the petition needed to be dismissed due to waiver and a lack of standing, whereas the grandparents alleged they had standing to file a petition via their statutory priority under section 63.0425, a priority which they denied waiving. On July 18, 2001, Judge Baker entered an order summarily granting DCF's motion to dismiss. We find such dismissal constituted legal error.
First, we find at no time did the grandparents waive their statutory priority to adopt the minor children under section 63.0425. In order to establish waiver of a right or privilege, one must establish the waiving party had a right or privilege, had actual or constructive knowledge of that right or privilege, and intended to relinquish that right or privilege. See Mizell v. Deal, 654 So.2d 659 (Fla. 5th DCA 1995). Further, the waiving party must possess all of the material facts for its representations to constitute a waiver. See Zurstrassen v. Stonier, 786 So.2d 65 (Fla. 4th DCA 2001). Here, DCF contends the grandparents waived their right to statutory priority by telling DCF they were not interested in adopting the children in November of 2000, and by subsequently approving of the non-relative placement in January 2001. We find such line of argument highly unpersuasive. Viewing the evidence before this court in its totality, we find DCF's actions were misleading at best, if not downright deceptive. Clearly, the letter composed by the grandmother on the reverse of DCF's November 29 letter does not constitute an undeniable relinquishment of the grandparents' priority to adopt the children. The grandmother's response spelled out in [822 So.2d 531] crystal-clear language that the grandparents were seeking an "open" adoption and if such could not be guaranteed, and I quote, "We are ready to adopt." Yet, DCF proceeded to explore other adoption alternatives, all the while knowing they do not arrange "open" adoptions. The series of events which occurred leading up to this litigation is entirely consistent with the grandparents' testimony, namely, that they did not know the adoptive placement with the non-relatives, favored by DCF, would not be "open," and would result in the termination of all cognizable legal rights as to their grandchildren, until February 6 at the earliest. We are careful not to speculate, but perhaps had DCF informed the grandparents in November of 2000 that the Department did not provide "open" adoptions, the grandparents would have filed a petition to adopt (as the grandmother's letter suggests) at that time, and this case never would have proceeded to such an adversarial stage.2 We must be mindful, in these most delicate proceedings, children are involved, and it is their well-being which is our highest priority, and the ultimate yardstick by which we measure the success of our system.
We further hold the grandparents' petition should not have been dismissed at this stage of the proceedings for a "lack of standing" as DCF suggests. Clearly, the grandparents, with whom the minor children had lived with for over two years, have a statutory priority to adopt the children via section 63.0425. This statute provides qualifying grandparents shall be informed of impending adoptions, and if that grandparent petitions the court to adopt, the court shall give that grandparent first priority. We further note, the ultimate determination concerning adoptive placements rests with the trial court, which shall only enter a decree of adoption upon finding a particular adoptive placement is in the "best interest" of the child to be adopted. See § 63.142(4), Fla. Stat. (2001).
Still, we are mindful there appears to be some inherent tension between Chapter 39, Part XI (Termination of Parental Rights) and Chapter 63 (Adoption), regarding the adoption of children placed in DCF's care. As discussed, supra, section 63.0425 provides the court shall give first priority to petitions filed by grandparents who qualify under that statute. However, Florida Statutes section 39.812(1) provides, where a child is placed in DCF's custody for subsequent adoption, DCF may become a party to any proceeding for the legal adoption of that child and consent to the adoption, and that consent alone shall be sufficient in all cases. § 39.812(1), Fla. Stat. (2001). As understood by this court in Judge3 Pariente's well-reasoned opinion in C.S. and J.S. v. S.H. and K.H., 671 So.2d 260 (Fla. 4th DCA 1996), the trial court lacks authority to waive DCF's consent to the adoption of a child in its control. Thus, where DCF consents to an adoption petition, the trial court lacks authority under chapter 39 to determine another adoptive placement is more appropriate. Id. at 266-67 (citing section 39.47(1994), which has been renumbered as section 39.812(2001)). Further compounding the tension between Chapter 39, Part IX and Chapter 63, recent amendments to [822 So.2d 532] the governing statutory scheme provide adoption proceedings of children placed in the Department's care shall be "governed by chapter 63." See § 39.812(5), Fla. Stat. (2001)(added by Ch. 01-3, § 5, Laws of Fla., eff. Oct. 1, 2001).
Nonetheless, dismissal of the grandparents' adoption petition for a lack of standing was, at best, premature in the instant case. Simply, the non-relatives adoption petition had not yet been finalized by the trial court. Since this had not yet occurred, the grandparents clearly had, and continue to have, standing to intervene in the non-relatives pending adoption petition via s. 63.0125. See Fla. R. Civ. P. 1.230; see also C.S., 671 So.2d at 265 (biological parents had intervened in foster parents' pending adoption petition). With all due respect, at this stage of the proceedings, this is not a case about stating a legally sufficient basis for relief as the dissent maintains, but rather a case about standing. Whether the grandparents attempted to file their own petition for adoption (as they did) or had moved to intervene in the non-relatives pending adoption petition, the result remains the same—the grandparents are parties in interest and have standing to participate in hearings concerning the potential adoption of their grandchildren to the non-relatives.
On remand, we direct the trial court to determine if adoption of the minor children B.T. and M.W. is in the children's best interests, and upon such a finding, and such finding only, the court may enter a judgment of adoption. § 63.142(4), Fla. Stat. (2001). Though we maintain C.S. is still good law, the trial court is by no means required to grant the petition of the non-relatives to which DCF has consented.4 As C.S. notes, the trial court may disapprove of placement selection upon a determination that placement is "inappropriate." C.S., 671 So.2d at 269. Furthermore, the adoptive placement of B.T. and M.W. ultimately rests upon a finding a particular placement is in the children's best interests.
Thus, we reverse the trial court's dismissal of the grandparents' adoption petition. We remand for the trial court to hold an expedited hearing where testimony from all interested parties shall be entertained.5 At said hearing, the trial court shall enter a judgment of adoption only upon a finding a particular placement is in the best interests of the children.
REVERSED AND REMANDED.
TAYLOR, J., concurs.
STEVENSON, J., dissents with opinion.
STEVENSON, J., dissenting.
I respectfully dissent and would affirm the trial court's dismissal of appellants' petition for adoption. In C.S. v. S.H., 671 So.2d 260 (Fla. 4th DCA), rev. denied, 680 So.2d 424 (Fla.1996), this court held that it is within the discretion of the DCF to decide where to place a child who is in its custody pursuant to termination of parental rights proceedings under chapter 39. Section 39.812(1), Florida Statutes (2001), provides in part that: If the department is given custody of a child for subsequent adoption in accordance with this chapter, the department may place the child ... in a family home [822 So.2d 533] for prospective subsequent adoption. The department may thereafter become a party to any proceeding for the legal adoption of the child and appear in any court where the adoption proceeding is pending and consent to the adoption, and that consent alone shall in all cases be sufficient.
It is only when an inappropriate placement has been made that the trial court can reject the DCF's adoptive placement. See § 39.812(4), Fla. Stat.; C.S., 671 So.2d at 270. Even then, there is no statutory authority for the trial court to substitute its own preferred adoptive placement for that of the DCF; under the statutory scheme, the DCF would need to make another selection of adoptive parents which would then be reviewed by the trial court for appropriateness.
Here, without the DCF's consent, the grandparents' adoption petition, even with the benefit of the statutory presumption, did not present a claim upon which relief could be granted. Thus, the trial court did not err in dismissing appellants' adoption petition for failure to state a legally sufficient basis for relief.
------Notes: 1. "When a child who has lived with a grandparent for at least 6 months is placed for adoption, the adoption entity shall notify the grandparent of the impending adoption before the petition is filed. If the grandparent petitions the court to adopt the child, the court shall give first priority for adoption to that grandparent." § 63.0425(1), Fla. Stat. (2001) (emphasis supplied).
2. We especially note the testimony of the second caseworker at the hearing on the grandparents' motion for injunctive relief that she would have had "no problem" in placing the children with the grandparents for adoption in November of 2000, but for the fact they declined to do so, "every step of the way." See also Fla. Admin. Code R. 65C-16.002(reflecting statutory grandparent priority as adoptive placement in DCF's selection process).
3. Now Justice Pariente of the Florida Supreme Court.
4. See Dept. of Children and Families, M.W. and K.W., v. Adoption of B.G.J., 27 Fla. L. Weekly D1491, (Fla. 4th DCA June 26, 2002).
5. Though all juvenile cases are expedited in this District, such is especially necessary in the instant case. The children have been out of the grandparents' care for over a year, and due to the no contact order in place have been unable to maintain any contact (or relationship) during that time. Notwithstanding, we find no error in the trial court's initial issuance of the no contact order and its subsequent denial of the grandparents' motion to deny said order.
------LR v. Department of Children & Families, 822 So.2d 527 (Fla. App., 2002) Authority Check Report Generated on February 7, 2019
LeNeve v. Via South Florida, LLC, 908 So.2d 530 (Fla. App., 2005)
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In September 1997, he was referred to Randy Derouin, a stockbroker with Wealth Management Financial Group, Inc. ("Wealth Group")... Zabawa is a... 18. Marr v. Webb, 930 So.2d 734 (Fla. App., 2006) May 3, 2006 Appellant, Stuart Marr ("Marr"), appeals from an order vacating an arbitration award and reserving jurisdiction to modify the award... In February 1994, Marr entered into three residential construction agreements ("contracts") with Edward T. Webb, Enrique Benitez, and Seagate Mechanical, Inc. (collectively the "Contractors"). The contracts were for the construction of three single family "spec" homes on real...... property owned by Marr and located in Key... © 1999-2019 Fastcase, Inc. Privacy Policy | Terms of Service | Scope of Coverage LeNeve v. Via South Florida, LLC, 908 So.2d 530 (Fla. App., 2005)
908 So.2d 530 to vacate it. The court confirmed the award and entered judgment against LeNeve. We W. Lawrence LeNEVE, Appellant, affirm, holding that LeNeve waived his right to v. litigate partnership claims in the circuit court. VIA SOUTH FLORIDA, L.L.C., a Delaware limited liability company, Via South and L & G GP, Inc. created the Indiantown Realty Partners, Limited limited partnership, Indiantown Realty Partnership, a Florida limited Partners, to conduct real estate transactions. A partnership by and through Eastern written agreement contained the terms of the Alliance, L.L.C., its sole general partnership. As the only limited partner, Via partner, and L & G GP, Inc., a Florida South contributed 99% of the financing in corporation, Appellees. return for a 99% share in the profits. L & G, the general partner, contributed 1% of the No. 4D03-1318. financing and agreed to conduct the day-to- day management of Indiantown Realty District Court of Appeal of Florida, Partners in return for 1% of the profits. Fourth District. LeNeve controlled L & G as its president July 27, 2005. and director; however, in his individual capacity, he was neither a partner of Rehearing Denied September 2, 2005. Indiantown Realty Partners nor a signatory to the partnership agreement.
After the partnership began operating, Via [908 So.2d 532] South filed suit against Indiantown Realty Partners and L & G seeking: (1) a declaration R. Stephen Ottewell of Law Office of R. that L & G had breached the partnership Stephen Ottewell, P.A., Boca Raton, for agreement and (2) an injunction removing L & appellant. G as the general partner. LeNeve was not named as a party to that lawsuit. L. Louis Mrachek, Alan B. Rose, and Jennilynn E. Lawrence of Page, Mrachek, Indiantown Realty Partners and L & G Fitzgerald & Rose, P.A., West Palm Beach, for responded to Via South's suit by filing, among appellees Via South Florida, L.L.C., a Delaware other things, a motion to compel arbitration limited liability company, and Indiantown based on section 14.1 of the partnership Realty Partners, Limited Partnership, a agreement, which provided for arbitration of Florida limited partnership by and through "[a]ll claims, disputes, and other matters in Eastern Alliance, L.L.C., its sole general question among the Partners arising out of or partner. relating to this Agreement or breach thereof." That part of section 14.1 pertinent to this GROSS, J. appeal provided: This is an appeal from an order No arbitration arising out of or confirming an arbitration award. Via South relating to this Agreement shall Florida, L.L.C. and Indiantown Realty include, by consolidation, Partners, L.P. acquired a multimillion dollar joinder, or in any other manner, award against W. Lawrence LeNeve in an any additional person not a party arbitration proceeding. When Via South and to this Agreement or an Interest Indiantown Realty Partners moved to confirm Holder except by written the award in the circuit court, LeNeve moved -1-
LeNeve v. Via South Florida, LLC, 908 So.2d 530 (Fla. App., 2005)
consent containing a specific contacted the parties and asked them to reference to this Agreement and respond to two questions: signed by the parties hereto in dispute and any other person First, the Panel would like to sought to be joined. Any consent know if any party that is not a to arbitration involving an signatory to a contract which additional person or persons contains an arbitration provision shall not constitute consent to would like to waive such defense arbitration of any dispute not and join the arbitration described therein or with any proceedings in order to more person not named or described fully effectuate the goals and therein. This agreement to purposes of this arbitration? arbitration and any agreement to arbitration with an additional If the answer to the preceding person or persons duly question is no, then the Panel consented to by the parties to would like the following issue this Agreement shall be briefed . . .: Can a party be specifically enforceable under compelled to arbitrate even the prevailing arbitration law. though they have not signed an arbitration provision, and if so, under what conditions?
[908 So.2d 533] LeNeve's attorney responded by letter to the panel's inquiry. She wrote that LeNeve was Before the circuit court ruled on the motion to affirmatively waiving his right to "submit his compel arbitration, Via South filed a notice of claims" in circuit court. The letter stated: intent to arbitrate and a statement of claim against Indiantown Realty Partners and L & G Regarding the additional party with the American Arbitration Association. petitioner in the Counterclaim, The circuit court later stayed Via South's suit who is not a signatory to the pending AAA arbitration. governing arbitration clause (i.e., Mr. LeNeve), consider this At the commencement of the arbitration, confirmation of Mr. LeNeve's Indiantown Realty Partners, L & G, and waiver of his right to submit his LeNeve were all represented by the same claims in an alternative forum, attorney. On behalf of her clients, that attorney in order to accomplish the goals responded to Via South's statement of claim by and purposes of arbitration.1 filing a motion to dismiss, asserting affirmative defenses, and raising a number of After receiving the letter, the panel counterclaims. Although LeNeve was not entered an order recognizing LeNeve as a party named as a party in Via South's initial to the arbitration based on his "consent[] to statement of claim, LeNeve authorized his such jurisdiction." The parties never executed attorney to include him as a counter-petitioner a formal document expressly consenting to along with the partnership and L & G in the LeNeve's joinder as required by section 14.1 of counterclaims. the partnership agreement.
Once the panel realized that a non-party The same day the panel accepted to the partnership agreement had been jurisdiction over LeNeve, Via South amended included as a plaintiff in the counterclaims, it its statement of claim to include causes of -2-
LeNeve v. Via South Florida, LLC, 908 So.2d 530 (Fla. App., 2005)
action against LeNeve, individually. Among In August, 2001, LeNeve objected for the those claims was that LeNeve engaged in first time to the panel's jurisdiction to grant unauthorized transactions through L & G that Via South relief against him individually, on provided LeNeve with secret commissions and the theory that he had waived his rights only loan proceeds. The prayer for relief sought for the claims brought by him and not "for (among other things) "appropriate money claims made against [him]." LeNeve also damages from L & G and LeNeve." Thus, as of attempted to withdraw his counterclaims and February, 2001, claims for affirmative relief discontinue his participation in the were pending against LeNeve in the arbitration. arbitration proceeding. The panel overruled LeNeve's Following LeNeve's inclusion in the jurisdictional objections and gave him the arbitration, the parties aggressively litigated opportunity to reconsider withdrawal of his their respective claims. Via South filed counterclaims. Nevertheless, LeNeve refused numerous documents referencing its claims to further participate in the arbitration and the against LeNeve and sought discovery on those other parties proceeded in his absence. After claims. LeNeve took no action challenging the an evidentiary hearing on damages, the panel panel's jurisdiction to grant relief against him. entered its final award granting Via South and Indiantown Realty Partners (among other things) $4.2 million in compensatory damages to be paid jointly and severally by L & G and [908 So.2d 534] LeNeve.
In April, 2001, the arbitration panel held a Via South and Indiantown Realty Partners five-day hearing on whether L & G should be moved to confirm their award. LeNeve removed as the general partner of Indiantown responded with a motion to vacate the award. Realty Partners based on its misconduct. In The circuit court consolidated the motions. May, 2001, the panel ruled in Via South's After an evidentiary hearing, the court favor, ordering the removal of L & G and confirmed the award and entered judgment naming a Via South affiliate as the new general against LeNeve. partner. That order essentially resolved the liability issues of the case in Via South's favor; To vacate an arbitration award, a party the remaining issues related primarily to must establish one of the five statutory damages. A few days later, Indiantown Realty grounds set forth in section 682.13(1)(a)-(e), Partners filed for Chapter 11 bankruptcy. Florida Statutes (2002). See Commc'ns Workers of Am. v. Indian River County Sch. In July, 2001, Via South amended its Bd., 888 So.2d 96, 99 (Fla. 4th DCA 2004). statement of claim to realign the parties and Where the party moving to vacate fails to prove specify "which claims remain[ed] pending one of the five statutory grounds, "neither a against which parties." Because a Via South circuit court nor a district court of appeal has affiliate had become the general partner, the authority to overturn the award." Indiantown Realty Partners became a Schnurmacher Holding, Inc. v. Noriega, 542 claimant (arbitration plaintiff) in the So.2d 1327, 1328 (Fla.1989). Appellate review proceeding and was no longer a respondent of orders granting or denying a motion to (arbitration defendant). However, L & G and vacate an arbitration award are governed by LeNeve remained as respondents and Via "the same standards as in any ordinary case, South's claims against those parties continued. whereby findings of fact are reviewed under a competent and substantial evidence standard and legal questions are reviewed de novo." See -3-
LeNeve v. Via South Florida, LLC, 908 So.2d 530 (Fla. App., 2005)
Boyhan v. Maguire, 693 So.2d 659, 662 (Fla. express, or implied from conduct or acts that 4th DCA 1997). lead a party to believe a right has been waived." See Taylor v. Kenco Chem. & Mfg. Corp., 465 LeNeve sought to vacate the award under So.2d 581, 587 (Fla. 1st DCA 1985). section 682.13(1)(c), which provides that a "court shall vacate an award when . . . [t]he In arbitration cases, the waiver issue arbitrators or the umpire in the course of her typically arises where a party to an arbitration or his jurisdiction exceeded their powers." An agreement actively litigates in circuit court and arbitrator exceeds her power when she "`goes fails to timely demand arbitration. The issue in beyond the authority granted by the parties or those cases is whether the party's conduct was the operative documents and decides an issue sufficient to waive its right to later compel not pertinent to the resolution of the issue arbitration. A number of Florida courts have submitted to arbitration.'" Commc'ns Workers held that an implied waiver occurs under those of Am., 888 So.2d at 99 (quoting facts because active participation in a circuit Schnurmacher, 542 So.2d at 1329). However, court lawsuit is "generally presumed to be unlike a court's subject matter jurisdiction inconsistent with the intent to arbitrate." E.g., which cannot be conferred by the parties, an Doctors Assocs., Inc. v. Thomas, 898 So.2d arbitrator's jurisdiction 159, 162 (Fla. 4th DCA 2005).
[908 So.2d 535] This case is different. The issue here is whether a non-signatory to an arbitration derives from the parties' agreement and can agreement waived his right to litigate in circuit broaden during the course of arbitration "by court by actively participating in an waiver, failure to object and consent." See City arbitration. Nevertheless, "[j]ust as a party of West Palm Beach v. Palm Beach County who has a right to arbitration can waive that Police Benev. Ass'n, 387 So.2d 533, 534 (Fla. right by participating in a judicial proceeding, 4th DCA 1980). so can a party having a right to a judicial determination of an arbitrable issue waive that The trial court found that LeNeve "waived right by participating in arbitration." Victor v. his right to litigate in court." Competent Dean Witter Reynolds, Inc., 606 So.2d 681, substantial evidence supports this conclusion. 686 (Fla. 5th DCA 1992); Palm Beach County Police Benev. Ass'n, 387 So.2d at 534; Harris To determine whether a "waiver" has v. Haught, 435 So.2d 926, 928 (Fla. 1st DCA occurred in connection with an arbitration, 1983). Florida courts apply the "general definition of waiver." See Raymond James Fin. Servs., Inc. Here, the arbitration panel had v. Saldukas, 896 So.2d 707, 711 (Fla.2005). jurisdiction to award damages against LeNeve. Waiver is "the voluntary and intentional LeNeve authorized his attorney to pursue his relinquishment of a known right or conduct individual claims in the arbitration which implies the voluntary and intentional proceeding. The panel gave LeNeve the chance relinquishment of a known right." Id. Breaking to opt out of the arbitration, but he chose not down waiver into elements, this court has to do so. While LeNeve had the right to litigate recognized that three circumstances give rise partnership-related claims in circuit court, he to a waiver: (1) the existence of a right which expressed his intent to waive that right may be waived; (2) actual or constructive through his letter to the panel "confirm[ing knowledge of the right; and (3) the intent to his] waiver of his right to submit his claims in relinquish the right. E.g., Capital Bank v. an alternative forum." Even assuming, as Needle, 596 So.2d 1134, 1138 (Fla. 4th DCA LeNeve argues, that the letter waiver extended 1992). Proof of these elements "may be only to his own counterclaims against Via -4-
LeNeve v. Via South Florida, LLC, 908 So.2d 530 (Fla. App., 2005)
South, his active participation in the arbitration for approximately six months while Via South prosecuted claims against him Notes: constituted an implied waiver of his remaining circuit court rights. 1. The counterclaims asserted by Indiantown Partners, L & G, and LeNeve Finally, we reject LeNeve's claim that the sought relief against some non-parties who arbitration was void because Indiantown were not bound to arbitrate under the Realty Partnership failed to obtain relief from partnership agreement. The other non-parties the automatic stay provision of 11 U.S.C. § refused to consent to the panel's jurisdiction 362(a)(1). The stay had no effect on the and were not required to arbitrate. proceedings in this ------[908 So.2d 536] case. The action against LeNeve was not an action "against the debtor" within the meaning of the statute. See Carley Capital Group v. Fireman's Fund Ins. Co., 889 F.2d 1126, 1127 (D.C.Cir.1989); Fla. E. Dev. Co., Inc. of Hollywood v. Len-Hal Realty, Inc., 636 So.2d 756, 758 (Fla. 4th DCA 1994). Because Via South owned 99% of Indiantown Realty Partnership, it did not seek damages against the partnership. After the initial ruling of the arbitration panel, the partnership's interest became aligned with Via South in securing damages from L & G and LeNeve. Also, a number of federal courts have recognized that "[t]he automatic stay is for the benefit of the debtor and if it chooses to ignore stay violations other parties cannot use such violations to their advantage." In re Fuel Oil Supply & Terminaling, Inc., 30 B.R. 360, 362 (Bankr.N.D.Tex.1983). Therefore, in cases where the stay applies and the debtor or its trustee chose not to invoke it, "no other party may attack any acts in violation of the automatic stay." See In re Brooks, 79 B.R. 479, 481 (9th Cir.1987).
Affirmed.
STONE and SHAHOOD, JJ., concur.
------
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Raymond James Fin. v. Saldukas, 896 So.2d 707 (Fla., 2005)
896 So.2d 707 Limited Partnership (Stesal Limited Partnership). On August RAYMOND JAMES FINANCIAL 6, 1999, Stesal Limited SERVICES, INC., et al., Petitioners, Partnership opened an account v. with Raymond James, and Steven W. SALDUKAS, et al., Saldukas transferred a personal Respondents. Roth IRA account to Raymond James. Saldukas later opened No. SC03-1610. another IRA account with Raymond James. Supreme Court of Florida. On February 21, 2002, Saldukas February 24, 2005. and a different entity, Stesal Investments, LLC (Stesal LLC),
filed an arbitration claim against Raymond James with the New [896 So.2d 708] York Stock Exchange (N.Y.SE) [sic]. The claim arose out of Burton W. Wiand and Hala A. Sandridge of allegedly improper investment Fowler, White, Boggs, Banker, P.A., Tampa, transactions in Raymond James FL, for Petitioner. accounts owned by Saldukas and Christopher T. Vernon and Benjamin C. Stesal LLC. In the statement of Iseman of Treiser, Collins and Vernon, Naples, claim, Saldukas asserted that Florida, and F. Paul Bland, Jr. of Trial Lawyers Stesal LLC, which was one of the for Public Justice, P.C., Washington, D.C., for parties making the claim, was Respondent. formerly known as Stesal Limited Partnership. WELLS, J. After the statement of claim was We have for review the decision in filed with the NYSE, Raymond Raymond James Financial Services, Inc. v. James' counsel sent a letter to Saldukas, 851 So.2d 853 (Fla. 2d DCA 2003), Saldukas' counsel disputing which certified conflict with the decisions in Saldukas' and Stesal LLC's right Lane v. Sarfati, 691 So.2d 5 (Fla. 3d DCA to arbitration and stating in part 1997), and Benedict v. Pensacola Motor Sales, that there was no agreement to Inc., 846 So.2d 1238 (Fla. 1st DCA 2003). We arbitrate have jurisdiction. See art. V, § 3(b)(4), Fla. Const. [896 So.2d 709]
FACTUAL AND PROCEDURAL this claim. Subsequently, BACKGROUND Raymond James filed a motion to dismiss the NYSE arbitration The Second District Court of Appeal set proceeding, admitting that out the facts and background of this case, Stesal Limited Partnership had stating: an account with Raymond James but asserting that Raymond Sometime before 1999, Steven James did not have an Saldukas formed an entity arbitration agreement with known as Stesal Investments either Saldukas or Stesal LLC -1-
Raymond James Fin. v. Saldukas, 896 So.2d 707 (Fla., 2005)
and that therefore neither Stesal Limited Partnership was Saldukas nor Stesal LLC had not a party to the NYSE standing to seek arbitration. In arbitration proceeding or the the motion, Raymond James suit. asked the NYSE to dismiss the claim "with prejudice" because After hearing argument on the "the claim or controversy is not motion to dismiss, the trial court proper subject matter for denied the motion and ordered arbitration." In a letter sent to Raymond James to file a Saldukas' counsel with a copy of responsive pleading within ten the motion to dismiss the NYSE days. As its responsive pleading, proceeding, counsel for Raymond James filed a motion Raymond James stated: to stay litigation and compel arbitration. In that motion, [Raymond James] feels strongly Raymond James argued that the that it has no obligation to parties should be ordered to arbitrate this case. If the New arbitration even though York Stock Exchange does not Raymond James continued to grant the motion to dismiss, assert that Stesal LLC had no [Raymond James] will file a standing to bring an arbitration lawsuit to enjoin the arbitration. claim. In addition, Raymond James argued for the first time After receiving this that the question of whether correspondence, Saldukas and Stesal LLC was a proper party to Stesal LLC filed suit against the arbitration agreement Raymond James and should be determined by the VandenBerg [1] in state court on arbitrators. In opposition to this various grounds. In the motion, Saldukas and Stesal LLC complaint, Stesal LLC alleged argued that Raymond James had that it was the successor by waived its right to arbitrate by merger to Stesal Limited initially refusing to arbitrate the Partnership. In response to the claim, by repeatedly asserting complaint, Raymond James filed that Saldukas and Stesal LLC a motion to dismiss, asserting had no right to arbitrate, and by that Stesal LLC had no standing threatening a lawsuit to enjoin to bring the action because it was arbitration should Saldukas and not properly registered to Stesal LLC persist with the NYSE conduct business under the laws arbitration proceeding. After of Florida and because it was not hearing these arguments, the a customer of Raymond James. trial court denied Raymond Raymond James attached James' motion to compel various documents to its motion arbitration. to dismiss that purportedly showed that Stesal LLC was not Raymond James, 851 So.2d at 854-55. properly registered in Florida. Raymond James agreed in its Raymond James and VandenBerg2 filed motion that it had an obligation an interlocutory appeal of the trial court's to arbitrate with Stesal Limited Partnership, but it noted that [896 So.2d 710] -2-
Raymond James Fin. v. Saldukas, 896 So.2d 707 (Fla., 2005)
denial of the motion to compel arbitration. The As in our district courts, there is a conflict first issue decided by the Second District was among the federal appellate courts on this whether Raymond James waived its right to issue. The Second District, in its earlier case of arbitrate respondents' claims. The Second Donald & Co. Securities, Inc. v. Mid-Florida District held that there was sufficient evidence Community Services, Inc., 620 So.2d 192 (Fla. to support a finding that Raymond James 2d DCA 1993), followed National Foundation waived its right to arbitrate these claims. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772 (D.C.Cir.1987) (waiver may The Second District then decided a second be found absent a showing of prejudice). See issue that was argued by Raymond James, also St. Mary's Medical Center of Evansville, which was whether respondents should Inc. v. Disco Aluminum Products Co., 969 nevertheless be compelled to arbitrate because F.2d 585, 590 (7th Cir.1992). Whereas the respondents failed to prove that they were Third District in Lane followed S & H prejudiced by Raymond James' actions. The Contractors, Inc. v. A.J. Taft Coal Co., 906 Second District held that respondents were F.2d 1507 (11th Cir.1990) (showing of not required to show prejudice in order for the prejudice is required). trial court to deny the motion to compel. As to this issue, the Second District's decision The district courts are in agreement that recognized conflict with the Third District since the United States Supreme Court has not Court of Appeal's decision in Lane and with decided this issue as to the Federal Arbitration the First District Court of Appeal's decisions in Act, Florida courts are free to interpret the Benedict and Eden Owners Association, Inc. federal statute as being consistent with Florida v. Eden III, Inc., 840 So.2d 419 (Fla. 1st DCA court decisions analyzing this same issue 2003). The First and Third Districts held that under the Florida Arbitration Code. See Rosen there was a requirement for proof of prejudice v. Shearson Lehman Brothers, Inc., 534 So.2d for there to be a waiver of a right to arbitrate 1185, 1187 (Fla. 3d DCA 1988) ("We ... sufficient to deny arbitration. The Second acknowledge that federal law controls, but are District's decision is consistent with decisions nonetheless comforted by the fact that our of the Fourth District Court of Appeal in choice is consistent with the rule announced Owens & Minor Medical, Inc. v. Innovative by Florida courts in cases deciding this same Marketing & Distribution Services, Inc., 711 waiver issue under the Florida Arbitration So.2d 176 (Fla. 4th DCA 1998), and the Fifth Code."). We agree that decisions of the federal District Court of Appeal in Morrell v. Wayne circuit courts are persuasive precedent on this Frier Manufactured Home Center, 834 So.2d issue, but they are not binding. Gross v. State, 395 (Fla. 5th DCA 2003). 765 So.2d 39, 45 (Fla.2000). After conducting our own analysis of the Federal Arbitration ANALYSIS Act, we conclude that federal law is consistent with Florida arbitration and contract law on We granted jurisdiction in this case to this issue. resolve the conflict among the district courts in respect to the requirement for proof of prejudice in order for there to be a waiver of the right to arbitrate sufficient to deny a [896 So.2d 711] motion to compel arbitration. For the purpose of the resolution of this conflict, we accept the We have held that under both the Federal Second District's decision that Raymond Arbitration Act and Florida's Arbitration Code James, by its inconsistent actions, waived the there are three elements for courts to consider right to arbitrate.3 in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written -3-
Raymond James Fin. v. Saldukas, 896 So.2d 707 (Fla., 2005)
agreement to arbitrate exists; (2) whether an contractual context. The arbitrable issue exists; and (3) whether the essential question is whether, right to arbitration was waived. Seifert v. U.S. under the totality of the Home Corp., 750 So.2d 633, 636 (Fla.1999). circumstances, the defaulting We have long held that a party's contract rights party has acted inconsistently may be waived by actually participating in a with the arbitration right. See lawsuit or taking action inconsistent with that Cornell, 360 F.2d at 513. right. Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 680 (Fla.1973). Therefore, we conclude that the conflict among the district courts should be resolved in In our decisions we have not held that accord with the Second District's decision that there is a requirement for proof of prejudice in there is no requirement for proof of prejudice order for there to be an effective waiver of the in order for there to be an effective waiver of right to arbitrate. We have defined "waiver" as the right to arbitrate. the voluntary and intentional relinquishment of a known right or conduct which implies the Arbitration is a valuable right that is voluntary and intentional relinquishment of a inserted into contracts for the purpose of known right. Major League Baseball v. enhancing the effective and efficient Morsani, 790 So.2d 1071, 1077 n. 12 resolution of disputes. Arbitration provisions (Fla.2001). This general definition of waiver is are generally favored by the courts. Seifert, applicable to a right to arbitrate. We agree with 750 So.2d at 636. However, an arbitration Judge Mikva's opinion in National right must be safeguarded by a party who seeks Foundation for Cancer Research, 821 F.2d at to rely upon that right and the party must not 774: act inconsistently with the right.
We cannot agree that any of We approve the decision of the Second these points justify a reversal of District and remand for further proceedings in the district court's decision. The the trial court. We disapprove Lane and right to arbitration, like any Benedict to the extent that those decisions contract right, can be waived. conflict with our decision in this case. See [Cornell & Co. v. Barber & Ross Co., 360 F.2d 512, 513 It is so ordered. (D.C.Cir.1966)]. The Supreme Court has made clear that the PARIENTE, C.J., and ANSTEAD, LEWIS, "strong federal policy in favor of QUINCE, CANTERO, and BELL, JJ., concur. enforcing arbitration
agreements" is based upon the enforcement of contract, rather ------than a preference for arbitration as an alternative dispute
resolution mechanism. [Dean Witter Reynolds, Inc. v. Byrd, Notes: 470 U.S. 213, 218-24, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985)]. 1. Richard VandenBerg, a petitioner in Thus, the question of whether this Court, was the Raymond James account there has been waiver in the representative for the Saldukas accounts. arbitration agreement context should be analyzed in much the 2. In a footnote in their brief, petitioners same way as in any other assert that petitioner VandenBerg did not take -4-
Raymond James Fin. v. Saldukas, 896 So.2d 707 (Fla., 2005)
any action and was not a party in the New York Stock Exchange proceedings. The Second District did not address whether VandenBerg acted inconsistently with the right to arbitrate. Since the district court did not address this issue in respect to VandenBerg, we do not review this issue.
3. We decline to review this issue.
------
-5-
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Vitale, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellants. Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Rafferty E. Taylor and Martin D. Stern of Hinshaw & Culbertson, Fort... 3. Versailles Sur La Mer Condo. Ass'n, Inc. v. Lexington Ins. Co. (M.D. Fla., 2018) July 24, 2018 REPORT AND RECOMMENDATION This case came on for consideration of Plaintiff's Amended Motion to Stay Action and Compel Appraisal (Doc. 17). Defendant has filed a memorandum in opposition to the motion (Doc. 19) and the matter has been referred to me. Upon review of the facts and the law, I respectfully recommend that the motion be denied. Background This is an insurance dispute over property damage to a condominium (the "Property"). Defendant, Lexington Insurance Company issued first-party... 4. Lucky Star Horses, Inc. v. Diamond State Ins. Co., 233 So. 3d 1159 (Fla. App., 2017) November 1, 2017 Lopez & Best, and Virginia M. Best, for appellants. Cole Scott & Kissane, and Scott A. Cole and Lissette Gonzalez, for appellee. Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ. SALTER, J. This is an appeal from a non-final order granting the appellee/insurer's motion to stay a circuit court case and to compel arbitration. The two appellants/insureds, Lucky Star Horses, Inc. ("Lucky Star"), and Marlen Fundora, 1 claimed coverage and insurance benefits under an "Equine Mortality Policy"... 5. Chaikin v. Parker Waichman LLP (Fla. App., 2017) October 11, 2017 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Lee County; Jay B. Rosman, Judge. Traci T. McKee and Kyle C. Dudek of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellant. Alan J. Kluger, Michael T. Landen, and Christina M. Himmel of Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Miami, for Appellees. LaROSE, Chief Judge. Jordan L. Chaikin appeals a nonfinal order granting a... 6. Dominicana v. Chemo Int'l, Inc. (11th Cir., 2017) September 1, 2017 [DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 1:13-cv-22267-DLB Appeal from the United States District Court for the Southern District of Florida Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. PER CURIAM:...... I. This appeal comes before us on the issue of whether the district court committed clear error when it found that Defendant-Appellant Chemo International, Inc. ("Chemo"), waived its right to collect underpaid commissions owed to it by Plaintiff-Appellee... 7. Fritz v. Fritz, 219 So.3d 234 (Fla. App., 2017) May 17, 2017 Joel S. Perwin, P.A., and Joel S. Perwin ; Trembly Law Firm, and Fred Viera, for appellant. Homer Bonner Jacobs, and Peter W. Homer and Christopher J. King, for appellees. Before ROTHENBERG, SALTER, and FERNANDEZ, JJ. ROTHENBERG, J. These consolidated appeals stem from a dispute between five siblings—James Louis Fritz, Jennifer Floyd, 1 John Calvin Fritz, Jeffrey Errol Fritz, and Jack Steven Fritz. In case number 3D16–479, James appeals from the trial court's order granting summary judgment in... 8. In re Print Harmony, LLC, 567 B.R. 632 (Bankr. M.D. Fla., 2017) April 4, 2017 [567 B.R. 633] Charles W Gerdes, Esq., Keane, Reese, & Vesely & Gerdes, PA, Counsel for the Debtor Michael C. Markham, Esq., Angelina E. Lim, Esq., Johnson, Pope, Bokor, Ruppel & Burns, LLP, Counsel for Rubin Automobile Boulevard, LLC [567 B.R. 634] ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW Michael G. Williamson, Chief United States Bankruptcy Judge The Debtor leased commercial space from Rubin Automobile Boulevard, LLC under a triple net lease. Rubin filed a proof of claim in this case... 9. Timber Pines Plaza, LLC v. Zabrzyski, 211 So. 3d 1147 (Fla. App., 2017) March 10, 2017 Randall P. Mueller and Michael P. Quinn, of Carey, O'Malley, Whitaker & Mueller, P.A., Tampa, for Appellant. George G. Angeliadis, of The Hogan Law Firm, Spring Hill, for Appellees. WALLIS, J. Timber Pines Plaza, LLC ("Timber Pines"), appeals the trial court's order denying its motion to compel arbitration on a counterclaim brought by Richard Zabrzyski and Grazyna B. Machnik (collectively, "Appellees"). For reasons that follow, we reverse the trial court's order and remand with instructions to... 10. McAdoo v. New Line Transp., LLC (M.D. Fla., 2017) March 9, 2017 ORDER BEFORE THE COURT is Defendants' Motion to Dismiss Plaintiffs' Amended Complaint and Compel Arbitration, opposed by Plaintiffs (Dkts. 19, 23). Defendants' motion is GRANTED. I. BACKGROUND Plaintiffs and Defendant New Line Transport, LLC are signatories to respective contracts entitled "Sale and Agreement to Enter into Owner Operator Agreement" and "Owner Operator Agreement." (Dkts. 19-1 to 19-6). The owner operator agreement for each Plaintiff provides: Any dispute arising out of or... 11. In re Progressive Plumbing, Inc. (Bankr. M.D. Fla., 2016) September 20, 2016 Chapter 11 MEMORANDUM OPINION GRANTING MOTION FOR RELIEF FROM STAY Allied World Specialty Insurance Company ("Allied") provided surety bonds to insure performance and payment for commercial plumbing jobs undertaken by the Debtor, Progressive Plumbing, Inc. ("Progressive"). Two of the bonded projects involved the same general contractor, The Evergreen Construction Corporation. 1 One project was located in Atlanta and, due to Progressive's inability to complete the job, Allied paid others to... 12. Fla. Ins. Guaranty v. Monaghan, 167 So.3d 511 (Fla. App., 2015) June 26, 2015 [167 So.3d 511] G. William Bissett, Jr., of Kubicki Draper, PA, Miami, for Appellant. Robert E. Biasotti, of Biasotti and Associates, St. Petersburg, for Appellees. Opinion PER CURIAM. The Florida Insurance Guaranty Association (FIGA) appeals the non-final order compelling it to participate in an appraisal to determine the amount of loss the insureds, Martin and Claudia Monaghan, suffered as the result of sinkhole activity on their property. 1 FIGA argues that the order compelling appraisal... 13. Pratts v. Ares On Fowler, LLC (M.D. Fla., 2015) June 3, 2015 ORDER 1 This matter comes before the Court on Defendant's Amended Motion to Compel Arbitration and to Stay or Dismiss Proceedings (Doc. #9) filed on May 8, 2015. Plaintiff failed to file a response in opposition, and the time to do so has now expired. The matter is ripe for review. Background Plaintiff Griselle M. Pratts is a former entertainer and exotic dancer. (Doc. #1 at 1). Defendant Ares on Fowler is a limited liability company who operates an adult entertainment club in Fort Myers,... 14. Advance Indus. Coating, LLC v. Westfield Ins. Co. (M.D. Fla., 2015) April 16, 2015 ORDER 1 This matter comes before the Court on Defendant Westfield Insurance Company's Motion to Stay Pending Resolution of Arbitration Proceedings ( Doc. #9 ) filed on March 31, 2015. Plaintiff Advance Industrial Coating, LLC filed a response in opposition on April 14, 2015. ( Doc. #10 ). This matter is ripe for review. Background Plaintiff Advance Industrial Coating, LLC ("AIC") initiated this action by filing a Complaint on Public Construction Bond against Defendant Westfield Insurance... 15. Fla. Ins. Guaranty Ass'n, Inc. v. Waters, 157 So.3d 437 (Fla. App., 2015) February 6, 2015 [157 So.3d 438] G. William Bissett, Jr. of Kubicki Draper, PA, Miami, for Appellant. George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, and Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O'Lakes, for Appellee. Opinion SILBERMAN, Judge. Florida Insurance Guaranty Association, Inc. (FIGA), appeals a nonfinal order that compels an appraisal for Darlene Waters' sinkhole claim. Based on this court's recent decision in Florida Insurance Guaranty Ass'n v. de la Fuente, ––– So.3d... 16. Fla. Ins. Guar. v. Sill (Fla. App., 2014) December 12, 2014 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Non-Final Appeal from the Circuit Court for Hernando County, Richard Tombrink, Jr., Judge. Henry G. Gyden and Dorothy V. DiFiore, of Haas, Lewis, DiFiore, P.A., Tampa, for Appellant. John M. Byrne, of Bryne Law Firm, Tampa, for Appellees. ON MOTION FOR REHEARING ORFINGER, J. We grant the motion for rehearing, withdraw our prior opinion and substitute this opinion in its stead. The Florida Insurance... 17. Fla. Ins. Guaranty v. Sill, 154 So.3d 422 (Fla. App., 2014) December 12, 2014 [154 So.3d 423] Henry G. Gyden and Dorothy V. DiFiore, of Haas, Lewis, DiFiore, P.A., Tampa, for Appellant. John M. Byrne, of Bryne Law Firm, Tampa, for Appellees. ON MOTION FOR REHEARING ORFINGER, J. We grant the motion for rehearing, withdraw our prior opinion and substitute this opinion in its stead. The Florida Insurance Guaranty Association (“FIGA”) 1 appeals a non-final order, compelling it to participate in an appraisal in its sinkhole insurance dispute with Kenneth and Kathryn Sill.... 18. Czopek v. TBC Retail Grp., Inc. (M.D. Fla., 2014) November 6, 2014 ORDER This matter comes before the Court upon the Defendant's Motion to Compel Arbitration for Opt-In Plaintiffs Keith Sharpe and John McClelland (Doc. 16), Plaintiffs' Response thereto (Doc. 24), and Defendant's Reply (Doc. 47). In the motion, Defendant states that opt-in Plaintiffs Keith Sharpe and John McClelland have executed binding arbitration agreements which prevent them from participating in this lawsuit. Plaintiffs argue that the arbitration agreements should not be enforced because... 19. Fla. Ins. Guar. v. Reynolds (Fla. App., 2014) October 17, 2014 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Non-Final Appeal from the Circuit Court for Hernando County, Richard Tombrink, Jr., Judge. Diane H. Tutt and Hinda Klein, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellant. Robert E. Biasotti, of Biasotti and Associates, St. Petersburg, for Appellees. ORFINGER, J. The Florida Insurance Guaranty Association ("FIGA") 1 appeals a non-final order, compelling... 20. Fla. Ins. Guar. v. Rodriguez (Fla. App., 2014) October 17, 2014 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Non-Final Appeal from the Circuit Court for Hernando County, Richard Tombrink, Jr., Judge. Diane H. Tutt and Hinda Klein, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellant. George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa; Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O'Lakes, for Appellees. ORFINGER, J. The Florida Insurance... 21. Fla. Ins. Guar. v. Maroulis (Fla. App., 2014) October 17, 2014 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Non-Final Appeal from the Circuit Court for Hernando County, Richard Tombrink, Jr., Judge. Diane H. Tutt and Hinda Klein, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellant. George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa; Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O'Lakes, for Appellees. ORFINGER, J. The Florida Insurance... 22. Fla. Ins. Guar. v. Sill (Fla. App., 2014) October 17, 2014 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Non-Final Appeal from the Circuit Court for Hernando County, Richard Tombrink, Jr., Judge. Henry G. Gyden and Dorothy V. DiFiore, of Haas, Lewis, DiFiore, P.A., Tampa, for Appellant. John M. Byrne, of Bryne Law Firm, Tampa, for Appellees. ORFINGER, J. The Florida Insurance Guaranty Association ("FIGA") 1 appeals a non-final order, compelling it to participate in an appraisal in its sinkhole insurance... 23. Fla. Ins. Guaranty v. Rodriguez, 153 So.3d 301 (Fla. App., 2014) October 17, 2014 [153 So.3d 302] Diane H. Tutt and Hinda Klein, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellant. George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa; Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O'Lakes, for Appellees. Opinion ORFINGER, J. The Florida Insurance Guaranty Association (“FIGA”) 1 appeals a non-final order, compelling it to participate in an appraisal in its sinkhole homeowner's insurance dispute with... 24. Fla. Ins. Guaranty v. Maroulis, 153 So.3d 298 (Fla. App., 2014) October 17, 2014 [153 So.3d 299] Diane H. Tutt and Hinda Klein, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellant. George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa; Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O'Lakes, for Appellees. Opinion ORFINGER, J. The Florida Insurance Guaranty Association (“FIGA”) 1 appeals a non-final order, compelling it to participate in an appraisal in its sinkhole homeowner's insurance dispute with... 25. Fla. Ins. Guaranty Ass'n v. Santos, 148 So.3d 837 (Fla. App., 2014) October 17, 2014 [148 So.3d 838] G. William Bissett, Jr., of Kubicki Draper, PA, Miami, for Appellant. George A. Vaka and Nancy A. Lauten, of Vaka Law Group, Tampa, and Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O'Lakes, for Appellees. Opinion ORFINGER, J. The Florida Insurance Guaranty Association (“FIGA”) 1 appeals a non-final order, compelling it to participate in an appraisal in its sinkhole insurance dispute with Fernando and Ana Santos. FIGA contends that appraisal is inappropriate under the... 26. Fla. Ins. Guaranty v. Reynolds, 148 So.3d 840 (Fla. App., 2014) October 17, 2014 [148 So.3d 840] Diane H. Tutt and Hinda Klein, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Schefer, P.A., Hollywood, for Appellant. [148 So.3d 841] Robert E. Biasotti, of Biasotti and Associates, St. Petersburg, for Appellees. Opinion ORFINGER, J. The Florida Insurance Guaranty Association (“FIGA”) 1 appeals a non-final order, compelling it to participate in an appraisal in its sinkhole homeowner's insurance dispute with Frank and Tracey Reynolds. FIGA contends that the... 27. Kirsch v. Brightstar Corp. (N.D. Ill., 2014) October 10, 2014 Chief Judge Rubén Castillo MEMORANDUM OPINION AND ORDER Plaintiff Lawrence S. Kirsch, as Shareholders' Representative of Lawrence S. Kirsch, Charles W. Kriete, Michael J. Chase, and George Puszka (collectively "Shareholders"), brings this diversity action against Brightstar Corporation ("Brightstar") alleging common law breach of contract. (R. 1, Compl.) Presently before the Court are: Plaintiff's motion to correct the record regarding whether a proper jury demand was made in this case, (R. 92,... 28. Fla. Ins. Guar. Ass'n v. Branco (Fla. App., 2014) September 19, 2014 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Non Final Appeal from the Circuit Court for Hernando County, Richard Tombrink, Jr., Judge. G. William Bissett, Jr., of Kubicki Draper, PA, Miami, for Appellant. Nancy A. Lauten and George A. Vaka, of Vaka Law Group, Tampa, and Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O'Lakes, for Appellees. ORFINGER, J. Florida Insurance Guaranty Association ("FIGA") 1 appeals an order compelling appraisal... 29. Fla. Ins. Guaranty Ass'n v. Branco, 148 So.3d 488 (Fla. App., 2014) September 19, 2014 [148 So.3d 490] G. William Bissett, Jr., of Kubicki Draper, PA, Miami, for Appellant. Nancy A. Lauten and George A. Vaka, of Vaka Law Group, Tampa, and Kenneth C. Thomas, Jr., of Marshall Thomas Burnett, Land O'Lakes, for Appellees. Opinion ORFINGER, J. Florida Insurance Guaranty Association (“FIGA”) 1 appeals an order compelling appraisal of a sinkhole loss under a homeowner's insurance policy issued to Manuel and Irma Branco. FIGA contends that the trial court erred in ordering appraisal... 30. Truly Nolen of Am., Inc. v. King Cole Condo. Ass'n, Inc., 143 So.3d 1015 (Fla. App., 2014) July 23, 2014 [143 So.3d 1016] Marlow, Adler, Abrams, Newman & Lewis, and Rosemary Wilder, Coral Gables, for appellant. Cardillo Law Firm, and Peter M. Cardillo, Tampa, for appellee. Before ROTHENBERG, LAGOA, and EMAS, JJ. ROTHENBERG, J. Truly Nolen of America, Inc. (“Truly Nolen”) appeals a trial court order finding that it waived its right to compel arbitration by filing a motion to transfer venue based on forum non conveniens while simultaneously filing a motion to compel arbitration. Because the... 31. Ryan v. LP Fort Myers, LLC (M.D. Fla., 2014) July 8, 2014 ORDER 1 This matter comes before the Court on Defendant's Motion to Dismiss, or in the Alternative, to Stay the Proceedings and Compel Arbitration and Supporting Memorandum of Law ( Doc. 9 ) filed on June 2, 2014. Plaintiff filed a response in opposition on June 16, 2014. ( Doc. 11 ). After review of the initial motion and response, the Court ordered the Parties to file a reply and sur-reply regarding one limited issue, the validity of the arbitration agreement. The Parties have done so. ( See... 32. Quality Lease & Rental Holdings, LLC v. Mobley (Tex. App., 2014) June 19, 2014 On appeal from the 329th District Court of Wharton County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Garza and Benavides Memorandum Opinion by Justice Garza These two interlocutory appeals arise from a commercial dispute involving appellees Greta Yvette Mobley, David Michael Mobley, Texas Quality Mats, LLC, Texas Quality Gate Guard Service, LLC, and Quality Lease Air Service, LLC (collectively "Mobley"). In appellate cause number 13-14-00064-CV, appellant Quality Lease... 33. Mendez v. Hampton Court Nursing Ctr., LLC, 140 So.3d 671 (Fla. App., 2014) June 4, 2014 [140 So.3d 673] Law Offices of Charles M–P George and Charles M–P George; Wadsworth Huott, LLP, and Christopher Wadsworth and Raymond Dieppa, Miami; FL; U.S.A. for appellant. Quintairos, Prieto Wood & Boyer, P.A., and Thomas A. Valdez, Tampa; Deborah L. Moskowitz, Orlando; Goldsmith & Grout, P.A., and Karen L. Goldsmith and Jonathan S. Grout, Amicus Curiae, Winter Park, for appellee. Before WELLS, LAGOA, and LOGUE, JJ. LOGUE, J. Juan Mendez, Jr. (“the son”) appeals a trial court order... 34. Branch Banking & Trust Co. v. Park Circle, LLC (M.D. Fla., 2014) May 8, 2014 ORDER 1 This matter comes before the Court on the Plaintiff, Branch Banking and Trust Company's (BB&T) Motion for Final Summary Judgment ( Doc. #39 ) filed on February 28, 2014. The Defendant, Gregory Toth filed his Response in Opposition to BB&T's Motion for Final Summary Judgment ( Doc. #47 ) on April 2, 2014. The Motion is now fully briefed and ripe for the Court's review. FACTS On December 23, 2004, the Defendant, Park Circle, LLC executed and delivered to Colonial Bank, BB&T's predecessor... 35. Wells Fargo Bank, N.A. v. Osprey Commerce Ctr., LLC (M.D. Fla., 2014) March 25, 2014 ORDER BEFORE THE COURT is Plaintiff's Motion to Strike Defendants' Jury Trial Demand and Affirmative Defenses and Incorporated Memorandum of Law, Alternative Motion for More Definite Statement (Dkt. 21), and Defendants' response in opposition (Dkt. 28). Motions to strike are generally disfavored, however, under the circumstances here Defendants have contractually waived a jury trial as well as any defenses to Plaintiff's claims arising before the execution of various agreements. Upon... 36. Falcone v. Laquer, 132 So.3d 1171 (Fla. App., 2014) February 18, 2014 Berger Singerman, and Mitchell W. Berger, Anthony Carriuolo, and Elaine Johnson, Ft.Lauderdale, for appellants. Paul Morris, for appellees. Before SHEPHERD, C.J., and SALTER and LOGUE, JJ. SALTER, J. These are consolidated appeals from non-final orders denying the appellants' motions to compel arbitration of claims asserted in the appellees' second and third amended complaints. We dismiss as moot [132 So.3d 1172] the appeal taken from the order relating to the second amended complaint. 1 We... 37. Falcone v. Laquer (Fla. App., 2014) January 8, 2014 Not final until disposition of timely filed motion for rehearing. An Appeal from the Circuit Court for Miami-Dade County, Ronald C. Dresnick, Judge. Berger Singerman, and Mitchell W. Berger, Anthony Carriuolo, and Elaine Johnson (Ft. Lauderdale), for appellants. Paul Morris, for appellees. Before SHEPHERD, C.J., and SALTER and LOGUE, JJ. SALTER, J. These are consolidated appeals from non-final orders denying the appellants' motions to compel arbitration of claims asserted in the appellees'... 38. Regions Bank v. Commonwealth Land Title Ins. Co., 977 F.Supp.2d 1237 (S.D. Fla., 2013) September 18, 2013 [977 F.Supp.2d 1242] Brian P. Yates, David Stuart Garbett, Joseph David Perkins, Gary Thomas Stiphany, Garbett, Stiphany, Allen & Roza, P.A., Miami, FL, for Plaintiff. Jeffrey Clark Schneider, Stuart Isaac Grossman, Levine Kellogg Lehman Schneider & Grossman LLP, Jezabel Llorente, Jezabel Llorente, P.A., Miami, FL, for Defendant. VERDICT AND ORDER FOLLOWING NON–JURY TRIAL ON DEFENDANT'S REFORMATION CLAIM ROBERT N. SCOLA, JR., District Judge. This case arises out of a failed plan to... 39. Caryi v. Caryi, 119 So.3d 508 (Fla. App., 2013) August 21, 2013 Charles W. Willits, Orlando, for Appellant. Mark P. Lang and Ja'Wand Joi Barkley, of Mark Lang & Associates, Winter Park, for Appellee. EVANDER, J. The former wife, Jeannette Caryi, n/k/a Jeannette Colado, appeals an order denying her motion for attorney's fees incurred [119 So.3d 509] in a post-judgment action to establish the former husband's child support obligation. The record establishes that the former husband's net income and net worth far exceed that of the former wife.... 40. Audio Visual Innovations, Inc. v. Spiessbach, 119 So.3d 522 (Fla. App., 2013) August 16, 2013 [119 So.3d 524] John D. Mullen of Phelps Dunbar LLP, Tampa, for Appellant. Ronald W. Fraley of The Fraley Firm, P.A., Tampa, for Appellee. SILBERMAN, Judge. Audio Visual Innovations, Inc. (AVI), seeks review of the order denying its motion to compel arbitration of Michael G. Spiessbach's claim for retaliatory discharge which was filed pursuant to section 440.205, Florida Statutes (2011). AVI argues that the trial court erroneously determined that arbitration would defeat the remedial purposes... 41. Cole v. Jersey City Med. Ctr., 215 N.J. 265, 72 A.3d 224 (N.J., 2013) August 14, 2013 [72 A.3d 226]... Dominick J. Bratti argued the cause for appellant (Wilentz, Goldman & Spitzer, attorneys; Mr. Bratti and Annemarie T. Greenan, Woodbridge, on the briefs). Gerald J. Resnick, Roseland, argued the cause for respondent (Resnick Law Group, attorneys). Jonathan Romberg argued the cause for amicus curiae Seton Hall Law School Center for Social Justice. Judge CUFF (temporarily assigned) delivered the opinion of the Court... [215 N.J. 268]In this appeal, we address a party's... 42. Cole v. Jersey City Med. Ctr. (N.J., 2013) August 14, 2013 SYLLABUS... (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)... Karen Cole v. Jersey City Medical Center (A-6-12) (070542)... CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court...... The issue in this appeal is whether a... 43. Caryi v. Caryi (Fla. App., 2013) August 2, 2013 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED... Appeal from the Circuit Court... for Orange County,... Robert M. Evans, Judge...... Charles W. Willits, Orlando, for Appellant... Mark P. Lang and Ja'Wand Joi Barkley, of... Mark Lang & Associates, Winter Park, for... Appellee...... EVANDER, J... The former wife, Jeannette Caryi, n/k/a Jeannette Colado, appeals an order denying her motion for attorney's fees incurred in a post- judgment action to... 44. Pearson v. Peoples Nat'l Bank, 116 So.3d 1283 (Fla. App., 2013) July 24, 2013 Bill R. Hutto of Hutto and Bodiford, Panama City, for Appellant. Richard S. Johnson, Niceville, for Appellee. [116 So.3d 1284] VAN NORTWICK, J. David Pearson appeals a non-final order which, on motion from Peoples National Bank, appellee, stays a declaratory action and directs the parties to arbitration. Because the Bank waived its right to compel arbitration, the non-final order under review is erroneous and must be reversed. In April 2010, Pearson and the Bank entered into a real estate sales... 45. In re Standard Jury Instructions—Contract & Business Cases, 116 So.3d 284 (Fla., 2013) June 6, 2013 Original Proceeding—Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases. Honorable Jonathan D. Gerber, Committee Chair, and Manuel Farach, Committee Vice–Chair, West Palm Beach, FL; and Brian F. Spector, Committee Vice–Chair, Miami, FL, for Petitioner. [116 So.3d 285] LEWIS, J. This matter is before the Court upon the report, recommendation and proposal of the Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases and a printed book of... 46. CSX Transp., Inc. v. Blakeslee (M.D. Fla., 2013) March 22, 2013 ORDER... THIS CAUSE is before the Court on the Report and Recommendation (Doc. 21; Report), entered by the Honorable Thomas E. Morris, United States Magistrate Judge, on November 2, 2012. In the Report, Magistrate Judge Morris recommends that the Court deny Defendants' Motion to Dismiss for Improper Venue and Forum Non Conveniens or Alternatively to Transfer or Stay (Doc. 10; Motion). On November 7, 2012, Defendants filed Defendants' Objection to Report and Recommendation as to Motion to... 47. Fifth Third Bank v. Alaedin & Majdi Invs., Inc. (M.D. Fla., 2013) February 20, 2013 ORDER ON PLAINTIFFS MOTION FOR SUMMARY JUDGMENT... This cause is before the Court on Plaintiff's Motion for Summary Judgment (Doc. 62) and Defendants' Response in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 63). This order only addresses summary judgment as to Counts III, IV, and V due to the filing of bankruptcy by defendants Alaedin & Majdi Investments, Inc. (Doc. 75). For reasons set forth below. Plaintiff's Motion for Summary Judgment as to Counts III—V is GRANTED...... 48. 13 Parcels LLC v. Laquer, 104 So.3d 377 (Fla. App., 2012) December 26, 2012 [104 So.3d 378]... Berger Singerman and Mitchell W. Berger, Fort Lauderdale, Anthony Carriuolo, and Elaine Johnson James, Fort Lauderdale, for appellants. Kobre & Kim and Matthew I. Menchel, for appellee. Before CORTIÑAS, FERNANDEZ and LOGUE, JJ. CORTIÑAS, J. Appellants, 13 Parcels, LLC, 46 NE 10th, LLC, 44 NW 11th LLC, 700 NE 1st, LLC, (collectively “appellant entities”) and Arthur Falcone (“Falcone”), were defendants in separate foreclosure actions by IberiaBank (“Iberia Lawsuits”). 1 The... 49. Ibis Lakes Homeowners Ass'n, Inc. v. Ibis Isle Homeowners Ass'n, Inc., 102 So.3d 722 (Fla. App., 2012) December 12, 2012 [102 So.3d 725]... Timothy W. Schulz of Timothy W. Schulz, P.A., West Palm Beach, for appellant. David W. Craft of David W. Craft, P.A., West Palm Beach, for appellee. GROSS, J... Appellant Ibis Lakes (“Lakes”), a homeowner's association, appeals the non-final order of the trial court granting Appellee Ibis Isle's (“Isle”) motion to compel arbitration. We affirm, holding that an arbitrable issue existed and that the circuit court did not err in finding that Isle had not waived arbitration.... 50. Roger E. Freilich, D.M.D., P.A. v. Shochet, 96 So.3d 1135 (Fla. App., 2012) September 12, 2012 [96 So.3d 1137]... Adam T. Rabin and Evan H. Frederick, West Palm Beach, for appellants.Randall M. Shochet of the Shochet Law Group, Greenacres, for appellees.WARNER, J... The appellant filed a complaint to disqualify appellee's attorney from representation of appellee in a pending arbitration proceeding. Appellee moved to compel arbitration of the claim. In this appeal from the trial court's order compelling arbitration, the appellant claims that the appellee waived the right to arbitrate the... © 1999-2019 Fastcase, Inc. Privacy Policy | Terms of Service | Scope of Coverage Authority Check Report Generated on February 7, 2019
Winans v. Weber, 979 So.2d 269 (Fla. App., 2007)
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1 to 15 of 15 results 1. City of Dania Beach v. Zipoli, 204 So.3d 52 (Fla. App., 2016) October 10, 2016 [204 So.3d 53] George W. Boring, III, Public Entity Legal Solutions, Lake Mary, for Appellants. Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee. PER CURIAM. In this workers' compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) finding that it was estopped from asserting a statute of limitations defense against the Claimant's request for benefits. Because the elements of estoppel were not established in this case, we... 2. Kolb v. Acra Control, Ltd. (4th Cir., 2015) November 20, 2015 UNPUBLISHED Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:12-cv-02782-PWG) Before KING, KEENAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Ian Andrew Cronogue, MURRAY, CRONOGUE & WERFEL, P.L.C., Alexandria, Virginia, for Appellant. Howard Ross Feldman, WHITEFORD, TAYLOR & PRESTON L.L.P., Baltimore, Maryland, for Appellees. ON BRIEF: Richard Murray, MURRAY, CRONOGUE & WERFEL, P.L.C.,... 3. Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670 (Fla. App., 2014) April 1, 2014 [136 So.3d 673] Kara Berard Rockenbach and Kristi Bergemann Rothell of Methe & Rockenbach, P.A., West Palm Beach, for Petitioner. Amy S. Farrior and Raymond T. Elligett, Jr. of Buell & Elligett, P.A., Tampa; and Michael A. Giasi and Matthew R. Danahy of Danahy & Murray, P.A., Tampa, for Respondent. BLACK, Judge. Citizens Property Insurance Corporation (“Citizens”) seeks certiorari review of the trial court's order denying it a stay pending neutral evaluation of the sinkhole claim... 4. Citizens Prop. Ins. Corp. v. Trapeo (Fla. App., 2014) January 31, 2014 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED Petition for Writ of Certiorari to the Circuit Court for Pasco County; Stanley R. Mills, Judge. Kara Berard Rockenbach and Kristi Bergemann Rothell of Methe & Rockenbach, P.A., West Palm Beach, for Petitioner. Amy S. Farrior and Raymond T. Elligett, Jr. of Buell & Elligett, P.A., Tampa; and Michael A. Giasi and Matthew R. Danahy of Danahy & Murray, P.A., Tampa, for Respondent. BLACK, Judge. Citizens Property... 5. Britt Green Trucking, Inc. v. FedEx Nat'l, LTL, Inc. (M.D. Fla., 2013) November 15, 2013 ORDER This cause comes before the Court for consideration of Plaintiffs Britt Green Trucking, Inc. and Lanny D. Whitson's ("Plaintiffs") Motion for Class Certification (Doc. # 134) filed on July 15, 2013. Defendant FedEx National, LTL, Inc. ("FedEx") filed a response in opposition (Doc. # 137) on August 1, 2013. On August 14, 2013, Plaintiffs filed a reply memorandum in support of their Motion. (Doc. # 140). On October 21, 2013, Plaintiffs filed a supplemental memorandum in support of their... 6. Tara Woods Spe, LLC v. Cashin, 116 So.3d 492 (Fla. App., 2013) July 15, 2013 [116 So.3d 494] Jody B. Gabel and J. Allen Bobo of Lutz, Bobo, Telfair, Eastman, Gabel & Lee, Sarasota, for Appellant. Robert B. Burandt of Burandt, Adamski & Feichthaler, PL, Cape Coral, for Appellee. BLACK, Judge. Tara Woods SPE, LLC, appeals the final judgment and supplemental final judgment entered in favor of Louella Cashin. Collectively, the judgments interpret provisions of Florida's Mobile Home Act, chapter 723, Florida Statutes (2007), and permit Ms. Cashin to rescind her lease... 7. Alzheimer's Inst. of Am., Inc. v. Avid Radiopharmaceuticals, 952 F.Supp.2d 740 (E.D. Pa., 2013) July 1, 2013 [952 F.Supp.2d 743] Keith R. Dutill, Joseph J. McHale, Stradley, Ronon, Stevens & Young, LLP, Malvern, PA, Ameer Gado, J. Bennett Clark, Bryan Cave LLP, St. Louis, MO, Berrie R. Goldman, Lee Marshall, Bryan Cave LLP, San Francisco, CA, Michelle Orloski, Stradley Ronon Stevens Young, Philadelphia, PA, for Plaintiff. Charles S. Marion, Stephen G. Harvey Pepper Hamilton LLP, Joseph Lucci, James Vaughn Spencer, Jordan Jonas Oliver, Woodcock Washburn LLP, Philadelphia, PA, Charles E. Lipsey, L.... 8. In re Standard Jury Instructions—Contract & Business Cases, 116 So.3d 284 (Fla., 2013) June 6, 2013 Original Proceeding—Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases. Honorable Jonathan D. Gerber, Committee Chair, and Manuel Farach, Committee Vice–Chair, West Palm Beach, FL; and Brian F. Spector, Committee Vice–Chair, Miami, FL, for Petitioner. [116 So.3d 285] LEWIS, J. This matter is before the Court upon the report, recommendation and proposal of the Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases and a printed book of... 9. Tara Woods SPE, LLC v. Cashin (Fla. App., 2013) May 24, 2013 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED... Appeal from the Circuit Court for Lee... County; Sherra Winesett, Judge...... Jody B. Gabel and J. Allen Bobo of Lutz,... Bobo, Telfair, Eastman, Gabel & Lee,... Sarasota, for Appellant...... Robert B. Burandt of Burandt, Adamski &... Feichthaler, PL, Cape Coral, for Appellee...... BLACK, Judge... Tara Woods SPE, LLC, appeals the final judgment and supplemental final judgment entered in favor of Louella... 10. Zakhary v. Raymond Thompson PSM, Inc., 93 So.3d 1148 (Fla. App., 2012) August 1, 2012 Steven L. Brannock and Maegen P. Luka of Brannock & Humphries, Tampa, for Appellants.Scott A. Cole and Kristen A. Tajak of Cole Scott & Kissane, P.A., Miami, for Appellees.ALTENBERND, Judge... Atef Zakhary, M.D., and Heba Zakhary, his wife (“the Zakharys”), appeal a final summary judgment in their action against Raymond Thompson PSM, Inc.; its employee, Eric Blackburn; and Raymond Thompson individually (collectively “Raymond Thompson”). We reverse and remand for further proceedings. The... 11. Fifth Third Bank v. Alaedin & Majdi Invs., Inc. (M.D. Fla., 2012) April 4, 2012 ORDER ON PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES... This cause is before the Court on Plaintiff's Motion to Strike Affirmative Defenses (Doc. 12) and Defendants' Response in Opposition to Plaintiff's Motion to Strike Affirmative Defenses (Doe. 23). For the reasons set forth below, Plaintiff s Motion to Strike Affirmative Defenses is GRANTED IN PART and DENIED IN PART... PROCEDURAL HISTORY... On September 28. 201 L Plaintiff Fifth Third Bank ("Lender") filed a Complaint (Doc. 1)... 12. Socas v. Northwestern Mut. Life Ins. Co., 829 F.Supp.2d 1262 (S.D. Fla., 2011) November 2, 2011 [829 F.Supp.2d 1263] Kirk W.B. Wagar, Wagar Murray & Feit, Coconut Grove, FL, Edward Philip Dabdoub, Wagar Law, P.A., Miami, FL, for Plaintiff.Dario Antonio Perez, Jr., Shutts & Bowen, Miami, FL, Diane J. Zelmer, Vezina Lawrence & Piscitelli, Fort Lauderdale, FL, for Defendant.ORDER GRANTING DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENTANDREA M. SIMONTON, United States Magistrate Judge. Presently pending before the Court is Defendant's Motion for Final Summary Judgment (DE # 107). This case is... 13. Socas v. Northwestern Mut. Life Ins. Co. (S.D. Fla., 2011) November 2, 2011 ORDER GRANTING DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENT... Presently pending before the Court is Defendant's Motion for Final Summary Judgment (DE # 107). This case is referred to the undersigned Magistrate Judge based upon the consent of the parties (DE # 13). This motion is fully briefed (DE ## 123, 132). On November 4, 2010, the undersigned heard oral argument on the motion. Based upon a careful review of the record, after considering the arguments of counsel, and for the reasons stated... 14. Habeeb v. Linder (Fla. App., 2011) February 9, 2011 Not final until disposition of timely filed motion for rehearing... An Appeal from the Circuit Court for Miami-Dade County, Celeste Hardee Muir, Judge... Rohan Kelley (Fort Lauderdale); George Elias, Jr., for appellant... Goldman Felcoski & Stone, and Robert W. Goldman (Naples), for appellee... Before SUAREZ, ROTHENBERG, and SALTER, JJ... SALTER, J...... Richard J. Habeeb, as personal representative of the estate of Mitchell Habeeb, appeals from a summary judgment order finding that a... 15. Flagship Resort Dev. V. Interval Intern., 28 So.3d 915 (Fla. App., 2010) January 27, 2010 Flagship Resort Development Corporation ("Flagship") appeals from a final judgment granting Interval International, Inc. ("Interval") summary judgment in Flagship's action seeking a declaration that the contract between the two parties is not in force, or in the alternative, that Interval breached the implied covenant of good faith and fair dealing. Flagship further appeals from the trial court's order granting Interval leave to amend its answer to assert a claim for attorneys'... © 1999-2019 Fastcase, Inc. Privacy Policy | Terms of Service | Scope of Coverage Winans v. Weber, 979 So.2d 269 (Fla. App., 2007)
979 So.2d 269 (Emphasis added.) Subsequent provisions Gordon WINANS and Kathy Winans, of the contract stated: his wife, Appellants, v. You must submit your claims within 90 Jed P. WEBER, M.D., Appellee. days of the date of service . . . If your claim . . . No. 2D06-5581. is not submitted within these timeframes, you District Court of Appeal of Florida, will not be reimbursed for the services, and Second District. you may not charge your patient. December 14, 2007. * * * * [979 So.2d 271] You will not charge our customers Mark C. Menser, Fort Myers, for anything for the services you provide, if those Appellants. services are covered services under their benefits contract, but the applicable co-pay, Henry A. Stein of The Stein Law Group, coinsurance or deductible amount. If the P.A., St. Petersburg, for Appellee. services you provide are denied or otherwise not paid due to your failure to notify us, to file STRINGER, Judge. a timely claim, to submit a complete claim, or based on our reimbursement policies and Gordon and Kathy Winans appeal the methodologies, you may not charge your final judgment on interpleader which awarded patient. Jed Weber, M.D., the full amount of his bill for medical services rendered. Because the trial (Emphasis added.) The contract defined court's findings are not supported by the "customer" as an "individual[ ] who [is] evidence presented at the hearing and because enrolled in benefit contracts insured or the evidence does not establish that the administered by us." Winanses waived their rights as third-party beneficiaries under the contract between Dr. Gordon Winans was involved in an auto Weber and United HealthCare, we reverse and accident in April 2003. At that time, Mr. remand for entry of judgment in favor of the Winans had health insurance through United Winanses. HealthCare and was a "customer"
The factual context of this case requires [979 So.2d 272] some explanation. In mid-2003, Dr. Weber entered into a contract with United as that term is defined in the contract between HealthCare to be a provider of medical Dr. Weber and United HealthCare. In May services to United HealthCare's customers. 2003, Mr. Winans was referred to Dr. Weber The scope of this contract was stated in the by the Winanses' attorney for treatment for the first paragraph: injuries Mr. Winans sustained in the auto accident. His treatment continued through This agreement applies to you and the 2003, 2004, and 2005. services you provide in all of your practice arrangements and for all of your tax Shortly after Mr. Winans began treating identification numbers, except if your services with Dr. Weber, the Winanses' attorney sent are covered under an agreement between us Dr. Weber a Letter of Protection ("LOP") and a medical group that you are part of. concerning the medical bills being incurred by Mr. Winans. This LOP specifically required Dr. Weber to submit bills for Mr. Winans'
-1- Winans v. Weber, 979 So.2d 269 (Fla. App., 2007)
treatment to Mr. Winans' health insurer "in When the parties could not amicably the event there is available insurance coverage resolve the dispute over these funds, the that your office accepts." The LOP stated that Winanses' attorney paid the disputed funds if the bills were submitted to the insurance into the court registry. Dr. Weber and the carrier and if those bills were not paid, then the Winanses then filed competing motions for bills would be paid from the proceeds of the disbursement of the funds in the court settlement. registry. The trial court held an evidentiary hearing on the motions. At some point after Dr. Weber received the LOP, his office stamped the LOP with an At that hearing, Mr. Winans testified that addendum which read, in full, when he first visited Dr. Weber, he told Dr. Weber's office staff that he had United "Jed. P. Weber, M.D., Neurosurgery HealthCare insurance. Mr. Winans testified Consultants, L.L.C." is not contracted with any that he was told on several occasions by Dr. insurance companies. Therefore, Provider will Weber's office staff that his bills were being neither bill, nor accept payment from Health submitted to United HealthCare. Mr. Winans Insurance. Provider will rely on LOP, PIP, admitted that he signed below the stamped MedPay, and if no settlement is reached, the addendum on the LOP, but he testified that he Patient for payment. thought that Dr. Weber was still billing United HealthCare because the body of the LOP stated Mr. Winans' signature appears below this that Dr. Weber was required to bill his health stamped addendum. The addendum is not insurance carrier before he would be protected dated, and there is nothing in the record by the LOP. Nowhere did Mr. Winans testify showing when the addendum was placed on that he discussed the addendum to the LOP or the LOP or when Mr. Winans signed it. signing the addendum with his attorney. In fact, Mrs. Winans testified that the first their In keeping with the addendum, Dr. Weber attorney knew of the addendum was in July did not submit any bills for Mr. Winans' 2005 when Dr. Weber's bill was submitted to treatment to United HealthCare. Dr. Weber's him for payment out of the settlement bill for his services in treating Mr. Winans was proceeds. $28,064. It is undisputed that had Dr. Weber submitted Mr. Winans' bills to United [979 So.2d 273] HealthCare for payment, he would have received $4,167.15 in full payment for all Dr. Weber did not testify at the hearing. treatment rendered. However, his practice manager, Catherine Nicholson, testified that Dr. Weber had two Following the Winanses' settlement of separate companies set up with two separate their personal injury case, Dr. Weber sought to tax identification numbers. According to her, be paid $28,064 from the settlement proceeds Dr. Weber treated all of his nonaccident pursuant to the LOP. The Winanses contended patients under one tax identification number that Dr. Weber was not entitled to any and all of his auto accident patients under a payment because he should have submitted different tax identification number. Nicholson his bills to United HealthCare and because, testified that for all of the auto accident cases, under his contract with United HealthCare, he the patients were required to sign the was prohibited from collecting from the addendum that says that Dr. Weber would not Winanses any amounts that he should have accept health insurance. She testified that if a received under that contract. patient refused to sign, Dr. Weber would not treat that patient. Nicholson testified that Dr. Weber had not submitted any of the bills for -2-
Winans v. Weber, 979 So.2d 269 (Fla. App., 2007)
Mr. Winans' treatment to United HealthCare In this appeal, the Winanses contend that in reliance on the addendum and that the time the trial court erred in finding that Mr. Winans had now passed for the bills to be timely signed the addendum with the advice of submitted for payment. Nicholson denied that counsel because there is no evidence to she had ever told Mr. Winans that his bills support this finding. They also contend that were being submitted to United HealthCare. the trial court erred in finding that Mr. She did not address whether any other Winans' signature constituted a waiver of his member of the office staff might have told this rights as a third-party beneficiary of the to Mr. Winans. contract between Dr. Weber and United HealthCare. We agree with both points. On cross-examination, Nicholson admitted that Dr. Weber's contract with As an initial matter, the Winanses are United HealthCare stated that it applied to all correct that there is no record evidence to tax identification numbers and to all practice support the trial court's finding that Mr. arrangements. However, she also testified that Winans signed the addendum with the advice only Jed Weber, M.D., P.L., was a party to the of counsel. Mr. Winans did not testify that he contract and that Neurosurgery Consultants, ever spoke with his attorney about the matter. LLC, was not a party to the contract. Mrs. Winans testified that their attorney did not know about the addendum until after At the close of the hearing, the trial court treatment was completed. Dr. Weber did not found that there was a contract between Dr. testify, and his practice manager did not testify Weber and United HealthCare and that it on this issue. Therefore, the trial court's applied to all of the services provided by Dr. finding that Mr. Winans signed the addendum Weber under all of his tax identification after consultation with and on the advice of numbers, thus rejecting Dr. Weber's argument counsel is not supported by the evidence in the that his separate auto accident practice was record. not subject to the terms of his contract with United HealthCare. The trial court also found [979 So.2d 274] that the contract prohibited Dr. Weber from charging his patients for bills covered under Turning to the legal arguments, we agree the patients' contracts with United with the Winanses that Dr. Weber did not HealthCare. The trial court also found that Mr. prove that they waived their rights as third- Winans was a third-party beneficiary of the party beneficiaries under the contract between contract between Dr. Weber and United Dr. Weber and United HealthCare. The HealthCare. supreme court has defined a "waiver" as a voluntary and intentional relinquishment of a However, the trial court then found that known right. Raymond James Fin. Servs., Inc. Dr. Weber had explicitly stated that he did not v. Saldukas, 896 So.2d 707, 711 (Fla.2005). accept health insurance and that he had The elements that must be established to prove "chosen not to extend" insurance benefits to waiver are the existence at the time of the his patients. Based on this, the trial court waiver of a right, privilege, or advantage; the found that Mr. Winans had "cut off" his third- actual or constructive knowledge thereof; and party rights under the contract by signing an intention to relinquish that right, privilege, below the stamped addendum with the advice or advantage. Arbogast v. Bryan, 393 So.2d of counsel. Thus, the trial court found in favor 606, 608 (Fla. 4th DCA 1981) (quoting 22 Fla. of Dr. Weber and ordered the full amount of Jur.2d, Estoppel & Waiver, § 89). The element the disputed proceeds disbursed to him. of knowledge of the right is critical, and there can be no waiver without knowledge of the existence of the right or privilege to be waived. -3-
Winans v. Weber, 979 So.2d 269 (Fla. App., 2007)
Gulf Life Ins. Co. v. Green, 80 So.2d 321, 322 In this appeal, Dr. Weber contends that (Fla.1955). Similarly, there can be no waiver if the trial court did not rule on the issue of the party against whom the waiver is invoked waiver, but rather found in his favor on the did not know all of the material facts, see basis of equitable estoppel. While we do not Fireman's Fund Ins. Co. v. Vogel, 195 So.2d read the trial court's ruling this way, even if 20, 24 (Fla. 2d DCA 1967); Alston v. Alston, this were so, we would still reverse because the 960 So.2d 879, 881 (Fla. 4th DCA 2007); or evidence does not support finding an equitable was misled about the material facts, see L.R. v. estoppel. The elements that must be Dep't of Children & Families, 822 So.2d 527, established to prove an equitable estoppel are: 530 (Fla. 4th DCA 2002) (holding that there could be no waiver of grandparents' right to (1) the party against whom the estoppel is seek adoption of grandchildren when DCF had sought must have made a representation about misled the grandparents concerning their a material fact that is contrary to a position it rights); cf. Ethridge v. State, 766 So.2d 413, later asserts; (2) the party claiming estoppel 414 (Fla. 4th DCA 2000) (holding that must have relied on that representation; and defendant could not have been found to have (3) the party seeking estoppel must have waived right to assert a specific defense when changed his position to his detriment he had been specifically told that the defense was not available). [979 So.2d 275]
In this case, the trial court properly found based on the representation and his reliance that Mr. Winans had rights under the contract on it. between Dr. Weber and United HealthCare. However, the trial court's finding that Mr. Watson Clinic, LLP v. Verzosa, 816 So.2d Winans had waived those rights is not 832, 834 (Fla. 2d DCA 2002); see also supported by the evidence because there is no SourceTrack, LLC v. Ariba, Inc., 958 So.2d evidence that Mr. Winans had knowledge of 523, 526 (Fla. 2d DCA 2007); Lennar Homes, his rights when he allegedly waived them. Inc. v. Gabb Constr. Servs., Inc., 654 So.2d Instead, the evidence shows that Dr. Weber 649, 651 (Fla. 3d DCA 1995). There can be no actively misled Mr. Winans in one of two ways. estoppel when the party seeking the estoppel If Mr. Winans' testimony is to be believed, Dr. was aware of the true facts and thus was not Weber misled Mr. Winans by having his office misled by the other party's conduct. Watson staff assure him that Dr. Weber was billing Clinic, 816 So.2d at 834; Schueler v. Franke, United HealthCare for his treatment in direct 522 So.2d 904, 906 (Fla. 2d DCA 1988); contradiction to the addendum. If the Hamilton v. Corcoran, 177 So.2d 64, 65 (Fla. testimony presented by Dr. Weber is to be 2d DCA 1965); Lennar Homes, 654 So.2d at believed, Dr. Weber misled Mr. Winans by 652. falsely telling Mr. Winans that Dr. Weber was Here, Dr. Weber's claim of equitable not contracted with any health insurance estoppel fails for three reasons. First, Dr. companies. In either event, Mr. Winans' Weber failed to prove that Mr. Winans made purported waiver of his rights under the any type of representation about any material United HealthCare contract was not made fact. Instead, it was Dr. Weber who made the with knowledge of the material facts. Thus, any representation about a material fact, and that alleged waiver would be ineffective to actually representation was false. Because estoppel will waive Mr. Winans' rights under the United only lie against the party actually making the HealthCare contract. Accordingly, the trial representation, Dr. Weber has failed to court erred in finding that Mr. Winans waived establish one of the elements of estoppel. his rights and in disbursing the disputed funds to Dr. Weber. -4-
Winans v. Weber, 979 So.2d 269 (Fla. App., 2007)
In his brief, Dr. Weber takes the position 1071, 1078 (Fla.2001). Thus, a party's own that Mr. Winans' signature under the wrongful act cannot serve as the basis for a addendum constituted a "representation." claim of equitable estoppel against another. However, the record does not bear this out. Barnett & Klein Corp. v. President of Palm The stamped addendum is simply a statement Beach — A Condo., Inc., 426 So.2d 1074, 1075 made by Dr. Weber. While Mr. Winans' (Fla. 4th DCA 1983); Opler v. Wynne, 402 signature might be construed to be evidence So.2d 1309, 1311 (Fla. 3d DCA 1981). that he read the statement, there is nothing in the addendum that can be construed to make Here, Dr. Weber breached his contract that signature a representation by Mr. Winans with United HealthCare by attempting to bill that the addendum is true or that he agreed to patients covered by United HealthCare for it. Had the stamped addendum begun with "I charges covered by their policies. He also acknowledge that . . ." or "I understand that . . misled his patients concerning the existence .", then perhaps it would have been possible to construe Mr. Winans' signature as a [979 So.2d 276] representation. In the absence of such language, Dr. Weber has no basis for turning of the contract between himself and United the stamped addendum placed on the LOP by HealthCare. Dr. Weber now seeks to use these his own office staff into a representation made wrongful acts to estop the Winanses from by Mr. Winans. receiving the benefits they were entitled to under their policy with United HealthCare. Dr. Second, Dr. Weber cannot rely on Weber cannot claim detrimental reliance on equitable estoppel because he himself was his own misrepresentations and his own aware of the true facts and thus was not misled wrongful breach of his contract with United by any representation by Mr. Winans. The HealthCare. evidence established, and the trial court properly found, that Dr. Weber was aware that For these three reasons, Dr. Weber's claim he had a contract with United HealthCare that of equitable estoppel fails. Because Dr. Weber applied to all of his patients who were established neither waiver nor equitable "customers" of United HealthCare. Despite estoppel, the trial court's finding that Mr. this, Dr. Weber falsely represented that he was Winans had "cut off" his rights under the not contracted with any health insurance contract between Dr. Weber and United providers. Dr. Weber cannot seriously contend HealthCare cannot stand. Accordingly, we that he was "misled" by Mr. Winans' conduct reverse the order disbursing the disputed when Dr. Weber knew that he had a contract funds to Dr. Weber and remand for with United HealthCare and knew that Mr. disbursement of the funds to the Winanses. Winans was a "customer" of United Reversed and remanded for entry of HealthCare entitled to the benefits of that judgment in favor of the Winanses. contract. Because Dr. Weber was aware of the true facts, he is not entitled to rely on the WHATLEY and KELLY, JJ., Concur. doctrine of equitable estoppel to extricate him from his own falsehood.
Third, Dr. Weber's equitable estoppel argument flies in the face of the purpose of the doctrine. The primary purpose of the doctrine of equitable estoppel is to "prevent a party from profiting from his or her wrongdoing." Major League Baseball v. Morsani, 790 So.2d -5-
416.30 AFFIRMATIVE DEFENSE—WAIVER
(Defendant) claims that [he][she][it] did not have to (insert description of performance) because (claimant) gave up [his][her][its] right to have (defendant) perform [this] [these] obligation[s]. This is called a “waiver.”
To establish this defense, (defendant) must prove all of the following:
1. (Claimant's) right to have (defendant) (insert description of performance) actually existed;
2. (Claimant) knew or should have known [he][she][it] had the right to have (defendant) (insert description of performance); and
3. (Claimant) freely and intentionally gave up [his][her][its] right to have (defendant) (insert description of performance).
A waiver may be oral or written or may arise from conduct which shows that (claimant) gave up that right.
If (defendant) proves that (claimant) gave up [his][her][its] right to have (defendant) (insert description of performance), then (defendant) was not required to perform [this] [these] obligation[s].
SOURCES AND AUTHORITIES FOR 416.30
1. “Waiver” is the voluntary and intentional relinquishment of a known right. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005); Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009); Winans v. Weber, 979 So.2d 269, 274 (Fla. 2d DCA 2007).
2. The elements necessary to establish waiver are: the existence of a right, privilege, or advantage; the actual or constructive knowledge thereof; and an intention to relinquish that right, privilege, or advantage. Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009); Winans v. Weber, 979 So.2d 269, 274 (Fla. 2d DCA 2007).
[116 So.3d 327]
3. There can be no waiver if the party against whom the waiver is invoked did not know all of the material facts, or was misled about the material facts. Winans v. Weber, 979 So.2d 269, 274 (Fla. 2d DCA 2007); L.R. v. Dep't of Children & Families, 822 So.2d 527, 530 (Fla. 4th DCA 2002).
4. Proof of the elements of waiver may be express or implied from conduct or acts that lead a party to believe a right has been waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005); LeNeve v. Via S. Fla., L.L.C., 908 So.2d 530, 535 (Fla. 4th DCA 2005).
FORM 416.30 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—WAIVER We, the Jury, return the following verdict: 1. Did (Defendant) prove that (Claimant’s) right to have (Defendant) (insert description of performance) actually existed? YES. ……. NO. ……. If your answer to question 1 is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, please answer question 2. 2. Did (Defendant) prove that (Claimant) knew or should have known (Claimant) had the right to have (Defendant) (insert description of performance) ? YES. ……. NO. ……. If your answer to question 2 is NO, then verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, please answer question 3. 3. Did (Defendant) prove that (Claimant) freely and intentionally gave up (Claimant’s) right to have (Defendant) (insert description of performance) ? YES. ……. NO. ……. If your answer to question 3 is NO, your verdict is for (Claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 3 is YES, your verdict is for (Defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. SO SAY WE ALL, this ______day of ______, 2______. ______FOREPERSON NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction— Contract and Business 416.30 (Affirmative Defense—Waiver). From: Scott Rost To: Davis, Mikalla Cc: Dannye Mello Thompson Subject: RE: March 7 and March 8 meeting SJI Contract and Business Date: Tuesday, February 26, 2019 11:05:07 AM Attachments: image005.png
Ok thanks: Draft model verdict form for instruction 416.31: the subcommittee recommends that the word “submit” as currently appears in the first paragraph of this verdict form should be replaced with the word “substitute” for greater precision. The subcommittee also suggests to the full committee that the substantive law of Florida recognizes four elements to novation: 1. Existence of a previous contract; 2. Agreement upon a new contract; 3. Agreement to extinguish the old contract; and 4. Validity of the new contract. The subcommittee does not seek to include these elements within the verdict form but suggests that discussion of the elements of novation as stated in case law, and their recitation within the jury instruction and/or verdict form, is appropriate for discussion next month. Thank you Mikalla.
Scott R. Rost, B.C.S. SOUTH MILHAUSEN, P.A. Gateway Center 1000 Legion Place, Ste. 1200 Orlando, Florida 32801 Phone: (407) 539-1638 Fax: (407) 539- 2679 Website: www.southmilhausen.com Email: [email protected]
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IRS CIRCULAR 230 NOTICE: Pursuant to U.S. Treasury Department Regulations, we are required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular FORM 416.31 MODEL FORM OF VERDICT FOR AFFIRMATIVE DEFENSE—NOVATION
VERDICT
1. Did (defendant) prove that all parties to the contract agreed, by words or conduct, to cancel the original contract and to substitute a new contract in its place?
YES ...... NO ......
If your answer to question 1 is NO, your verdict is for (claimant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, your verdict is for (defendant) on this defense, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. [Insert further instructions regarding proceeding to additional questions, as appropriate.] NOTE ON USE
1. This model verdict form should be used in conjunction with Standard Jury Instruction—Contract and Business 416.31 (Affirmative Defense—Novation).
FORM 504.1 MODEL FORM OF VERDICT FOR INTRODUCTION TO CONTRACT DAMAGES IN CONTRACT CLAIM. NOTES ON USE The Committee at this time does not believe a verdict form is necessary for Standard Jury Instruction—Civil 504.1 (Introduction to Contract Damages).
FORM 504.2 MODEL FORM OF VERDICT FOR BREACH OF CONTRACT DAMAGES IN CONTRACT CLAIM NOTES ON USE 1. The Committee at this time does not believe a verdict form is necessary for Standard Jury Instruction—Civil 504.2 (Breach of Contract Damages). 504.3 LOST PROFITS
VERDICT
1. Did (claimant) prove that (defendant’s) actions caused (claimant) to lose profits?
YES ...... NO ......
If your answer to question 1 is NO, your verdict is for (defendant) on this claim, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, please answer question 2.
2. Did (claimant) establish the amount of (claimant’s) lost profits with reasonable certainty?
YES ...... NO ......
If your answer to question 2 is NO, your verdict is for (defendant) on this claim, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 2 is YES, your verdict is for (claimant) on this claim, and you should not proceed further except to date and sign this verdict form and return it to the courtroom.
[Insert further instructions regarding proceeding to additional questions, as appropriate.] NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Civil 504.3 (Lost Profits).
FORM 504.4 MODEL FORM OF VERDICT FOR DAMAGES FOR COMPLETE DESTRUCTION TO BUSINESS IN CONTRACT CLAIM
VERDICT
1. Did (claimant) prove that (defendant) completely destroyed (claimant’s) business?
YES ...... NO ......
If your answer to question 1 is NO, your verdict is for (defendant) on this claim, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, your verdict is for (claimant) on this claim, and you should answer question 2.
2. What was the market value of (claimant’s) business on the date it was completely destroyed?
______
You should not proceed further except to date and sign this verdict form and return it to the courtroom.
[Insert further instructions regarding proceeding to additional questions, as appropriate.] NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Civil 504.4 (Damages for Complete Destruction to Business).
2. This form should be given when the claimant seeks damages for the complete destruction of a business. If a business has not been completely destroyed, then damages based upon market value of the business are not appropriate, and this form should not be used. Instead, a form regarding 504.3 lost profits should be given. FORM 504.6 MODEL FORM OF VERDICT FOR OBLIGATION TO ONLY PAY MONEY IN CONTRACT CLAIM NOTES ON USE The Committee at this time does not believe a verdict form is necessary for Standard Jury Instruction—Civil 504.6.
FORM 504.7 MODEL FORM OF VERDICT FOR BUYER’S DAMAGES FOR BREACH OF CONTRACT FOR SALE OF REAL PROPERTY
VERDICT
1. Did (claimant) prove that (claimant) was ready, willing, and able to perform the contract?
YES ...... NO ......
If your answer to question 1 is NO, your verdict is for (defendant) on this claim, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, your verdict is for (claimant) on this claim. Please answer question 2.
2. What was the amount of payment made by (claimant) toward the purchase price plus the reasonable expenses for examining title?
______
Please proceed to question 3.
3. Did (claimant) prove that (defendant) acted in bad faith in breaching the contract or sold the property to a third-person after entering into the contract?
YES ...... NO ......
If your answer to question 3 is NO, you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 3 is YES, you should proceed to question 4.
4. What is the difference between the fair market value of the property on the date of the breach and the contract price?
______
Do not proceed further except to date and sign this verdict form and return it to the courtroom.
[Insert further instructions regarding proceeding to additional questions, as appropriate.] NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Civil 504.7 (Buyer’s Damages for Breach of Contract for Sale of Real Property).
2. This form should be given when a buyer is seeking damages as a remedy for the breach of a contract for the sale of real property. This form does not apply to claims for specific performance.
FORM 504.8 MODEL FORM OF VERDICT FOR SELLER’S DAMAGES FOR BREACH OF CONTRACT TO PURCHASE REAL PROPERTY
VERDICT
1. Did (claimant) prove that (claimant) performed or had the ability to perform all of (claimant’s) obligations necessary for closing?
YES ...... NO ......
If your answer to question 1 is NO, your verdict is for (defendant) on this claim, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, your verdict is for (claimant) on this claim and you should proceed to question 2.
2. What is the difference between the contract sales price and the fair market value of the property on the date of the breach, less any amount which (defendant) previously paid?
______
Please proceed to question 3.
3. Did (claimant) prove that (claimant) suffered additional damages that normally result from the breach of contract and were contemplated by (claimant) and (defendant) when (claimant) and (defendant) made the contract?
If your answer to question 3 is NO, you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 3 is YES, you should proceed to question 4.
4. What are the additional damages?
______
You should not proceed further except to date and sign this verdict form and return it to the courtroom.
[Insert further instructions regarding proceeding to additional questions, as appropriate.]
NOTE ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Civil 504.8 (Seller’s Damages for Breach of Contract to Purchase Real Property).
2. This form should be given when a seller is seeking damages as a remedy for the breach of a contract for the purchase of real property. This form does not apply to claims for specific performance.
FORM 504.9 FORM OF VERDICT FOR MITIGATION OF DAMAGES
VERDICT
1. Did (defendant) prove that (claimant) could have avoided damages with reasonable efforts or expenditures and failed to do so?
YES ...... NO ......
If your answer to question 1 is YES, you should proceed to question 2. If your answer to question 1 is NO, your verdict is for (claimant) on this defense, and you should proceed to question 3.
2. What is the amount of damages that (claimant) could have avoided with reasonable efforts or expenditures?
You should not proceed further except to date and sign this verdict form and return it to the courtroom.
[3. Did (claimant) prove that (claimant) made reasonable efforts to avoid damages caused by (defendant’s) breach?
YES ...... NO ......
If your answer to question is YES, you should proceed to question 4. If your answer to question is No, you should not proceed further except to date and sign this verdict form and return it to the courtroom.
4 . What is the amount of (claimant’s) reasonable expenses to avoid damages caused by (defendant’s) breach?
______
You should not proceed further except to date and sign this verdict form and return it to the courtroom.]
[Insert further instructions regarding proceeding to additional questions, as appropriate.]
NOTES ON USE 1. This model verdict form should be used in conjunction with Standard Jury Instruction—Civil 504.9 (Mitigation of Damages).
2. Instructions 3 and 4 should not be used if the claimant sought recovery for his/her/its efforts to avoid damages caused by the breach as special damages.
FORM 504.10 MODEL FORM OF VERDICT FOR PRESENT CASH VALUE OF FUTURE DAMAGES IN CONTRACT CLAIM
NOTES ON USE The Committee at this time does not believe a verdict form is necessary for Standard Jury Instruction—Civil 504.10.
FORM 504.11 MODEL FORM OF VERDICT FOR NOMINAL DAMAGES IN CONTRACT CLAIM
VERDICT
NOTES ON USE The Committee at this time does not believe a verdict form is necessary for Standard Jury Instruction—Civil 504.11. FORM 504.5 MODEL FORM OF VERDICT FOR OWNER'S DAMAGES FOR BREACH OF CONTRACT TO CONSTRUCT IMPROVEMENTS ON REAL PROPERTY
VERDICT
[Issues of contract formation and liability will be determined utilizing the appropriate interrogatory verdict questions regarding those issues]
In cases where the defendant does not contend that the damages claimed by the claimant constitute unreasonable economic waste:
2. What is the amount of damages (claimant) proved were reasonable to complete the work in accordance with the contract less the balance due under the contract?
$______
In cases where the defendant contends that the damages claimed by the claimant constitute unreasonable economic waste:
2. Did Defendant prove that any of the damages claimed by (claimant) constitute unreasonable economic waste?
YES______NO______
If your answer to question number 2 is NO, proceed to Question 3.
If your answer to question number 2 is YES, skip Question 3 and proceed to Question 4.
3. What is the amount of damages (claimant) proved were reasonable to complete the work in accordance with the contract less the balance due under the contract?
$______
Proceed to Question 4.
4.
a. For that part of the damages, if any, that DO NOT constitute unreasonable economic waste: What is the amount of damages (claimant) proved were reasonable to complete the work in accordance with the contract less the balance due under the contract?
$______
b. For that part of the damages, if any, that DOES constitute unreasonable economic waste: What is amount of damages Defendant proved recoverable by (claimant) is the difference between the fair market value of (claimant's) real property as improved and its fair market value if (defendant) had constructed the improvements in accordance with the contract, measured at the time of the breach.
$______
[Insert further instructions regarding proceeding to additional questions, as appropriate.]
NOTES ON USE
1. This model verdict form should be used in conjunction with Standard Jury Instruction--Contract and Business 504.5 (Owner's Damages for Breach of Contract to Construct Improvements on Real Property).
From: Scott Rost To: Davis, Mikalla Cc: Dannye Mello Thompson Subject: subcommittee report: restrictive covenants Date: Wednesday, February 27, 2019 3:12:33 PM Attachments: image003.png
Mikalla, please accept this report from the subcommittee considering jury instructions and verdict forms for restrictive covenants. Stephanie Serrafin advises that she will miss our upcoming meeting, as she is preparing to take the board certification exam. She requests consideration of this topic be tabled till a later meeting at which she can participate actively. However, the other member of our subcommittee, Mark Osherow, has begun drafting a proposed new set of jury instructions and verdict forms, which he has forwarded to me and which he and I have discussed. We both believe that the present drafts require considerable editing, so I do not transmit them in present form. Mark and I will be happy to discuss present status of the work he has begun, and our thoughts going forward at the meeting next week. Thank you Mikalla.
Scott R. Rost, B.C.S. SOUTH MILHAUSEN, P.A. Gateway Center 1000 Legion Place, Ste. 1200 Orlando, Florida 32801 Phone: (407) 539-1638 Fax: (407) 539- 2679 Website: www.southmilhausen.com Email: [email protected]
CONFIDENTIALITY NOTE: This electronic message is from a law firm and it may contain confidential or privileged information intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. Please reply to the sender immediately to advise of the error and then delete this transmission and any attachments.
IRS CIRCULAR 230 NOTICE: Pursuant to U.S. Treasury Department Regulations, we are required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
South Milhausen, P.A. is a debt collector and any information obtained will be used to effect the collection of the debt in accordance with the Fair Debt Collection Practices Act.
Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure. From: Lee Haas To: Davis, Mikalla Subject: RE: March 7 and March 8 meeting SJI Contract and Business Date: Tuesday, February 05, 2019 10:48:31 AM Attachments: image001.png
Mikalla,
In case I didn’t respond previously, our subcommittee reviewed caselaw and determined that a jury instruction on unclean hands was not warranted.
Lee L. Haas, B.C.S. Haas & Castillo, PLLC 19321-C U.S. Hwy 19 N, Ste. 401 Clearwater, Florida 33764 (727) 535-4544 telephone (727) 535-1855 facsimile [email protected]
Providing expert legal services to our clients since 1993.
PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally privileged. The contents of this e- mail and any attachments are intended solely for the person(s) addressed in this message, and may be subject to applicable attorney-client and/or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately notify the sender by reply e-mail and then delete this message and any attachments. Do not forward or distribute this e-mail or any of its attachments if you are not an intended recipient.
From: Davis, Mikalla
To recover damages from (defendant) for deceptive and unfair trade practices,
(claimant) must prove all of the following:
1. (Defendant) engaged in a deceptive act or unfair practice [in the conduct of his/her/its trade or commerce]; and
2. (Defendant’s) actions were the legal cause of actual damage sustained by
(Claimant).
A "deceptive act" is a misrepresentation, omission or practice that is likely to mislead a person or entity, acting reasonably in the circumstances, to the person or entity's detriment.
An "unfair practice" is one that offends established public policy and is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers. An unfair practice must satisfy three tests:
1. It must produce substantial injury to (Claimant);
2. The injury must not be outweighed by any countervailing benefit to
consumers or the competition that the practice produces; and
3. It must be an injury that (Claimant) could not have avoided.
The measure of “actual damages” is the difference between the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.
However, when the product is rendered valueless as a result of the defect, then the purchase price is the appropriate measure of actual damages. If the greater weight of the evidence does not support (Claimant’s) Deceptive and
Unfair Trade Practices claim, then your verdict should be for (Defendant) on this claim.
However, if you find that the greater weight of the evidence supports (Claimant’s) Deceptive and Unfair Trade Practices claim, then you must consider (Defendant’s) affirmative defenses.
SOURCES AND AUTHORITIES FOR 416.__
§§ 501.203(3), 501.204(1), and 501.211, Fla. Stat. (FDUTPA); Millennium Comm. &
Fulfillment, Inc. v. Office of the Attorney Gen., 761 So.2d 1256, 1263 (Fla. 3d DCA 2000)
(definition of deceptive); Samuels v King Motor Co. of Ft. Lauderdale, 782 So.2d 489, 499 (Fla.
4th DCA 2001) (definition of unfair practice); Porsche Cars N. Am., Inc. v. Diamond, 140 So.3d
1090, 1096-97 (Fla. 3d DCA 2014) (three-pronged test for unfairness); Rollins, Inc. v. Heller,
454 So.2d 580, 585 (Fla. 3d DCA 1984) (measure of actual damages).
NOTES ON USE FOR 416.__
1. Florida courts are split as to whether non-consumers have standing to sue for violation of the FDUTPA. See Democratic Republic of the Congo v. Air Capital Group, LLC,
No. 14-11243, 2015 WL 3619452, at *6 (11th Cir. June 11, 2015) (“One line of cases -- the more conservative view -- extends FDUTPA protection only to persons who were deceived when buying or selling goods and services. . . . Another line of cases, the permissive view, extends
FDUTPA protection to any person injured by a deceptive or unfair practice, regardless of whether she sustained the injury in a sale or purchase . . . . We need not referee this interpretive tussle.”). The two lines of cases emanate from a 2001 amendment to section 501.211(2), Florida
Statutes. The pre-amendment version of section 501.211(2) provided a private right of action to
“consumers,” but in 2001, the legislature changed the term “consumer” to “person.” The unresolved issue in Florida is whether the intent of the amendment was to provide business consumers with the same protections available to individual consumers, or whether the intent was to provide non-consumer businesses, such as competitors, with a cause of action.
2. Florida courts have held that the FDUTPA does not apply to an out-of-state consumer alleging conduct occurring entirely outside of Florida. See Five for Entm't S.A. v.
Rodriguez, No. 11–24142–CIV, 2012 WL 2918574, at *8 (S.D. Fla. July 9, 2012)
(citing Carnival Corp. v. Rolls–Royce PLC, No. 08–23318–CIV, 2009 WL 3861450, at *6 (S.D.
Fla.2009) (“FDUTPA applies only to actions that occurred within the state of Florida.”)); In re
NationsRent Rental Fee Litigation, No. 06–60924–CIV, 2009 WL 636188, at *5 (S.D. Fla. Feb.
24, 2009) (finding that interpreting a choice-of-law provision to provide protection under
FDUTPA to out-of-state consumers based on conduct that occurred outside of Florida would counteract Florida's public policy); Millennium Comm. & Fulfillment, Inc. v. Office of the
Attorney Gen., 761 So.2d 1256, 1262 (Fla. 3d DCA 2000) (stating that the FDUTPA “seeks to prohibit unfair, deceptive and/or unconscionable practices which have transpired within the territorial boundaries of [Florida] without limitation”). In cases in which some or all of the parties are outside of Florida, or some or all of the alleged conduct occurred outside Florida, it may be appropriate to include an instruction to the effect that “[o]nly (Defendant’s) conduct in the state of Florida should be considered for purposes of (Claimant’s) Deceptive and Unfair
Trade Practices claim.”
501.203. Definitions, FL ST § 501.203
West’s Florida Statutes Annotated Title XXXIII. Regulation of Trade, Commerce, Investments, and Solicitations (Chapters 494-560) Chapter 501. Consumer Protection (Refs & Annos) Part II. Deceptive and Unfair Trade Practices (Refs & Annos) West’s F.S.A. § 501.203
501.203. Definitions
Effective: July 1, 2017
Currentness
As used in this chapter, unless the context otherwise requires, the term:
(1) “Final judgment” means a judgment, including any supporting opinion, that determines the rights of the parties and concerning which appellate remedies have been exhausted or the time for appeal has expired.
(2) “Enforcing authority” means the office of the state attorney if a violation of this part occurs in or affects the judicial circuit under the office’s jurisdiction. “Enforcing authority” means the Department of Legal Affairs if the violation occurs in or affects more than one judicial circuit or if the office of the state attorney defers to the department in writing, or fails to act upon a violation within 90 days after a written complaint has been filed with the state attorney.
(3) “Violation of this part” means any violation of this act or the rules adopted under this act and may be based upon any of the following as of July 1, 2017:
(a) Any rules promulgated pursuant to the Federal Trade Commission Act, 15 U.S.C. ss. 41 et seq.;
(b) The standards of unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts; or
(c) Any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices.
(4) “Department” means the Department of Legal Affairs.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 501.203. Definitions, FL ST § 501.203
(5) “Order” means a cease and desist order issued by the enforcing authority as set forth in s. 501.208.
(6) “Interested party or person” means any person affected by a violation of this part or any person affected by an order of the enforcing authority.
(7) “Consumer” means an individual; child, by and through its parent or legal guardian; business; firm; association; joint venture; partnership; estate; trust; business trust; syndicate; fiduciary; corporation; any commercial entity, however denominated; or any other group or combination.
(8) “Trade or commerce” means the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.
(9) “Thing of value” may include, without limitation, any moneys, donation, membership, credential, certificate, prize, award, benefit, license, interest, professional opportunity, or chance of winning.
Credits
Laws 1973, c. 73-124, § 1; Laws 1979, c. 79-386, § 1; Laws 1990, c. 90-190, § 1; Laws 1993, c. 93-38, § 2. Amended by Laws 1997, c. 97-98, § 24, eff. July 1, 1997; Laws 2001, c. 2001-39, § 1, eff. July 1, 2001; Laws 2001, c. 2001-214, § 22, eff. July 1, 2001; Laws 2006, c. 2006-196, § 1, eff. July 1, 2006; Laws 2013, c. 2013-207, § 3, eff. July 1, 2013; Laws 2015, c. 2015-92, § 4, eff. July 1, 2015; Laws 2017, c. 2017-155, § 3, eff. July 1, 2017.
Notes of Decisions containing your search terms (0) View all 72
West’s F. S. A. § 501.203, FL ST § 501.203 Current through the 2018 Second Regular Session of the 25th Legislature. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
501.204. Unlawful acts and practices, FL ST § 501.204
KeyCite Yellow Flag - Negative Treatment Unconstitutional or PreemptedPrior Version’s Validity Called into Doubt by Cruz v. Cingular Wireless, LLC, 11th Cir.(Fla.), Aug. 11, 2011 West’s Florida Statutes Annotated Title XXXIII. Regulation of Trade, Commerce, Investments, and Solicitations (Chapters 494-560) Chapter 501. Consumer Protection (Refs & Annos) Part II. Deceptive and Unfair Trade Practices (Refs & Annos)
West’s F.S.A. § 501.204
501.204. Unlawful acts and practices
Effective: July 1, 2017
Currentness
(1) Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(2) It is the intent of the Legislature that, in construing subsection (1), due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2017.
Credits
Laws 1973, c. 73-124, § 1; Laws 1983, c. 83-117, § 1; Laws 1985, c. 85-63, § 4; Laws 1990, c. 90-190, § 2; Laws 1993, c. 93-38, § 3. Amended by Laws 2001, c. 2001-39, § 2, eff. July 1, 2001; Laws 2001, c. 2001-214, § 23, eff. July 1, 2001; Laws 2006, c. 2006-196, § 2, eff. July 1, 2006; Laws 2013, c. 2013-207, § 4, eff. July 1, 2013; Laws 2015, c. 2015-92, § 5, eff. July 1, 2015; Laws 2017, c. 2017-155, § 4, eff. July 1, 2017.
Notes of Decisions (632)
West’s F. S. A. § 501.204, FL ST § 501.204 Current through the 2018 Second Regular Session of the 25th Legislature. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
501.211. Other individual remedies, FL ST § 501.211
West’s Florida Statutes Annotated Title XXXIII. Regulation of Trade, Commerce, Investments, and Solicitations (Chapters 494-560) Chapter 501. Consumer Protection (Refs & Annos) Part II. Deceptive and Unfair Trade Practices (Refs & Annos)
West’s F.S.A. § 501.211
501.211. Other individual remedies
Effective: July 1, 2001
Currentness
(1) Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.
(2) In any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages, plus attorney’s fees and court costs as provided in s. 501.2105. However, damages, fees, or costs are not recoverable under this section against a retailer who has, in good faith, engaged in the dissemination of claims of a manufacturer or wholesaler without actual knowledge that it violated this part.
(3) In any action brought under this section, upon motion of the party against whom such action is filed alleging that the action is frivolous, without legal or factual merit, or brought for the purpose of harassment, the court may, after hearing evidence as to the necessity therefor, require the party instituting the action to post a bond in the amount which the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney’s fees. This subsection shall not apply to any action initiated by the enforcing authority.
Credits
Laws 1973, c. 73-124, § 1; Laws 1991, c. 91-220, § 37; Laws 1993, c. 93-38, § 12. Amended by Laws 2001, c. 2001-39, § 6, eff. July 1, 2001; Laws 2001, c. 2001-214, § 27, eff. July 1, 2001.
Notes of Decisions (190)
West’s F. S. A. § 501.211, FL ST § 501.211 Current through the 2018 Second Regular Session of the 25th Legislature. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
501.211. Other individual remedies, FL ST § 501.211
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
Democratic Republic of the Congo v. Air Capital Group, LLC, 614 Fed.Appx. 460 (2015) 2015 WL 3619452
614 Fed.Appx. 460 This case was not selected for publication in West’s Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally West Headnotes (6) governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S. Ct. of App. 11th Cir. Rule 36-2. [1] Antitrust and Trade Regulation United States Court of Appeals, Public entities or officials Eleventh Circuit. Brokers Actions by or against principals or brokers The DEMOCRATIC REPUBLIC OF THE CONGO, Fraud Plaintiff–Appellee, Persons entitled to sue v. AIR CAPITAL GROUP, LLC and Mario ABAD, Democratic Republic of Congo (DRC) had Defendant–Appellants. constitutional standing to bring action against broker of airline services and its chief executive No. 14–11243. officer (CEO) for breach of contract, fraud and | violations of Florida Deceptive and Unfair June 11, 2015. Trade Practices Act (FDUTPA) arising from maintenance work performed on DRC’s presidential jet; DRC was party to workscope Synopsis agreement for broker to perform maintenance Background: Democratic Republic of Congo (DRC) work on jet, logistical assistant to president of brought action against broker of airline services and its DRC had authority to sign agreement, and DRC chief executive officer (CEO) for breach of contract, paid for all work performed by broker. U.S.C.A. fraud and violations of Florida Deceptive and Unfair Const. Art. 3, § 2, cl. 1 et seq.; West’s F.S.A. §§ Trade Practices Act (FDUTPA) arising from maintenance 501.201–501.23. work performed on DRC’s presidential jet. The United States District Court for the Southern District of Florida 1 Cases that cite this headnote entered judgment after jury trial for DRC. Broker and
CEO appealed.
[2] Holdings: The Court of Appeals, Goldberg, J., held that: Antitrust and Trade Regulation Public entities or officials [1] DRC had constitutional standing to bring action; Democratic Republic of Congo (DRC) had [2] DRC had statutory standing to bring FDUTPA claims; statutory standing to bring action against broker of airline services and its chief executive officer [3] conduct of broker and its CEO violated FDUTPA; (CEO) for violations of Florida Deceptive and Unfair Trade Practices Act (FDUTPA) arising [4] broker and CEO waived right to challenge testimony of from maintenance work performed on DRC’s DRC’s damages expert; presidential jet, as it acted like private airline when it contracted with broker to perform [5] damages awarded to DRC did not constitute maintenance check and replace two engines, impermissible double recovery; and signed standard work agreement, and paid broker over six million dollars to perform work. [6] District Court properly held broker and CEO jointly West’s F.S.A. §§ 501.201–501.23. and severally liable for damages. Cases that cite this headnote Affirmed. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
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Particular cases
Damages awarded to Democratic Republic of Congo (DRC) as result of breach of contract, [3] Antitrust and Trade Regulation fraud, and violations of Florida Deceptive and Other particular practices Unfair Trade Practices Act (FDUTPA) by broker of airline services and its chief executive Conduct of broker of airline services and its officer (CEO), arising from maintenance work chief executive officer (CEO), in entering into performed on DRC’s presidential jet by broker, agreement with Democratic Republic of Congo did not constitute impermissible double (DRC) to perform maintenance work on DRC’s recovery; DRC’s recovery did not exceed its presidential jet, purchasing two engines for jet actual loss, as jury awarded amount proven as that were configured for another aircraft and damages on DRC’s breach of contract claim, were not serviceable upon delivery, allowing awarded less than proven amount of damages in two deadlines for delivery of jet to DRC to pass connection with fraud claim, and recovery under without explanation, asking DRC for more FDUTPA was permissible supplement to fraud money and allowing subcontractors to file liens recovery. West’s F.S.A. §§ 501.201–501.23. on jet, and furnishing contract upon request that suggested that broker kept double books to inflate DRC’s costs, would deceive reasonable 10 Cases that cite this headnote consumer in DRC’s circumstances, as required for violation of Florida Deceptive and Unfair Trade Practices Act (FDUTPA). West’s F.S.A. § 501.204(1). [6] Antitrust and Trade Regulation Persons liable 3 Cases that cite this headnote Fraud Persons liable
Under Florida law governing intentional torts, District Court properly held broker of airline [4] Federal Courts services and its chief executive officer (CEO) Taking case or question from jury; judgment jointly and severally liable for damages as to as a matter of law claims brought by Democratic Republic of Congo (DRC) alleging fraud and violations of Broker of airline services and its chief executive Florida Deceptive and Unfair Trade Practices officer (CEO) waived their right to challenge on Act (FDUTPA), arising from maintenance work appeal expert testimony as to Democratic performed on DRC’s presidential jet by broker. Republic of Congo’s (DRC) damages under West’s F.S.A. §§ 501.201–501.23. Florida Deceptive and Unfair Trade Practices Act (FDUTPA) arising from maintenance work performed on DRC’s presidential jet by broker, 7 Cases that cite this headnote where broker and CEO failed to challenge expert testimony as to damages in their motion for judgment as matter of law. West’s F.S.A. § 501.204(1); Fed.Rules Civ.Proc.Rule 50(a, b), 28 U.S.C.A. Attorneys and Law Firms
10 Cases that cite this headnote *462 Richard Michael Dunn, Raquel Maria Fernandez, Law Office of Cozen O’Connor, Jemaine A. Lee, Miami, FL, for Plaintiff–Appellee.
Joseph P. Klock, Jr., Juan Carlos Antorcha, Miguel [5] Antitrust and Trade Regulation Morel, Gabriel E. Nieto, Rasco Klock Perez & Nieto, Coral Gables, FL, Jay A. Gayoso, Attorney at Law, © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
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Aventura, FL, Bobbi L. Meloro, Law Office of Bobbi L. do the job, but without success. Meloro, PA, Plantation, FL, for Defendant–Appellant. Then in June 2010, Deschryver found what he thought he Appeal from the United States District Court for the was looking for. At a flat in Kinshasa (the DRC’s capital), Southern District of Florida. D.C. Docket No. Deschryver met with Stavros Papaioannou, the CEO of 1:12–cv–20607–RSR. Hewa Bora Airlines, and with two executives from ACG, Mario Abad and Jaime Sanchez. Papaioannou suggested Before MARTIN and FAY, Circuit Judges, and that ACG could do the C-check for Kabila’s 707, and * GOLDBERG, Judge. Abad agreed. Deschryver was delighted by the news, and soon after the meeting ended, Abad and Sanchez Opinion inspected the plane at the airport. Abad remarked the plane was in “good shape,” and the parties agreed that ACG would fix the 707 in Florida. GOLDBERG, Judge:
*463 Soon thereafter, Abad sent Deschryver a workscope **1 A vintage aircraft, a Miami executive, and a central agreement (the “Workscope” or “Agreement”). The African head of state. With a cast like that, one might Workscope said that ACG would perform the C-check, confuse this case for a Bond film. But the matter before us apply airworthiness directives (“ADs”) to the plane’s is no work of fiction—it is the true story of an airplane engines, and finish other tasks for a flat fee of maintenance check gone south and the weeks-long trial $2,255,872.30. Deschryver signed the Agreement for the that followed. And the star of the show is not a tuxedoed “Republic Democratic of Congo,” and he stamped the spy, but the Florida Deceptive and Unfair Trade Practices seal of the Presidency of the Republic on the signature Act (“FDUTPA”), a law that protects consumers from block. predatory business schemes. See Fla. Stat. §§ 501.201–501.23. ACG prepared its first invoice for the DRC on July 30, 2010. The DRC requested the invoices because “they The Democratic Republic of the Congo (“DRC”) sued Air needed some sort of documentation to be able to go to Capital Group, LLC (“ACG”), and its CEO, Mario Abad, their government and get payments” from the Ministry of for breach of contract, fraud, and FDUTPA violations. Finance. The DRC paid the first $1 million installment on The DRC won a jury verdict, and the defendants now July 12, and the plane arrived in Florida on July 31. appeal aspects of the judgment, including jurisdiction, their liability under the FDUTPA, and monetary damages. We reject each of these challenges, however, because the trial court had proper jurisdiction and correctly interpreted Florida law. We thus affirm and close the book on a saga B. Oral Agreements to Replace Engines Three and that began in a Kinshasa apartment. Four Unwelcome difficulties arose soon after the plane reached Miami. While doing the C-check, ACG’s “technical people discovered that one of the engines did not have appropriate paperwork and needed to be replaced.” Abad and Sanchez returned to the DRC to discuss the matter BACKGROUND with Deschryver, and on September 10 or 11, the parties orally agreed to replace engine number three. Deschryver asked that the new engine come “with all the documents, QEC [quick engine change equipment], all the AD and all the airworthiness directives and all the service in order, a A. The Workscope Agreement 707 engine.” The price for the engine would be $250,000. Charles Deschryver had a problem.1 As the Logistical Assistant to Joseph Kabila, president of the DRC, **2 Then, when Deschryver visited Miami in late Deschryver was charged to care for the president’s September, he learned that engine four also needed aircraft, including a four-engine Boeing 707–100 (the replacing. In its stead, Deschryver wanted “a 707 engine “plane” or “707”). By early 2010, the plane was due for a with all the service built in, all the AD, full QEC, full “C-check,” or heavy maintenance. Deschryver searched overhaul with all the documents.” Like engine three, from Ethiopia to Saudi Arabia to find a shop that would engine four would cost $250,000. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
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Bonus Tech, the company servicing the plane’s original engines, had filed a lien on the engines for $147,861.42. A few weeks later, Abad reported that Commercial Jet, Inc., which was performing the C-check, planned to file its own lien on the plane. The news irked Deschryver, C. A String of Broken Promises because the DRC had already paid $5 million for the By October 28, 2010, the DRC had paid $4 million repairs, and Abad kept “on telling [Deschryver] that the toward the cost of repairs. Just days before, ACG’s chief aircraft [was] ready.” The DRC forked over another financial officer Antonio Neuman had asked for more $1,381,531.64 to keep the work going. money even though the company held over $2 million in reserve, allegedly to cover future charges. Deschryver The constant pleas for money prompted Deschryver to was bewilderded by the mounting costs but paid the order an audit of the project. On May 27, he asked money anyway, and Abad reassured Deschryver that the Nakwaya and Ben Kalala, a deputy logistical assistant, to replacement engines would soon arrive from Ireland. review the project’s progress and finances. Nakwaya and Abad added that he would do a test flight on December 12 Kalala asked for notarized invoices from each vendor to and deliver the plane by December 16. verify the amount paid for services provided. In response, Antonio Neuman furnished a contract between ACG and Yet nothing happened the way Abad said it would. When ABX for engines 402 and 706. Unlike the contract signed the engines arrived from Ireland, ACG learned that in November 2010, however, the contract provided in neither were properly documented. As a result, the May was signed by Abad, not Neuman. And while the engines were unusable, and ACG agreed with ABX Air, November contract said each engine cost $49,500, the Inc. (“ABX”), to buy replacements. Antonio Neuman May contract said each engine cost $57,000. Apparently, signed the contract with ABX, which set the price of each ACG had given the DRC false statements to inflate actual new engine at $49,500. The replacement engines, which costs. carried serial numbers 645402 (“402”) and 669706 (“706”), were not serviceable upon delivery.
Meanwhile, the December 16 deadline for delivery slipped past. When it did, Abad repeated that the work would finish soon, this time by January—but Abad had no E. The Failed Flight Test and the Rejected Engines personal knowledge that the project was near completion. **3 By September 2011, President Kabila’s plane was In reliance on Abad’s statements, Jean Tshiumba from the finally ready for a test flight. Or so they thought. During DRC Civil Aviation Authority and technical engineer the test, after the plane had ascended to 24,000 feet, Zacharie Nakwaya departed to inspect the 707 and collect engine 402 stopped, or “flamed out.” Nakwaya also it from ACG. noticed that the plane was leaking fuel and that the generators were dead. In Nakwaya’s opinion, the 707 was But when Tshiumba and Nakwaya arrived in Miami on in worse shape now than when the plane touched down in January 10, 2011, their hopes were dashed. As he Florida in July 2010. inspected the replacement engines, Nakwaya found that 402 was completely disassembled and that *464 706 was After the failed test, the parties gathered to discuss next closed and unserviceable. Both were choked with dust steps. At first, Abad promised to fix engine 402 at his and nests. Furthermore, the engines were configured for a own cost, but later, after Nakwaya found corrosion and DC8 airplane, not for a Boeing 707, which meant other damage in the engine, the DRC chose to reject it. installation would take longer than anticipated. And ACG kept engine 402 for its inventory. Tshiumba, for his part, reported that the engines were not mounted and there was “no avionics equipment installed” Then in December, the parties met to discuss engine 706. on the aircraft. The plane was unfit to fly, despite Abad’s While moving to a new facility, the company servicing earlier assurances. 706, the Turbine Engine Center, had misplaced the engine’s records. The DRC had requested the records since June, and they now threatened to reject 706 unless the documents turned up within 48 hours. The DRC rejected the engine when ACG failed to find the records in the time allotted. D. The Liens and the Audit On April 21, Abad sent Deschryver more bad news. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4
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violation, and they awarded $720,848.04 from ACG on that count. The jury exacted no monetary damages from Abad on the fraud and FDUTPA claims. F. The Lawsuit The DRC lodged a civil complaint against ACG, Abad, Later that month, the DRC moved to alter the judgment. and others on February 14, 2012. Six counts were alleged, Plaintiff argued that although the jury demanded no including fraudulent inducement, breach of contract, fraud damages from Abad, ACG and Abad were jointly and in the purchase and repair of engines 402 and 706, fraud severally liable on the engine fraud and FDUTPA claims. in the purchase and installation of Stage III hush kits (to quiet engine noise), a violation of the FDUTPA, and Defendants filed a motion of their own, but for remittitur replevin. The trial began over a year later on July 2, 2013. and renewed judgment as a matter of law. They argued that plaintiff could not recover under FDUTPA because At trial, expert witness John Zappia testified about Zappia had not established the difference between the damages. As part of his testimony, he presented a chart market price of contracted-for services and the value the listing twenty- *465 six line items. In lines 4 through 23, DRC actually received. They also claimed that the part of 24, and 26, Zappia recounted the costs of ACG’s FDUTPA award constituted a double-recovery because it alleged breach of contract. The estimated damages from included line items from both the breach and fraud claims. the breach totaled $1,175,415.04. On March 19, 2014, the court granted the DRC’s motion Zappia also testified about damages from the replacement to amend the judgment and denied ACG’s motion for engines, comprising lines 1 through 3 and 25 of the chart. judgment as a matter of law. This appeal followed. Included in this estimate were: (1) the costs of repairing engine 706 ($121,676.15); (2) the costs of repairing engine 402 ($151,691.92); (3) the cost of the failed test flight, which would need to be performed again ($85,969.66); and (4) the purchase price of engines 402 and 706, which ACG still held ($1,178,048.50).2 Zappia also recommended a recovery of $2,204,810.45 under the DISCUSSION FDUTPA, consisting of items 1–2, 5–15, 17–23, and 25 of the damages summary. For each of these items, Zappia The defendants now attack multiple components of the said he calculated the amount based on “the difference result below, from the cornerstone of jurisdiction to between the value of the product or service that DRC paid cupola of damages apportionment. We reject each for and the value of the product or service that they argument and affirm in full. received.”
At the close of the evidence, defendants moved for judgment as a matter of law. The court denied the motion. Then, on July 31, the court instructed the jury regarding *466 I. The DRC Has Constitutional Standing to liability and damages. When addressing the FDUTPA, the Bring Its Claims court explained that the statute allowed only actual To begin, defendants allege that the trial court lacked damages, or “the difference in the market value of the jurisdiction to try the case. Citing quotes sprinkled product or service in the condition in which it was throughout the record, they suggest that the DRC delivered and its market value in the condition it should government—the plaintiff here—has nothing to do with have been delivered according to the agreement of the the DRC’s Office of the President and Joseph Kabila, who parties.” The court did not instruct the jury regarding the owns the 707. If this were true, then the DRC would lack apportionment of damages between defendants. a stake in the litigation, and the court would have to
dismiss the case for want of constitutional standing.3 **4 The jury returned a verdict on August 1, 2013. ACG was held liable for breach, and the jury awarded the entire We find defendants’ cherry-picked political theory too amount Zappia recommended on that claim fragile to support the argument. We agree, of course, that ($1,175,415.04). They also held ACG and Abad liable for the Constitution extends the federal judicial power only to fraud regarding the replacement engines. On the verdict controversies between real parties in interest. See U.S. sheet, the jury wrote that ACG had to pay $362,707.03, Const. art. III, § 2. Courts cannot decide claims where plus plaintiff could “pick up [the] engines” from ACG. plaintiffs have suffered no invasion of a legally protected The jury also found ACG and Abad liable for a FDUTPA © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5
Democratic Republic of the Congo v. Air Capital Group, LLC, 614 Fed.Appx. 460 (2015) 2015 WL 3619452 interest, or injury in fact. See Lujan v. Defenders of aviation to a private company, Tshiumba meant that the Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 president is free to choose where to service his fleet, just L.Ed.2d 351 (1992); Houston v. Marod Supermkts., Inc., like a private airline. ACG also quotes Deschryver, who 733 F.3d 1323, 1328–29 (11th Cir.2013). But here, said that “[he] was ... employed not by the government, plaintiff more than proved that it suffered an injury [but] by the Office of the President, because the Office of respecting its breach, fraud, and FDUTPA claims. See the President and the government [are] different.” But Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (holding plaintiff Deschryver, like Tshiumba, was not teaching civics from at final stage must prove standing with facts “supported the stand. He distinguished between the Office of the adequately by the evidence adduced at trial”). A review of President and the government to clarify who paid him the record shows how. when he worked at Hewa Bora, and in all likelihood, Deschryver used the term “government” to refer to the [1] First, the evidence establishes that the DRC is a party prime minister’s cabinet, not the state apparatus as a to the Workscope Agreement. The name “Republic whole. None of defendants’ citations oust plaintiff from Democratic of Congo” stands in capital letters above the our jurisdiction. Agreement’s signature block, and the same name pervades the rest of the document. More importantly, the Defendants also argue that because Kabila owned the 707, record attests that Charles Deschryver had authority to the DRC has no interest in the outcome of the dispute. In sign the contract on the DRC’s behalf. When he approved their words, “the aircraft involved in this lawsuit has as the Workscope, Deschryver stamped the seal of the Office little to do with the [DRC] government as President of the President over his name. Deschryver further Obama’s golf cart does with respect to governmental testified that the president is part of the DRC’s executive property.” But perhaps ACG forgets that people can (and branch, together with the prime minister and his often do) agree to buy services for third-party government. As an agent of the state, Deschryver could beneficiaries. Cf. Polo Ralph Lauren, L.P. v. Tropical enter into agreements for the DRC as long as the principal Shipping & Constr. Co., 215 F.3d 1217, 1222 (11th retained control over his actions. See Fla. State Oriental Cir.2000) (“Contracts bind only named parties unless both Med. Ass’n, Inc. v. Slepin, 971 So.2d 141, 145 parties to the contract clearly express an intent to benefit a (Fla.Dist.Ct.App.2007) (outlining tests for actual and third party.”). The DRC earned its berth in court by apparent authority of agents). We find nothing to suggest contracting for services that were never delivered, that Deschryver departed from his instructions when he whether or not Kabila owned the plane. arranged to repair the 707. As a consequence, the DRC was bound to the Workscope and is eligible to sue for The DRC has constitutional standing to bring its breach, breach. fraud, and FDUTPA claims.
**5 Second, the parties stipulated that the DRC paid for all work performed. The record fully supports this fact. For instance, Antonio Neuman testified that ACG billed the DRC, not the Office of the President, for tasks completed under the Workscope. Deschryver added that II. The DRC Has Statutory Standing to Bring an the DRC’s Ministry of Finance paid for the repairs. And FDUTPA Claim Kalala confirmed the point, testifying that the Office of Next, ACG attacks plaintiff’s statutory right to bring an the President liaised with the Ministry of Finance to wire FDUTPA claim. The FDUTPA bans “unfair or deceptive a $1.36 million tranche to ACG in May 2011. This acts or practices in the conduct of any trade or evidence demonstrates plaintiff’s financial stake in the commerce,” see Fla. Stat. § 501.204(1), and as defendants claims on appeal.4 understand the law, only “consumers” qualify for FDUTPA protection. Because the DRC is a sovereign *467 In response, ACG gathers snippets implying that the government—not your ordinary market Office of the President and the DRC government are participant—ACG reasons that plaintiff is not a 5 unrelated. Yet these scraps of evidence, read in context, “consumer” entitled to FDUTPA safeguards. do little to confirm defendants’ theory. For example, Tshiumba testified that President Kabila’s fleet of planes *468 **6 We do not accept defendant’s restrictive reading “is the same as companies like Hewa Bora,” the private of the law. When explaining the statute’s rules of airline. ACG cites this as proof that the Office of the construction, the Florida legislature urged courts to President and the government are separate, but this is not construe the law “liberally to ... protect the consuming Tshiumba’s testimony. By comparing presidential public and legitimate business enterprises from those who engage in ... unconscionable, deceptive, or unfair acts.” © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6
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Fla. Stat. § 501.202(2). To achieve this goal, the statute value from the defendant. Id. *3; see also Furmanite Am., originally extended relief to “consumers,” id. § Inc. v. T.D. Williamson, Inc., 506 F.Supp.2d 1134, 501.211(2) (2000), that is, any “individual ... firm; 1145–47 (M.D.Fla.2007) (denying summary judgment on association; joint venture; partnership; estate; trust; FDUTPA claim alleging defendants resigned en masse business trust; syndicate; fiduciary; corporation; or any from plaintiff’s employ). other group or combination,” id. § 501.203(7) (emphasis added). Then in 2001, the legislature revised the statute to **7 [2] We need not referee this interpretive tussle. Even if ensure that businesses received the same protections as we adopted the former *469 view—that plaintiffs have individual consumers. Senate Staff Analysis, CS/SB 208, FDUTPA standing only if they are injured in a purchase Mar. 22, 2001, at 3 (“Because the remedies under the or sale—the DRC can still sue. Though it is a sovereign FDUPTA [sic] were intended by the Legislature to be state, the DRC acted like a private airline when it available to all persons, including businesses, the contracted with ACG to perform the C-check and replace Legislature has several times amended the definition of two engines. It signed a standard work agreement, and it ‘consumer’ in the FDUTPA to clarify the intent to include paid ACG over $6 million to do the job. We see no reason businesses.”). The law now allows “a person who has why standing should not extend to government bodies suffered a loss as a result of a violation” of the FDUTPA when they engage in consumer transactions the way to recover “actual damages, plus attorney’s fees and court private actors do. Cf. White v. Mass. Council of Constr. costs.” Fla. Stat. § 501.211(2) (emphasis added). Emp’rs, Inc., 460 U.S. 204, 214–15, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983) (denying Commerce Clause claim Courts have interpreted the new provision generously, but where city hired mostly Boston residents for city-funded not consistently. One line of cases—the more construction projects). conservative view—extends FDUTPA protection only to persons who were deceived when buying or selling goods The defendants rejoin that the FDUTPA precludes and services. In Kertesz v. Net Transactions, Ltd., 635 governments from filing private suits. In one provision, F.Supp.2d 1339, 1348–50 (S.D.Fla.2009), for example, the statute permits the “enforcing authority” (i.e., the state plaintiff sued a website operator who posted lewd photos attorney or Department of Legal Affairs) to bring an of the plaintiff without her consent. The court held that action “on behalf of one or more consumers or plaintiff lacked standing because she was not injured in a governmental entities for the actual damages caused by” a market transaction between the parties. Id.; see also FDUTPA violation. Fla. Stat. § 501.207(1)(c) (emphasis Cannova v. Breckenridge Pharm., Inc., No. added); see also id. § 501.203(2). Another provision lets a 08–81145–CIV, 2009 WL 64337, at *3 (S.D.Fla. Jan. 9, “person” sue for damages but does not expressly give 2009) (denying FDUTPA claim alleging plaintiff’s governments a private right of action. Id. § 501.211(2). In employer violated post-termination agreement); Goodbys ACG’s view, the inclusion of government bodies as Creek, LLC v. Arch Ins. Co., No. 3:07–cv–947–J–33HTS, interested parties in suits by Florida authorities, and the 2008 WL 2950112, at *8–9 (M.D.Fla. July 31, 2008) exclusion of government bodies as plaintiffs in private (denying FDUTPA claim alleging defendant failed to suits, effectively bars entities like the DRC from bringing fulfill obligations under performance bond); Badillo v. their own FDUTPA cases. Playboy Entm’t Grp., Inc., No. 8:04CV591T30TWM, 2006 WL 785707, at *6 (M.D.Fla. Mar. 28, 2006) We disagree. The interpretive maxim that ACG implies, (denying FDUTPA claim alleging defendant used lewd expressio unius est exclusio alterius, does not block the photos of plaintiffs without consent). DRC from filing FDUTPA claims. Translated from Latin, the phrase means “to express or include one thing implies Another line of cases, the permissive view, extends the exclusion of the other.” Black’s Law Dictionary 701 FDUTPA protection to any person injured by a deceptive (10th ed.2014). In other words, if the legislature grants a or unfair practice, regardless of whether she sustained the right or privilege in only one situation, one may infer that injury in a sale or purchase. In Hinson Electrical the legislature withheld the right or privilege elsewhere. Contracting Co. v. Bellsouth Telecommunications, Inc., But as the Supreme Court has explained, expressio unius No. 3:07–cv–598–J–32MCR, 2008 WL 360803, at *1 arguments “ha[ve] force only when the items expressed (M.D.Fla. Feb. 8, 2008), for instance, plaintiff broke are members of an associated group or series, justifying defendant’s underground lines in an excavation, and the inference that items not mentioned were excluded by defendant overbilled plaintiff for the damage. The court deliberate choice, not inadvertence.” Barnhart v. Peabody found plaintiff had standing under the FDUTPA because Coal Co., 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d he suffered an unfair and deceptive act in the course of 653 (2003) (internal quotation marks omitted). And here, commerce. It did not matter that he purchased nothing of no such inference is justified. The FDUTPA extends its
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 7
Democratic Republic of the Congo v. Air Capital Group, LLC, 614 Fed.Appx. 460 (2015) 2015 WL 3619452 aegis to “persons,” a cavernous term that could easily 1337–40 (S.D.Fla.2009), when a manufacturer include government bodies acting in the market. See Fla. misrepresented that its vacuum cleaners were fit for use, Stat. § 501.211(2). What is more, the statute’s rules of Hill v. Hoover Co., 899 F.Supp.2d 1259, 1263–64 construction compel courts to interpret the law liberally. (N.D.Fla.2012), and when a producer misstated that its Id. § 501.202. Given the statute’s broad language and products were wheat and gluten free, Nature’s Prods., sweeping purpose, we doubt the legislature meant to deny Inc. v. Natrol, Inc., 990 F.Supp.2d 1307, 1322 private suits by public entities. (S.D.Fla.2013).
The DRC has standing to sue under the FDUTPA. By contrast, the court found no deceit in Millennium Communications, 761 So.2d at 1263–64, where defendant told consumers that they qualified for credit cards with a $4000 limit. The Florida Department of Legal Affairs sued, claiming that defendant led consumers to believe they could get a MasterCard or Visa despite their past III. The Jury Reasonably Held ACG Liable for credit troubles. The court rejected this claim on a motion Violating the FDUTPA to dismiss, because a reasonable consumer was unlikely **8 In its next challenge, ACG shifts focus from to conclude from defendant’s statements (which did not jurisdiction to the merits. At trial, the jury held defendants mention Visa or Mastercard) that he qualified for a Visa liable on a number of counts, including the FDUTPA or MasterCard. Id.; see also Cold Stone Creamery, Inc. v. claim. ACG now argues that the jury erred to do so, Lenora Foods I, LLC, 332 Fed.Appx. 565, 567–68 (11th because the DRC’s representatives were too sophisticated Cir.2009) (denying FDUTPA claim where plaintiff relied 6 to fall for defendants’ deceits. on statement by franchisee who lacked authority to speak on defendant’s behalf); Zlotnick v. Premier Sales Grp., This argument builds on a flawed understanding of the Inc., 480 F.3d 1281, 1284–85 (11th Cir.2007) (denying statute. As noted before, the FDUTPA bans “unfair or FDUTPA claim where real estate reservation contract deceptive *470 acts or practices in the conduct of any clearly stated that it was not a purchase agreement). trade or commerce.” Fla. Stat. § 501.204(1). By claiming that plaintiff was too savvy to be swindled, defendants **9 [3] Like the courts in the cases above, we define imply that the statute espouses a subjective standard of deception objectively. We also find ample proof of deceit—that is, they would hold a defendant liable only if conduct that would deceive a reasonable consumer in the the victim suffered harm in actual reliance on a deceptive DRC’s circumstances. In September 2010, for example, act or practice. But this is not the law. A FDUTPA claim, Deschryver asked Abad to buy two 707 engines for the unlike a claim for fraud, requires proof that defendant’s plane, “with all the documents, QEC, all the AD and all act would likely “mislead the [objective] consumer acting the airworthiness directives and all the service in order.” reasonably in the circumstances.” See PNR, Inc. v. Abad purchased the engines, but they were configured for Beacon Prop. Mgmt., Inc., 842 So.2d 773, 777 (Fla.2003) a DC8 aircraft, and neither was serviceable upon delivery. (quoting Millennium Commc’ns & Fulfillment, Inc. v. Abad also promised to deliver the plane in December Office of Att’y Gen., 761 So.2d 1256, 1263 2010 and January 2011, but the deadlines passed without (Fla.Dist.Ct.App.2000)); Davis v. Powertel, Inc., 776 explanation. Instead, Abad hustled the DRC for more So.2d 971, 974 (Fla.Dist.Ct.App.2000) (“The plaintiff money and let subcontractors file liens on the plane, need not prove the elements of fraud to sustain an action despite earlier assurances that the work was done. And under the statute.”). No proof of subjective reliance is perhaps worst of all, when Nakwaya and Kalala requested needed. invoices from vendors, *471 ACG furnished a contract listing the price of each replacement engine at $57,000. In The court identified an objective deception in Cummings the original contract with ABX, the price for each engine v. Warren Henry Motors, Inc., 648 So.2d 1230 was only $49,500, which suggests that ACG kept double (Fla.Dist.Ct.App.1995). There, the defendant purported to books to inflate the DRC’s costs. Given this record of sell plaintiff a car to be paid off in sixty months. In misstatements, broken promises, and lies, we have little reality, defendant only leased the car for sixty months, trouble holding that ACG’s conduct would deceive the and at the end of the term, the vehicle would not be paid reasonable consumer. off. Id. at 1233. The court held that this “bait and switch” tactic was unfair and deceptive under the FDUTPA. Id. Defendants answer by citing Black v. Department of Federal courts ruled similarly when a chewing gum Legal Affairs, 353 So.2d 655, 656 (Fla.Dist.Ct.App.1977), company wrongly claimed that its product killed germs, and Golden Needles Knitting & Glove Co. v. Dynamic Smith v. William Wrigley Jr. Co., 663 F.Supp.2d 1336, © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8
Democratic Republic of the Congo v. Air Capital Group, LLC, 614 Fed.Appx. 460 (2015) 2015 WL 3619452
Marketing Enterprises, Inc., 766 F.Supp. 421, 430 [RJMOL] that it did not assert in its initial [JMOL], a (W.D.N.C.1991). They claim that these cases require court may not rely on the new grounds to set aside the subjective proof of deception to justify a recovery under jury’s verdict.” (internal quotation marks omitted)). Here, the FDUTPA, but we do not read the cases that way. ACG attacked Zappia’s damages estimate in the RJMOL When these opinions were published, the statute covered but not the JMOL, so defendants cannot broach the issue only consumer transactions, defined as “a sale ... or other now. Nor could they air the grievance through a motion to disposition of an item of goods ... to an individual ... that alter the judgment. Parties “cannot use a Rule 59(e) relate to a business opportunity that requires both his motion to ... raise argument[s] ... that could have been expenditure of money or property and his personal raised prior to the entry of judgment,” and Zappia’s services on a continuing basis and in which he has not testimony was open to challenge well before the jury been previously engaged.” Black, 353 So.2d at 656 returned a verdict. Michael Linet, Inc. v. Vill. of (emphasis added) (citing Fla. Stat. § 501.203(1) (1975)). Wellington, 408 F.3d 757, 763 (11th Cir.2005). In other words, a plaintiff could not secure FDUTPA relief if he knew the defendant’s business well enough to Second, contrary to defendants’ claim, Zappia’s damages manage the risk. See id.; Golden Needles, 766 F.Supp. at estimate fully accorded with the law. Under Florida 430. But in 1993, the Florida legislature struck this Statute § 501.211(2), “a person who has suffered a loss as definition of “consumer transaction” and extended a result of [a FDUTPA violation] may recover actual protection to any transaction in “trade or commerce,” damages, plus attorney’s fees and court costs.” The statute even if plaintiff was familiar with the defendant’s craft. does not define actual damages in detail, but Florida Tampa Bay Storm, Inc. v. Arena Football League, Inc., courts agree on the following: No. 96–29–CIV–T–17C, 1998 WL 182418, at *7 (M.D.Fla. Mar. 19, 1998). The law now permits recovery if the plaintiff proves she was injured by an objectively deceptive act or statement, and as we said before, the Generally, the measure of actual 7 damages is the difference in the DRC more than satisfies this standard. market value of the product or We sustain the verdict finding defendants liable under the service in the condition in which it FDUTPA. was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties. A notable exception to the rule may exist when the product is rendered IV. The DRC Presented Proper Evidence of valueless as a result of the FDUTPA Damages defect—then the purchase price is Defendants’ remaining arguments zero in on the damages the appropriate measure of actual awarded at trial. ACG first claims that expert witness damages. John Zappia gave improper testimony about plaintiff’s losses under the FDUTPA. The statute permits parties to recover actual damages—or the difference between a Rollins, Inc. v. Heller, 454 So.2d 580, 585 product’s value under the contract and the market value of (Fla.Dist.Ct.App.1984) (quoting Raye v. Fred Oakley the product delivered—but defendants say Zappia failed Motors, Inc., 646 S.W.2d 288, 290 (Tex.Ct.App.1983).) to analyze market values to measure the loss. ACG would In short, plaintiffs must marshal evidence to prove the gap exclude the expert testimony and vacate the $720,848.04 in value between what was promised and what was FDUTPA award as unsupported in evidence.8 delivered, unless defendant palmed off a product that was
truly worthless. In the latter situation, plaintiff may **10 [4] We decline the defendants’ invitation for two recoup the full price he paid for the valueless good or reasons. First, ACG waived its right to challenge Zappia’s service. testimony on appeal. In general, if defendants fail to *472 make an argument in a motion for judgment as a matter of Rodriguez v. Recovery Performance & Marine, LLC, 38 law (“JMOL”), they may not raise the argument after the So.3d 178 (Fla.Dist.Ct.App.2010), illustrates the general verdict in a renewed motion for judgment as a matter of rule. In that case, plaintiff bought a jet-boat from the law (“RJMOL”). See Fed. R. Civ. Proc. 50(a)-(b); defendant. Then one day, when plaintiff was out riding, Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 717 the boat “began to burn and eventually sunk.” Id. at 179. n. 3 (11th Cir.2002) (“If a party asserts new grounds in its © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9
Democratic Republic of the Congo v. Air Capital Group, LLC, 614 Fed.Appx. 460 (2015) 2015 WL 3619452
Defendant later repaired the jet-boat, but plaintiff sued corroded and had sustained impact damage. Abad held under the FDUTPA, requesting the return of her “down onto the engine for his inventory. Later that year, the payment, payments on the loan, interest, [as well as the] DRC also rejected engine 706 because its records were balance on the loan.” Id. The court denied the claim and missing. As Sanchez testified, an engine without explained that plaintiff could recover only “the difference documents must be replaced, and though ACG later found in the market value of the jet-boat as delivered and market the records for 706, defendants never gave the engine to value as it should have been delivered.” Id. at 181; see the DRC. Because it received nothing that it paid for, the also Gastaldi v. Sunvest Resort Communities, LC, 709 DRC may collect $1,178,048.50 for the engines, as F.Supp.2d 1299, 1304–06 (S.D.Fla.2010) (excluding Zappia recommended.9 testimony where expert based damages on condo’s adjusted purchase price instead of market value). Because Defendants respond that Zappia erred to list “specific the jet-boat retained some of its value, plaintiff could not items and claim [ ] these as [FDUTPA] damages, without base damages on the purchase price. ever looking at the value difference between an aircraft as delivered to [plaintiff] compared to one as [plaintiff] **11 In contrast, the court allowed plaintiff to use the claims should have been delivered.” But defendants purchase price as a proxy for damages in Tri–County overlook that the DRC bought only a C check, engines, Plumbing Services, Inc. v. Brown, 921 So.2d 20, 21 and hush kits from ACG—not a whole airplane. Had (Fla.Dist.Ct.App.2006). There, plaintiff paid the plaintiff purchased an entire aircraft from ACG, and that defendant to fix her plumbing, but the repairs failed aircraft had come with the defects listed in the damages inspection, and defendant walked off the job before summary, then the measure of damages would be the correcting remaining defects. Id. The trial court awarded plane’s market value as contracted minus the plane’s damages equal to the amount *473 plaintiff deposited value as delivered. See Rodriguez, 38 So.3d at 181. But with the defendant, and the appellate court affirmed. The here, the DRC purchased discrete goods and services court reasoned that defendant’s repairs did nothing to from ACG, and we measure damages against those items complete the work assigned, so the deposit price was the and not against the plane as a whole. correct measure of FDUTPA damages. Id. at 22. **12 The evidence supports the jury’s FDUTPA damages The DRC’s case falls within the Tri–County Plumbing award, and the trial court did not abuse its discretion to exception to the general rule. We note, at the outset, that deny remittitur. the jury compensated plaintiff completely for ACG’s breach of contract. Zappia recommended $1,175,415.04 in damages for breach, and the jury awarded just that amount. As a consequence, the only damages pertinent to the FDUTPA claim are those from the purchase and repair of the replacement engines. To recover these losses V. The FDUTPA Award Was Not a Double under the statute, plaintiff had to prove the difference in Recovery [5] the market value of the products as promised and as Next, ACG argues that the FDUTPA damages awarded delivered, or to prove that those products and services to plaintiff were a double recovery. At trial, Zappia said were worthless. Id. at 22. the DRC should get $1,175,415.04 for breach of contract, comprising lines 4 through 23, *474 part of 24, and 26 of Zappia’s testimony achieved the latter. In items 1 through the damages chart. He also recommended a $1,537,386.49 2 of the damages summary, Zappia attributed a recovery for fraud related to the engines, corresponding to $273,368.07 loss to repair work done on engines 402 and lines 1 through 3 and 25 of the chart. In light of these 706. The job was to update the engine’s anticorrosion estimates, ACG claims it was wrong to award FDUTPA ADs and extend their useful life, yet when Nakwaya damages under lines 1–2, 5–15, 17–23, and 25. Each of reviewed the engines’ records in June 2011, he found these items was covered already in the breach or fraud neither one had current ADs and both had only a short counts, and defendants argue that the trial court erred to useful life remaining. Because defendants’ work added no give a duplicative FDUTPA award. value, plaintiff can recover the entire price it paid for the repairs. Id. We will not disturb the jury’s decision, because despite appearances, the FDUTPA award was not actually The DRC also gave adequate proof of damages from the duplicative. To merit remittitur, the damages granted for purchase of the engines. After the September 2011 test breach, fraud, or other claims must exceed plaintiff’s flight, plaintiff rejected engine 402 because it was actual loss. A court reduced an award, for example, where plaintiff proved $2,535,990.48 in damages for breach and © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10
Democratic Republic of the Congo v. Air Capital Group, LLC, 614 Fed.Appx. 460 (2015) 2015 WL 3619452 fraud arising from the same incident. The jury awarded fraud, and FDUTPA claims ($2,258,970.11) was less than $1,372,700 and $2,745,400 on each count, but the court the total loss proven at trial ($3,423,718.32). Because this whittled the total award to $2,535,990.48 to ensure sum stayed within range of the damages proven, the trial plaintiff did not receive more than his actual loss. See court did not abuse its discretion to deny remittitur. Novak v. Gray, 469 Fed.Appx. 811, 812–13, 816–18 (11th Coquina, 2012 WL 4479057, at *1. We sustain the jury’s Cir.2012). *475 FDUTPA verdict as lawful and grounded in evidence. On the other hand, a plaintiff may recover damages on two claims stemming from the same conduct if the total does not exceed actual damages. In Coquina Investments v. Rothstein, No. 10–69786–Civ, 2012 WL 4479057, at *1 (S.D.Fla. Sept. 28, 2012), plaintiff sued defendant for fraudulent misrepresentation and for aiding and abetting a VI. The Trial Court Correctly Imposed Joint and Ponzi scheme. At trial, plaintiff proved that it lost $37.7 Several Liability million in the scheme. Id. at *20–21. The jury then Finally, Abad argues that the trial court erred to hold rendered a verdict for $32 million: $16 million for the defendants jointly and severally liable on plaintiff’s fraud misrepresentations, and another $16 million for the aiding and FDUTPA claims. On the verdict form, the jury wrote and abetting. In a motion for remittitur, defendant argued that both ACG and Abad were liable for fraud and that the award was a double recovery because the FDUTPA violations. Yet when it came to deciding misrepresentation and aiding and abetting claims damages, the jury said only ACG had to pay the debt, comprised the same conduct. Yet the trial court refused to leaving Abad with no personal obligations to the plaintiff. reduce the award, because $32 million was well within The court later shifted the damages to ACG and Abad the total damages proven at trial. Id. This court affirmed. jointly and severally, and defendants say this was contrary Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300, 1319 to the jury’s wishes. (11th Cir.2014); see also Gentile v. Cnty. of Suffolk, 926 F.2d 142, 154 (2d Cir.1991) (“[D]efendants do not We again sustain the trial court. Under Federal Rule of demonstrate that a jury’s award is duplicative merely by Civil Procedure 60(a), courts may modify a jury verdict to noting that it allocated the damages under two different correct “a clerical mistake ... in a judgment.” The rule causes of action.”). does not permit the revision of a jury’s factual findings, but courts may adjust a verdict to comply with rules We affirm here too, because plaintiff’s recovery did not regarding the apportionment of damages. Stuckey v. N. exceed its actual loss. As mentioned before, the DRC Propane Gas Co., 874 F.2d 1563, 1574 (11th Cir.1989). proved $1,175,415.04 in damages from lines 4 through 23, part of 24, and 26 of the damages chart, and the jury Here, apportionment is governed by state law. In Florida awarded exactly that amount on plaintiff’s breach claim. negligence cases, courts allocate liability among The DRC also proved $1,537,386.49 in damages from defendants based on each “party’s percentage of fault and lines 1 through 3 and 25 of the chart, corresponding to the not on the basis of the doctrine of joint and several fraud regarding the replacement engines. Here, however, liability.” Fla. Stat. § 768.81(3). Yet in actions concerning the jury granted only $362,707.03 in damages and added intentional torts, the doctrine of joint and several liability that plaintiff could “pick up” the engines from ACG. The still applies. See id. § 768.81(4); Meyer v. Thompson, 861 latter remedy was unauthorized, though, and when So.2d 1256, 1258 (Fla.Dist.Ct.App.2003). And when a instructed by the court to recalculate the fraud award, the corporate defendant is held vicariously liable for the jury refused to give anything more. Plaintiff ultimately intentional torts of an individual, the doctrine works with received a sum for its fraud claim that was $1,174,679.46 greater force. In such situations, it is impossible to less than the estimate. compare fault between parties because the corporation is liable for all harm caused by the primary actor. See **13 In light of Coquina, we hold that the $720,848.04 Grobman v. Posey, 863 So.2d 1230, 1235–37 FDUTPA award was a permissible supplement to the (Fla.Dist.Ct.App.2003) (refusing to compare liability fraud recovery. While it is possible, as defendants allege, where HMO vicariously liable for acts of doctor). that the jury found $362,707.03 in fraud damages and [6] granted the $720,848.04 FDUTPA award as double In view of this law, the trial court did not err to divide damages for breach, they could just as easily have liability jointly and severally among ACG and Abad. In awarded the $720,848.04 to round out the fraud recovery. its final instructions, the court explained the legal tests for In any event, the total amount conferred on the breach, fraud and FDUTPA claims, but it did not explain how to apportion damages between the defendants. Left to their © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11
Democratic Republic of the Congo v. Air Capital Group, LLC, 614 Fed.Appx. 460 (2015) 2015 WL 3619452 own devices, the jury distributed liability as they saw fit, misunderstood how Florida law allots damages from perhaps exacting the award from the defendant best intentional torts. equipped to bear the costs. But even if that was the jury’s reasoning, the rationale contravened clearly established law. The court did not exceed its authority to correct this error on motion, reallocating the damages to the right parties in the right amount.
**14 ACG counters that the court could not modify the CONCLUSION verdict because it was the jury’s “obvious, but After reviewing the briefs and the record with care, we unexpressed” intent to exempt Abad from paying affirm the judgment below in all respects. damages. Though the jury marked Abad liable for fraud and FDUTPA infractions on the verdict form, they did not AFFIRMED. take damages from him; this meant, in defendants’ estimation, that the jury held Abad liable on accident. But the court did not abuse its discretion to take a contrary All Citations view of the evidence. By marking that Abad was liable on both counts, the jury probably intended to hold Abad 614 Fed.Appx. 460, 2015 WL 3619452 responsible for his misrepresentations. That the jury required no money from Abad proves only that they
Footnotes
* Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by designation.
1 The facts that follow represent plaintiff’s version of the evidence. See Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th Cir.2002).
2 Zappia testified that the total damages from the replacement engines was $540,755.83. It is not clear where Zappia got this number, as the sum of lines 1–3 and 25 is $1,537,386.23.
3 “We review de novo basic questions concerning our subject matter jurisdiction, including standing.” DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1301 (11th Cir.2008).
4 Plaintiff also touts a stipulation which supposedly confirms that the DRC was a party to the Workscope. While we agree that plaintiff had standing to bring its claims, the DRC reads too much into the stipulation. The stipulation says, “The contract for maintenance of the Aircraft between [ACG] and the [DRC] is dated June 21, 2010, but actually was executed in July, 2010.” This sentence aims to establish the date of the Workscope, not to identify the parties to the contract.
5 The DRC claims we should ignore this issue because ACG did not raise it below, and defendants counter that the matter is jurisdictional and not subject to waiver. The DRC might be right. Not long ago, the Supreme Court held that statutory preconditions to suit are “jurisdictional” (and hence immune to waiver) only if “the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional.” Arbaugh v. Y & H Corp., 546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). A statutory limitation is not jurisdictional “when [the Legislature] does not rank a statutory limitation ... as jurisdictional.” Id. at 516, 126 S.Ct. 1235; see also In re Trusted Net Media Holdings, LLC, 550 F.3d 1035, 1042–46 (11th Cir.2008) (holding law requiring three or more creditors to petition for involuntary bankruptcy was not jurisdictional). Here, it seems the Florida legislature did not expressly condition jurisdiction on plaintiff’s consumer status, so we doubt ACG’s argument was unsusceptible to waiver. See Fla. Stat. § 501.211(2). We decline to decide the issue in any event because the briefing on the matter was thin, and because the DRC had a right to sue under the FDUTPA.
6 The court must uphold the jury’s verdict unless there is no “legally sufficient evidentiary basis to find” for the DRC. Fed.R.Civ.P. 50(a).
7 Some courts have injected a subjective element into FDUTPA claims for unfair practices. See In re Motions to Certify Classes Against Court Reporting Firms for Charges Relating to Word Indices, 715 F.Supp.2d 1265, 1277–80 (S.D.Fla.2010) (denying © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12
Democratic Republic of the Congo v. Air Capital Group, LLC, 614 Fed.Appx. 460 (2015) 2015 WL 3619452
certification because lawyers could avoid unfair court-reporting fees better than other class members); Porsche Cars N. Am., Inc. v. Diamond, 140 So.3d 1090, 1096–1100 (Fla.Dist.Ct.App.2014) (denying certification because some class members could avoid buying easily purloined headlights better than other class members). We base our holding on ACG’s deceptive acts, however, and deception is judged from an objective point of view. See PNR, 842 So.2d at 777.
8 Again, we sustain the jury’s verdict unless there is no “legally sufficient evidentiary basis to find” for the DRC. Fed.R.Civ.P. 50(a). The court reviews the denial of remittitur for abuse of discretion. Mason v. Ford Motor Co., 307 F.3d 1271, 1276 (11th Cir.2002).
9 It is less clear whether plaintiff could collect FDUTPA damages for the test flight. Though it ended in failure, the test achieved its central aim: to prove whether the 707 was airworthy. Assuming the test had value, plaintiff could not collect the purchase price under the Florida statute. The DRC could collect the price as part of the fraud award, however, so the error, if any, was harmless.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 13
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574
877 F.Supp.2d 1321 United States District Court, [1] Libel and Slander S.D. Florida. Conditions precedent
FIVE FOR ENTERTAINMENT S.A., et al., The internet constitutes an “other medium” for Plaintiffs, the purposes of Florida statute requiring that v. notice be given to media defendants who publish Ramon Luis Ayala RODRIGUEZ, et al., allegedly defamatory material prior to bringing Defendants. an action for libel or slander. West’s F.S.A. § 770.01. No. 11–24142–CIV. | July 9, 2012. Cases that cite this headnote
Synopsis Background: Concert promoter brought action for [2] Libel and Slander defamation and for violations of Florida Deceptive and Conditions precedent Unfair Trade Practices Act (FDUTPA) against Reggaeton musician and his booking agent. Agent and musician One time press release by musician and his moved to dismiss. booking agent on their websites that allegedly contained defamatory statements did not make musician and his agent media defendants, rather Holdings: The District Court, Patricia A. Seitz, J., held than private parties, for purposes of Florida that: statute requiring that notice be given to media defendants who publish allegedly defamatory [1] musician and agent were private parties, not media material prior to bringing an action for libel or defendants entitled to notice under Florida law; slander; musician and agent were not engaged in the business of disseminating news, and had not [2] promoter failed to establish a single element of disseminated any other news information. defamation; West’s F.S.A. § 770.01.
[3] promoter failed to provide factual support showing that 2 Cases that cite this headnote allegedly defamatory press release was made with “actual knowledge”;
[4] booking agent’s actions did not amount to intentional infliction of emotional distress (IIED); [3] Contracts Allegation or Statement of Contract or [5] promoter alleged sufficient facts to state a claim under Promise FDUTPA; and Under Florida law, in order to state a cause of [6] promoter failed to allege that agent’s actions took place action for breach of an oral contract, a plaintiff in Florida, as required by FDUTPA. is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to a certain and definite proposition and left no Motion granted in part. essential terms open.
Cases that cite this headnote
West Headnotes (16) © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574
Concert promoter’s allegations that musician’s booking agent uttered false statements about promoter, following cancellation of planned [4] Contracts concert tour, failed to state a defamation claim Allegation or Statement of Contract or against agent under Florida law; promoter failed Promise to allege when statements occurred, failed to describe allegedly defamatory statements, and in Concert promoter sufficiently pleaded existence one instance did not attach document containing of an agreement with musician as to when an allegedly defamatory statement to his payment of $480,000 was due as required to complaint, but merely directed the court to a state claim against musician for breach of oral website where the statement could be found. contract under Florida law after musician cancelled a series of concerts by promoter in Argentina; promoter included in its allegations 4 Cases that cite this headnote that the payment would be due to musician upon his arrival in Argentina.
Cases that cite this headnote [8] Libel and Slander Form and requisites in general
Concert promoter’s allegations that musician and musician’s booking agent made allegedly [5] Libel and Slander defamatory press release and posted it to their Nature and elements of defamation in general websites following cancellation of planned concert tour failed to state a claim for Under the law of Florida, the elements of a defamation under Florida law; promoter merely claim for defamation are: (1) the defendant asserted on “information and belief” that published a false statement; (2) about the statements in press release were made with plaintiff; (3) to a third party; and (4) the plaintiff knowledge, consent and approval of musician suffered damages as a result of the publication. and agent without alleging factual basis for those beliefs in his complaint, and only later, improperly, put factual support for allegations in 7 Cases that cite this headnote its reply brief.
1 Cases that cite this headnote
[6] Libel and Slander Form and requisites in general
In a defamation case under Florida law, a [9] Damages plaintiff must allege certain facts such as the Particular Cases identity of the speaker, a description of the Damages statement, and provide a time frame within Particular cases which the publication occurred. Under Florida law, statements made by musician’s booking agent threatening to breach 6 Cases that cite this headnote contract with concert promoter, and encouraging third parties to disparage promoter did not amount to intentional infliction of emotional
distress (IIED), even though the comments were
unprofessional and irresponsible; comments [7] Libel and Slander were not so extreme as to be atrocious or utterly Form and requisites in general © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574
intolerable. Restatement (Second) of Torts § 46. booking agent induced promoter to produce four additional concerts in Argentina beyond their original agreement under threat of cancellation Cases that cite this headnote of all of the concerts in spite of promoter’s advancing of over $820,000 to agent, and that agent refused to fly musician to Argentina until it received $480,000 for the additional shows,
[10] despite their agreement to transfer the money Damages upon musician’s arrival in Argentina, and then Humiliation, insults, and indignities blamed promoter for the failure to execute their agreement, were sufficient to state a claim Under Florida law, liability for intentional against agent under the Florida Deceptive and infliction of emotional distress (IIED) does not Unfair Trade Practices Act (FDUTPA). West’s extend to mere insults, indignities, threats, or F.S.A. § 501.201 et seq. false accusations. Cases that cite this headnote
Cases that cite this headnote
[14] Antitrust and Trade Regulation
Particular cases [11] Antitrust and Trade Regulation
Nature and Elements Argentine concert promoter failed to plead that
any actions by booking agent in its cancellation To establish a claim under the Florida Deceptive of tour of Reggaeton musician’s tour in and Unfair Trade Practices Act (FDUTPA), Argentina took place in Florida, as required to plaintiffs must allege (1) a deceptive act or state a claim under the Florida Deceptive and unfair practice, (2) causation, and (3) actual Unfair Trade Practices Act (FDUTPA); there damages. West’s F.S.A. § 501.201 et seq. was no indication of agent’s location when he 12 Cases that cite this headnote allegedly uttered statements blaming promoter for failure to execute their tour agreement, or where he allegedly made an extra-contractual demand of $480,000. West’s F.S.A. § 501.201 et seq. [12] Antitrust and Trade Regulation In general; unfairness 4 Cases that cite this headnote
An “unfair practice” under the Florida
Deceptive and Unfair Trade Practices Act
(FDUTPA) is one that offends established [15] Antitrust and Trade Regulation public policy and that is immoral, unethical, What law governs; territorial limitations oppressive, unscrupulous, or substantially
injurious to consumers. West’s F.S.A. § 501.201 The Florida Deceptive and Unfair Trade et seq. Practices Act (FDUTPA) applies only to actions 2 Cases that cite this headnote that occurred within the state of Florida. West’s F.S.A. § 501.201 et seq.
11 Cases that cite this headnote
[13] Antitrust and Trade Regulation
Other particular subjects and regulations
[16] Antitrust and Trade Regulation Concert promoter’s allegations that musician’s © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574
Profits Currently before the Court are Defendants’ Motion to Dismiss counts 2 and 5–9 [DE–18], a request for bond on Consequential damages in the form of lost Plaintiffs’ FDUTPA claim [DE–19] and a request for a profits are not recoverable under the Florida hearing [DE–20]. The Court has considered the motions, Deceptive and Unfair Trade Practices Act Plaintiffs’ responses [DE–21, 22] and the replies [DE–23, (FDUTPA). West’s F.S.A. § 501.201 et seq. 24]. For the reasons set forth below, the Court will grant in part the motion to dismiss and deny the motions for 8 Cases that cite this headnote bond and for a hearing. Specifically, the Court will dismiss Counts 5–9 without prejudice, grant the motion to dismiss the request for lost profits in Count 8 with prejudice and deny the motion as to Count 2.
Attorneys and Law Firms *1323 Daniel Eric Vielleville, Peter Emerson Berlowe, Assouline & Berlowe, Miami, FL, Eric W. Bloom, Tomas I. BACKGROUND FACTS Leonard, Winston & Strawn, Washington, DC, Margaret The facts, taken from the Complaint, are as follows: Ciavarella, Winston & Strawn, New York, NY, for Plaintiffs Five for Entertainment S.A., d/b/a/ Five Live Plaintiffs. Entertainment (“Five Live”) and its president and majority shareholder, Diego Hernan De Iraola (“De Edwin Prado, Prado Nunez & Associates, San Juan, PR, Iraola”), are in the business of producing *1324 and Joshua B. Spector, Perlman, Bajandas, Yevoli & Albright, promoting concerts for musical artists in Argentina. On P.L., Miami, FL, Paul Dewey Turner, Perlman, Bajandas, June 8, 2010, Five Live and Defendant El Cartel Records, Yevoli & Albright, P.L., Fort Lauderdale, FL, for Inc. (“El Cartel”) entered into an “Artist Engagement Defendants. Contract” for a series of six performances by Defendant Ramon Luis Ayala Rodriguez a/k/a/ Daddy Yankee in Argentina. Under the terms of that contract, Five Live agreed to pay a total of $820,000 to Defendant Icaro Services, Inc. (“Icaro”), Daddy Yankee’s booking agent, payable in four $205,000 payments. Although the contract specified dates for those payments, Plaintiffs allege that all parties understood the payments would actually be ORDER GRANTING IN PART MOTION TO made on a rolling basis. Between June and November DISMISS, DENYING AS MOOT MOTION FOR 2010, De Iraola made thirteen payments to Icaro’s BOND AND DENYING MOTION FOR HEARING president Edgar Baldiri Martinez (“Baldiri”) totaling $796,895.
PATRICIA A. SEITZ, District Judge. Per the terms of the contract, Five Live paid all costs associated with the concerts, including the cost of **1 This case involves a failed series of concerts in equipment, lighting, audio and technical support. Five Argentina involving Daddy Yankee, a multiple Grammy Live also arranged for and paid all transportation, food award-winning singer of Reggaeton music. Plaintiffs and lodging for Daddy Yankee and thirty members of his entered into two contracts to promote and produce ten staff. Five Live also made down payments in excess of Daddy Yankee concerts scheduled for November of 2010. $150,000 for airfare and lodging alone in anticipation of After Plaintiffs expended more than $1,000,000 in the concerts. support of the tour, and just days before the first concert, Defendants issued a press release canceling the entire Daddy Yankee arrived in Argentina in September 2010 tour. The press release, which Defendants posted on their for a promotional tour in advance of the concerts. During own websites, indicated that Plaintiffs had failed to pay this promotional tour, and allegedly at the behest of monies owed to Daddy Yankee and blamed Plaintiffs for Baldiri, Daddy Yankee made public statements the canceled tour. Plaintiffs have filed suit against announcing four additional concerts, describing the tour Defendants for breach of contract, defamation and various as ten shows, not six as specified in the contract. After the other claims. producers of the additional shows backed out, Baldiri advised De Iraola that the Defendants expected Five Live © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574 to produce the additional four shows. Further, Baldiri communication to the media announcing the cancellation threatened to cancel the six-show tour unless De Iraola of all ten of Daddy Yankee’s shows. On that same date, agreed to produce the entire ten-show tour. De Iraola Daddy Yankee posted a press release on his personal agreed to the demands and immediately took steps to website and Icaro’s website, both of which are available promote the additional shows. De Iraola traveled to the public. Plaintiffs allege that the press release extensively to different venues, negotiated contracts with contains the following false statements: local vendors and producers and commenced integration of the existing marketing and logistic efforts already underway with those necessary for the additional shows. (i) Plaintiff De Iraola, producer and **2 De Iraola performed all of this work without a party responsible for the concerts in contract for the additional shows and without an Argentina, was in arrears and owed agreement for the amount or timing of Daddy Yankee’s more than 40% of Daddy Yankee’s fee for the additional four shows. On October 24, 2010, fee for the shows; (ii) Defendants De Iraola traveled to Columbia to meet with Baldiri and had afforded Plaintiff De Iraola discuss payment for the four additional shows, but they every opportunity to pay and were unable to reach an agreement. On October 27, 2010, offered him different alternative Argentina’s former President Nestor Kirchner, spouse of means of complying with his then President Cristina F. de Kirchner, passed away contractual obligations; (iii) unexpectedly. As a result, weekend games for the national Defendants’ goodwill and efforts soccer team were suspended, requiring the games to be had been in vain because on the rescheduled at venues and on dates scheduled for Daddy day prior to the scheduled trip to Yankee’s tour. The parties thereafter rescheduled the tour, Argentina, Plaintiffs were still in with the first concert set to start on November 19, 2010. default, and (iv) Plaintiff Five Live, under the direction of Plaintiff De On November 1, 2010, Baldiri emailed De Iraola a draft Iraola, had failed to adequately contract for the additional shows. Under its terms, De perform its contractual obligations Iraola would pay Daddy Yankee $480,000 for the under the governing contract. additional shows. The contract price was payable in four installments on specified dates set forth in the contract, three of which had already passed by the time Baldiri **3 Compl., ¶ 71. Plaintiffs further allege that the emailed the contract to De Iraola. De Iraola immediately statements in the press release were made with the signed and emailed the contract back to Baldiri. No knowledge, consent and approval of Baldiri, Icaro, El Defendant, however, signed the agreement. On November Cartel and Daddy Yankee. The contents of the press 10, 2010, the parties agreed that the fee would be paid release were thereafter picked up by more than 130 media upon Daddy Yankee’s arrival in Argentina. outlets, including internet, television and radio.
Without specifying the time frame involved, Plaintiffs In the weeks following the press release, Baldiri allege that Baldiri demanded payment in full of the continued to make false statements against Plaintiffs. In a $480,000. De Iraola offered to wire the money to Icaro’s November 26, 2010 article, Baldiri accused De Iraola of account once Daddy Yankee and his staff arrived in forging Baldiri’s signature on certain contracts with local Argentina. De Iraola *1325 maintains it was necessary to vendors. Another article indicates that Baldiri also stated condition payment on Daddy Yankee’s arrival in that De Iraola entered into agreements on behalf of Five Argentina because of Baldiri’s repeated threats to cancel Live even though De Iraola was not affiliated with Five the tour. On November 16, 2010, Mireddys Gonzalez, Live. As a result of the cancellation of the shows and the Daddy Yankee’s manager, sent an email to De Iraola “smear” campaign perpetrated by the Defendants, indicating that she would cancel the tour if De Iraola Plaintiffs allege they are no longer a viable business and failed to promptly pay the entire fee for all ten shows. De De Iraola has suffered debilitating anxiety and numerous Iraola offered to begin the wire transfer before Daddy physical maladies. He has been admitted to the Yankee left the United States if an Icaro employee emergency room several times and remains under the care traveled to Buenos Aires to supervise the transfer of of a psychiatrist. funds. Gonzalez and Baldiri refused that offer. Plaintiffs’ nine count Complaint contains contractual On November 17, 2010, Icaro issued an official claims, equitable claims, tort claims, statutory claims and
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 5
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574 a conspiracy claim all arising from the failed concert series and subsequent public statements made by Defendants. The two contract claims Five Live asserts against Daddy Yankee and El Cartel are Count One (Breach of Contract) and Count Two (Breach of III. LEGAL ANALYSIS Contract—Second Contract). The two equitable claims are pled in the alternative to the contractual claims and A. FLORIDA’S SINGLE ACTION also involve Five Live against Daddy Yankee and El RULE—NOTICE UNDER FLA. STAT. § 770.01 Cartel, namely Count Three (Unjust Enrichment) and **4 Defendants first argue that the Court lacks subject Count Four (Quantum Meruit). The three tort claims matter jurisdiction over counts 5–9 because Plaintiffs include: Count Five (Defamation [Plaintiffs Five Live and failed to comply with the pre-suit notice requirement set De Iraola against Defendants Daddy Yankee, El Cartel, forth in Florida Statute § 770.01. That statute provides: Icaro and Baldiri] ); Count Six (Injurious Falsehood [Plaintiffs Five Live and De Iraola against Defendants Daddy Yankee, El Cartel, Icaro and Baldiri] ); and Count Before any civil action is brought Seven (Intentional Infliction of Emotional Distress for publication or broadcast, in a [Plaintiff De Iraola against Defendants El Cartel, Icaro newspaper, periodical, or other and Baldiri] ). *1326 Count Eight is filed on behalf of medium, of a libel or slander, the both Plaintiffs against all Defendants and asserts a plaintiff shall, at least 5 days before violation of Florida Deceptive and Unfair Trade Practices instituting such action, serve notice Act (“FDUTPA”). Finally, Count Nine alleges a civil in writing on the defendant, conspiracy to defame against all Defendants. Defendants specifying the article or broadcast have moved to dismiss Counts 2 and 5–9 for failure to and the statements therein which he state a claim and lack of subject matter jurisdiction. or she alleges to be false and [DE–18]. defamatory.
Fla. Stat. § 770.01. Although only Count Five is a defamation claim, Defendants maintain that the Court II. LEGAL STANDARD must characterize Counts 5–9 as a “set of intertwined The purpose of a motion to dismiss filed pursuant to Rule claims that all stem from the same defamation claim.”1 12(b)(6) is to test the facial sufficiency of a complaint. Defs.’ Mot., p. 4. Based on such a characterization of Although a complaint challenged by a Rule 12(b)(6) Counts 5–9, Defendants argue that all five claims must be motion to dismiss does not need detailed factual dismissed for failure to comply with § 770.0’s five-day allegations, a plaintiff is still obligated to provide the notice requirement. “grounds” for his entitlement to relief, and a “formulaic recitation of the elements of a cause of action will not Relying on Alvi Armani Medical, Inc. v. Hennessey, do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, Defendants argue that the publication of the statements on 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Once a court Defendants’ web pages falls within the “other medium” “identifies pleadings that, because they are no more than language of § 770.01. 629 F.Supp.2d 1302 conclusions, are not entitled to the assumption of truth,” it (S.D.Fla.2008). In response, Plaintiffs argue that § must determine whether the well-pled facts “state a claim 770.0’s notice requirement does not apply to these to relief that is plausible on its face.” Ashcroft v. Iqbal, Defendants because they are “non-media *1327 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 defendants,” and the statute does not apply to private (2009). A complaint can only survive a 12(b)(6) motion to persons simply because technology now enables those dismiss if it contains factual allegations that are “enough individuals to publish information on the internet. Pls.’ to raise a right to relief above the speculative level, on the Resp., p. 8 [DE–21]. Plaintiffs suggest that Alvi Armani is assumption that all the [factual] allegations in the inapposite and ask the Court to deny the request to complaint are true.” Twombly, 550 U.S. at 555, 127 S.Ct. dismiss this case for failure to give the pre-suit notice. 1955. However, a well-pled complaint survives a motion to dismiss “even if it strikes a savvy judge that actual [1] The parties’ arguments have unnecessarily confused the proof of these facts is improbable, and ‘that a recovery is issue. Whether the phrase “other medium” in § 770.01 very remote and unlikely.’ ” Id. at 556, 127 S.Ct. 1955. includes the internet is not the critical issue here, and, in this Court’s view, not even open for debate. That the © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574 internet constitutes a “other medium” for the purposes of § 770.01 should be well-settled. See Alvi Armani, 629 F.Supp.2d at 1307.2 If the defendant in this case was the Miami Herald for example, it would make no difference B. FAILURE TO STATE A CLAIM UPON that the alleged statements were found in the print or the WHICH RELIEF CAN BE GRANTED online version of the paper. The medium through which Defendants also seek to dismiss Counts 2 and 5–9 for Defendants made the statements then, is not dispositive failure to state a claim upon which relief can be granted here. Rather, the issue is whether these Defendants are the pursuant to Rule 12(b)(6). type of parties contemplated to receive pre-suit notice under § 770.01.
There is no dispute in Florida about who is entitled to receive pre-suit notice under § 770.01. Florida courts have recognized that the statute does not apply to private 1. COUNT TWO (BREACH OF ORAL CONTRACT) parties or nonmedia defendants. Bridges v. Williamson, 449 So.2d 400, 401 (Fla. 2nd DCA 1984). The Florida [3] [4] In order to state a cause of action for breach of an Supreme Court has explained that one of the objectives of oral contract, a plaintiff is required to allege facts that, if the statute was to afford newspapers and periodicals an taken as true, demonstrate that the parties mutually opportunity to make a full retraction to correct errors and assented to “a certain and definite proposition” and left no avoid exposure to punitive damages. Ross v. Gore, 48 essential terms open. Rubenstein v. Primedica So.2d 412 (Fla.1950). Accordingly, § 770.01 does not Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA extend to nonmedia defendants. 2000).4 Defendants argue that Plaintiffs failed to plead an essential term of the oral contract in Count Two, which [2] **5 Thus, the question for this Court is whether the involves the agreement to pay $480,000 to Defendants for Defendants here should be considered media or nonmedia the four additional concerts. Defs.’ Mot., p. 11. parties. Mancini v. Personalized Air Conditioning & Specifically, Defendants argue that Plaintiffs failed to Heating, Inc., 702 So.2d 1376, 1380 (Fla. 4th DCA plead when the $480,000 payment was due. The Court 1997)(media defendants are those individuals “engaged in must reject this argument. Plaintiffs alleged that the the dissemination of news and information through the parties initially agreed to the time and location of the news and broadcast media[.]”). Turning to the Complaint, concerts and the concert price, without establishing a the Court finds no meaningful allegations that the specific date for payment. Compl., ¶¶ 48, 52. Plaintiffs Defendants were engaged in the dissemination of news further alleged that the parties supplied the missing term and information. The Complaint provides that Daddy by expressly agreeing that payment would be made upon Yankee posted a press release on his personal website as Daddy Yankee’s arrival in Argentina. Id. ¶ 101. Plaintiffs well as Icaro’s, both of which are available to the public. therefore sufficiently pled when the payment of $480,000 The Complaint provides no other allegations concerning was due. The only essential term that Defendants suggest any other information disseminated from the websites. is missing from the Complaint is actually included in the For example, there is no indication that the websites ever Plaintiffs’ allegations. Compl., ¶ 101. Accordingly, the disseminated any other information, whether it be motion to dismiss is denied as to Count Two. traditional news or simply self-promotional or “infomercial” materials. Assuming that the press release constituted news, the one-time publication of that press release does not render Daddy Yankee or Icaro members of the news media. They are private parties with their own websites who released information about the cancellation of Daddy Yankee’s tour on one occasion. Finding that 2. COUNT FIVE (DEFAMATION) Daddy Yankee and Icaro were media parties on these [5] [6] facts would abolish any distinction between private **6 While the Defendants seek to dismiss Plaintiffs’ parties and members of the media.3 Accordingly, the defamation claim for a variety of reasons, the Court Court must deny Defendants request to dismiss Counts believers the claim suffers from a more fundamental 5–9 for Plaintiffs’ failure to provide *1328 Defendants problem and would benefit from re-pleading. The with the requisite pre-suit notice. elements of a claim for defamation are: “(1) the defendant published a false statement; (2) about the plaintiff; (3) to a third party; and (4) the plaintiff suffered damages as a result of the publication.” Fortson v. Colangelo, 434 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574
F.Supp.2d 1369, 1378 (S.D.Fla.2006). In a defamation **7 Defendants also seek to dismiss Plaintiffs’ IIED case, “a plaintiff ‘must allege certain facts such as the claim for failure to state a claim upon which relief can be identity of the speaker, a description of the statement, and granted. Florida has adopted § 46 of the Restatement provide a time frame within which the publication (Second) of Torts as the appropriate standard for IIED occurred.’ ” Morrison v. Morgan Stanley Props., No. claims. Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 06–80751, 2008 WL 1771871, at *10 (S.D.Fla. Apr. 15, 278–79 (Fla.1985). Section 46 states that “[o]ne who by 2008) (quoting Fowler v. Taco Viva, Inc., 646 F.Supp. extreme and outrageous conduct intentionally or 152, 157–58 (S.D.Fla.1986)). Plaintiff fails to allege facts recklessly causes severe emotional distress to another is to support any of the elements of a defamation claim. subject to liability.” Restatement (Second) of Torts § 46. The commentary to § 46 explains that liability for IIED [7] The defamation claim here involves both the press requires that release and a number of statements Baldiri purportedly uttered in the days or weeks following the November 17, 2010 announcement. With respect to the statements made by Baldiri, Plaintiffs failed to allege when those the conduct [was] so outrageous in statements were made and failed to include a sufficient character, and so extreme in description of the statements. See Compl., ¶ 73–76. In one degree, as to go beyond all possible instance, Plaintiffs did not even attach the article bounds of decency, and to be containing the Baldiri’s statements, but directed the Court regarded as atrocious, and utterly to a website where they might be located. Id. at ¶ 74. In intolerable in a civilized the absence of the necessary facts—when the statements community. Generally, the case is *1329 were made—and an adequate description of the one in which the recitation of the statements, the defamation claim as it relates to Baldiri’s facts to an average member of the statements must be dismissed with leave to plead anew. community would arouse his resentment against the actor, and [8] The defamation claim based on the press release must lead him to exclaim, “Outrageous!” also be dismissed. Plaintiffs have alleged “on information and belief” that the statements made in the press release were made with the knowledge, consent and approval of Id. at cmt. d. The Florida Supreme Court, however, has all of the Defendants. Compl., ¶ 71. While this form of not elaborated further on what constitutes outrageous pleading is permitted, a plaintiff is still required to allege conduct for IIED purposes. See Lopez v. Target Corp., with particularity the factual basis upon which the 676 F.3d 1230 (11th Cir.2012). This Court must therefore information and belief was founded. Plaintiffs have look to decisions of Florida’s district courts of appeal in merely alleged that the press release on Icaro’s letterhead interpreting Florida’s outrageousness standard. Id. was published on Daddy Yankee and Icaro’s website. There are not allegations, other than Plaintiffs’ bare [9] [10] Under those state court decisions, Plaintiffs have assertion on “information and belief” that would implicate failed to state an IIED claim against Baldiri. Seeking EC Records, Ayala or Baldiri in the publication of those additional bargaining leverage, threatening to breach a statements. Plaintiffs improperly attempt to supplement contract and encouraging third parties to disparage these factual allegations in their response brief to the Plaintiffs simply does not rise to the level of motion to dismiss. Pls.’ Resp., pp. 7–8. Those allegations, outrageousness required to state an IIED claim in Florida. however, need to be contained in a pleading, not a See Compl., ¶¶ 150–57. As an appellate court has response brief. Accordingly, the Court will dismiss the explained, liability for IIED “does not extend to mere defamation claim with leave to re-plead. Because the insults, indignities, threats, or false accusations.” Williams claims for injurious falsehood and conspiracy are v. Worldwide Flight Servs. Inc., 877 So.2d 869 (Fla. 3d premised on the same conduct and allegations, the Court DCA 2004) (per curiam). Baldiri’s alleged conduct, will also dismiss those claims without prejudice.5 which *1330 consists entirely of what may be aptly described as unprofessional and irresponsible, is not, as a matter of law, so atrocious or utterly intolerable as to rise to the level sufficient to state a claim for IIED. See Nims v. Harrison, 768 So.2d 1198, 1199 & n. 1 (Fla. 1st DCA 2000) (plaintiff stated a claim for IIED claim based on 3. COUNT SEVEN—INTENTIONAL INFLICTION profane and racially derogatory language that included OF EMOTIONAL DISTRESS threats to kill the plaintiff and to rape her and her © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574 children.). Accordingly, Plaintiffs have failed to state a adequately pled the elements to state a claim for cause of action for intentional infliction of emotional FDUTPA. distress. [14] [15] While these facts are enough to state a claim for FDUTPA, the Court shares the Defendants’ concern that the Complaint does not contain sufficient specificity for the location of the conduct giving rise to the FDUTPA claim. FDUTPA applies only to actions that occurred within the state of Florida. Carnival Corp. v. Rolls–Royce 4. COUNT EIGHT (FDUTPA) PLC, Case No. 08–23318, 2009 WL 3861450, *6 (S.D.Fla.2009) (Seitz, J.)(citing Millennium Commc’ns & Defendants assert that Plaintiffs’ claim that they violated Fulfillment, Inc. v. Office of Attorney Gen., 761 So.2d the Florida Deceptive and Unfair Trade Practices Act 1256, 1262 (Fla. 3d DCA 2000)). Where Baldiri was (FDUTPA) must be dismissed because Plaintiffs: (1) located when he uttered any of the statements identified in failed to allege unfair conduct; (2) included conduct that the Complaint has not been pled. Nor is there any occurred outside of Florida; and (3) improperly seek indication where the extra-contractual demands or the special damages. Defs.’ Mot., pp. 15–19 [DE–18]. demands for pre-payment of the $480,000 occurred. Plaintiffs respond that the Complaint contains sufficient Moreover, *1331 Plaintiffs decision to lump all of the allegations of unfair conduct, identifies conduct that Defendants’ actions together under a theory of concerted occurred within Florida and properly seeks lost profits. acts might be generally permissible, but has unnecessarily Pls.’ Resp. pp. 12–16 [DE–21]. complicated this matter. The Court will grant the motion
to dismiss the FDUTPA claim with leave to re-plead to **8 [11] [12] [13] To establish a claim under the FDUTPA, specify the location of the conduct to make certain it Plaintiffs must allege (1) a deceptive act or unfair occurred within the territorial boundaries of Florida. practice, (2) causation, and (3) actual damages. Rollins, Should Plaintiffs include this claim in an amended Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006). pleading, Plaintiffs should also specify the acts committed An unfair practice is one that offends established public by each Defendant, or, at a minimum, specify how certain policy and that is immoral, unethical, oppressive, Defendants ratified, approved or authorized the unfair unscrupulous, or substantially injurious to consumers. acts. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d
489, 499 (Fla. 4th DCA 2001). Plaintiffs have adequately **9 [16] Assuming that Plaintiffs will re-file their alleged a FDUTPA claim against Defendants. Plaintiffs FDUTPA claim, the Court will address the final argument alleged that Defendants induced them to produce four Defendants raise that lost profits are not available for a additional concerts beyond the parties’ original agreement FDUTPA claim. It remains well-settled in Florida that under the threat of cancelling the all of the concerts even consequential damages in the form of lost profits are not though Plaintiffs had advanced more than $820,000 for recoverable under FDUTPA. QSGI, Inc. v. IBM Global those shows. According to the Plaintiffs, after agreeing to Financing, Case No. 11–80880, *5, 2012 WL 1150402 produce the additional shows and securing Defendants (S.D.Fla.2012); Eclipse Med., Inc. v. Am. Hydro–Surg. agreement that they would accept payment of $480,000 Instruments, Inc., 262 F.Supp.2d 1334, 1357 for the additional shows after arriving in Argentina, (S.D.Fla.1999) (“Florida courts specifically reject the Defendants refused to fly to Argentina until they received recovery of consequential damages under FDUTPA.”). the entire payment for the additional shows. Despite Accordingly, Defendants’ motion is granted and Defendants knowledge that Plaintiffs expended Plaintiffs’ request for lost profits under FDUTPA is substantial sums in preparation of the shows, they dismissed with prejudice. canceled all of the concerts and publicly blamed Plaintiffs for the cancellation. Plaintiffs further alleged that the
Defendants’ press release and Baldiri’s subsequent false statements ruined their business and stopped others from working with them on future projects. These acts and practices were deceptive, unfair, and caused Plaintiffs to IV. CONCLUSION be aggrieved. Moreover, Defendants’ acts offend Based on the foregoing, it is established public policy because they intentionally damaged Plaintiffs’ reputation through publication of ORDERED THAT false representations concerning Plaintiffs’ involvement in Daddy Yankee’s Argentinean concerts. Plaintiffs have (1) Defendants’ Motion to Dismiss Plaintiffs’ © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9
Five for Entertainment S.A. v. Rodriguez, 877 F.Supp.2d 1321 (2012) 2012 WL 2918574
Complaint [DE–18] is GRANTED to the extent that cannot conclude that the claim is patently frivolous, Counts Five, Six, Seven, Eight and Nine are without legal or factual merit or that it has been DISMISSED WITHOUT PREJUDICE. Plaintiffs’ brought for the purpose of harassment. request for lost profits under Count Eight (FDUTPA) is DISMISSED WITH PREJUDICE. The motion is (3) Defendants’ Motion for Hearing [DE–20] is DENIED as to Count Two. Plaintiff shall file an DENIED. amended complaint on or before July 16, 2012.
(2) Defendants’ Motion to Request Plaintiffs to Post Bond [DE–19] is DENIED. The Court has All Citations determined that Plaintiffs have stated a FDUTPA claim, but only dismissed the claim so that Plaintiffs 877 F.Supp.2d 1321, 2012 WL 2918574 can re-plead with additional specificity regarding the location of the unfair acts. Therefore the Court
Footnotes
1 Defendants rely on the single action rule, Fridovich v. Fridovich, 598 So.2d 65, 70 (Fla.1992), which provides that publication of defamatory material gives rise to one cause of action-defamation. Mot., p. 2. Other torts that arise from the allegedly false and defamatory material must be considered as part of the same claim, i.e., a single action. Because the Court declines to dismiss the defamation claim for lack of § 770.01 notice, the Court need not discuss the single-action rule in depth here.
2 Citing Canonico v. Calloway, 35 Med. L. Rptr. 1549 (Fla.Cir.Ct. Feb. 22, 2007) and Holt v. Tampa Bay Television, Inc., 34 Med. L. Rptr. 1540, 2006 WL 5063132 (Fla.Cir.Ct. Mar. 17, 2005), affd. by 976 So.2d 1106 (Fla. 2d DCA 2007).
3 Because the issue relates to the jurisdiction of the Court, Defendants could have introduced evidence to establish that they should be considered media parties, but did not do so.
4 Plaintiff must also prove all the standard elements of a breach of written contract claim such as the existence of a contract, breach of that contract and damages resulting from the breach. Assucrazioni Generali SPA v. Agility Logistics Corp., Case No. 08–22825, 2009 WL 4421262, *5 (S.D.Fla.2009).
5 In filing an amended pleading, Plaintiffs’ counsel would be well served in closely examining the nine causes of action from the original Complaint to determine whether adopting the same “kitchen sink” approach to pleading serves the best interests of the Court and the parties.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
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In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188
Fistel LLC, Atlanta, GA, Cullin Avram O’Brien, Michael Lewis Greenwald, Stuart Andrew Davidson, David J. KeyCite Yellow Flag - Negative Treatment George, Coughlin Stoia Geller Rudman & Robbins LLP, Distinguished by Deere Construction, LLC v. CEMEX Construction Boca Raton, FL,, John D. Mahaffey, Jr., Mahaffey & Materials Florida, LLC, S.D.Fla., December 1, 2016 Leitch, Oviedo, FL, Mark Kitrick, Mark Lewis, Kitrick & 2009 WL 636188 Lewis Co LPA, Columbus, OH, Steven R. Jaffe, Only the Westlaw citation is currently available. Rothstein Rosenfeldt Adler, Fort Lauderdale, FL, Austin United States District Court, S.D. Florida, P. Tighe, Jr., Feazell & Tighe, Austin, TX, Mark S. Miami Division. Fistos, Aronovitz Trial Lawyers PA, Tallahassee, FL, Paul M. Weiss, William M. Sweetnam, Freed & Weiss, In re NATIONSRENT RENTAL FEE Chicago, IL, Steven R. Jaffe, Aronovitz Jaffe, Miami, FL, LITIGATION. for Plaintiffs. No. 06-60924-CIV. | Lawrence Dean Silverman, Scott Brian Cosgrove, Feb. 24, 2009. Silverman Cosgrove & Sammataro, LLC, Michael Bruce Chavies, Akerman Senterfitt, Miami, FL, for Defendant.
West KeySummary
1 Federal Civil Procedure Consumers, Purchasers, Borrowers, and ORDER ON PLAINTIFFS’ MOTION FOR CLASS Debtors CERTIFICATION
The elements of commonality and typicality were not met for a proposed class for all STEPHEN T. BROWN, United States Magistrate Judge. customers who paid a Loss/Damage Waiver Fee in action against a rental company. Some *1 THIS MATTER is before this Court on Plaintiffs’ customers intentionally chose to purchase the Motion for Class Certification (DE 111). The Court has Loss/Damage Waiver Fee even though they had considered the Motion, the Response, the Reply, the adequate insurance. The fee also relieved Notices of Supplemental Authority, and all pertinent customers of 50% of the amount they were materials in the file. In addition, hearings were held on required to pay under the contract for loss due to November 18, 2008 and February 11, 2009 at which the left or vandalism and evidence demonstrated Court heard testimony from one live witness as well as that many customers received this benefit. argument of counsel. The Court adopts the transcript of Further, the differences in customers that hearing by reference herein. experiences with the fee precluded a finding of commonality as each customer’s purchase would have had to have been examined to determine if it was illusory or unconscionable. Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A. Facts Cases that cite this headnote Plaintiffs David Jacov (“Jacov”), Todd Horton (“Horton”) and Brad Barnard d/b/a Barnard Construction (“Barnard”) (collectively “Plaintiffs”) have filed a seven count Consolidated Second Amended Class Action Complaint (“SAC”) against Defendants NationsRent Companies, Attorneys and Law Firms Inc., and NationsRent, Inc. (collectively “NationsRent” or “Defendants”) on behalf of themselves and others Corey D. Holzer, Michael I. Fistel, Jr., Holzer Holzer & similarly situated who rented equipment from © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188
NationsRent and were charged allegedly illegal damage Environmental Charge is not “a tax or other obligation waiver fees (“Loss/Damage Waiver (“LDW”)Fees”) which is imposed by any federal or state agency on the and/or “Environmental Charges.” consumer, and is not mandated by any state or federal agency.” SAC ¶ 45. The Plaintiffs/Proposed Class Representatives are citizens of Georgia, Ohio and Texas, respectively, and rented *2 The SAC raises the following claims: Violations of equipment in their respective states.1 Plaintiffs allege that Florida’s Deceptive and Unfair Trade Practices Act, Fla. the Defendants are Delaware corporations, who as of Stat. § 501.201, et seq (“FDUTPA”)2; Violation of UCC March 30, 2006, “operated 269 locations in 26 states,” at (Fla.Stat. § 680.1081)3; Breach of Contract; Breach of least 50 of which are in Florida and that upon information Implied Covenant of Good Faith & Fair Dealing; Unjust and belief, “both defendants publicly state that each of Enrichment; and Money Had and Received (Fla.Stat. § them are ‘[h]eadquartered in Fort Lauderdale, Florida 86.021). ...’.” SAC ¶ 10. At the evidentiary hearing, Plaintiffs submitted a revised The LDW, which is printed on the Rental Agreement proposed class definition, consisting of two proposed (“Agreement”), states: classes:
LDW Fee Class:
Damage Waiver Declined ______All natural persons and business entities in the United (DAMAGE WAIVER CAN ONLY States who rented equipment from any store owned or BE DECLINED IF A operated by NationsRent, or any of its affiliated CERTIFICATE OF INSURANCE companies from June 1, 2003 until August 30, 2006, IS ON FILE ) and who paid a Loss/Damage Waiver fee.
Environmental Fee Class:
The Agreement contains additional Terms and Conditions All natural persons and business entities in the United on the reverse side of the Agreement which discuss the States who rented equipment from any store owned or Customer’s liability for loss of/damage to the equipment, operated by nationsRent, or any of its affiliated and the applicability of the LDW. Plaintiffs were charged companies from June 1, 2003 until August 30, 2006, 13.50% of the rental price for the LDW. and who paid an Environmental Charge.
Plaintiffs allege that the language of the LDW and its Excluded from each of the Alternative Classes are (1) limiting paragraphs and exclusions are printed “in Defendant, its parents, subsidiaries and affiliates, their miniature, extremely difficult to read font size.” SAC ¶ directors, officers and employees, and members of their 38. Plaintiffs additionally allege that “[t]he Loss/Damage immediate families; and (2) the Court, all persons Waiver Fee purports to protect customers if a rented tool within the third degree of relationship to the Court (as is damaged; however, the Terms and Conditions of defined in Canon 3.C(3)(a) of the Code of Conduct for NationsRent’s rental contract contains exclusions which United States Judges), and the spouses of all such negate any coverage” (SAC ¶ 4) and that the LDW Fee persons. “is illusory and fails to protect NationsRent’s customers, while NationsRent collects millions of dollars in additional revenues each year.” SAC ¶ 41.
Plaintiffs additionally allege that they were charged an “Environmental Charge” of between $2.50 and $7.50 for each rental, which they allege is unlawful because “it has DISCUSSION no relation to any of NationsRent’s actual environmental Class certification is governed by Rule 23 of the Federal expenses, particularly with respect to each consumer’s Rules of Civil Procedure. For a district court to certify a rented equipment,” but rather is “a veiled profit generator class action, the putative class must meet each of the for NationsRent” (SAC ¶ 44) and that “[u]pon requirements specified in Fed.R.Civ.P. 23(a), as well as at information and belief, the monies paid to NationsRent as least one of the requirements set forth in Rule 23(b). Environmental Charges are not used by NationsRent for Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1321 (11th ‘environmental-related’ activities,” and the Cir.2008). © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188
The Court will initially address several legal issues Rule 23(a) states: relevant to Defendants’ argument that certain questions of law are not common to the class.
Plaintiffs argue that the choice of law provision in the Prerequisites to a Class Action. Agreement which states that “[t]he laws of the State of One or more members of a class Florida shall govern the interpretation, validity and may sue or be sued as govern the performance of the terms of the Contract” representative parties on behalf of applies to all counts of the Second Amended Complaint all only if (1) the class is so and all prospective class members. Although this numerous that joinder of all provision clearly indicates that Florida law applies to the members is impracticable, (2) there contract claims (Breach of Contract and Breach of are questions of law or fact Implied Covenant of Good Faith and Fair Dealing), common to the class, (3) the claims Defendants argue that this provision is not enforceable as or defenses of the representative to a “significant portion of the proposed class,” citing Fla. parties are typical of the claims or Stat. § 680.1061(1), which states that a choice of law defenses of the class, and (4) the clause in a “consumer lease” is “not enforceable” unless it representative parties will fairly chooses the law of the jurisdiction where the lessee and adequately protect the interests resides, where the goods are used, or in which the lease is of the class. executed. The statute defines “consumer lease” as “a lease that a lessor regularly engaged in the business of leasing or selling makes to a lessee who is an individual and who Rule 23(b) states, in pertinent part: takes under the lease primarily for a personal, family, or household purpose ...”. Fla. Stat. § 680.1031(1)(e). (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of By definition, the Florida choice of law provision would subdivision (a) are satisfied, and in addition: still apply to any Agreements entered into by companies or by individuals for business purposes. With respect to ... those individual renters who would be covered by the definition, Plaintiffs do not object to the application of (3) the court finds that the questions of law or fact Florida law and request that this Court not invalidate the common to the members of the class predominate over choice of law provision. See Demitropoulos v. Bank One any questions affecting only individual members, and Milwaukee, N.A., 953 F.Supp. 974, 978 (N.D.Ill.1997). In that a class action is superior to other available methods Demitropoulos, the court refused to enforce the similar for the fair and efficient adjudication of the provision UCC § 2A:1061(1) in favor of lessor where the controversy. The matters pertinent to the findings class members, Illinois residents, did not object to the include: (A) the interest of members of the class in Wisconsin choice of law provision in the lease, and the individually controlling the prosecution or defense of lessor had previously taken an inconsistent position in separate actions; (B) the extent and nature of any which it argued that Wisconsin law should apply. Id. at litigation concerning the controversy already 978. The court stated: commenced by or against members of the class; (C) the desirability or undesirability of concentrating the A number of factors weigh against using § 2A-106 to litigation of the claims in the particular forum; (D) the void the parties’ chosen law. First, this Code provision difficulties likely to be encountered in the management was enacted to protect consumer-lessees, not of a class action. Bank-lessors: § 2A-106’s comment warns of the “real danger that a lessor may induce a consumer lessee to *3 Plaintiffs have the burden of proof as to these agree that the applicable law will be a jurisdiction that elements. Valley Drug Co. v. Geneva Pharm., Inc., 350 has little effective consumer protection.” F.3d 1181, 1187 (11th Cir.2003). Demitropoulos, the consumer, does not object to the application of Wisconsin law-the party opposing it is the Bank. This Court will not apply a statute to subvert the very reasons for its enactment. Second, Bank One is judicially estopped from taking a position diametrically opposed to its stance position favoring the choice of I. Applicable Law law provision.... © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188
*4 Id. Under Florida law, a choice of law provision is enforceable unless it contravenes strong public policy or The Official Comment to Flat. Stat. § 680.1061, which is otherwise unreasonable or unjust. See, e.g., Default was derived from the UCC provision, echos the same Proof Credit Card Systems, Inc. v. Friedland, 992 So.2d concerns as stated above. See Fla. Stat. § 680.1061, cmt.. 442, 444 (Fla. 3d DCA 2008) (citing Mazzoni Farms, Inc. Florida does have effective consumer protection, as v. Du Pont De Nemours & Co., 761 So.2d 306, 311 exemplified by FDUPTA. To allow Defendants to raise (Fla.2000)). Florida’s Fourth District Court of Appeal has this section as a bar would be to “subvert the very reason stated that “[FDUPTA and the Consumer Protection Act] for its enactment.” See id. Accordingly this Court will not are for the protection of in-state consumers from either apply Fla. Stat. § 680.1061(1) to invalidate the contractual in-state or out-of-state debt collectors.... Other states can choice of law provision as to any rental Agreements protect their own residents as Florida does with regard to involved in this case. out-of-state collectors .” Coastal Physician Svcs. of Broward County, Inc. v. Ortiz, 764 So.2d 7 (Fla. 4th DCA Defendants next argue that the choice of law provision in 1999), reaffirmed in Hutson v. Rexall Sundown, Inc., 837 the Agreement does not apply to allow a statutory So.2d 1090, 1094 (Fla. 4th DCA 2003); see also FDUPTA claim by these Plaintiffs, under conflicts of law Millennium Comm. & Fulfillment, Inc. v. Office of the principles.4 This Court agrees that the contractual choice Attorney General, 761 So.2d 1256, 1262 (Fla. 3d DCA of law provision does not apply to this statutory claim, 2000) (noting that “there are no geographical or which is in the nature of a fraud claim. See Green Leaf residential restrictions contained in the express language Nursery v. E.I. Dupont de Nemours and Co., 341 F.3d of section 501.202,” but recognizing that the FDUTPA 1292, 1301 (11th Cir.2003); Burger King Corp. v. Austin, “seeks to prohibit unfair, deceptive and/or unconscionable 805 F.Supp. 1007, 1012 (S.D.Fla.1992) (finding that practices which have transpired within the territorial clause stating that “[a]greement shall be governed and boundaries of this state without limitation,” and that “the construed under and in accordance with the laws of the offending conduct occurred entirely within [Florida].”) State of Florida” does not encompass tort claims); see also ITCO Corporation v. Michelin Tire Corp., 722 F.2d *5 Interpreting the contractual choice of law provision in 42, 49 n. 11 (4th Cir.1983) (stating that “the nature of the the manner that Plaintiffs suggest, that is, providing liability alleged to be imposed by [the North Carolina protection under FDUPTA to out-of-state consumers Unfair Trade Practices Act] is ex delicto, not ex based on out-of-state transactions, would counteract this contractu.” ); United Dominion Industries, Inc. v. statement of policy, as this Court finds the alleged Overhead Door Corp., 762 F.Supp. 126, 128 wrongful injury occurred outside the state, as discussed (W.D.N.C.1991) (same). further infra. Moreover, as this Court noted at the hearing, the fact that Plaintiffs are requesting relief in their Plaintiffs argue that the FDUPTA count comes within the FDUPTA count (e.g. attorneys fees), which would not be scope of the choice of law provision in the Agreement, available in a breach of contract claim under the and at the second hearing on this motion, cited to cases in Agreement further convinces this Court that the FDUPTA which FDUPTA was applied to conduct which arose out claim is ex-delicto, not ex-contractu. Accordingly, the of a contractual arrangement. See, e.g ., Scott v. Capital Court finds that the contractual choice of law provision One Bank, No. 8:08-cv-132-T-30EAJ, 2008 WL 2157037 does not apply. (M.D.Fla. May 20, 2008); Veal v. Crown Auto Dealerships, Inc., 236 F.R.D. 572, 581(M.D.Fla.2006); Recently, District Judge Joan A. Lenard of this District W.S. Badcock Corp. v. Myers, 696 So.2d 776 (Fla. 1st adopted a Report and Recommendation by Magistrate DCA 1997). However, those cases do not stand for the Judge John J. O’Sullivan concerning FDUPTA which proposition espoused by Plaintiffs, i.e., that a FDUPTA found that there is a conflict with other states’ consumer claim which concerns a term of the contract would, by laws such that a choice of law analysis is appropriate. See definition, fall within the scope of a contractual choice of Cohen v. Implant Innovations, Inc., 07-20777-CIV, 2008 law provision which governs “the interpretation, validity WL 3927223, at ----17-18 (S.D.Fla. Aug.21, 2008). and ... performance of the terms of the Contract.” Rather, in Veal for example, the Court noted that FDUPTA would This Court, when sitting in diversity, applies Florida’s apply because all of the alleged unlawful conduct choice of law rules. See, e.g., Trumpet Vine Investments v. occurred exclusively in Florida. 236 F.R.D. at 581. Union Capital Partners I, Inc., 92 F.3d 1110, 1115 (11th Similarly, in Badcock, the class was composed of Florida Cir.1996). Under Florida law, the appropriate analysis to residents or domiciliaries. 696 So.2d at 778. apply to a deceptive trade practice statutory claim is the “significant relationships test” of § 145 of the
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In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188
Restatement (Second) of Conflicts of Laws. See Representatives, and that common issues of law do not Montgomery v. New Piper Aircraft. Inc., 209 F.R.D. 221, predominate on this claim because the claims of 225(S.D.Fla.2002); Trumpet Vine Investments, 92 F.3d at non-resident renters would be analyzed based on the 1115-16. That section provides as follows: consumer protection statutes of their respective states. See (1) the rights and liabilities of the parties with respect Hutson, 837 So.2d at 1094.7 To the extent that the Florida to an issue in tort are determined by the local law of the statute would be applicable to those prospective class state which, with respect to that issue, has the most members who signed their Agreements in Florida, significant relationship to the occurrence and the Plaintiffs’ claims are not typical of those claims. parties under the principles stated in § 6.5 Accordingly, this Court finds that the FDUPTA claim is not proper for class certification.8 (a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred;
(c) the domicile, residence, nationality, place of II. Certification Analysis-LDW incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between A. Proposed class definition the parties is centered. Prior to analyzing Rule 23(a)’s requirements, the Court must determine whether the class definition is adequate. Restatement (Second) of Conflict of Laws § 145 See, e.g., O’Neill v. The Home Depot, U.S.A., 243 F.R.D. (1971). 469, 477 (S.D.Fla.2006). The Court finds that the conduct causing the injury in this case, as well as the injury itself, occurred where the Plaintiffs proposed LDW class is inadequate because it is Agreements were entered into by the customers. For the too broad. As in O’Neill, by definition, Plaintiff’s revised Plaintiffs in this case, this would be Defendant’s store LDW class includes customers who may have received a locations in Georgia, Ohio, and Texas, respectively. See benefit from the LDW, as further discussed below. At the Berry v. Budget Rent-A-Car Systems, Inc., 497 F.Supp.2d hearing, Plaintiffs’ counsel proffered that such customers 1361, 1365 (S.D.Fla.2007); see also Hutson v. Rexall can be identified through “the claims process” and Sundown, Inc., 837 So.2d 1090, 1094 (Fla. 4th DCA excluded from the group. However, Plaintiffs have 2003) (finding that the “alleged wrong was committed, offered no further description of this “claims process” or and the damage done, at the site of the sale of appellees’ how it will be objectively determined which customers products ...”). With respect to prospective class members, did receive a “benefit” and which did not, in that that location would be whatever state the agreement was Defendants have stated that they do not keep any records entered into, which could be Florida, or could be one of regarding when damages were waived by its employees any number of other states across the country.6 The when equipment was returned in a damaged condition, location of the parties is arguably Florida, as to not due to theft or vandalism. Snyder Decl. ¶ 29.9 The Defendants, and Georgia, Ohio, and Texas, as to Court therefore finds that Plaintiffs’ proposed class Plaintiffs. With respect to the place where the relationship definition as to LDW is inadequate. See Perez v. between Defendant and the customers is “centered,” there Metabolife Int’l. Inc., 218 F.R.D. 262, 269 (S.D.Fla.2003) are connections with Georgia, Ohio, and Texas, as well as (stating that a class definition which will require Florida, where the Defendants are headquartered. “mini-trials” to determine its members is inappropriate for However, because Plaintiffs originally did business with certification). the rental locations in their respective states, and there is no additional evidence of Defendants’ conduct in Florida, the Court finds that the state in which the relationship was “centered” is the state in which the Agreements were executed by the respective Plaintiffs. B. Commonality/Typicality *6 When the § 145 factors are analyzed as a whole, the The commonality and typicality requirements of Rule Court concludes that the Florida consumer statute would 23(a) overlap, in that both focus on whether a sufficient not apply to these Plaintiffs/Proposed Class nexus exists between the legal claims of the named class
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In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188 representatives and those of individual class members to was damaged, etc. would have to be examined in order to warrant class certification. Prado-Steiman v. Bush, 221 determine whether the application of LDW was F.3d 1266, 1278-79 (11th Cir.2000). “Commonality refers “illusory,” or “unconscionable” as to those rentals. As to the class characteristics as a whole and typicality such, the differences in the proposed class members’ concerns the individual characteristics of the class expectations and experiences with the LDW preclude a members in relation to the class.” O’Neill, 243 F.R.D. at finding of commonality. 478. All questions of law and fact need not be common, rather “a single common question of law or fact is Plaintiff Jacov himself testified that he may have received sufficient to satisfy the commonality requirement, as long a benefit from the LDW. Jacov Depo., 66:23-24; 67: 1-4, as it affects all class members alike.” Pop’s Pancakes, 17-22; 71: 6-9. To the extent that he did, Plaintiff Jacov is Inc. v. NuCO2, Inc., 251 F.R.D. 677, 682 (S.D.Fla.2008). not “typical” of the members of Plaintiffs’ proposed class. The Court finds that the elements of commonality and See Valley Drue Co., 350 F.3d at 1189 (“A fundamental typicality are not met as to the LDW claims for the same conflict exists where some party members claim to have reasons that Plaintiff’s proposed LDW class definition is been harmed by the same conduct that benefitted other inadequate. members of the class.”); Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir.2000) (“[A] class cannot *7 The Agreement provides that the customer assumes the be certified when its members have opposing interests or risk of any or all damage or injury relating to the when it consists of members who benefit from the same equipment. Agreement ¶ 1.7. There was evidence that acts alleged to be harmful to other members of the class.”) some customers intentionally chose to purchase LDW as (citations omitted). described in the agreement (even if they had an insurance certificate on file) because there was a possible benefit to Furthermore, in order to establish their UCC claim, them. At the hearing, Charles Snyder, executive vice Plaintiffs will need to show that the LDW is both president at Sunbelt Rentals (formerly NationsRent) substantively and procedurally unconscionable. Powertel, testified, for example, that renters of certain equipment Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). which might tend to become damaged when used in Plaintiff Jacov testified that he had a choice not to pay the certain types of events such as clean up of a hurricane LDW because he had the necessary insurance coverage, would choose on a transaction by transaction basis but that he did so anyway. Id. at 30, 70. Even assuming a whether to purchase LDW, in that the customer, under the LDW class should be certified, considering the amount of terms of the agreement, was responsible for damage to the insurance coverage required by the Agreement equipment during normal use. ($1,000,000.00), Jacov’s claim is not “typical” of those customers who had no choice but to purchase LDW.11 Moreover, it is undisputed that the LDW relieved the customer from 50% of the amount they were required to *8 For all of the above reasons, the Court finds that the pay under the contract for loss due to the theft or elements of commonality and typicality are not met as to vandalism of the equipment. Although Plaintiffs argue the LDW. that the other exclusions in the Agreement and the “discretion” given to employees who handle the claims render the coverage “worthless” or “illusory,” there is evidence that almost four thousand customers did receive a benefit from the LDW coverage during the class period. See Decl. Craig Jonell ¶ 2. As to those persons, the C. Predominance of common questions of law and fact coverage would not be “illusory,” or unconscionable, as “The predominance inquiry [of Fed.R.Civ.P. 23(b)(3) ] alleged in the complaint.10 Additionally, as to those focuses on ‘the legal or factual questions that qualify each customers who purchased LDW but did not damage class member’s case as a genuine controversy,’ and is ‘far equipment, there is no way to determine if the LDW was more demanding’ than Rule 23(a)’s commonality “illusory” or unconscionable, since they did not need to requirement.” Jackson v. Motel 6 Multipurpose, Inc., 130 take advantage of it. F.3d 999, 1005 (11th Cir.1997) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622-23, 117 S.Ct. 2231, To the extent that the “conscionability” of the Agreement 138 L.Ed.2d 689 (1997)). The Eleventh Circuit has stated cannot be determined on its face, as to those customers that “[w]here, after adjudication of the class-wide issues who did damage equipment and were denied coverage, an plaintiffs must still introduce a great deal of examination into the facts of such denial, such as the type individualized legal points to establish most or all of the of equipment rented, the manner in which the equipment elements of their individual claims, such claims are not suitable for class certification under rule 12(b)(3).” Klay © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6
In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188 v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir.2004). consumer’s rented equipment,” but rather is “a veiled profit generator for NationsRent” (SAC ¶ 44) and that With respect to the LDW, the issue of whether certain “[u]pon information and belief, the monies paid to customers did actually receive some benefit from the NationsRent as Environmental Charges are not used by waiver is one which must be determined on an NationsRent for ‘environmental-related’ activities,” and individualized basis. Accordingly, the Court finds that the Environmental Charge is not “a tax or other obligation common issues of law and fact do not predominate and which is imposed by any federal or state agency on the that a class should not be certified as to that portion of consumer, and is not mandated by any state or federal Plaintiffs’ claim.12 agency.” SAC ¶ 45. What each particular customer may have personally believed was encompassed by the term “environmental” is irrelevant, in that Plaintiffs allege that Defendants did not use the money for any environmental purpose, whether passed on to third parties, or spent directly by Defendants.14 III. Certification Analysis-Environmental Charge *9 For this reason, Egwuatu v. South Lubes, Inc., 976 So.2d 50 (Fla. 1st DCA 2008), where the plaintiffs alleged that an “environmental fee” charged by the A. Proposed Class Definition/Numerosity defendant was not a tax, as they had believed it was, is The Court finds that the proposed class definition is also distinguishable. In that case, the court found that adequate, and that the numerosity requirement has been there would be many differences in the facts supporting satisfied with respect to the proposed Environmental the individual plaintiffs’ claims because the defendants Charge class. had “employed a variety of methods over the years to
inform customers” that the fee was not a tax. Id. at 53. In
this case, although there may be evidence that Defendant
took steps to explain what “environmental purposes” the Environmental Charge was allegedly used for, Plaintiffs’ B. Commonality/Typicality claim is that it was not, in fact, used for such purposes but Defendants argue that commonality and typicality cannot was kept by the company as pure profit.15 be shown as to the Environmental Charge because some of the customers were informed of the types of The Court also finds Berry v. Budget Rent-A-Car Systems, “environmentally-friendly” uses for the Environmental Inc., 497 F.Supp.2d 1361, 1365 (S.D.Fla.2007) Charge by either explanations from salespersons or distinguishable on this issue. In Berry, the Court noted materials such as brochures that were available in the that there was no representation that defendant’s “cost stores. The Court agrees with Plaintiffs that the cases recovery fee” with respect to its vehicles was a which Defendants rely on, such as Pop’s Pancakes and pass-on-charge, and that “the term ‘cost recovery fee’ O’Neill are distinguishable because in this case which itself implies that the company will keep the money involves an adhesion contract, any extra-contractual collected as ‘recovery’ for its costs.” Id. at 1367.16 The representations which may have been made are irrelevant. Court found that the term was not deceptive, and that the company could legally keep the money. Id. In this case In Pop’s Pancakes, the plaintiffs alleged that the the term “Environmental Charge” implies that Defendants defendant failed to disclose that property tax invoices will use the money to defray environmental expenditures, contained an “administrative processing fee” which was and Plaintiffs allege that they do not do so.17 retained by the defendant. 251 F.R.D. at 679. The court found a lack of commonality because “the circumstances Defendants additionally argue that in order to prove regarding the disclosure, and assessment of the full procedural unconscionability, Plaintiffs will have to show administrative processing fee could vary greatly.” Id. at that class members lacked a “meaningful choice,” and 683.13 Similarly, in O’Neill, individual knowledge was that this determination forecloses class treatment because relevant to determine whether customers had been equipment rental is optional and some potential class deceived by not being informed of the optional nature of a members had rented from other companies. See Bennett v. damage waiver. 243 F.R.D. at 478. In this case, Plaintiffs Behring Corp., 466 F.Supp. 689, 696 (S.D.Fla.1979). allege that the “Environmental Charge” is unconscionable Although both substantive and procedural because “it has no relation to any of NationsRent’s actual unconscionability must be shown, they need not be “in environmental expenses, particularly with respect to each equal amounts.” VoiceStream Wireless v. U.S.
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In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188
Communications, 912 So.2d 34, 39 (Fla. 4th DCA 2005). Finally, Defendants argue that common issues of law do Rather, “a balancing approach is employed allowing one not predominate due to the differences in the various prong to outweigh another provided that there is at least a states’ laws concerning unjust enrichment claim. An modicum of the weaker prong.” Id. unjust enrichment claim is one in the nature of quasi-contract. Florida’s choice of law as to contracts is Procedural unconscionability “relates to the manner in that of lex loci contractus, which looks to the place the which the contract was entered and it involves contract was executed. Lanoue v. Rizk, 987 So.2d 724, consideration of such issues as the relative bargaining 727 (Fla. 3d DCA 2008). Accordingly, the law on unjust power of the parties and their ability to know and enrichment of each renter’s particular state will be applied understand the disputed terms.” Id. (quoting Powertel, in resolving those claims. 743 So.2d at 574). In this case, there was no “bargaining power,” in that the contract was one of adhesion. See Although Defendants noted that the law of the various Gainesville Health Ctr., Inc. v. Weston, 857 So.2d 278, states differs to some extent regarding the elements which 285 (Fla. 1st DCA 2003) (stating that “[t]he fact that a must be established for an unjust enrichment claim, contract is one of adhesion is a strong indicator that the Defendants concede that “it is true that many elements are contract is procedurally unconscionable because it broken down more precisely in some states, such that the suggests an absence of ‘meaningful choice’.”) (quoting number of elements in and of itself is not a material Powertel, 743 So.2d at 574-75). Moreover, the variance.” Memo, in Opp. p. 27. The Court finds that prospective class members in this case had no knowledge there are not differences which are significant enough to or understanding of the alleged actual use of the outweigh the legal issues which are common to the Environmental Charge proceeds. Under these proposed class with respect to the Environmental Charge. circumstances, the fact that other rental options may have See Klay, 382 F.3d atl 254 (citing In re Theragenics Corp. been available would not prohibit a finding of procedural Sec. Litig., 205 F.R.D. 687, 697 (N.D.Ga.2002)) (stating unconscionability. that “it is not necessary that all questions of fact or law be common, but only that some questions are common and *10 The Court rejects Defendants’ arguments and finds that they predominate over individual questions.”). that the elements of commonality and typicality have been met with respect to the Environmental Charge. The Court finds that common issues of law and fact predominate as to the claims involving the Environmental Charge (excluding the claim under FDUPTA). The Court further finds that due to the high number of potential class members, the relatively small amount of damages each has allegedly suffered, and the cost and time necessary to C. Adequacy of Class Representatives litigate each claim separately, a class action in this The Court agrees with Defendants that because Plaintiff District is superior to other available methods for the fair Horton rented equipment from Defendants after this and efficient adjudication of this action. lawsuit was instituted, with full knowledge of the allegations regarding the Environmental Charge, he would not be an adequate class representative as to this claim. Plaintiffs conceded at the hearing that Plaintiff Barnard is not a proper class representative for the Environmental Charge claim because he only paid an IV. Conclusion Environmental Charge prior to the class period. Based on the foregoing, it is hereby ORDERED AND Accordingly, Plaintiff Jacov is the only adequate class ADJUDGED that the Motion for Class Certification is representative. The fact that Plaintiff Jacov testified that hereby GRANTED in part and DENIED in part, as he had “choices” other than to rent at Defendants’ store follows: does not prevent him from being an adequate Plaintiff for the reasons discussed above. *11 1. As to the claims involving the Loss Damage Waiver, the Motion is DENIED.
2. As to the claims involving the Environmental Charge, other than Count I (FDUPTA), the Motion is GRANTED; Plaintiff David Jacov is appointed Class D. Rule 23(b)(3)-Predominance of common questions Plaintiff and the law firms of Coughlin Stoia Geller of law and fact Rudman and Robbins LLP and Freed & Weiss LLC are © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8
In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188 hereby appointed as co-lead Class Counsel. Plaintiffs All Citations shall submit an appropriate Order within ten (10) days of the date of this Order. Not Reported in F.Supp.2d, 2009 WL 636188
DONE AND ORDERED in Chambers at Miami, Florida, this 23rd day of February, 2009.
Footnotes
1 Jacov is a Georgia resident who is involved in the residential and commercial landscaping business, and who has rented from Defendants between 50 and 100 times. Jacov Dep. 10, 39. Jacov was denied the benefits of LDW on one occasion when he rented a “Bobcat” from NationsRent and damaged its tires. Id. at 67. Jacov testified that he may have received the benefits of LDW after damaging rental equipment on other occasions. Id. at 66. Plaintiff Horton is an Ohio resident who rented from Defendants three times. One of the rentals, for which he paid an LDW and Environmental Charge was subsequent to the filing of this lawsuit. Horton did not damage the equipment he rented. Horton Dep. p. 37. Plaintiff Barnard is a Texas resident who renovates homes for rent, and who rented from Defendants five times over the course of several years. Barnard Dep. 7; Rental Contracts, Def. Ex. 12. Barnard never damaged Defendants’ equipment, never attempted to invoke the LDW, and does not know whether Defendants would have denied him coverage if he damaged equipment. Id. at 56. He paid the Environmental Charge only once, prior to the proposed class period.
2 FDUTPA prohibits: “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla. Stat. § 501.204.
3 This section provides: If the court as a matter of law finds a lease contract or any clause of a lease contract to have been unconscionable at the time it was made, the court may refuse to enforce the lease contract; or it may enforce the remainder of the lease contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
4 The Court rejects Plaintiffs’ argument that its prior Order on the Defendants’ Motion to Dismiss forecloses this argument. In its Motion to Dismiss, Defendant conceded “for purposes of its motion” that Florida law, including FDUPTA, applied, but argued that the statute’s protection could not be extended to include non-resident Plaintiffs. As it was on a motion to dismiss, the Court, reading all inferences in Plaintiff’s favor, made certain assumptions regarding the extent of Defendants’ actions in Florida for purposes of determining whether a significant relationship existed such that a Florida statute could be applied to non-resident Plaintiffs. For example, the Court assumed that all overages would ultimately end up in Florida. The Court applied the proper analysis for that issue and rejected Defendants’ position. For purposes of the instant motion, Defendants do not concede that Florida law applies to all claims. Although consistency on the part of Defendants would have been the better course in that some of the same considerations are implicated, because this Court did not perform a conflicts of law analysis in connection with the Motion to Dismiss, and evidence was not considered, the Court’s prior ruling does not constitute the “law of the case” with respect to this issue.
5 The principles stated in § 6 to be followed when there is no state statutory directive on choice of law are: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those state in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) of Conflict of Laws § 6(2).
6 Plaintiffs emphasize that courts have held that in cases involving misrepresentations, the location of the defendant’s conduct should be given more weight than the location of the injury. See, e.g., Ilah Coffee Merriman v. Convergent Business Systems, Inc., No. 90-30138-LAC, 1993 WL 989418, at *9 (N.D.Fla. June 23, 1993) (citing Vicon, Inc. v. CMA Corp., 657 F.2d 768, 772 (5th Cir. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9
In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188
Unit A Sept.30, 1981)). However, other than the fact that Defendants have their headquarters in Florida (but are not Florida corporations), Plaintiffs have presented no evidence that any of Defendants’ conduct, including but not limited to the drafting of the Agreement, occurred in Florida. Plaintiffs’ ore tenus motion (made at the second hearing held on February 11, 2009) to conduct additional discovery on the issue of Defendants’ conduct in Florida is DENIED. Even if Plaintiffs arguably relied on language contained in this Court’s January 3, 2008 Order on the Motion to Dismiss to forgo taking additional discovery on this point, there is no explanation as to why Plaintiffs failed to conduct such discovery between June 26, 2006, when this case was filed, and the Court’s ruling on the Motion to Dismiss. Plaintiffs’ excuse, in essence, is “we thought our theory was correct.” This Court rejects that argument as a valid basis for not conducting discovery during an eighteen month period.
7 An examination of the § 6 factors does not change this result. Factor (d) only slightly favors the application of Florida law under the facts of this case. Although the parties agreed that disputes concerning the construction, validity and performance of the Agreement would be resolved under Florida law, one of Plaintiffs’ arguments in this case is that the Agreement was procedurally unconscionable because it was an adhesion contract which contained “miniature, difficult to read font size” (SAC ¶ 39). Another of Plaintiffs’ arguments is that they had a right to rely on the choice of law provision, also written in the same “miniature, difficult to read font size.” It is doubtful that even if Plaintiffs read that provision, they were familiar with Florida law. Factor (g) slightly favors Florida law, in that this Court would be arguably more familiar with the application of Florida law over that of the other states. However, factors (b), (c) and (e) favor the application of each individual states’ own consumer protection statute. See Hutson, 837 So.2d at1094.
8 Defendants do not appear to challenge the application of Florida’s UCC statute, in that they rely on that statute with respect to its argument regarding Fla. Stat. § 680.1061(1), supra.
9 Although Defendants have been able to identify those customers who did obtain benefits for loss due to theft/vandalism, Defendants indicate that identifying those customers who received a benefit for damaged equipment would require customer and employee interviews and a file by file review of rental transactions. Resp. pp 7-8; Jonell Decl. ¶ 2. Plaintiff Jacov himself testified that he was unsure as to whether or not he obtained any benefit from LDW coverage.
10 The Court acknowledges that in making this finding, it is, to a certain extent, examining the merits of Plaintiffs’ claims. In determining whether certification is appropriate, the court may look beyond the pleadings. See Cooper v. Southern Co., 390 F.3d 695, 712-13 (11th Cir.2004), abrogated on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006) (recognizing that “both the Supreme Court and [the Eleventh Circuit] have noted since Eisen that evidence pertaining to the requirements embodied in Rule 23 is often intertwined with the merits, making it impossible to meaningfully address the Rule 23 criteria without at least touching on the ‘merits’ of the litigation”) (citations omitted).
11 Defendant argues that Plaintiff Horton is not typical of the class because one of his rentals was after the suit was filed, raising the possibility of a voluntary payment defense. If applicable, that defense would only apply as to that particular rental, not Horton’s rental prior to the filing of the lawsuit. Furthermore, “the possibility that a unique defense exists against the claim of a representative does not necessarily foreclose class certification.” In re Amerifirst Sec. Litig., 139 F.R.D. 423, 425 (S.D.Fla.1991).
12 To the extent that Plaintiffs rely on Pro v. Hertz Equipment Rental Corp., No. 06-CV-3830 (DMC), 2008 WL 5218267 (D.N.J. Dec.11, 2008), the Court notes that this is an unpublished decision from another District Court, where it is not even evident that the contractual language at issue is similar to that involved in this case and would certainly not be binding authority in any case.
13 There was evidence that salespeople were taught to explain all charges, including the administrative fee to the customers, and that different contracts were applied to customers based on individual negotiations. 251 F.R.D. at 682-83.
14 The Court does agree with Defendants that to the extent that Plaintiffs argue in their motion that a common issue of fact is whether Defendants engaged in “meaningful” environmental clean-up, that issue would be subject to individuals’ perceptions. However, this was not an allegation made in the Second Amended Class Action Complaint.
15 Notably, Defendants do not claim that there were materials or discussions with customers which stated that the monies were not going to be used for environmental purposes, despite the term “Environmental Charge” in the Agreement. If there had been such discussions/disclosures, then what individual customers were told would be relevant for purposes of certifying a class.
16 This is similar to a hotel using its “service charges” as it wishes.
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In re NationsRent Rental Fee Litigation, Not Reported in F.Supp.2d (2009) 2009 WL 636188
17 By arguing that customers may have different opinions on what might be considered an environmentally related charge, Defendants go beyond the Plaintiffs’ allegations, and argue the merits of the claim. The Court has determined that what is an “environmentally related” charge will be determined under a “reasonable man” objective standard. If Defendants can prove that the Environmental Charge was used for such a purpose, they may ultimately succeed. That, however, is not to be determined in the context of this motion.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
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Millennium Communications & Fulfillment, Inc. v. Office of..., 761 So.2d 1256 (2000) 25 Fla. L. Weekly D1691
at law; and considerations of the public interests.
KeyCite Yellow Flag - Negative Treatment Disagreed With by Hutson v. Rexall Sundown, Inc., Fla.App. 4 Dist., 4 Cases that cite this headnote February 19, 2003 761 So.2d 1256 District Court of Appeal of Florida, Third District. [2] Antitrust and Trade Regulation MILLENNIUM COMMUNICATIONS & Proceedings to impose; evidence FULFILLMENT, INC. & Advanced Marketing and Research, Inc., Appellants, Sole burden of Department of Legal Affairs at a v. temporary injunction hearing under Florida OFFICE OF the ATTORNEY GENERAL, Deceptive and Unfair Trade Practices Act DEPARTMENT OF LEGAL AFFAIRS, STATE OF (FDUTPA) is to establish that it has a clear legal FLORIDA, Appellee. right to a temporary injunction. West’s F.S.A. § 501.207(1)(b). No. 3D99–1423. | July 19, 2000. 69 Cases that cite this headnote
Synopsis Office of the Attorney General, Department of Legal [3] Appeal and Error Affairs sought injunction and civil penalties under Florida Preliminary injunction; temporary restraining Deceptive and Unfair Trade Practices Act (FDUTPA) order against promoter of credit card program. The Circuit Court, Dade County, David L. Tobin, J., entered Appellate court will not reverse an order temporary injunction against promoter. Promoter granting a temporary injunction unless it is appealed. The District Court of Appeal, Green, J., held found to be a clear abuse of discretion. that: (1) FDUTPA applies to commercial transactions between Florida corporations and non-resident consumers, but (2) promoter’s postcard was not deceptive 6 Cases that cite this headnote under FDUTPA.
Reversed.
[4] Antitrust and Trade Regulation What law governs; territorial limitations
West Headnotes (5) Florida Deceptive and Unfair Trade Practices Act (FDUTPA) has applicability to commercial transactions between Florida corporations and [1] Injunction non-resident consumers. West’s F.S.A. § Extraordinary or unusual nature of remedy 501.201 et seq. Injunction Grounds in general; multiple factors 106 Cases that cite this headnote
Injunctive relief is an extraordinary remedy to preserve the status quo, pending a final hearing, which ordinarily should not be granted absent a showing of irreparable harm; a clear legal right [5] Antitrust and Trade Regulation to the relief requested or substantial likelihood Finance and banking in general; lending of success on the merits; an inadequate remedy © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
Millennium Communications & Fulfillment, Inc. v. Office of..., 761 So.2d 1256 (2000) 25 Fla. L. Weekly D1691
Postcard offering recipients an unsecured credit BACKGROUND card was not deceptive in violation of Florida Deceptive and Unfair Trade Practices Act Millennium is a Florida corporation which is licensed by (FDUTPA), even though credit card offered on a Nevada company, Continental Consumer Credit postcard was not a bank credit card and Corporation (“Continental”) to advertise and promote consumers were not eligible to receive bank Continental’s Advantage credit card program in all states credit card until they had successfully fulfilled except Florida, Kansas, Wisconsin and North Carolina. certain unspecified requirements; nothing in This credit card program is a mechanism by which people language of postcard would have misled with poor credit histories can restore their credit consumers to think that credit card offered was a worthiness. Essentially, the Continental program allows bank credit card, and all of the assertions on these consumers to obtain a Continental Advantage card, postcard were factual. West’s F.S.A. § 501.201 which can then be used to purchase items from et seq. Continental’s catalogs. Once these consumers purchase the merchandise from these catalogs and timely pay for 52 Cases that cite this headnote the same, Continental makes favorable reports to credit bureaus. This then puts these consumers in a favorable position to apply for other credit cards, including bank cards such as Visa and MasterCard.
Attorneys and Law Firms *1257 Law Offices of R. Stuart Huff and Mark L. Mallios, Coral Gables; Andrew Cove (Hollywood), for appellants. *1258 THE COMPLAINT
Robert A. Butterworth, Attorney General and Sylvie On December 4, 1998, the Department filed a complaint Perez–Posner, Assistant Attorney General, for appellee. against Millennium seeking an injunction, civil penalties and other statutory relief afforded under FDUTPA. The Before SCHWARTZ, C.J., and GREEN and FLETCHER, complaint alleged, among other things, that Millennium, JJ. through the use of a postcard mailed around the country, advertised and promoted the ability of consumers with Opinion bad credit to obtain a guaranteed credit card.2 It was further alleged that once the consumers received the postcard and called the “800” number listed on the GREEN, J. postcard, certain representations were made to them either directly or by implication which lead the consumers to
conclude that they would be receiving either a Visa or Millennium Communications, Inc. and Advanced MasterCard type credit card.3 Marketing and Research, Inc. (collectively “Millennium”) appeal a temporary injunction entered in favor of the The Department further alleged that after Millennium Department of Legal Affairs (“Department”) pursuant to collected the $129.00 fee, the consumers received their The Florida Deceptive and Unfair Trade Practices Act Advantage credit card, along with a package of other (“FDUTPA”), section 501.207(1)(b), Florida Statutes materials, including the catalogs and the information on (1997).1 For the reasons which follow, we reverse. the Orlando trip mentioned in the postcard. These
materials disclosed that: (1) consumers cannot
automatically qualify for or receive a Visa or MasterCard;
and that (2) consumers only become eligible to apply for the Visa or MasterCard by fulfilling “a few basic requirements,” to wit: I a) Ordering only from the catalogs received in their packages, as the Advantage credit card can only be used to purchased merchandise in those catalogs;
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Millennium Communications & Fulfillment, Inc. v. Office of..., 761 So.2d 1256 (2000) 25 Fla. L. Weekly D1691
b) paying a down payment on that merchandise of 50% alleged activities. The Department then filed a motion for of the total amount (minimum order from each catalog temporary injunction, incorporating all of the allegations is $50) upon ordering said merchandise; contained in the complaint and alleging that if the defendants were not enjoined, the number of consumers c) paying an additional 8% or the total amount for aggrieved by Millennium’s deceptive acts would increase. shipping and handling; The Department further stated that it had no remedy at law to protect the consuming public. d) consumers must charge and pay for $500 (excluding down payments, shipping and handling, vouchers or Millennium’s motion to dismiss was heard and denied. merchandise gift certificates) on the Continental Prior to the hearing on the state’s motion for temporary Advantage credit card, and make six months of timely injunction, Millennium moved for judgment on the payments, in order to have their accounts favorably pleadings for the Department’s failure to join Continental reported to the credit bureau; as an indispensable party to this proceeding. The Department countered that this action was not an attack e) electronic and certain jewelry items are not available upon the terms and conditions of Continental’s program until a satisfactory payment history is established; per se, but instead was aimed solely at Millennium’s failure to adequately disclose the terms and conditions of f) an additional down payment may be required on Continental’s program. certain items;
*1259 g) if consumers pay the down payment with a The hearing on both the motion for judgment on the personal check, their order will not even be processed pleadings and motion for temporary injunction was then for 21 days; held. At the outset of the hearing, the parties made certain stipulations, namely, that Millennium advertises to people h) while the application for the Visa or MasterCard is outside the state of Florida; the Department had received free of charge, the card itself, if approved, requires the 24 complaints from consumers residing outside the state payment of a separate fee over and above the $129.00 of Florida; and that of the consumers requesting refunds, fee already paid to Millennium by the consumers; and 1400–1500 consumers had received complete refunds. At i) Millennium does not refund the processing fees.4 the conclusion of the hearing, the trial court denied Millennium’s motion for judgment on the pleadings, Finally, the complaint alleged that few, if any, consumers finding that Continental was not an indispensable party to actually received a Visa or MasterCard as a result of this proceeding. The court granted the Department’s purchasing the Advantage card, since few met the motion for temporary injunction expressly finding the aforestated minimum requirements. Based upon its postcard to be deceptive and ordered Millennium to cease allegations, the Department sought to enjoin Millennium, and desist from using it. In entering the temporary its agents, employees, or persons who act on its behalf, injunction, the court also ordered the parties to meet with from engaging in further acts and practices alleged a special master in an effort to draft a revised postcard, therein; reimbursement to all consumers; and to assess subject to the Department’s approval, that would fairly Millennium civil penalties in the amount of $10,000 for disclose to consumers what they would receive and to each act or practice found to be in violation of chapter place a disclaimer on what they would not receive. 501, part II, Florida Statutes (1997) pursuant to section Further, the new card was to include a street address on 501.2075, Florida Statutes (1997). the postcard rather than the post office box address previously utilized and to have the sales pitch script conform to the agreed upon postcard. This appeal followed.
*1260 Millennium essentially contends on this appeal that the trial court erred in granting the temporary injunction PROCEDURAL HISTORY because FDUTPA has no applicability to consumers residing outside of the state of Florida. Alternatively, In response to the complaint, Millennium moved to Millennium argues that even if this chapter is found to dismiss the complaint on the grounds, inter alia, that have applicability to its subject activities, the temporary FDUTPA, chapter 501 was inapplicable to its transactions injunction was still error because its postcard in the absence of any allegations that Millennium had advertisement was not deceptive or misleading. Lastly, marketed its products to Florida residents or that any Millennium asserts that even if the injunctive order is Florida consumers had been injured or affected by its © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
Millennium Communications & Fulfillment, Inc. v. Office of..., 761 So.2d 1256 (2000) 25 Fla. L. Weekly D1691 affirmed, that the part of the order requiring Millennium is patterned after the Federal Trade Commission Act to revise the postcard, subject to the Department’s (FTC Act), 15 U.S.C. §§ 45 et seq. See David J. approval, was error because it constituted an improper Federbush, The Unexplored Territory of Unfairness in delegation of judicial authority to the executive branch. Florida’s Deceptive and Unfairness in Florida’s Deceptive and Unfair Trade Practices Act, 73 Fla. B.J. 26 (May 1999) (“Federbush”). In fact, FDUTPA specifically provides that in construing its provisions, due considerations and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the FTC Act. See § 501.204(2), II Fla. Stat. (1997); Rollins, Inc. v. Heller, 454 So.2d 580, 584 (Fla. 3d DCA 1984). FDUTPA makes unlawful, [1] [2] [3] At the outset, we note that injunctive relief is an unfair methods of competition, unconscionable acts or extraordinary remedy to preserve the status quo, pending practices, and unfair or deceptive acts or practices in the a final hearing, which ordinarily should not be granted conduct of any trade or commerce. See § 501.204(1). absent a showing of irreparable harm; a clear legal right to the relief requested or substantial likelihood of success on [4] Millennium first argues that FDUTPA has no the merits; an inadequate remedy at law; and applicability to its commercial transactions with considerations of the public interests. See Naegele non-Florida residents. Since Continental’s Advantage Outdoor Advertising Co., Inc. v. City of Jacksonville, 659 credit card program was never advertised or promoted to So.2d 1046, 1047 (Fla.1995); Storer Communications, any Florida residents, Millennium asserts that it could not Inc. v. State, Dept. of Legal Affairs, 591 So.2d 238, be held statutorily liable under FDUTPA. We disagree 239–40 (Fla. 4th DCA 1991); Harvey v. Wittenberg, 384 and conclude that FDUTPA does *1261 have So.2d 940, 941 (Fla. 3d DCA 1980); see also Escudero v. applicability to the commercial transactions between Hasbun, 689 So.2d 1144, 1146 (Fla. 3d DCA 1997). Florida corporations and non-resident consumers. However, because section 501.207(1)(b) expressly authorizes the Department to seek injunctive relief on Our analysis of this issue properly begins with the behalf of the state, the Department does not have to language utilized in Chapter 501 itself as that is the establish irreparable harm, lack of an adequate legal primary indicator of legislative intent, the acknowledged remedy or public interest. See Storer; Harvey; see also polestar of statutory construction. See Acosta v. Richter, U.S. v. Sene X Eleemosynary Corp., Inc., 479 F.Supp. 970 671 So.2d 149, 153 (Fla.1996); Aetna Cas. & Surety Co. (S.D.Fla.1979). The Department’s sole burden at a v. Huntington Nat’l Bank, 609 So.2d 1315, 1317 temporary injunction hearing under FDUTPA is to (Fla.1992). See also Federbush, The Unclear Scope of establish that it has a clear legal right to a temporary Unconscionability in FDUTPA, 74 Fla. B.J. 49 (August injunction. Moreover, on appeal, we will not reverse an 2000). The expressed and avowed purpose of the act is to order granting a temporary injunction unless it is found to promote the following policies: be a clear abuse of discretion. See Wise v. Schmidek, 649 So.2d 336 (Fla. 3d DCA 1995); Richard v. Behavioral (1) To simplify, clarify, and modernize the law Healthcare Options, Inc., 647 So.2d 976 (Fla. 2d DCA governing consumer protection, unfair methods of 1994). We conclude that FDUTPA does have competition, and unconscionable, deceptive, and unfair applicability to the challenged transactions, but that the trade practices. Department did not meet its burden to establish a clear legal right to a temporary injunction. Accordingly, the (2) To protect the consuming public and legitimate lower court clearly abused its discretion in entering the business enterprises from those who engage in unfair order under review. methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.
(3) To make state consumer protection and enforcement consistent with established practices of federal law relating to consumer protection. CHAPTER 501 AND ITS APPLICABILITY TO NON–RESIDENTS See § 501.202, Fla. Stat. (1997); see also Macias v. HBC of Florida, Inc., 694 So.2d 88 (Fla. 3d DCA 1997). The Florida legislature enacted FDUTPA in 1973 to Moreover, in furtherance of these policies, the act defines protect consumers against commercial wrongdoing and it © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4
Millennium Communications & Fulfillment, Inc. v. Office of..., 761 So.2d 1256 (2000) 25 Fla. L. Weekly D1691 certain terms which are illuminating to our discussion, to 1999) wherein the fourth district granted a petition for wit: certiorari in an action brought pursuant to FDUTPA and the Consumer Collection Practices Act, §§ 559.55–785, “Interested party or person” means any person affected Fla. Stat. (1997), and quashed a discovery order, in part, by a violation of this part or any person affected by an to limit the discovery request solely to Florida residents. order of the enforcing authority. The court, citing to sections 501.203(4) and 559.55(6) concluded that both of these acts are for the protection of in-state consumers from either in-state or out-of-state debt collectors. With due respect to our sister court, we are not persuaded by this holding as it applies to FDUTPA because *1262 as we have earlier noted, there are no geographical or residential restrictions contained in the * * * * express language of section 501.202. Moreover, in its later decision of Renaissance Cruises, Inc. v. Glassman, “Consumer” means an individual; child, by and through 738 So.2d 436 (Fla. 4th DCA 1999), wherein the same its parent or legal guardian; firm; association; joint court found that FDUTPA had applicability to both venture; partnership; estate; trust syndicate; fiduciary; in-state and out-of-state residents in a class action, it corporation; or any other group or combination. appears to us that the fourth district has receded, sub silentio, from its earlier holding in Ortiz.
Millennium also cites us to several decisions from other states and federal courts which have declined to apply state consumer statutes to commercial transactions * * * * conducted outside of the state. See, e.g., Bass v. Hendrix, 931 F.Supp. 523, 536 (S.D.Tex.1996) (plaintiff’s claim pursuant to Texas statute rejected because plaintiff was a “Trade or commerce” means the advertising, soliciting, Connecticut resident and any misrepresentations therefore providing offering, or distributing, whether by sale, “occurred outside of Texas”); Goodrich v. E.F. Hutton rental, or otherwise, of any good or service, or any Group, Inc., 542 A.2d 1200, 1203 (Del.Ch.1988) (claim other article, commodity, or thing of value, wherever based upon Delaware statute dismissed where there were situated. “Trade of commerce” shall include the “no allegations that any Delaware customers received” conduct of any trade or commerce, however, any offending material); Att’y Gen. of Md. v. Dickson, denominated, including any nonprofit or not-for-profit 717 F.Supp. 1090, 1102 (D.Md.1989) (claim based on person or activity. Maryland statute for rolling back odometer inside See §§ 501.203(6), (7), (8), Fla. Stat. (1997) (emphasis Maryland “insufficient to constitute violation within added). scope of act” where no statement was mailed to a Conspicuously absent from this chapter, as the Maryland resident). These cases are distinguishable Department correctly observes, is any language which because the state statutes in question did contain language purports to confine the provisions of FDUTPA or limit of limitation. See, e.g. Bass, 931 F.Supp. at 535 the Department’s enforcement authority to commercial (“consumer” is defined under the Texas Deceptive Trade transactions involving only Florida residents. In the Practices Act as “an individual, partnership, corporation, absence of any such limiting language, we decline to ... of this state ...”); Goodrich, 542 A.2d at 1202 (the construe chapter 501 as limiting the Department’s enunciated purpose of the Delaware Consumer Fraud Act enforcement authority to commercial transactions is to “... protect consumers and legitimate business involving only Florida. See Messmer v. Teacher’s Ins. enterprises from unfair or deceptive merchandising Co., 588 So.2d 610, 612 (Fla. 5th DCA 1991) (plain practices in the conduct of any trade or commerce in part meaning of word should apply in the absence of language as wholly within this state.”); Att’y Gen. of Md., 717 altering or limiting the plain meaning); Holly v. Auld, 450 F.Supp. at 1100 (§ 24.303 of the Maryland Consumer So.2d 217, 219 (Fla.1984) (“courts of this state are Protection Act enumerates an extensive list of deceptive without power to construe an unambiguous statute in a practices and common to each practice is the notion that a way which would extend, modify, or limit, its express deceptive statement is communicated to a consumer in the terms ...”). state).
Millennium cites us to Coastal Physician Services of As we read FDUTPA, it seeks to prohibit unfair, Broward County, Inc. v. Ortiz, 764 So.2d 7 (Fla. 4th DCA © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5
Millennium Communications & Fulfillment, Inc. v. Office of..., 761 So.2d 1256 (2000) 25 Fla. L. Weekly D1691 deceptive and/or unconscionable practices which have potential deception of “consumers acting reasonably in transpired within the territorial boundaries of this state the circumstances, not just and consumers. Third, the without limitation. Therefore, where the allegations in this new standard considers as material only deceptions that case reflect that the offending conduct occurred entirely are likely to cause injury to a reasonable relying within this state, we can discern no legislative intent for consumer, whereas the old standard reached deceptions the Department to be precluded from taking corrective that a consumer might have considered important, measures under FDUTPA even where those persons whether or not there was reliance.” affected by the conduct reside outside of the state.5 Id. at 1435.
Moreover, Millennium points out that in 1994, Congress amended 15 U.S.C. § 45 by adding subsection “n” to provide that: WHETHER THE ACTS COMPLAINED OF WERE DECEPTIVE The Commissions shall have no Having concluded that the provisions of FDUTPA are authority under this section or applicable to offending conduct *1263 occurring inside section 57a of this title to declare Florida to non-Florida residents, we must now consider unlawful an act or practice is unfair Millennium’s next issue on appeal—whether the trial unless the act or practice causes or court correctly determined that Millennium’s postcard is likely to cause substantial injury was deceptive under FDUTPA and therefore, whether the to consumers which is not Department established a clear, legal right to a temporary reasonably avoidable by consumers injunction. Violations under FDUTPA may be based, themselves and not outweighed by among other things, upon any rules promulgated pursuant countervailing benefits to to the Federal Trace Commission Act, 15 U.S.C. §§ 41 et consumers or to competition. In seq. and/or the standards of unfairness and deception set determining whether an act or forth and interpreted by the Federal Trade Commission or practice is unfair, the Commission the federal courts. See § 501.203(3)(a), (b). Since may consider established public FDUTPA is the state counterpart to the Federal Trade policies as evidence to be Commission Act, in deciding whether an act or practice considered with all other evidence. may be deemed deceptive, we must give due Such public policy considerations consideration and great weight to the interpretations made may not serve as a primary basis by the Federal Trade Commission and the federal courts. for such determination. See § 501.204(2); see also Urling v. Helms Exterminators, Inc., 468 So.2d 451 (Fla. 1st DCA 1985); Rollins v. Heller, 454 So.2d at 584. In the instant case, the Department doesn’t contend that Both Millennium and the Department agree that the new Continental’s Advantage credit card program itself is Federal Trade Commission standard for deceptive somehow violative of FDUTPA. Rather, it claims that the advertising was enunciated in Southwest Sunsites, Inc. v. postcard utilized by Millennium to advertise or promote Federal Trade Commission, 785 F.2d 1431 (9th this credit card program is deceptive for its failure to Cir.1986). There, the court stated that “[t]he commission disclose certain aspects of the program to the consumer, will find deception if there is a representation, omission or namely, that the credit card referred to on the postcard is practice that is likely to mislead the consumer acting not a Visa or MasterCard or that the consumers were not reasonably in the circumstances, to the consumer’s eligible to receive a bank credit card until they have detriment.” 785 F.2d at 1434–35. Further, the court noted successfully fulfilled certain unspecified requirements 6 that each of these three elements of the new standard with the Advantage credit card program. When we imposes a greater burden of proof upon the FTC to show measure Millennium’s postcard advertisement against the a violation of section 5 under the FTC act: FTC’s more stringent standard *1264 for deceptiveness enunciated in Southwest Sunsites, we conclude that the First, the FTC must show probable, not possible, Department failed to establish that these omissions were deception (“likely to mislead,” not “tendency and likely to mislead consumers acting reasonably under the capacity to mislead”). Second, the FTC must show circumstances. Therefore, we find the order granting the
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Millennium Communications & Fulfillment, Inc. v. Office of..., 761 So.2d 1256 (2000) 25 Fla. L. Weekly D1691 temporary injunction to be a clear abuse of discretion and qualify for Visa and MasterCard ... Bad Credit? No reverse the same. Credit? No Problem. Make the Call and Get the Credit you Deserve Now!” found deceptive for its failure to also [5] The recipient of Millennium’s postcard is advised that disclose that consumers can only obtain a Visa or he or she has been selected to receive an unspecified MasterCard by paying a processing fee and making a credit card with a guaranteed unsecured credit limit of minimum deposit of $300. Since the consumer learned of $4,000, regardless of the recipient’s past credit history. these requirements only after paying $9.95 to call a “900” Although we are mindful of the fact that deception may number, the omissions were likely to mislead since a be accomplished by innuendo rather than outright false reasonable consumer would not have likely made the call statements, see Regina Corporation v. Federal Trade had he or she known of them in advance); Removatron Commission, 322 F.2d 765, 768 (3rd Cir.1963), we can Int’l Corp. v. Federal Trade Commission, 884 F.2d 1489 discern nothing from the language contained on the (1st Cir.1989) (where the common sense met impression postcard which would likely to mislead a consumer acting of petitioner’s advertising claims was that their machine reasonably under the circumstances to conclude that the could remove hair permanently and that this claim was credit card to which the card refers is a Visa or supported by scientific evidence which in fact was not MasterCard credit card as urged by the Department. true for all people 100% of the time, the evidence was Indeed, we agree with Millennium that any such sufficient to support the commission’s finding that the ad conclusion on the part of a consumer with past credit was deceptive under § 5 of the Federal Trade Commission problems would be pure “wishful thinking.” It is Act, 15 U.S.C. § 45). Moreover, once the recipients of the undisputed that the assertions on the postcard were factual postcard telephoned the toll-free telephone number to in that all of the recipients of this postcard were in fact inquire, they were specifically told that the credit to which eligible to receive a credit card, albeit an Advantage credit the advertisement referred was an Advantage credit card card, with a guaranteed unsecured credit limit of $4,000. to purchase items out of the Advantage catalog. For this reason, the cases relied upon by the Department are wholly distinguishable. See, e.g. People of the State of Thus, for the foregoing reasons, we reverse the order N.Y. v. Financial Servcs. Network USA, 930 F.Supp. 865 granting the temporary injunction. Given our disposition (W.D.N.Y.1996) (ad mailed to consumers represented of this issue, Millennium’s remaining issue on appeal has that for a fee, they were pre-approved for a $30,000 credit been rendered moot. line and “debt consolidation” services in the form of the “Resource card” found patently misleading and deceptive Reversed. where only after paying the up-front fee did the consumers learn that the “Resource Card” is not a credit card and that the line of credit was actually an investment All Citations offer of a finders fee for locating prospective mortgage holders interested in selling a mortgage debt to the 761 So.2d 1256, 25 Fla. L. Weekly D1691 business entity at a discount); Federal Trade Commission v. Amer. Standard Credit Systems, 874 F.Supp. 1080 (C.D.Cal.1994) (advertisement stating “anyone can
Footnotes
1 Millennium also appeals an order denying its motion to dismiss the state’s complaint. As the Department correctly notes, the denial of a motion to dismiss is not an enumerated appealable interlocutory order under Florida Rule of Appellate Procedure 9.130. Moreover, this issue is moot in any event given the fact that the merits of this motion are subsumed by our discussion of the merits of the temporary injunction order.
2 The postcard stated as follows: CONGRATULATIONS! YOU HAVE BEEN SELECTED TO RECEIVE A CREDIT CARD with an unsecured credit limit of $4,000 Guaranteed regardless of your past credit history! Plus a FREE 3 Days & 2 Nights in Magical Orlando, FL Special Promotion Offer! You are guaranteed your very own credit card with an initial credit limit of $4,000 regardless of your past credit history, plus a
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Millennium Communications & Fulfillment, Inc. v. Office of..., 761 So.2d 1256 (2000) 25 Fla. L. Weekly D1691
limited time only, completely FREE, 3 Days and 2 Nights in Magical Orlando, FL. For Immediate Activation and Issuance of your Credit Card Now ... Hours: 9:A.M. to 9:P.M. Monday through Friday*Saturdays 10:A.M. to 6:P.M. (eastern time) 1–800–722–8055 CALL NOW ... THIS IS A LIMITED TIME OFFER! Notice: Free trip allows a companion and two children. Credit Card applicants must be 18 years or older. Credit limit may go up to $7500. This is a special promotion offer from First Capital Finance and it can be withdrawn at any time.
3 According to the complaint, the following representations were made on the telephone: (1) Consumers could obtain an unsecured credit card with a $4,000 credit limit; (2) once consumers gave Millennium’s salesperson their name and other information, authorization was requested through a computer to approve the consumers for the credit card. This was followed by their approval to receive the Advantage Credit Card used by Continental Consumer Credit Corporation; (3) consumers could charge the purchase of products from catalogs provided by Millennium and Continental; (4) consumers would receive an application for a Visa or MasterCard, and that 92% of their cardholders were approved for those credit cards; (5) the “credit card fee” of $129.00 was automatically debited to consumers’ checking accounts.
4 The Department concedes that this allegation was based upon complaints received at the time of the filing of the complaint, but the record evidence subsequently disclosed that Millennium had always had a refund policy.
5 We note that other jurisdictions have similarly declined to restrict the state’s consumer protection laws to state residents. See, e.g. Perry v. Household Retail Servcs., Inc., 953 F.Supp. 1370 (M.D.Ala.1996) (the Illinois Consumer Fraud and Deceptive Business Practices Act is not limited solely to the protection of Illinois residents); Cirone–Shadow v. Union Nissan of Waukegan, 1995 WL 238680 (N.D.Ill. April 20, 1995) (finding that the Illinois Consumer Fraud Act contains no limitation and prohibits fraud in the conduct of any trade or commerce); Pacamor Bearings, Inc. v. Minebea Co., Ltd., 918 F.Supp. 491, 504 (D.N.H.1996) (“That this lawsuit pertains to fraudulent conduct allegedly known and perpetuated by a business within the borders of the state satisfies the statutory locality prerequisite notwithstanding the limited amount of direct sales to New Hampshire customers. It is the “offending conduct” that must occur within the state—the “unfair method of competition or any unfair or deceptive act or practice” in trade or commerce—not the actual sale.”); Brown v. Market Dev., Inc., 41 Ohio Misc. 57, 322 N.E.2d 367, 368 (1974) (where the court concluded that the intention of the Ohio Consumer Sales Practices Act was to “prohibit [and to provide civil remedies to enforce the prohibition of] deceptive and unconscionable acts and practices by Ohio suppliers in connection with consumer transactions irrespective of the location of the consumer, whether within or without Ohio”).
6 Specifically, the Department points out that the postcard omitted the following key facts: the amount of purchases consumers must make from the catalogs, the amount of the down payment, the cost of shipping and handling, the minimum order, and the limited products available from the catalogs.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
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Porsche Cars North America, Inc. v. Diamond, 140 So.3d 1090 (2014) 39 Fla. L. Weekly D1240
West Headnotes (11) KeyCite Yellow Flag - Negative Treatment Disagreement Recognized by State Farm Mutual Automobile Insurance Company v. Performance Orthopaedics & Neurosurgery, LLC, S.D.Fla., [1] Parties September 25, 2017 Factors, grounds, objections, and 140 So.3d 1090 considerations in general District Court of Appeal of Florida, Parties Third District. Superiority, manageability, and need PORSCHE CARS NORTH AMERICA, INC., etc., Parties Appellant, Consideration of merits v. Peter DIAMOND, et al., Appellees. The focus of a class certification hearing is not on whether the class representatives will prevail No. 3D12–2829. at trial but is instead on whether a litigant’s | claim is suited for class certification and June 11, 2014. whether the proposed class provides a superior method for the fair and efficient adjudication of the controversy. West’s F.S.A. RCP Rule 1.220.
Synopsis Background: Owners and lessees of German luxury Cases that cite this headnote vehicles brought putative class action against distributor for violations of Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and unjust enrichment arising from repeated thefts of high-end headlights from vehicles, [2] alleging that distributor unfairly profited by distributing Parties headlights that were highly susceptible to theft without Consideration of merits taking remedial steps. The Circuit Court, Miami–Dade County, David C. Miller, J., 2012 WL 6837916, certified If consequential to its consideration of whether class. Distributor appealed. to certify a class, a trial court may consider evidence on the merits of the case as it applies to the class certification requirements. West’s F.S.A. RCP Rule 1.220. Holdings: The District Court of Appeal, Logue, J., held that: Cases that cite this headnote [1] as a matter of first impression, the definition of unfair trade practice contained in the 1980 Policy Statement of the Federal Trade Commission (FTC) applies in interpreting FDUTPA; [3] Parties [2] common issues did not predominate over individual Community of interest; commonality issues on FDUTPA claims; and Common issues predominate, supporting class [3] common issues did not predominate over individual certification, when, considering both the rights issues on unjust enrichment claims. and duties of the class members, the proof offered by the class representatives will necessarily prove or disprove the cases of the Reversed and remanded. absent class members. West’s F.S.A. RCP Rule 1.220(b)(3).
4 Cases that cite this headnote
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501.203(3)(b), 501.204(1, 2).
12 Cases that cite this headnote [4] Parties Community of interest; commonality
A class representative establishes predominance [7] if he or she demonstrates a reasonable Parties methodology for generalized proof of class-wide Consumers, purchasers, borrowers, or debtors impact; a class representative accomplishes this if he or she, by proving his or her own Claims that distributor of German luxury individual case, necessarily proves the cases of vehicles violated the Florida Deceptive and the other class members. West’s F.S.A. RCP Unfair Trade Practices Act (FDUTPA) in Rule 1.220(b)(3). distributing high-end headlights that were highly susceptible to theft did not satisfy the predominance requirement for certification of 5 Cases that cite this headnote class action brought by vehicle owners and lessees who purchased replacement headlights after thefts; the decision to equip vehicles with high-end headlights involved the individual consumer’s consideration of whether and how to [5] Parties mitigate the risk of theft, and some owners or Community of interest; commonality lessees apparently knew of and accepted the risk while others did not know of the risk. West’s To establish predominance requirement for class F.S.A. §§ 501.202(3), 501.203(3)(b), certification, a class representative’s case must 501.204(2); West’s F.S.A. RCP Rule not merely raise a common question; proof of 1.220(b)(3). the class representative’s case must also answer the question. West’s F.S.A. RCP Rule 1.220(b)(3). 1 Cases that cite this headnote
4 Cases that cite this headnote
[8] Parties Consumers, purchasers, borrowers, or debtors
[6] Antitrust and Trade Regulation When the individual knowledge and experience Reliance; causation; injury, loss, or damage of the consumer is an important element of the cause of action and its defense in a claim Definition of unfair trade practice contained in alleging violations of the Florida Deceptive and the 1980 Policy Statement of the Federal Trade Unfair Trade Practices Act (FDUTPA), there Commission (FTC) and codified as amended can be no class-wide proof that injury was not into federal statutory law applies in interpreting reasonably avoidable, as needed to satisfy the the Florida Deceptive and Unfair Trade predominance requirement for class Practices Act (FDUTPA), and requires that the certification. Federal Trade Commission Act, § injury to the consumer: (1) must be substantial; 5(n), 15 U.S.C.A. § 45(n); West’s F.S.A. §§ (2) must not be outweighed by any 501.202(3), 501.203(3)(b), 501.204(2); West’s countervailing benefits to consumers or F.S.A. RCP Rule 1.220(b)(3). competition that the practice produces; and (3) must be an injury that consumers themselves could not reasonably have avoided. Federal 5 Cases that cite this headnote Trade Commission Act, § 5(n), 15 U.S.C.A. § 45(n); West’s F.S.A. §§ 501.202(3),
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[9] Parties Consumers, purchasers, borrowers, or debtors
Claims that distributor of German luxury vehicles was unjustly enriched in distributing Attorneys and Law Firms high-end headlights that were highly susceptible to theft did not satisfy the predominance *1092 DLA Piper LLP, and William F. Kiniry, Jr., requirement for certification of class action Philadelphia, and Fredrick H.L. McClure and E. Colin brought by vehicle owners and lessees who Thompson, Tampa, for appellant. purchased replacement headlights after thefts; Eaton & Wolk, PL, and Douglas F. Eaton and William G. determination of unjust enrichment would turn Wolk, Miami, for appellees. on individual facts involving some highly sophisticated and knowledgeable class members Before LAGOA, SALTER, and LOGUE, JJ. who continued to seek out the headlights even when they knew of the thefts, along with other Opinion class members who might not have had such sophistication and knowledge. West’s F.S.A. RCP Rule 1.220(b)(3). LOGUE, J.
Cases that cite this headnote We have for review a trial order certifying a class action against Porsche Cars North America, Inc. (“Distributor”). In analyzing whether common issues will predominate over individual issues, the trial court used an outdated
[10] definition of unfair trade practices. When the updated Implied and Constructive Contracts definition is used, common issues will not predominate. Unjust enrichment We accordingly reverse and remand.
The elements of a claim for unjust enrichment are: (1) plaintiff conferred a benefit on the defendant; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit *1093 BACKGROUND without paying the value thereof to the plaintiff.
15 Cases that cite this headnote A. Distributor. Distributor is a wholly-owned subsidiary of Porsche A.G. (“Porsche”). Porsche is the German company that designs and manufactures Porsche vehicles for worldwide [11] Implied and Constructive Contracts distribution. Distributor, the exclusive importer and Unjust enrichment distributor of Porsche cars in the United States, purchases vehicles and parts from Porsche and sells them to A claim for unjust enrichment requires authorized dealerships in the United States for subsequent examination of the particular circumstances of sale to consumers. Distributor does not sell directly to an individual case as well as the expectations of consumers. the parties to determine whether an inequity would result or whether their reasonable expectations were met.
4 Cases that cite this headnote B. High Intensity Discharge Headlights. This case focuses on Porsche’s High Intensity Discharge © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
Porsche Cars North America, Inc. v. Diamond, 140 So.3d 1090 (2014) 39 Fla. L. Weekly D1240
Headlights (“Headlights”). The Headlights are an upscale Distributor became aware in late 2003 or early 2004 that amenity in the luxury car market. The intense blue-white the Headlights were increasingly becoming the target of light given by the Headlights is closer to natural daylight theft. Distributor reported this problem to Porsche: than the yellowish light of regular headlights. The “According to a Jan. 12, 2004 article in the Miami Herald, Headlights provide better nighttime visibility than older theft of Porsche and Nissan headlights is becoming a types of headlights. Since model year 2000, the major problem. Over 60 thefts have occurred in one Headlights have been offered as standard or optional Miami suburb over the last year.” After exploring various equipment across the Porsche vehicle line. The Headlights solutions, Porsche determined that design changes would were mounted on modules that were slid into a plastic tray not eliminate the problem of theft and would make the in the fender and clamped in place. This mounting made vehicles more expensive to purchase and repair. No the Headlights relatively less expensive to install and changes were made to the Headlights. repair. At the same time, however, it made them easier to steal. A knowledgeable thief could pry the Headlights out The City of Coral Gables experienced a tide of headlight of the vehicle in a few moments by forcing a large thefts from vehicles of all makes and models that rose in screwdriver or pry bar under the lights, bending the 2002, crested in 2004, and ebbed in 2006. Although clamp, and breaking either the head lamp unit or headlights were stolen from all makes and models of cars, baseplate. This process would also damage the fender, the rate of headlight thefts from Porsche vehicles was sometimes extensively. disproportionately higher than the rates of thefts from other cars. We summarize pertinent details provided in a larger chart submitted into evidence as follows:1
C. Crime Wave of Headlight Thefts. City of Coral Gables
Vehicle Headlight Thefts
May 31, 2002—May 15, 2010
Yearly Comparison
20 20 20 20 20 20 20 20 20 Total 02 03 04 05 06 07 08 09 10
Porsche 18 59 60 47 27 5 4 6 0 226
All Vehicles 22 87 14 11 81 11 9 14 1 483 1 7
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*1094 The Coral Gables Police Department formed a task assert unfair trade practices and unjust enrichment claims. force that undertook efforts to eliminate headlight theft. They allege Distributor acted unfairly by profiting from Arrests were made and the incidence of headlight thefts distributing a product highly susceptible to theft without from all cars began to steadily and significantly decline. taking remedial steps. Specifically, Distributor failed to Since 2007, reported headlight thefts have become “notify owners of the flaw and potential risk of theft so increasingly rare in Coral Gables. No evidence indicated they could take their own precautions,” to “offer that the rate of theft in Coral Gables projected across the replacement lights at reduced costs,” and to “work with State; to the contrary, some evidence indicated the law enforcement agencies to assist in the prevention of 2 This course of conduct, the problem was regional and centered mainly in South the theft of their headlights.” Florida. representatives members allege, violated the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). §§ 501.201–.213, Fla. Stat. They seek consequential
damages in the form of the cost of repairing the cars and
replacing the stolen Headlights; they do *1095 not claim that the vehicles they purchased or leased were worth less D. The Class Representatives. than the prices paid.3 Class representatives, Peter Diamond, Irma Matos, Richard Sharp, and Luis Alayo–Riera, are all residents of The unjust enrichment claim states that plaintiffs Miami–Dade County, Florida, who purchased conferred a benefit on Distributor by purchasing replacement headlights after the Headlights in their replacement Headlights which were ultimately supplied vehicles were stolen. Some class representatives knew by Distributor, and that it would be inequitable to allow about the problem of thefts when they leased or purchased Distributor to profit from customer losses caused by a their vehicle, others did not. Irma Matos, for example, had design flaw of which Distributor was fully aware yet no knowledge regarding the special characteristics of the failed to remedy. Headlights and no idea that the Headlights were targeted for theft until after three different sets of Headlights were stolen. Exasperated after the three incidents of stolen Headlights, she terminated her lease early and traded her vehicle for a BMW. F. The Classes Certified.
Plaintiffs sought certification of a class consisting of: Luis Alayo–Riera, on the other hand, was a more sophisticated and knowledgeable buyer. A self-described “Porsche fanatic” and “car enthusiast,” he was attracted by the characteristics of the Headlights. From both All Florida owners or lessees of discussions with friends and articles he read, he learned Porsche 911 (models 996 and 997), about the problem of the thefts in South Florida. Boxster (986 and 987) or Cayman Nevertheless, he intentionally leased a Porsche equipped vehicles whose HID headlights with the Headlights. Later, when thieves twice stole his were forcibly removed from Headlights, he consciously chose to have the same type of outside their vehicles during the Headlights reinstalled. After the second incident, period from May 31, 2002 until however, he began taking extra security measures, present. including parking his car next to the security guard post in the office parking lot where the thefts had occurred. The thefts stopped. He subsequently purchased the vehicle with the Headlights. When he finally sold the vehicle, he Following a hearing on the motion, the trial court granted admitted the car suffered no diminished value due to the the motion and certified the class described above to Headlights. To the contrary, he maintained the Headlights pursue the FDUTPA violation claim. The trial court also enhanced the sale price of the car. certified two subclasses to pursue the unjust enrichment claims defined as:
Unjust Enrichment Subclass 1: All owners described above whose headlights were removed on only one occasion during the time period described above. E. The Legal Theory. In their claim for a class action, the class representatives Unjust Enrichment Subclass 2: All owners described © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5
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above whose headlights were removed on more than he or she, by proving his or her one occasion during the time period described above. own individual case, necessarily proves the cases of the other class Distributor appeals that order. members.
73 So.3d at 112 (internal citation omitted). The Court added that the class representative’s case must not merely raise a common question, but that proof of the class ANALYSIS representative’s case must also “answer[ ] the question.” Id. at 111.4
I. Determining Class Certification: Will the Proof of the Class Representatives’ Case Necessarily Prove the Case of the Absent Class Members? II. The Trial Court Used an Outdated Definition of The threshold requirements for class certification are well Unfair Trade Practice. known: a class will be certified based upon a showing of FDUTPA declares unlawful “[u]nfair methods of numerosity, commonality, typicality, and adequacy of competition, unconscionable acts or practices, and unfair representation. Fla. R. Civ. P. 1.220(a). In addition to or deceptive acts or practices in the conduct of any trade meeting these threshold requirements, the class must fall or commerce.” § 501.204(1), Fla. Stat. The term “unfair” within one of the three different types of class actions is not defined in FDUTPA. Here, the trial judge defined established in Florida Rule of Civil Procedure 1.220(b). unfair trade practice as one that “offends established policy” and “is immoral, unethical, oppressive, [1] [2] The focus of a class certification hearing is not on unscrupulous or substantially injurious to customers.” whether the class representatives will prevail at trial. Sosa This definition derives from a 1964 Federal Trade v. Safeway Premium Fin. Co., 73 So.3d 91, 105 Commission policy statement. See Unfair or Deceptive (Fla.2011). Instead, the focus is on “whether a litigant’s Advertising and Labeling of Cigarettes in Relation to the claim is suited for class certification” and whether the Health Hazards of Smoking, Statement of Basis and proposed class provides “a superior method for the fair Purpose, 29 Fed. Reg. 8324, 8355 (July 2, 1964) (“1964 and efficient adjudication of the controversy.” Id. at Policy Statement”). 105–06. “However, if consequential to its consideration of whether to certify a class, a trial court may consider In 1980, however, the Federal Trade Commission updated evidence on the merits of the case as it applies to the class its definition of unfair trade practice. “The Commission’s certification requirements.” Id. at 105. [1980] Policy Statement was basically a refinement of an earlier three-part standard of unfairness it had set out in [3] [4] [5] The trial court certified the present case as a rule 1964.” Am. Fin. Servs. Ass’n v. F.T.C., 767 F.2d 957, 971 1.220(b)(3) class action. In a(b)(3) class action, not all (D.C.Cir.1985). The new definition established a issues of fact and law are common, but common issues three-pronged test for “unfairness,” which requires that *1096 predominate over individual issues. Fla. R. Civ. P. the injury to the consumer: 1.220(b)(3). Common issues predominate when, considering both the rights and duties of the class (1) must be substantial; members, the proof offered by the class representatives will necessarily prove or disprove the cases of the absent (2) must not be outweighed by any countervailing class members. As the Supreme Court explained in Sosa: benefits to consumers or competition that the practice produces; and
(3) must be an injury that consumers themselves [A] class representative establishes could not reasonably have avoided. predominance if he or she demonstrates a reasonable FTC Policy Statement on Unfairness (Dec. 17, 1980) methodology for generalized proof (“1980 Policy Statement”), appended to Int’l Harvester of class-wide impact. A class Co., 104 F.T.C. 949, 1070 (1984); also available at representative accomplishes this if http://www.ftc.gov/ftc-policy-statement-on-unfairness © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6
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(last visited on June 4, 2014). An excerpt of the 1980 FDUTPA’s reference to section 45(a)(1) of the United Policy Statement is appended to this opinion. States Code is no coincidence. Section 45(a)(1) is the federal law upon which FDUTPA was modeled. Its [6] We must decide whether Florida law adopts the language is virtually identical to section 501.204(1), definition of unfairness contained in the 1980 Policy Florida Statutes, which is the keystone provision of Statement. We hold that it does. The Legislature provided FDUTPA. Section 45(a)(1) provides: “Unfair methods of that violations of FDUTPA include violations of “[t]he competition in or affecting commerce, and unfair or standards of unfairness and deception set forth and deceptive acts or practices in or affecting commerce, are interpreted by *1097 the Federal Trade Commission or hereby declared unlawful.” 15 U.S.C. § 45(a)(1). The the federal courts.” § 501.203(3)(b), Fla. Stat. (emphasis 1980 Policy Statement obviously constitutes an added). Included are standards of unfairness issued “as of interpretation by the Federal Trade Commission of the July 1, 2013.” Id. term “unfair” as it is used in section 45(a)(1) and is therefore entitled to “due consideration and great weight” The reference to “standards of unfairness” “as of July 1, when construing FDUTPA. 2013” is the product of a long legislative history in which the Florida Legislature amended FDUTPA in 1983, 2001, These legislative directives are consistent with 2006, and 2013, for the specific purpose of adding to FDUTPA’s express purpose—“[t]o make state consumer Florida Law interpretations by the Federal Trade protection and enforcement consistent with established Commission or federal courts that occurred since the last policies of federal law relating to consumer protection.” § statutory amendment.5 This series of amendments was 501.202(3), Fla. Stat. Thus, FDUTPA expressly states that necessary because a statute simply adopting all future Florida is to be guided by and follow the interpretations of changes to federal law would be an unconstitutional unfair trade practices under the Federal Trade delegation of the power to legislate. Dep’t of Legal Affairs Commission Act made by the Federal Trade Commission v. Rogers, 329 So.2d 257, 267 (Fla.1976). and the federal courts.
In light of this history, the 1980 Policy Statement is In 1994, Congress codified the 1980 Policy Statement clearly one of the “standards of unfairness” interpreted by into federal statutory law. Federal Trade Commission Act the Federal Trade Commission and federal courts. See, Amendments of 1994, Pub. L. No. 103–312, § 9, 108 Stat. e.g., In re Orkin Exterminating Co., 108 F.T.C. 263 1691 (codified as amended at 15 U.S.C. § 45(n) (1994)) (1986), aff’d, 849 F.2d 1354 (11th Cir.1988), cert. denied, (“The Commission shall have no authority under this 488 U.S. 1041, 109 S.Ct. 865, 102 L.Ed.2d 989 (1989) section or section 57a of this title to declare unlawful an (discussing and applying the 1980 Policy Statement’s act or practice on the grounds that *1098 such act or definition of unfair trade practice). By operation of law, practice is unfair unless the act or practice causes or is therefore, it was incorporated into Florida law in the 1983 likely to cause substantial injury to consumers which is amendments to FDUTPA and re-adopted by the not reasonably avoidable by consumers themselves and subsequent amendments. See amendments to § not outweighed by countervailing benefits to consumers 501.203(3)(b), note 5, supra. or to competition.”). The codification of the 1980 Policy Statement’s definition of unfair trade practice into federal In nearby statutory sections, the Legislature reiterated that statutory law does not terminate its relevance to Florida FDUTPA should be interpreted in line with federal law. law. Nothing in the text of FDUTPA provides that a For example, section 501.204(2) provides: Federal Trade Commission and federal court interpretation stops being authoritative in Florida if it becomes codified into federal law. While the definition has now been adopted by Congress, it still remains an It is the intent of the Legislature, interpretation that originated with the Federal Trade that, in construing subsection (1), Commission and used by the federal courts before it was due consideration and great weight adopted by Congress. shall be given to the interpretations of the Federal Trade Commission Nor is this analysis altered by the fact that Florida courts, and the federal courts relating to s. including this court, have continued to cite in passing to 5(a)(1) of the Federal Trade the definition of unfairness found in the 1964 Policy Commission Act, 15 U.S.C. s. Statement. See, e.g., PNR, Inc. v. Beacon Prop. Mgmt., 45(a)(1) as of July 1, 2013. Inc., 842 So.2d 773, 777 (Fla.2003); Suris v. Gilmore Liquidating, Inc., 651 So.2d 1282, 1283 (Fla. 3d DCA
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Porsche Cars North America, Inc. v. Diamond, 140 So.3d 1090 (2014) 39 Fla. L. Weekly D1240
1995); Cummings v. Warren Henry Motors, Inc., 648 behind the reasonably *1099 avoidable inquiry is that free So.2d 1230, 1233 (Fla. 4th DCA 1995); Urling v. Helms and informed consumer choice is the first and best Exterminators, Inc., 468 So.2d 451, 453 (Fla. 1st DCA regulator of the marketplace: “[c]onsumers may act to 1985). The references to the Federal Trade Commission’s avoid injury before it occurs if they have reason to 1964 definition of unfairness in these cases are not anticipate the impending harm and the means to avoid it, rejections of the 1980 definition. To the contrary, because or they may seek to mitigate the damage afterward if they they relied on the Federal Trade Commission’s 1964 are aware of potential avenues toward that end.” In re Policy Statement, these cases confirm that Florida looks Orkin, 108 F.T.C. at 366. For this reason, “consumer to Federal Trade Commission interpretations of the term information is central to this prong of the unfairness “unfair trade practice.” The issue of whether the updated inquiry.” Orkin Exterminating Co., Inc. v. F.T.C., 849 1980 definition became part of Florida law was simply F.2d 1354, 1366 (11th Cir.1988). not before those courts. This is not to say that individual knowledge must always In the present case, however, we are squarely faced with be considered to determine whether a trade practice was the issue of whether Florida has adopted the 1980 Federal unfair. The individual consumer’s knowledge may not be Trade Commission definition of unfair trade practice. a relevant factor where, for example, the legal theory of Following the clear and unambiguous directive of the claim posits that “consumers do not have a free and sections 501.203(3)(b), 501.204(2), and 501.202(3), informed choice that would have enabled them to avoid Florida Statutes, we hold the 1980 Policy Statement’s the unfair practice.” F.T.C. v. Neovi, Inc., 598 F.Supp.2d definition of unfair trade practice should be used when 1104, 1115 (S.D.Cal.2008) (quotation and citation interpreting FDUTPA. omitted). This scenario would arise where the claim is based on allegations of “some form of seller behavior that unreasonably creates or takes advantage of an obstacle to the free exercise of consumer decisionmaking.” F.T.C. v. Direct Mktg. Concepts, Inc., 569 F.Supp.2d 285, 299–300 (D.Mass.2008) (quotation and citation omitted). III. Using the Correct Definition of Unfair Trade Practice, Common Issues of Law and Fact Will Not Like the decision to purchase a luxury car, the decision to Predominate. equip a car with a high-end amenity naturally involves an [7] The trial court adopted the premise that Distributor’s individual consumer’s consideration of whether and how actions can be found to be an unfair trade practice to mitigate the risk of theft. A jury might well find that a regardless of whether class members knew and could consumer who knew the Headlights were targeted by have avoided the risk of the Headlight thefts. From this thieves had avenues available to reasonably avoid the premise, it reasoned “an individual class member’s risk. This is particularly true where, as here, the problem pre-purchase knowledge of the potential risk of theft is of theft was greater in some geographic locations than not relevant to the Plaintiff’s FDUTPA claim.” It then others. If the consumer lived in a high crime area, he or concluded common issues will predominate because she could have chosen models with the older style of either Distributor’s “actions will be unfair to all class headlights, taken efforts to park in only safe areas, members or they will not be unfair to any of them.” installed alarm systems extending to the mounting Because we disagree with the premise, we disagree with module, or, if these options were not acceptable, decline the conclusion. to purchase or lease a Porsche with the Headlights. Given the theory of this case, the knowledge of some class The individual class member’s knowledge of the risk of members that the Headlights were prone to theft cannot Headlight theft bears on whether Distributor’s practice be ignored. was unfair because it impacts whether the consumer could reasonably avoid the risk. Given the nature of the claim in [8] When the individual knowledge and experience of the this case—that the Headlights functioned properly as consumer is an important element of the cause of action headlights but were too attractive and susceptible to and its defense, there can be no class-wide proof that theft—an individual class member’s knowledge of the injury was not reasonably avoidable. This point is risk of theft goes to the heart of his or her claim. illustrated by In re Motions to Certify Classes Against Court Reporting Firms for Charges Relating to Word To prove an unfair trade practice, the class must prove Indices, 715 F.Supp.2d 1265, 1277 (S.D.Fla.2010), aff’d that the injury caused by the allegedly unfair trade sub nom. Webber v. Esquire Deposition Services, LLC, practice could not have been reasonably avoided by the 439 Fed.Appx. 849 (11th Cir.2011). consumers. See 1980 Policy Statement, supra. The idea © 2019 Thomson Reuters. 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Porsche Cars North America, Inc. v. Diamond, 140 So.3d 1090 (2014) 39 Fla. L. Weekly D1240
could lead to divergent and conflicting legal results, their In Court Reporting, plaintiffs brought FDUTPA and claims cannot be resolved on a class-wide basis. Instead, unjust enrichment claims on behalf of a proposed class of to resolve the issue, there would need to be a series of consumers of court reporting services. Id. at 1268. The mini-trials to ascertain each absent members’ knowledge plaintiffs alleged that the defendants—certain firms of these matters. providing legal transcripts—engaged in unfair acts by charging the same per-page price for index pages as transcribed pages. Id.
The court denied the motion for class certification because the plaintiffs would be unable to establish on a IV. The Common Issues will not Predominate as to class-wide basis that alleged injury was not “reasonably the Unjust Enrichment Claims. [9] [10] avoidable”: The unjust enrichment claim also fails to satisfy the requirement that common issues predominate over individual issues. The elements of a claim for unjust enrichment are: (1) plaintiff conferred a benefit on the Some lawyers and other users of defendant; (2) defendant voluntarily accepts and retains court-reporting the benefit conferred; and (3) the circumstances are such services—particularly those who that it would be inequitable for the defendant to retain the are fairly sophisticated (or, at least, benefit without paying the value thereof to the plaintiff. experienced) users of such Fito v. Attorneys’ Title Ins. Fund, Inc., 83 So.3d 755, 758 services—could reasonably avoid (Fla. 3d DCA 2011). the index charges by simply relying on their experience and requesting [11] “A claim for unjust enrichment ... requires that the court-reporting firms omit examination of the particular circumstances of an (or charge a different per-page rate individual case as well as the expectations of the parties to for) the indices from any transcripts determine whether an inequity would result or whether they order. A class definition that their reasonable expectations were met.” Kunzelmann v. includes experienced and *1100 Wells Fargo Bank, N.A., 2013 WL 139913 (S.D.Fla. Jan. novice users of court-reporting 10, 2013) (citations omitted). “In short, common services, necessarily includes those questions will rarely, if ever, predominate an unjust with differing abilities to enrichment claim, the resolution of which turns on reasonably avoid the allegedly individualized facts.” Vega v. T–Mobile USA, Inc., 564 unfair charge. F.3d 1256, 1274 (11th Cir.2009).
Here, the determination of unjust enrichment will turn on individual facts. A court would be hard pressed to Id. at 1277–78. The district court concluded that the class conclude that Distributor was unjustly enriched when claim failed on the predominance element of class class members with the sophistication and knowledge of certification under FDUTPA. Id. at 1268. Alayo–Riera continued to seek out the Headlights even
when they knew of the thefts. The result might well be In the present case, the class representatives similarly are different for other members of the class. Because the unable to show that the injury was not “reasonably questions raised by the unjust enrichment claim will not avoidable” on a class-wide basis. The owners who knew necessarily have common answers, that claim also fails and accepted the risk of theft stand in a different legal the predominance element required for class certification. posture regarding alleged failure to provide notice than owners who did not know. Contrast relatively Reversed and remanded for proceedings consistent with sophisticated and knowledgeable class members like this opinion. Alayo–Riera with less knowledgeable and experienced owners like Matos. It would obviously be unfair to class members like Matos to have their claims resolved based upon the facts of class members like Alayo–Riera.
This difference is fatal to the class action. Where the class APPENDIX members present such conflicting factual patterns that
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Porsche Cars North America, Inc. v. Diamond, 140 So.3d 1090 (2014) 39 Fla. L. Weekly D1240
Excerpts from Federal Trade Commission Policy reduce the initial price he must pay for the article. The Statement on Unfairness: Commission is aware of these tradeoffs and will not find that a practice unfairly injures consumers unless it FTC Policy Statement on Unfairness is injurious in its net effects. The Commission also takes account of the various costs that a remedy would Federal Trade Commission Washington, D.C. entail. These include not only the costs to the parties directly before the agency, but also the burdens on December 17, 1980 society in general in the form of increased paperwork, increased regulatory burdens on the flow of *1101 Consumer injury information, reduced incentives to innovation and Unjustified consumer injury is the primary focus of the capital formation, and similar matters. Finally, the FTC Act, and the most important of the three [1964 injury must be one which consumers could not Policy Statement] criteria. By itself it can be sufficient reasonably have avoided. Normally we expect the to warrant a finding of unfairness. The Commission’s marketplace to be self-correcting, and we rely on ability to rely on an independent criterion of consumer consumer choice—the ability of individual consumers injury is consistent with the intent of the statute, which to make their own private purchasing decisions without was to “[make] the consumer who may be injured by an regulatory intervention—to govern the market. We unfair trade practice of equal concern before the law anticipate that consumers will survey the available with the merchant injured by the unfair methods of a alternatives, choose those that are most desirable, and dishonest competitor.” avoid those that are inadequate or unsatisfactory. However, it has long been recognized that certain types The independent nature of the consumer injury of sales techniques may prevent consumers from criterion does not mean that every consumer injury is effectively making their own decisions, and that legally “unfair,” however. To justify a finding of corrective action may then become necessary. Most of unfairness the injury must satisfy three tests. It must be the Commission’s unfairness matters are brought under substantial; it must not be outweighed by any these circumstances. *1102 They are brought, not to countervailing benefits to consumers or competition second-guess the wisdom of particular consumer that the practice produces; and it must be an injury that decisions, but rather to halt some form of seller consumers themselves could not reasonably have behavior that unreasonably creates or takes advantage avoided. of an obstacle to the free exercise of consumer decisionmaking. First of all, the injury must be substantial. The Commission is not concerned with trivial or merely Sellers may adopt a number of practices that speculative harms. In most cases a substantial injury unjustifiably hinder such free market decisions. Some involves monetary harm, as when sellers coerce may withhold or fail to generate critical price or consumers into purchasing unwanted goods or services performance data, for example, leaving buyers with or when consumers buy defective goods or services on insufficient information for informed comparisons. credit but are unable to assert against the creditor Some may engage in overt coercion, as by dismantling claims or defenses arising from the transaction. a home appliance for “inspection” and refusing to Unwarranted health and safety risks may also support a reassemble it until a service contract is signed. And finding of unfairness. Emotional impact and other more some may exercise undue influence over highly subjective types of harm, on the other hand, will not susceptible classes of purchasers, as by promoting ordinarily make a practice unfair. Thus, for example, fraudulent “cures” to seriously ill cancer patients. Each the Commission will not seek to ban an advertisement of these practices undermines an essential precondition merely because it offends the tastes or social beliefs of to a free and informed consumer transaction, and, in some viewers, as has been suggested in some of the turn, to a well-functioning market. Each of them is comments. therefore properly banned as an unfair practice under the FTC Act. Second, the injury must not be outweighed by any FTC Policy Statement on Unfairness (Dec. 17, 1980), offsetting consumer or competitive benefits that the appended to Int’l Harvester Co., 104 F.T.C. 949, 1070 sales practice also produces. Most business practices (1984) (internal references omitted; first alteration added); entail a mixture of economic and other costs and also available at benefits for purchasers. A seller’s failure to present http://www.ftc.gov/ftc-policy-statement-on-unfairness complex technical data on his product may lessen a (last visited on June 4, 2014). consumer’s ability to choose, for example, but may also © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10
Porsche Cars North America, Inc. v. Diamond, 140 So.3d 1090 (2014) 39 Fla. L. Weekly D1240
All Citations 140 So.3d 1090, 39 Fla. L. Weekly D1240
Footnotes
1 This chart compares thefts of all headlights; a comparison of the theft of H.I.D. headlights might be more meaningful.
2 The Complaint also alleges that Distributor could have redesigned the vehicles in various ways, but the allegations and facts establish Distributor does not design or manufacture the vehicles, Porsche does.
3 This opinion does not reach the issue of whether such a theory of damages is viable. Compare Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1140 (Fla. 3d DCA 2008); with Dorestin v. Hollywood Imps., Inc., 45 So.3d 819, 825–32 (Fla. 4th DCA 2010) (Gross, J., concurring specially).
4 The United States Supreme Court recently echoed this sentiment: What matters to class certification ... is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers. Wal–Mart Stores, Inc. v. Dukes, ––– U.S. ––––, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (citation omitted).
5 See Ch. 83–117, 1, at 382, Laws of Fla.; Ch. 2001–39, § 2, at 114, Laws of Fla.; Ch. 2006–196, § 2, at 2072, Laws of Fla.; Ch. 2013–207, § 4, Laws of Fla.
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Rollins, Inc. v. Heller, 454 So.2d 580 (1984)
There was no need for homeowners to pierce corporate veil between subsidiary corporation KeyCite Yellow Flag - Negative Treatment that installed burglar alarm system and parent Distinguished by Eli Lilly and Co. ex rel. Nat. Union Fire Ins. Co. of corporation which was a defendant in Pittsburgh, Pa. v. Tyco Integrated Sec., LLC, S.D.Fla., March 4, 2014 homeowners’ action for damages arising out of 454 So.2d 580 burglary, where parent was itself a direct District Court of Appeal of Florida, participant in the dealings with the homeowners. Third District.
ROLLINS, INC., et al., Appellants, 6 Cases that cite this headnote v. Daniel Neal HELLER and Diane Heller, his wife, Appellees.
Nos. 82-2687, 83-106. [2] Negligence | Contractual duty June 26, 1984. | Although duty breached by a defendant may Rehearing Denied Sept. 17, 1984. have sprung from a contractual promise, the duty sued upon in a negligence action is not the contractual promise but the duty to use Synopsis reasonable care in affirmatively performing that Homeowners brought action against burglar alarm promise; the duty exists independent of the company, seeking to recover damages arising from contract. burglary and theft of property. The Circuit Court, Dade County, Leonard Rivkind, J., found defendant liable for 2 Cases that cite this headnote gross negligence and deceptive and unfair trade practices in connection with installation and servicing of burglar alarm system, and granted an award of compensatory and punitive damages totaling $228,487, and defendant appealed. The District Court of Appeal, Nesbitt, J., held [3] Telecommunications that: (1) aggregate of compensatory and punitive damages Limitation or modification of liability recoverable by homeowners for defendant’s gross negligence was limited to ten percent of one year’s Exculpatory and limitation of damages service charge or $250, whichever was greater, in light of provisions are valid and enforceable in contracts contract provision limiting damages; (2) actual damages between homeowners and installers of burglar were recoverable by homeowners in full for the Florida alarm systems. Deceptive and Unfair Trade Practices Act violation, notwithstanding contractual limitation of liability; and (3) no award of punitive damages was allowable for the 3 Cases that cite this headnote statutory violation, since there was no finding of fraud.
Reversed and remanded.
[4] Telecommunications Actions
West Headnotes (14) In action by homeowners against burglar alarm company alleging that alarm system did not work at time of burglary, finding that burglary [1] Corporations and Business Organizations alarm company was guilty of gross negligence Particular Occasions for Determining was supported by the record. Corporate Entity
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Rollins, Inc. v. Heller, 454 So.2d 580 (1984)
There was competent substantial evidence Cases that cite this headnote presented to support trial court’s finding that burglar alarm company violated the Florida Deceptive and Unfair Trade Practices Act, even though the company did not engage in fraud. West’s F.S.A. § 501.201 et seq. [5] Telecommunications Limitation or modification of liability 2 Cases that cite this headnote
Fact that burglar alarm company was guilty of gross negligence in the installation and servicing of alarm system did not bring homeowners’ claim for damages within “fraud exception” [9] Antitrust and Trade Regulation carved out by courts with respect to the type of Measure and amount limitation of damages provision contained in contract between company and homeowners. For purposes of assessing damages under Florida Deceptive and Unfair Trade Practices Act, a company which installs and services Cases that cite this headnote burglar alarms does not assume the responsibility of insuring all the items intended to be protected by the system. West’s F.S.A. §§ 501.211(2), 501.212(3).
[6] Telecommunications Contracts in general 7 Cases that cite this headnote
Homeowners, husband and wife, were bound by contract with burglar alarm installer, even though wife did not read, and consequently did not know, the terms of the contract when she [10] Antitrust and Trade Regulation signed it, where wife had the ability to Particular cases understand the contract and was not prevented from reading it. Damages awarded to homeowners pursuant to burglar alarm company’s violation of Florida Deceptive and Unfair Trade Practices Act were 2 Cases that cite this headnote required to be limited to the actual damages related to the burglar alarm system and services thereon that the company contracted to provide, in light of contractual provision embodying rule
[7] that the burglar alarm company was not an Antitrust and Trade Regulation insurer of the customer’s property. West’s Fraud; deceit; knowledge and intent F.S.A. § 501.201 et seq.
Finding of fraud is not necessary to sustain a 8 Cases that cite this headnote violation under the Florida Deceptive and Unfair Trade Practices Act. West’s F.S.A. § 501.201 et seq.
9 Cases that cite this headnote [11] Antitrust and Trade Regulation Grounds and Subjects Antitrust and Trade Regulation Measure and amount
[8] Antitrust and Trade Regulation “Actual damages,” within meaning of Florida Weight and sufficiency Deceptive and Unfair Trade Practices Act, are
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Rollins, Inc. v. Heller, 454 So.2d 580 (1984)
those damages recoverable at common law; §§ 501.011 et seq., 501.211. generally, the measure of actual damages is the difference in the market value of the product or service in the condition in which it was 10 Cases that cite this headnote delivered and its market value in the condition in which it should have been delivered according to the contract of the parties; a notable exception to this may exist when the product is rendered valueless as a result of the defect, and Attorneys and Law Firms then the purchase price is the appropriate measure of the actual damages. West’s F.S.A. § *582 Capp, Reinstein, Kopelowitz & Atlas and Jan D. 501.201 et seq. Atlas, Palm Beach, and Addison & Paris, Tampa, for appellants. 84 Cases that cite this headnote Daniel Neal Heller, Sams, Gerstein & Ward, Miami, for appellees.
Before BARKDULL, NESBITT and FERGUSON, JJ. [12] Antitrust and Trade Regulation Waiver of rights or remedies Opinion
Any attempt to limit one’s liability for deceptive or unfair trade practices would be contrary to NESBITT, Judge. public policy. West’s F.S.A. § 501.201 et seq.
2 Cases that cite this headnote Rollins appeals a final judgment finding it liable for gross negligence and deceptive and unfair trade practices in connection with the installation and servicing of a burglar alarm system and granting an award of compensatory and punitive damages totalling $228,487. We reverse as to the [13] Antitrust and Trade Regulation award of damages. Particular cases The Hellers entered a contract with Rollins Protective Actual damages were recoverable in full by Services Company (RPS) to install and maintain a burglar homeowners for burglar alarm company’s alarm system in their home. RPS is a subsidiary violation of Florida Deceptive and Unfair Trade corporation of Rollins, Inc., the defendant below. The Practices Act, notwithstanding burglar alarm Hellers believed themselves to be dealing with Rollins, company’s attempt to limit its liability in Inc. and were unaware of the separate corporate identities. contract with the homeowners for installation The system was installed and then allegedly “serviced” and service of burglar alarm system. West’s regularly for more than two years, up until the time the F.S.A. § 501.201 et seq. Hellers’ residence was burglarized. The alarm system did not work at the time of the burglary and property 8 Cases that cite this headnote belonging to the Hellers, valued in excess of one million dollars, was stolen. Subsequently, through investigation and paying of ransom monies, about ninety per cent (in
dollar value) of the stolen property was recovered.
[14] Antitrust and Trade Regulation The Hellers commenced an action claiming negligence, Punitive or exemplary damages breach of express and implied warranties, fraud and
deceit, misleading advertising, gross negligence and Any award of punitive damages based upon a deceptive and unfair trade practices on the part of Rollins. violation of the Florida Deceptive and Unfair The Hellers voluntarily abandoned their claims based Trade Practices Act is improper absent some upon ordinary negligence and warranties. The trial court independent basis such as fraud. West’s F.S.A. found that the Hellers failed to establish their claims based upon fraud and deceit and misleading advertising. © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
Rollins, Inc. v. Heller, 454 So.2d 580 (1984)
The Hellers have not challenged these findings. The court, Fargo Alarm Services, 427 So.2d 332 (Fla. 3d DCA however, found Rollins liable for gross negligence and 1983); Continental Video Corp. v. Honeywell, Inc., 422 deceptive and unfair trade practices under section 501.201 So.2d 35 (Fla. 3d DCA 1982); Ace Formal Wear, Inc. v. et. seq., Florida Statutes (1981). The court awarded Baker Protective Service, Inc., 416 So.2d 8 (Fla. 3d DCA $128,487 in compensatory damages (based upon the value 1982); L. Luria & Sons, Inc. v. Alarmtec International of the unrecovered stolen items) and $100,000 in punitive Corp., 384 So.2d 947 (Fla. 4th DCA 1980). damages. Rollins thereupon instituted this appeal challenging its liability as found by the trial court and the In Mankap, this court held that such provisions will not damages awarded. limit one’s liability for fraud, an intentional tort. 427 So.2d at 333-34. The trial court in the present case, [1] [2] [3] [4] Rollins first contends that the Hellers have however, specifically found that the Hellers failed to failed to pierce the corporate veil and that RPS is the only establish fraud and deceit on the part of Rollins. Instead, proper defendant. We find, however, that the record the court found the provisions did not apply because supports the trial court’s implicit finding that Rollins was Rollins was guilty of gross negligence amounting to a itself a direct participant in the dealings with the Hellers. willful, wanton and reckless indifference to the rights of Therefore, there is no need for the Hellers to pierce the the Hellers. Without unnecessarily lengthening this corporate veil between RPS and Rollins. opinion, we simply hold that the record supports the finding of gross negligence. See Maddalena v. Southern Bell Telephone & Telegraph Co., 382 So.2d 1246 (Fla. 4th DCA 1980) (compounding effect of successive acts can amount to gross negligence). This, however, does not put the case within Mankap’s fraud exception to the 1 *583 GROSS NEGLIGENCE application of the provisions.
The crucial issue concerning Rollins’ liability for gross In L. Luria, the plaintiffs sought compensatory damages negligence is whether the limitation of damages provision for breach of contract and warranties and for negligence, in the contract is applicable. In pertinent part, the contract and also sought punitive damages for “gross, wanton and states: willful negligence” on the part of a burglar alarm company. The contract between the parties stated that the It is further agreed that Rollins is not an insurer of the company was not liable for any loss or damage resulting Customer’s property and that all charges and fees from their services under the contract. The contract also herein provided for are based solely on the cost of contained a limitation of damages provision.2 The court installation, service of the System and scope of liability *584 found that the exculpatory clause totally excluded hereinafter set forth and are unrelated to the value of liability on the company’s part for losses due to burglary the Customer’s property or the property of others and affirmed the trial court’s dismissal of the action. The located on the Customer’s premises. court further found that the limitation of damages The parties agree that if loss or damage should result provision was enforceable and in a proper case would from the failure of performance or operation or from limit damages according to its terms. 384 So.2d at 947-48. defective performance or operation or from improper Accord Mankap; Continental Video; Ace Formal Wear.
installation or servicing of the System, that Rollins’ [5] [6] liability, if any, for the loss or damage thus sustained Although the contract in the present case does not shall be limited to a sum equal to ten (10%) per cent of contain an exculpatory clause which would immunize one year’s service charge or $250.00, whichever sum is Rollins from all liability, it does contain a limitation of the greater, and that the provisions of this paragraph damages provision. On the authority of the above cases, shall apply if loss or damage, irrespective of cause or therefore, any damages awarded pursuant to Rollins’ origin, results, directly or indirectly to persons or gross negligence should have been limited according to property from performance or nonperformance of the contract, and it was error for the trial court to find the 3 obligations imposed by this Agreement or from provision did not apply in the face of gross negligence. negligence, active or otherwise, of Rollins, its agents or Accordingly, the aggregate of compensatory and punitive employees. damages recoverable by the Hellers for Rollins’ gross negligence is limited to ten per cent of one year’s service It is well settled that exculpatory and limitation of charge or $250, whichever is greater. damages provisions are valid and enforceable in these types of contracts. Mankap Enterprises, Inc. v. Wells
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Rollins, Inc. v. Heller, 454 So.2d 580 (1984)
court held that actual damages are those damages recoverable at common law. Brown v. American Transfer and Storage Co., 601 S.W.2d 931 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980). See THE FDUTPA VIOLATION also Lubbock Mortgage & Investment Co. v. Thomas, 626 S.W.2d 611 (Tex.App.1981); United Postage Corp. v. [7] [8] We now turn to the trial court’s finding that Rollins Kammeyer, 581 S.W.2d 716 (Tex.App.1979). In violated the Florida Deceptive and Unfair Trade Practices determining the measure of actual damages, the court in Act (FDUTPA). § 501.201 et. seq., Fla.Stat. (1981). The Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 applicable provision makes unlawful “[u]nfair methods of (Tex.App.1983), held: competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1). Although the trial court found no fraud on Rollins’ part, such a finding is not necessary to sustain a violation under Generally, the measure of actual the FDUTPA. The legislature specifically provided that damages is the difference in the great weight was to be given to the federal courts’ market value of the product or interpretations of the Federal Trade Commission Act. § service in the condition in which it 501.204(2). In D.D.D. Corp. v. Federal Trade was delivered and its market value Commission, 125 F.2d 679, 682 (7th Cir.1942), the court in the condition in which it should held “that the false, unfair or deceptive acts defined in the have been delivered according to Federal Trade Commission Act need not be such as would the contract of the parties. [citations constitute fraud.” Reviewing the record, we find that there omitted] A notable exception to the was competent substantial evidence presented to support rule may exist when the product is the court’s finding that Rollins violated the FDUTPA. See rendered valueless as a result of the Deltona Corp. v. Jannotti, 392 So.2d 976 (Fla. 1st DCA defect-then the purchase price is 1981). the appropriate measure of actual damages. [citation omitted] [9] [10] Having upheld the trial court’s finding on the FDUTPA violation, we now must determine what damages are allowed by the Act. The Act specifically provides that an “individual may recover actual damages, We hold that Florida’s statutes should be interpreted, and plus attorney’s fees and court costs.” § 501.211(2). The actual damages measured, in a similar manner. Therefore, Act, however only allows recovery of damages related to the actual damages awardable to the Hellers pursuant to the property which was the subject of the consumer the FDUTPA violation should be measured in accordance transaction. § 501.212(3). We find that the subject of the with the formula set out in Raye. consumer transaction in the present case was the [12] [13] installation of the burglar alarm system and the services The recovery of actual damages pursuant to this performed thereon, rather than the items stolen from the violation, however, is not limited by the limitation of Hellers’ house. A company which installs and services damages provision in the contract. The provision, literally burglar *585 alarms does not assume the responsibility of read, does not attempt to cover this situation. See L. Luria insuring all the items intended to be protected by the (intention must be made clearly and unequivocally to system.4 Central Alarm of Tucson v. Ganem, 116 Ariz. 74, uphold an exculpatory provision). Further, any attempt to 567 P.2d 1203 (Ct.App.1977). This immunity was made limit one’s liability for deceptive or unfair trade practices clear in the present case by the provision in the contract would be contrary to public policy. Cf. John’s Pass stating that “Rollins is not an insurer of the Customer’s Seafood Co. v. Weber, 369 So.2d 616 (Fla. 2d DCA 1979) property.” Therefore, the damages awarded pursuant to (it would be contrary to public policy to enforce an the violation of the FDUTPA must be limited to the actual exculpatory clause that attempts to immunize one from damages related to the system and services Rollins liability for breach of a positive statutory duty); Mankap contracted to provide. (exculpatory clauses relating to fraud or intentional misrepresentation are contrary to public policy and [11] While the FDUTPA does not define “actual damages,” unenforceable). Therefore, actual damages are courts of other jurisdictions have had occasion to define recoverable in full for the FDUTPA violation the term within similar statutes. In interpreting Texas’ notwithstanding Rollins’ attempt to limit its liability in the Deceptive Trade Practices Act, Tex.Bus. & Com. Code contract. Ann. § 17.41, et. seq. (Vernon 1979), the Texas supreme
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Rollins, Inc. v. Heller, 454 So.2d 580 (1984)
[14] We now must determine whether an award of punitive In sum, we hold that the record supports the trial court’s damages is allowable pursuant to an FDUTPA violation. findings that Rollins is liable for its gross negligence and The Act specifically provides for the recovery of actual for violating the FDUTPA. We find, however, that the damages, but makes no provision for punitive damages. damages awarded were improper. Any damage award, See § 501.211. See also 2 Words and Phrases 363 (1955) including an award of punitive damages, based upon (actual damages generally considered synonymous with liability for gross negligence is limited by the limitation compensatory damages, in contradistinction to punitive of damages provision in the contract. Although this damages). A claim for punitive damages is outside the provision does not apply to an award of damages pursuant scope of chapter 501 and the FDUTPA. *586 See to the FDUTPA violation, any such award must be limited LaFerney v. Scott Smith Oldsmobile, Inc., 410 So.2d 534 to “actual” damages. The actual damages in the present (Fla. 5th DCA 1982). Accordingly, any award of punitive case should be computed based upon the alarm system damages based upon a violation of FDUTPA would be and the services Rollins agreed to provide, and not with improper absent some independent basis such as fraud. regard to the value of the items stolen during the burglary. See Bert Smith Oldsmobile, Inc. v. Franklin, 400 So.2d The trial court, of course, will ensure that the Hellers do 1235 (Fla. 2d DCA 1981); Hauser Motor Co. v. Byrd, 377 not recover twice for the same element of damages. See So.2d 773 (Fla. 4th DCA 1979). In the present case, the Hillsborough County Aviation Authority v. Cone Brothers trial court specifically found in favor of Rollins on the Contracting Co., 285 So.2d 619 (Fla. 2d DCA 1973). Hellers’ claim of fraud. Since no basis existed in the present case upon which punitive damages could be Following our determination of the above issues, we find assessed beyond the amount stated in the limitation of that the other points raised by Rollins do not merit damages provision, it was error for the trial court to award discussion and that the Hellers’ points on cross-appeal are $100,000 in punitive damages. hereby rendered moot. Reversed and remanded for a new trial on damages.
All Citations
454 So.2d 580 CONCLUSION
Footnotes
1 The duty breached by Rollins may have sprung from a contractual promise, but “the duty sued on in a negligence action is not the contractual promise but the duty to use reasonable care in affirmatively performing that promise. The duty exists independent of the contract.” Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689, 691 (Fla. 2d DCA 1979). See also Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Robertson v. Deak Perera (Miami), Inc., 396 So.2d 749 (Fla. 3d DCA 1981); Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3d DCA 1969).
2 The limitation of damages provision involved in L. Luria was somewhat similar to the one in the present case. It stated: If there shall, notwithstanding the above [exculpatory] provisions, at any time be or arise any liability on the part of Company by virtue of this Agreement or because of the relation hereby established, whether due to the negligence of Company or otherwise, such liability is and shall be limited to a sum equal to the rental service charge hereunder for a period of service not to exceed six months, which sum shall be paid and received as liquidated damages. 384 So.2d at 948. Although this provision looks similar to a liquidated damages provision, the court adopted the holding in Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203 (Ct.App.1977), which found these types of provisions were actually limitation of damages provisions. L. Luria, 384 So.2d at 948. See also the limitation of damages provisions in Mankap, Continental Video and Ace Formal Wear which more closely resemble the provision in the present case.
3 The Hellers’ attempt to avoid these provisions by claiming the entire contract is void on the ground that Mrs. Heller did not read it before she signed it and believed it was merely an order form is without merit. Implicit in the trial court’s attempt to avoid the exculpatory and limitation of damages provisions is its finding that the contract was valid. We agree. The evidence indicates Mrs. Heller had the ability to understand the contract if she had taken the time to read it. Although Mrs. Heller testified that she did not read the contract nor was it read to her before she signed it, she nevertheless admitted that she was not prevented from reading it. Accordingly, the Hellers are bound by the contract and its provisions despite the fact that Mrs. Heller did not read, and consequently did not know, the terms of the contract she was signing. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344
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Rollins, Inc. v. Heller, 454 So.2d 580 (1984)
(Fla.1977); All Florida Surety Co. v. Coker, 88 So.2d 508 (Fla.1956).
4 Any such holding would in effect convert burglar alarm companies into insurance companies. It is most likely that the majority of persons obtain a burglar alarm system to deter by threat of detection some would-be thieves. Having such a system would probably result in lower insurance premiums, but it should not be used as an alternative to insurance. It is apparent in the present case that the Hellers had underinsured the unrecovered stolen property. There is no sound reason why Rollins should bear the burden of this oversight by the Hellers.
End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
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Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849
Matters considered in general
KeyCite Yellow Flag - Negative Treatment A court must accept the facts alleged in a Distinguished by Walters v. Ocean Gate Phase I Condominium, complaint and exhibits attached to the complaint Fla.App. 5 Dist., April 7, 2006 as true; a court may not go beyond the four 782 So.2d 489 corners of the complaint. District Court of Appeal of Florida, Fourth District. 8 Cases that cite this headnote Keith S. SAMUELS and Constance R. Jones–Samuels, Appellants, v. KING MOTOR COMPANY OF FORT LAUDERDALE, Appellee. [2] Sales Installments and deferred payments No. 4D00–725. | Buyers order was not a binding contract that March 28, 2001. allowed automobile dealer to dispose of buyers’ trade in vehicle immediately upon tender, in proceeding for breach of vehicle sale contract Synopsis and for the return of trade-in vehicle, where Buyers brought action against car dealer alleging breach buyers order stated that it was not a binding of contract, misleading and false advertising, fraud in the contract unless a manager of dealer signed the inducement and fraud in performance, and deceptive and order within five days, the order was assigned unfair trade practices resulting from the car dealer failing and acceptable for financing, and both parties to return or compensate them for their trade-in vehicle signed an installment contract, and those after the sale of a new vehicle did not occur. The Circuit contingencies did not occur. Court, Seventeenth Judicial Circuit, Broward County, John A. Miller, J., dismissed the complaint. Buyers’ Cases that cite this headnote appealed. The District Court of Appeal, Gunther, J., held that: (1) buyers order was not a binding contract that allowed automobile dealer to dispose of buyers’ trade-in vehicle immediately upon tender; (2) buyers’ allegations were sufficient to state a claim against dealer for fraud in [3] Pleading the inducement; (3) buyers’ cause of action against dealer Statement of cause of action in general based upon fraud in performance of new car sales contract was barred by the economic loss rule; (4) buyers’ To state a cause of action, a complaint must allegations were sufficient to state a claim under allege sufficient ultimate facts to show that the Deceptive and Unfair Trade Practices Act; and (5) buyers’ pleader is entitled to relief. failure to properly amend complaint to state a cause of action after leave was granted by the court to do so did not warrant dismissal of the action as a sanction. 3 Cases that cite this headnote
Affirmed in part, reversed in part, and remanded.
[4] Trial Questions of Law or Fact in General West Headnotes (23) Whether a complaint is sufficient to state a cause of action is an issue of law. [1] Pretrial Procedure Construction of pleadings Pretrial Procedure 3 Cases that cite this headnote © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849
dealer for failure to return trade-in vehicle, where buyers alleged that dealer’s false statements regarding their liability under the buyers’ contract and the location of the trade-in [5] Appeal and Error vehicle amounted to false advertising, since De novo review false advertising required a seller to have no intention of selling the advertised property or an The ruling on a motion to dismiss for failure to intention of selling the property at a different state a cause of action is subject to de novo prices than advertised. West’s F.S.A. § standard of review. 817.44(1, 2).
5 Cases that cite this headnote 7 Cases that cite this headnote
[6] Pleading [9] Fraud Leave of Court to Amend Fraud in particular transactions or for Pleading particular purposes Sufficiency of amendment Buyers’ allegations that automobile dealer told If a complaint does not state a cause of action, them that they would not be bound by the terms the opportunity to amend a complaint should be of the buyers’ order, that they were told that to liberally given, unless it is apparent the pleading induce them to sign the buyers’ order, buy a new cannot be amended to state a cause of action. vehicle, and tender their trade-in vehicle, and that as a result of buyers’ reliance on dealer’s misrepresentation they were damaged, were 2 Cases that cite this headnote sufficient to state a claim against dealer for fraud in the inducement.
Cases that cite this headnote [7] Antitrust and Trade Regulation Finance and banking in general; lending
Automobile dealer did not engage in misleading advertising to the public, even though dealer [10] Fraud allegedly misled buyers by stating that the Elements of Actual Fraud obligations of the buyers order were contingent upon buyers obtaining financing, since buyers To state a cause of action for fraud in the did not prove that the statement was made with inducement, the plaintiff must allege (1) a the intent of selling or disposing of property. misrepresentation of a material fact; (2) that the West’s F.S.A. §§ 817.40(5), 817.41. representor of the misrepresentation knew or should have known of the statement’s falsity; (3) that the representor intended that the 7 Cases that cite this headnote representation would induce another to rely and act on it; and (4) that the plaintiff suffered injury in justifiable reliance on the representation.
[8] Antitrust and Trade Regulation 39 Cases that cite this headnote Sale
Buyers failed to state a claim for false advertising, in proceeding against automobile © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849
[11] Fraud Effect of existence of remedy by action on The economic loss rule does not bar a claim contract under state Deceptive and Unfair Trade Practices Act. West’s F.S.A. §§ 501.204, The economic loss rule does not bar a fraud in 501.211(1, 2). the inducement claim because fraudulent inducement is a tort independent from any underlying contract. 2 Cases that cite this headnote
12 Cases that cite this headnote
[15] Pleading Exhibits annexed to pleading
[12] Fraud Buyers were not required to attach a copy of Effect of existence of remedy by action on bailment agreement, that was signed upon contract receipt of new vehicle, to their complaint, in action for breach of sales contract and for Buyers’ cause of action against automobile recovery of trade-in vehicle, since agreement dealer based upon fraud in performance of new was not relevant to whether the buyers order car sales contract was barred by the economic constituted a contract between buyers and dealer loss rule; since fraud in the performance which granted dealer the authority to dispose of involved performance on a contract, the claim buyers’ trade-in vehicle immediately, the focus was inextricably linked to breach of the contract of buyers’ complaint. West’s F.S.A. RCP Rule and could not be separately filed. 1.130(a).
9 Cases that cite this headnote 1 Cases that cite this headnote
[13] Antitrust and Trade Regulation [16] Pretrial Procedure Particular cases Defects and objections ground for dismissal in general Buyers’ allegations that automobile dealer represented to them that they were not entering When a party brings an action based upon a into a contract, induced them to sign the buyers contract and fails to attach a necessary exhibit order, acted as if by signing the buyers order the the opposing party may attack the failure to buyers had given them permission to attach a necessary exhibit through a motion to immediately dispose of their trade-in vehicle, dismiss. West’s F.S.A. RCP Rule 1.130(a). and never offered to compensate buyers for disposal of their trade in vehicle, were sufficient to state a claim against dealer under the Cases that cite this headnote Deceptive and Unfair Trade Practices Act. West’s F.S.A. §§ 501.204, 501.211(1, 2).
26 Cases that cite this headnote [17] Pleading Statement of cause of action in general Pleading Exhibits annexed to pleading
[14] Antitrust and Trade Regulation Where a complaint is based on a written Reliance; causation; injury, loss, or damage instrument, the complaint does not state a cause © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849
of action until the instrument or an adequate fails to make an express written finding of a portion thereof is attached to or incorporated in party’s willful refusal to obey the court order or the complaint. West’s F.S.A. RCP Rule contumacious disregard of the court’s order. 1.130(a). West’s F.S.A. RCP Rule 1.420(b).
4 Cases that cite this headnote 1 Cases that cite this headnote
[18] Pretrial Procedure [21] Pretrial Procedure Contracts; sales Contracts; sales
Buyers’ failure to properly amend complaint to Dismissal of buyers’ complaint because it had state a cause of action after leave was granted by been amended twice and still failed to the court to do so, in proceeding based upon sufficiently state all claims was not warranted, breach of vehicle sales contract and for the in action for breach of vehicle sales contract and return of trade-in vehicle, did not warrant for the return of trade-in vehicle, where buyers dismissal of the action as a sanction, where there had not abused the pleading process and their was no express written finding that the buyers interest in resolving the case on the merits willfully refused or disregarded the court’s order outweighed any time, effort, energy, and and buyers either did state a cause of action, or expense dealer might incur by defending itself in could, with some amendment, state causes of the proceeding. action. West’s F.S.A. RCP Rule 1.420(b). 1 Cases that cite this headnote 4 Cases that cite this headnote
[22] Pleading [19] Pretrial Procedure Leave of Court to Amend Disobedience to order of court or other misconduct While the number of times a plaintiff has been allowed leave to amend may impact whether Dismissing a complaint as a sanction under rule justice requires granting leave to amend, in the pertaining to involuntary dismissal of action for sense that a court should consider the effect failure to comply with orders of the court to defending against frivolous litigation would amend a complaint to state a cause of action is have on a defendant, considerations of justice do generally unnecessary, as dismissal is always not revolve solely around the impact on a available where the complaint does not state a defendant of extending litigation. cause of action. West’s F.S.A. RCP Rule 1.420(b). Cases that cite this headnote
3 Cases that cite this headnote
[23] Courts Allegations and prayers in pleadings [20] Pretrial Procedure Hearing and determination in general Buyers were allowed to refile their claim for breach of contract since the reversal of orders Dismissal as a sanction under involuntary dismissing their fraud and deceptive and unfair dismissal rule is erroneous where the trial court trade practices claims allowed them to meet the © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849
circuit court’s jurisdictional amount The buyers order also contained the following provisions: requirements. (2) Manufacturer has reserved the right to change the price to Dealer of new motor vehicles without notice. 26 Cases that cite this headnote In the event the price to Dealer of new motor vehicles of the series and body type ordered hereunder is change[d] by Manufacturer prior to delivery of the new motor vehicle ordered hereunder to Purchaser, Dealer reserves the right to change the price of unit of such motor vehicle to purchaser accordingly. If such price of Attorneys and Law Firms unit is increased by Dealer, Purchaser may, if dissatisfied there with [sic] cancel this order in which *492 Jerard C. Heller, Fort Lauderdale, for appellants. event if a used motor vehicle has been traded in as a Bonnie S. Satterfield of Bonnie S. Satterfield P.A., Coral part of the consideration for such new motor vehicle, Springs, for appellee. such used motor vehicle shall be returned to Purchaser upon payment of a reasonable charge for repairs (if Opinion any) or, if such used motor vehicle has been previously sold by Dealer, the amount received therefor, less a selling commission of 15% shall be returned to GUNTHER, J. purchaser.
... The Plaintiffs, Keith Samuels and Constance Jones–Samuels, appeal the trial court’s order dismissing (4) If a used motor vehicle has been traded in as part of with prejudice count II (misleading and false advertising), the consideration herein, the Purchaser hereby count III (fraud in the inducement and fraud in the expressly gives consent to the Dealer that the Dealer performance), and count IV (deceptive and unfair trade may, at any time, sell said used vehicle. In the event the practice) of their second amended complaint. They also Order is cancelled under the terms and provisions of appeal the trial court’s dismissal of count I (breach of this agreement subsequent to the sale of the trade-in, contract) for lack of subject matter jurisdiction (amount in Buyer shall receive from Dealer an amount as provided controversy below $15,000) with leave to re-file in county in paragraph 2 above. court. We affirm in part, reverse in part, and remand. In the general allegations of the complaint, the Plaintiffs The Plaintiffs alleged that in mid–1998, they went to King claimed that the buyers order did not constitute a contract. Motor Company of Fort Lauderdale to buy a new vehicle. According to the Plaintiffs, King Motor told them that the They *493 signed a buyers order containing the following buyers order would constitute a binding contract and language: obligate them under the terms of the contract if and only if every contingency occurred. Specifically, based upon King Motor’s representations and the language of the buyers order itself, the Plaintiffs did not believe King On a credit transaction the Motor had the right to dispose of their trade-in vehicle purchaser(s) offer is not accepted until the buyers order became a binding contract. until (A) signed by a King manager, (B) assigned and In reliance on King Motor’s representations as well as the acceptable by a Bank or Finance terms of the buyers order, the Plaintiffs traded in their Company, and (C) purchaser(s) and used vehicle, accepted delivery of the new vehicle, and dealer have signed an installment executed a vehicle retail installment contract providing, sales contract. This agreement is among other things, that the Plaintiffs’ downpayment valid for 5 days from date of would be $2250 allowed for the trade-in vehicle. King signature for vehicles in stock or Motor later told them they were disapproved for financing from notice of vehicle availability unless they made an additional downpayment of $3000. when factory ordered. The Plaintiffs declined, returned the new vehicle to King Motor, and demanded return of their trade-in vehicle, but were told it could not be located. King Motor has continued to refuse to return their trade-in vehicle to them © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849 or offer them anything of value in lieu of the trade-in’s deficiencies apparent in their complaint. King Motor also return. contended that upon dismissal of counts II through IV, count I (the breach of contract claim) should be dismissed The Plaintiffs alleged that at no time did the necessary for lack of subject matter jurisdiction because the contingencies in the buyers order occur. Specifically, Plaintiffs’ recourse was limited under the terms of the King Motor did not sign the buyers or installment sales buyers order to the value of the trade-in vehicle, which contract within five days, and the buyers order was not was less than $15,000, the circuit court’s jurisdictional assigned to or accepted for financing within five days. limit. According to the Plaintiffs, because these contingencies did not occur, the buyers order did not constitute a Without stating a reason, the trial court dismissed with contract. prejudice counts II through IV. Regarding count I, the trial court determined that the amount in controversy on *494 From that premise, the Plaintiffs alleged King Motor that count, standing alone, fell below $15,000, the circuit made two false statements. One false statement was that court’s jurisdictional threshold, and accordingly dismissed the entire transaction and all obligations stated in the without prejudice count I for lack of subject matter buyers order (specifically, the Plaintiffs giving permission jurisdiction, giving the Plaintiffs leave to re-file in county to King Motor to immediately dispose of their trade-in court. vehicle) were contingent upon obtaining financing. According to the Plaintiffs, King Motor intended to keep [1] [2] We first address King Motor’s argument that the the Plaintiffs’ trade-in vehicle even if the contingencies buyers order was a binding contract, the terms of which did not occur, and behavior consistent with King Motor’s allowed it to dispose of the trade-in vehicle immediately “standard operating procedure.” The other false statement upon the Plaintiffs tendering it. A court must accept the was that the trade-in vehicle could not be located. facts alleged in a complaint and exhibits attached to the According to the Plaintiffs, King Motor had to know complaint as true. See Visor v. Buhl, 760 So.2d 274, 275 where the trade-in vehicle was because it was still on the (Fla. 4th DCA 2000); Abele v. Sawyer, 750 So.2d 70 (Fla. lot, already sold, or in the process of being sold. 4th DCA 1999). A court may not go beyond the four corners of the complaint. See Barbado v. Green & Although the Plaintiffs generally alleged the buyers order Murphy, P.A., 758 So.2d 1173, 1174 (Fla. 4th DCA did not constitute a contract, they also alleged, in the 2000). Asserting inconsistent allegations in a complaint is alternative, that the buyers order did constitute a contract permissible. See Fla. R. Civ. P. 1.110(g); Belz Investco and that King Motor breached the contract by acting as if Ltd. Partnership v. Groupo *495 Immobiliano Cababie, the contingencies in the buyers order had occurred and by S.A., 721 So.2d 787 (Fla. 3d DCA 1998). refusing to return their trade-in vehicle. This is the basis for count I, the breach of contract claim. While occasional language in the buyers order refers to it as an “agreement,” specific language in the buyers order King Motor moved to dismiss with prejudice counts II states it did not become a binding contract until certain through IV for failure to state a cause of action. contingencies occurred, that is, unless, within five days, a According to King Motor, the buyers order was a binding King Motor manager signed the buyers order, the buyers contract and the terms of the buyers order allowed it to order was assigned and acceptable for financing, and both dispose of the trade-in vehicle when it was tendered to parties signed an installment sales contract. Until those them. According to King Motor, many other reasons things occurred the buyers order was simply an offer by justified dismissing counts II through IV with prejudice, the purchaser to buy a particular vehicle. The Plaintiff including that the Plaintiffs failed to state (and under alleged King Motor did not sign the buyers order or an these facts, never could state) causes of action for installment sales contract within five days, and the buyers common law fraud, misleading and false advertising, and order was not assigned to or accepted for financing within deceptive and unfair trade practices; that the economic five days. The buyers order attached to the second loss rule barred any claims of fraud, misleading and false amended complaint supports the Plaintiffs’ allegations, at advertising, and deceptive and unfair trade practices; that least to the extent it reflects it was not signed by any Florida Rule of Civil Procedure 1.130(a) allowed representative of King Motor. dismissal because the Plaintiffs failed to attach the bailment agreement; and that Florida Rule of Civil King Motor’s argument would require the court to Procedure 1.420(b) allowed dismissal because the disregard the Plaintiffs’ allegations the buyers order is not Plaintiffs ignored the court’s order to amend their a contract and the terms of the buyers order itself to pleading to state a cause of action by failing to correct the conclude the buyers order was in fact a binding contract,
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Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849 the terms of which (notably, provision (4)) allowed it to statements made, or disseminated, immediately dispose of the Plaintiffs’ trade-in vehicle. in oral, written, or printed *496 Because a court must accept as true the Plaintiffs’ form or otherwise, to or before the allegations and may not go beyond the four corners of a public, or any portion thereof, complaint in reviewing a motion to dismiss, King Motor’s which are known, or through the argument is improper. See Barbado, 758 So.2d at 1174. exercise of reasonable care or investigation could or might have [3] [4] [5] [6] We next address the argument that the Plaintiffs been ascertained, to be untrue or failed to state a claim in counts II through IV. “ ‘To state misleading, and which are or were a cause of action, a complaint must allege sufficient so made or disseminated with the ultimate facts to show that the pleader is entitled to relief.’ intent or purpose, either directly or ” W.R. Townsend Contracting, Inc. v. Jensen Civil indirectly, of selling or disposing of Constr., Inc., 728 So.2d 297, 300 (Fla. 1st DCA 1999) real or personal property, services (quoting Perry v. Cosgrove, 464 So.2d 664, 665 (Fla. 2d of any nature whatever, DCA 1985)). “Whether a complaint is sufficient to state a professional or otherwise, or to cause of action is an issue of law. Consequently, the induce the public to enter into any ruling on a motion to dismiss for failure to state a cause of obligation relating to such property action is subject to de novo standard of review.” Id. If a or services. complaint does not state a cause of action, the opportunity to amend a complaint should be liberally given, unless it is apparent the pleading cannot be amended to state a cause of action. See Gladstone v. Smith, 729 So.2d 1002 § 817.40(5), Fla. Stat. (1997). (Fla. 4th DCA 1999). Here, the Plaintiffs have alleged that they are a portion of [7] First we address count II, the Plaintiffs’ claims for the general public and that King Motor told them the misleading and false advertising. A cause of action for buyers order and all obligations in the buyers order, misleading advertising is defined under section 817.41, including the Plaintiffs giving King Motor permission to Florida Statutes (1997). Section 817.41 provides as dispose of their trade-in vehicle, were contingent upon follows: obtaining financing. This, according to the Plaintiffs, was misleading because King Motor intended to hold them to (1) It shall be unlawful for any person to make or the obligations arising from the buyers order, that is, disseminate or cause to be made or disseminated before dispose of the trade-in vehicle, without the Plaintiffs first the general public of the state, or any portion thereof, obtaining financing. But it is not enough to allege a any misleading advertisement. Such making or misleading or untrue statement made to the general public dissemination of misleading advertising shall constitute or a portion of the general public. Under section and is hereby declared to be fraudulent and unlawful, 817.40(5), the Plaintiffs must also allege the misleading designed and intended for obtaining money or property or untrue statement was made with “the intent or purpose, under false pretenses. either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever ... or ... to induce the public to enter into any obligation relating to such property or services.” Here, the Plaintiffs did not (6) Any person prevailing in a civil action for violation allege that the misleading statement was made with the of this section shall be awarded costs, including purpose of selling or disposing of any property. Rather, reasonable attorney’s fees, and may be awarded according to the implications inherent in the allegations, punitive damages in addition to actual damages proven. King Motor made the alleged misleading statement for the This provision is in addition to any other remedies purpose of inducing the Plaintiffs to give possession of prescribed by law. their trade-in vehicle to them. That King Motor might have intended to sell the trade-in vehicle to a third party is § 817.41(1), (6), Fla. Stat. (1997). “Misleading unavailing because the “selling” or “disposing” of advertising” is defined as follows: property mentioned in section 817.40(5) must be related to the misleading statement made to the Plaintiffs. For this reason, given the basic facts of this case, it does not appear that the Plaintiffs could ever state a claim for (5) The phrase “misleading misleading advertising under sections 817.40(5) and advertising” includes any 817.41(1). Accordingly, the trial court did not err in © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849 dismissing the misleading advertising claim with 817.44. prejudice. See Gladstone, 729 So.2d at 1003–05. Moreover, the Plaintiffs “readily concede” that the buyers [8] Section 817.44, the false advertising statute cited in the order is not “advertising” as the term is generally used. second amended complaint, provides as follows: They attempt to argue that the buyers order is “advertising” as defined by statute, but the only definition (1) WHAT CONSTITUTES INTENTIONAL FALSE they cite is the definition of “misleading advertising” ADVERTISING.—It is unlawful to offer for sale or to under section 817.40(5). The definition of “misleading issue invitations for offers for the sale of any property, advertising” under section 817.40(5) has no application to real or personal, tangible or intangible, or any services, the term “false advertising” used in section 817.44. professional or otherwise, by placing or causing to be Compare § 817.40 with § 817.44. Because the Plaintiffs placed before the general public, by any means offer no further argument why the buyers order should whatever, an advertisement describing such property or constitute advertising under section 817.44, it appears the services as part of a plan or scheme with the intent not Plaintiffs could not state a cause of action for false to sell such property or services so advertised, or with advertising under section 817.44. Accordingly, any the intent not to sell such property or services at the allegations pertaining to false advertising were properly price at which it was represented in the advertisement dismissed with prejudice for failure to state a cause of to be available for purchase by any member of the action. general public. [9] [10] We next consider whether count III states a claim (2) PRESUMPTION OF VIOLATION.—The failure to for common law fraud. To state a cause of action for fraud sell any article or a class of articles advertised, or the in the inducement, the Plaintiff must allege (a) a refusal to sell at the price at which it was advertised to misrepresentation of a material fact; (b) that the be available for purchase, shall create a rebuttable representor of the misrepresentation knew or should have presumption of an intent to violate this section. known of the statement’s falsity; (c) that the representor intended that the representation would induce another to § 817.44(1)-(2), Fla. Stat. (1997). rely and act on it; and (d) that the plaintiff suffered injury in justifiable reliance on the representation. See Hillcrest The Plaintiffs have waived any appellate argument that Pac. Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA the trial court erred in dismissing *497 their false 1999). advertising claim by failing to present on appeal any clear argument that the complaint states a cause of action under In count III, the Plaintiffs simply reaverred allegations section 817.144. Notwithstanding that, the Plaintiffs from previous paragraphs. They included the general alleged King Motor made the following two false allegations of the second amended complaint, but they statements: (a) the buyers order and all obligations in the failed to reaver the allegations regarding the false buyers order (specifically, that the Plaintiffs gave statements King Motor made. The Plaintiffs admit that permission to King Motor to dispose of their trade-in count III contains only allegations amounting to breach of vehicle) were contingent upon obtaining financing, even contract, but they contend that this was an oversight and though King Motor intended to hold the Plaintiffs to the they should be allowed to amend their complaint. We obligations arising from the buyers order (i.e., dispose of agree. the trade-in vehicle) without them obtaining financing; and (b) the trade-in vehicle could not be located, even [11] Looking at the second amended complaint as a whole, though King Motor had to have had some idea where the there are allegations that would satisfy the elements of trade-in vehicle was. The Plaintiffs contended that these fraud in the inducement. The Plaintiff alleged King Motor false statements constituted “false advertising,” in that told them they would not be bound by the terms of the they constituted “an offer for sale of property and/or an buyers order, which King Motor knew to be a false invitation for an offer for sale of property as part of a plan statement because it intended to immediately dispose of or scheme not to sell the property pursuant to the terms the trade-in vehicle pursuant to the terms of the buyers stated in said Buyers Order.” But this is not what section order, and that the *498 purpose of telling them this 817.44 prohibits. Section 817.44 prohibits an false statement was to induce them to sign the buyers advertisement offering to sell property when the proposed order, buy a new vehicle, and tender their trade-in vehicle. seller has no intention of either actually selling the The Plaintiffs also alleged that as a result of their reliance advertised property or of selling the property for the price on King Motor’s misrepresentation, they were damaged. advertised. See § 817.44(1). Thus, the Plaintiffs have not If these allegations were specifically realleged in stated a cause of action for false advertising under section © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849 reference to a count for fraud in the inducement, they Commission and the federal courts relating to s. 5(a)(1) would be sufficient to state a claim for fraud in the of the Federal Trade Commission Act, 15 U.S.C. s. inducement. See id. at 1055. Moreover, contrary to King 45(a)(1). Motor’s position, the economic loss rule does not bar the Plaintiffs’ fraud in the inducement claim because 501.211 Other individual remedies.— fraudulent inducement is a tort independent from any underlying contract. See HTP, Ltd. v. Lineas Aereas (1) Without regard to any other remedy or relief to Costarricenses, S.A., 685 So.2d 1238 (Fla.1996). Thus, which a person is entitled, anyone aggrieved by a while it may have been technically proper for the trial violation of this part may bring an action to obtain a court to dismiss count III, the trial court abused its declaratory judgment that an act or practice violates discretion by dismissing it with prejudice and not this part and to enjoin a person who has violated, is allowing the Plaintiffs the opportunity to amend their violating, or is otherwise likely to violate this part. complaint. See Gladstone, 729 So.2d at 1003–05. (2) In any individual action brought by a consumer who [12] The Plaintiffs argue they have also sufficiently stated a has suffered a loss as a result of a violation of this part, cause of action for fraud in the performance. By failing to such consumer may recover actual damages, plus explain why their allegations are sufficient to state a claim attorney’s fees and court costs *499 as provided in s. for fraud in the performance, the Plaintiffs have fallen 501.2105; however, no damages, fees, or costs shall be short of their burden on appeal to show “clearly, recoverable under this section against a retailer who definitely, and fully” how the trial court reversibly erred. has, in good faith, engaged in the dissemination of E & I, Inc. v. Excavators, Inc., 697 So.2d 545 (Fla. 4th claims of a manufacturer or wholesaler without actual DCA 1997). knowledge that it violated this part.
§§ 501.204, 501.211(1)-(2), Fla. Stat. (1997). Notwithstanding that, because fraud in the performance cases involve misrepresentations related to the breaching [14] While the Legislature does not define what “an unfair party’s performance of a contract and thus fraud in the or deceptive act” is, it has mandated that FDUTPA is to performance is inextricably linked to breach of contract, be liberally construed. See § 501.202, Fla. Stat. (1997). the economic loss rule bars the Plaintiffs’ cause of action The Legislature has also specifically stated that great for fraud in the performance. See La Pesca Grande weight should be given to federal cases interpreting the Charters, Inc. v. Moran, 704 So.2d 710 (Fla. 5th DCA federal counterpart of this Act. See § 501.204(2); Urling 1998); Bankers Risk Mgmt. Servs., Inc. v. Av–Med v. Helms Exterminators, Inc., 468 So.2d 451 (Fla. 1st Managed Care, Inc., 697 So.2d 158 (Fla. 2d DCA 1997). DCA 1985). An unfair practice under the federal statute In so ruling, we reject the Plaintiffs’ argument that has been defined as one that “offends established public language in Moransais v. Heathman, 744 So.2d 973 policy” and one that is “immoral, unethical, oppressive, (Fla.1999), indicates the economic loss rule cannot, in any unscrupulous or substantially injurious to consumers.” circumstance, apply in any case except a products liability Spiegel, Inc. v. Fed. Trade Comm’n, 540 F.2d 287, 293 action. Thus, the trial court did not err in dismissing with (7th Cir.1976). Florida courts have held that a plaintiff prejudice the Plaintiffs’ claim for fraud in the who alleges that a dealership intentionally concealed he performance. was entering a lease agreement rather than a sales
agreement and that as a consequence he was deprived of [13] We next consider whether the Plaintiffs stated a claim his trade-in vehicle states a cause of action under in count IV under the Florida Deceptive and Unfair Trade FDUPTA. See Cummings v. Warren Henry Motors, Inc., Practices Act (FDUTPA). FDUTPA provides in pertinent 648 So.2d 1230 (Fla. 4th DCA 1995). Moreover, the part as follows: economic loss rule does not bar a FDUTPA claim. See 501.204 Unlawful acts and practices.— Delgado v. J.W. Courtesy Pontiac GMC–Truck, Inc., 693 So.2d 602 (Fla. 2d DCA 1997); see also Comptech Int’l, (1) Unfair methods of competition, unconscionable acts Inc. v. Milam Commerce Park, Ltd., 753 So.2d 1219, or practices, and unfair or deceptive acts or practices in 1222, 1223 (Fla.1999) (economic loss rule does not bar the conduct of any trade or commerce are hereby statutory causes of action, particularly when the statutory declared unlawful. language providing the cause of action makes clear the statutory remedy is in addition to other available (2) It is the intent of the Legislature that, in construing remedies). subsection (1), due consideration and great weight shall be given to the interpretations of the Federal Trade As with the Plaintiffs’ count for common law fraud, it © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9
Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849 appears that the Plaintiffs’ FDUTPA count inadvertently failed to reallege the general allegations regarding the The bailment agreement, which King Motor attached to false statements they claim King Motor made. Because of its motion to dismiss, states that the Plaintiffs possessed that, the allegations contained in count IV failed to state a the new vehicle on loan only and that if financing fell cause of action under FDUTPA. Considering the sum of through, the Plaintiffs were required to return it to King all allegations in the Plaintiffs’ second amended Motor and pay a certain amount for the privilege of using complaint, however, the Plaintiffs could state a cause of it. On its face, the bailment agreement is not relevant to action under FDUTPA. whether the buyers order constituted a contract or whether King Motor had the authority to immediately sell or The Plaintiffs alleged King Motor represented to them otherwise dispose of the Plaintiffs’ trade-in vehicle, which that they were not entering into a contract, induced them are the issues upon which the Plaintiffs’ complaint to sign the buyers order, and then immediately acted as if focuses. By attaching the bailment agreement to its by signing the buyers order, the Plaintiffs had given them motion to dismiss and arguing it was integral to permission to immediately dispose of their trade-in disposition of this case when on its face the bailment vehicle, even though the contingencies that transformed agreement is unrelated to the Plaintiffs’ complaint, King the buyers order into a contract never occurred. Motor improperly attempted to interject issues outside the According to the Plaintiffs, King Motor never once four corners of the complaint. See Barbado, 758 So.2d at offered to compensate the Plaintiffs for the disposal of 1174; Mancher v. Seminole Tribe of Fla., Inc., 708 So.2d their trade-in vehicle. This behavior offends public policy 327 (Fla. 4th DCA 1998). Moreover, because the and is immoral, unethical, and substantially injurious to Plaintiffs’ complaint focuses only on the propriety of consumers situated similarly to the Plaintiffs, who are left King Motor’s actions in disposing of the trade-in vehicle without a vehicle and likely little ability to get one and not whether King Motor could force the Plaintiffs to because they no longer have a trade-in vehicle as a return the new vehicle and pay a certain rate for using it, downpayment and cannot secure affordable financing. Rule 1.130(a) did not require the Plaintiffs to attach the Thus, given the sum of the allegations in the second bailment agreement to their complaint. amended complaint and taking them as true, the Plaintiffs could state a cause of action under FDUTPA. See § [18] [19] [20] King Motor also contends that the Plaintiffs 501.204, Fla. Stat. (1997); Delgado, 693 So.2d at 611; complaint should be dismissed under Florida Rule of Cummings, 648 So.2d at 1233. Accordingly, the court Civil Procedure 1.420(b) because the Plaintiffs failed to erred in failing to give the Plaintiffs leave to amend their amend their complaint to state a cause of action after the FDUTPA claim and instead dismissing it with prejudice. trial court dismissed prior complaints for failure to state See Gladstone, 729 So.2d at 1003–05. claims and granted them leave to amend. Florida Rule of Civil Procedure 1.420(b) provides, “Any party may move [15] We turn next to the alternative theories of dismissal for dismissal of an action or of any claim against that King Motor raised in its motion to dismiss and on appeal. party for failure of an adverse party to comply with these King *500 Motor contends that the second amended rules or any order of court.” Dismissing a complaint as a complaint was properly dismissed under Florida Rule of sanction under Rule 1.420(b) for failure to comply with Civil Procedure 1.130 because the Plaintiffs failed to orders of the court to amend a complaint to state a cause attach a copy of the bailment agreement the Plaintiffs of action is generally unnecessary, as dismissal is always signed when they accepted delivery of the new vehicle. available where the complaint does not state a cause of We disagree. action. See Cummings, 648 So.2d at 1232. Notwithstanding that, dismissal as a sanction under Rule [16] [17] Florida Rule of Civil Procedure 1.130(a) provides 1.420(b) is erroneous where the trial court fails to make that all contracts or documents “upon which action may an express written finding of a party’s willful refusal to be brought ... shall be incorporated in or attached to the obey the court order or contumacious disregard of the pleading.” When a party brings an action based upon a court’s order. See id. contract and fails to attach a necessary exhibit under Rule 1.130(a), the opposing party may attack the failure to Here, the trial court made no finding of willful refusal or attach a necessary exhibit through a motion to dismiss. contumacious disregard. Accordingly, the trial court could See Safeco Ins. Co. v. Ware, 401 So.2d 1129, 1130 (Fla. not have properly dismissed the second amended 4th DCA 1981). Where a complaint is based on a written complaint as a sanction under Rule 1.420(b). See instrument, the complaint “does not state a cause of action Cummings, 648 So.2d at 1232. Moreover, dismissal with until the instrument or an adequate portion thereof is prejudice was improper because the Plaintiffs either did attached to or incorporated in” the complaint. Id. state causes of action or could, with some amendment,
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Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (2001) 26 Fla. L. Weekly D849 state causes of action. See id. complaint with prejudice simply because the Plaintiffs have tried three times to state a cause of action. *501 [21] King Motor further contends that courts are justified to dismiss a complaint with prejudice simply [23] Finally, we address the trial court’s dismissal of count because a plaintiff has had three ineffective attempts to I, the Plaintiffs’ breach of contract claim. The trial court state a cause of action. This is incorrect. apparently reasoned that standing alone, without all other counts of the second amended complaint, the breach of [22] “Leave of court shall be freely given when justice so contract count did not reach the $15,000 amount in requires.” Fla. R. Civ. P. 1.190(a). While the number of controversy necessary to confer subject matter jurisdiction times a plaintiff has been allowed leave to amend may on the circuit court. This Court has determined that the impact whether justice requires granting leave to amend, trial court erred in dismissing with prejudice the in the sense that a court should consider the effect Plaintiffs’ claims for fraud in the inducement and defending against frivolous litigation would have on a deceptive and unfair trade practices. Upon remand, if the defendant, see Kohn v. City of Miami Beach, 611 So.2d Plaintiffs file a third amended complaint, they are free to 538, 539 (Fla. 3d DCA 1992), considerations of justice do include a count for breach of contract, if they so choose, not revolve solely around the impact on a defendant of at which time the trial court can reconsider its extending litigation. As this Court has stated, “A claim jurisdictional ruling. should not be dismissed with prejudice ‘without giving the plaintiff an opportunity to amend the defective We affirm the trial court’s order to the extent it dismisses pleading, unless it is apparent that the pleading cannot be with prejudice the Plaintiffs’ claims for misleading amended to state a cause of action.’ ” Gladstone, 729 advertising, false advertising, and fraud in the So.2d at 1003 (quoting Kairalla v. John D. and Catherine performance. In all other respects, the trial court’s order is T. MacArthur Found., 534 So.2d 774, 775 (Fla. 4th DCA reversed, and we remand for further proceedings. 1988)). AFFIRMED IN PART, REVERSED IN PART, AND Here, the Plaintiffs have amended their complaint only REMANDED. twice, not the four to ten times sometimes seen in other cases. See Gladstone, 729 So.2d at 1004; Kohn, 611 So.2d at 539. The Plaintiffs have not abused the pleading process. Moreover, it appears the Plaintiffs either have, or could with minor change, state a cause of action upon the POLEN and STEVENSON, JJ., concur. facts they have alleged. The Plaintiffs’ interest in All Citations resolving this case on the merits outweighs any “time, effort, energy, and expense” King Motor might incur by 782 So.2d 489, 26 Fla. L. Weekly D849 continuing to defend itself at this juncture. Kohn, 611 So.2d at 539. Accordingly, the trial court would not have been justified in dismissing the second amended End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 11
From: Harry Payton To: Davis, Mikalla Subject: RE: March 7 and March 8 meeting SJI Contract and Business Date: Tuesday, February 26, 2019 11:28:32 AM Attachments: image001.png
Mikalla: Can we put this on the agenda for discussion and see that we have committee backing which will be more persuasive than me talking with the CLE liaison.
Regards,
Harry
Harry A. Payton, B.C.S. payton & associates, LLC 2 S. Biscayne Blvd., Suite 2300 Miami, FL 33131 t 305.372.3500 | m 305.213.3500 [email protected] | www.payton-law.com Board Certified Specialist: Business Litigation and Civil Trial
From: Davis, Mikalla
No, but there is an initiative for this (you are not the first person who wants this). If interested, I would start by contacting the CLE certification persons and she what 850-561-5842
Thank you,
Mikalla Davis Attorney Liaison—Rules The Florida Bar 850-561-5663 [email protected]
From: Harry Payton
Mikalla: Do we get CLE credit for serving on the Committee? If not, we should.
Harry
Harry A. Payton, B.C.S. payton & associates, LLC 2 S. Biscayne Blvd., Suite 2300 Miami, FL 33131 t 305.372.3500 | m 305.213.3500 [email protected] | www.payton-law.com Board Certified Specialist: Business Litigation and Civil Trial
From: Davis, Mikalla
Just a reminder:
All materials are due Friday, February 28, 2019 at noon. COMMITTEE ROSTER Supreme Court of Florida Committee on Standard Jury Instructions Contract and Business Cases Per Administrative Order No. AOSC17-91
(Supreme Court Liaison) Not yet assigned
Hon. Paul Huey, Chair Thirteenth Judicial Circuit 800 E. Twiggs Street Room 527 – Edgecomb Courthouse Tampa, FL 33602 Telephone: 813.272.5414 E-Mail: [email protected] Term Expiring 6/30/2019
Mark A. Boyle, Sr., Esq., Vice Chair Boyle & Leonard, P.A. 2050 McGregor Boulevard Fort Myers, FL 33901-3420 Telephone: 239.337.1303 E-mail: [email protected] Term Expiring 6/30/2020
Chris W. Altenbernd, Esq. Banke Lopez Gassler, P.A. 501 E. Kennedy Blvd Ste 1700 Tampa, FL 33602-5239 Telephone: 813.574.8562 E-mail: [email protected] Term Expiring 6/30/2021
R. Lee Barrett, Esq. Barrett, Chapman & Ruta, P.A. P. O. Box 3826 Orlando, FL 32802-3826 Telephone: 407.839.6227 E-mail: [email protected] Term Expiring 6/30/2019
Richard Benrubi, Esq. Law Office of Richard M. Benrubi, P.A. 1401 Forum Way, Floor 6 West Palm Beach, FL 33401-2325 Telephone: 561.478.2500 E-Mail: [email protected] Term Expiring 6/30/2019
Updated July 2018 Ronnie Bitman, Esq. Pearson Bitman LLP 485 N. Keller Road, Ste. 401 Maitland, FL 32751-7575 Telephone: 407.647.0090 E-mail: [email protected] Term Expiring 6/30/2020
Jeffrey L. Burns, Esq. Anchors Smith & Grimsley 909 Mar Walt Dr. Ste 1014 Fort Walton Beach, FL 32547-6757 Telephone: 850.863-4064 E-mail: [email protected] Term Expiring 6/30/2021
Hon. Janet Croom Nineteenth Judicial Circuit 218 S. 2nd Street Fort Pierce FL 34950-4300 Telephone: 772-462-1460 E-mail: [email protected] Term Expiring 6/30/2021
Manuel Farach, Esq. McGlinchey Stafford, PLLC 1 East Broward Boulevard, Suite 1400 Fort Lauderdale, FL 33301-1834 Telephone: 954.356.2501 E-mail: [email protected] Term Expiring 6/30/2019
Ronald M. Gache, Esq. Shapiro, Fishman & Gache, LLP 2424 N. Federal Highway, Suite 360 Boca Raton, FL 33431-7780 Telephone: 561.287.5599 E-mail: [email protected] Term Expiring 6/30/2021
Hon. Geoffrey Gentile Twentieth Judicial Circuit 1700 Monroe St Fort Myers, FL 33901-3071 Telephone: 239-533-2600 E-mail: [email protected] Term Expiring 6/30/2021
Updated July 2018 Jerry M. Gewirtz, Esq. City of Tampa 315 East Kennedy Boulevard, Floor 5 Tampa, FL 33602-5211 Telephone: 813.274.8842 E-Mail: [email protected] Term Expiring 6/30/2020
Tracy R. Gunn, Esq. Gunn Appellate Practice, P.A. 401 E Jackson St Ste 3610 Tampa, FL 33602-5233 Telephone: 813.254.3183 E-Mail: [email protected] Term Expiring 6/30/2021
Lee L. Haas, Esq. Haas & Castillo, P.A. 19321-C U.S. Hwy. 19 North, Suite 401 Arbor Shoreline Office Park Clearwater, FL 33764-3142 Telephone: 727.535.4544 E-mail: [email protected] Term Expiring 6/30/2020
Hon. Lisa Munyon Ninth Judicial Circuit 425 N. Orange Avenue Suite 2035 Orlando, FL 32801 Telephone: 407.836.2470 E-Mail: [email protected] Term Expiring 6/30/2019
Mark A. Nation, Esq. The Nation Law Firm 570 Crown Oak Centre Drive Longwood, FL 32750-6187 Telephone: 407-339-1104 E-Mail: [email protected] Term Expiring 6/30/2020
Mark Osherow, Esq. Osherow, PLLC 1801 N. Military Trail Boca Raton, FL 33431-1811 Telephone: 561-257-0880 (office) Telephone: 561-789-1177 (mobile) E-mail: [email protected] Term Expiring 6/30/2020
Updated July 2018 Mitchell O. Palmer, Esq. Office of the County Attorney PO Box 1000 Bradenton, FL 32406-1000 Telephone: 941-745-3750 (office) Telephone: 941-749-3089 (mobile) E-mail: [email protected] Term Expiring 6/30/2021
Harry A. Payton, Esq. Payton & Associates, LLC 2 S. Biscayne Blvd Ste 2300 Miami, FL 33131-1803 Telephone: 305-372-3500 (office) Telephone: 305-213-3500 (mobile) E-mail: [email protected] Term Expiring 6/30/2021
Adina L. Pollan, Esq. Pollan Legal 301 W. Bay Street, Ste. 1454 Jacksonville, FL 32202-5184 Telephone: 904.475.2187 E-Mail: [email protected] Term Expiring 6/30/2019
Scott R. Rost, Esq. South Milhausen, P.A. 1000 Legion Plaza, Suite 1200 Orlando, FL 32801-1005 Telephone: 407.539.1638 E-mail: [email protected] Term Expiring 6/30/2019
Albert A. Sanchez, Jr., Esq. Sanchez Law, PLLC 2055 Wood St Ste 220 Sarasoata, FL 34237-7931 Telephone: 941-366-0001(office) Telephone: 941-724-1776(mobile) E-mail: [email protected] Term Expiring 6/30/2021
Hon. Donald Scaglione Fifth Judicial Circuit 20 N. Main St. Rm 444 Brooksville, FL 34601-2893 Telephone:352-754-4030(office) E-mail: [email protected] Term Expiring 6/30/2021
Updated July 2018 Stephanie Serafin, Esq. Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Telephone 561-659-5455 E-mail [email protected]
Martin B. Sipple, Esq. Ausley & McMullen P.O. Box 391 Tallahassee, FL 32302-0391 Telephone 850.224-9115 E-mail [email protected] Term Expiring 6/30/2021
Donna G. Solomon, Esq. Solomon Appeals, Mediation & Arbitration 901 South Federal Highway, Suite 300 Ft. Lauderdale, FL 33316-1260 Telephone: 561.762.9932 E-Mail: [email protected] Term Expiring 6/30/2019
Joshua B. Spector, Esq. Allen, Dyer, Doppelt & Gilchrist, PA 1221 Brickell Ave., Ste. 2400 Miami, FL 33131-3225 Telephone: 305.374.8303 E-Mail: [email protected] Term Expiring 6/30/2019
Kenneth G. Turkel, Esq. Bajo Cuva Cohen and Turkel, P.A. 100 N. Tampa St. Ste 1900 Tampa, FL 33602-5853 Telephone: 813-868-6163 E-Mail: [email protected] Term Expiring 6/30/2021
Teresa J. Verges, Esq. University of Miami School of Law 1311 Miller Road, Suite A312-C Coral Gables, FL 33146-2300 Telephone: 305.284.8548 E-Mail: [email protected] Term Expiring 6/30/2019
Updated July 2018 Steele T. Williams, Esq. Steele T. Williams, P.A. 1381 McAnsh Square Sarasota, FL 34236-5620 Telephone: 941-378-1800 E-Mail: [email protected] Term Expiring 6/30/2020
Committee Reporter Joseph Eagleton Esq. Brannock & Humphries 1111 West Cass Street Suite 200 Tampa, FL 33606 Telephone: 813-223-4300 E-Mail: [email protected] Term Expiring 6/30/2019
The Florida Bar/Liaison Mikalla Daivs, Esq. The Florida Bar 651 E. Jefferson Street Tallahassee, FL 32399-2300 Telephone: 850-561-5663 E-mail: [email protected]
Revised July 2018
Updated July 2018 SJI—Contracts and Business Active Subcommittee List
• Subcommittee to review the Florida Supreme Court’s forthcoming opinion in case number SC18- 867 when issued, for any errors or necessary corrections: o Jerry Gewirtz o Scott Rost o Donna Solomon
• Subcommittee to review the draft model verdict form for instruction 416.27, regarding undue influence, to determine whether any changes are necessary and to put together a final proposal for the full Committee’s consideration: o Joshua Spector (chair) o Ronnie Bitman o Stephanie Serafin o Ken Turkel
• Subcommittee to review the draft model verdict form for instruction 416.28, regarding fraud, to determine whether any changes are necessary and to put together a final proposal for the full Committee’s consideration: o Harry Payton (chair) o Tracy Gunn o Mark Osherow
• Subcommittee to review the draft model verdict form for instruction 416.30, regarding waiver, to determine whether any changes are necessary and to put together a final proposal for the full Committee’s consideration: o Mark Boyle o Judge Geoffrey Gentile o Steele Williams
• Subcommittee to review the draft model verdict form for instruction 416.31, regarding novation, to determine whether any changes are necessary and to put together a final proposal for the full Committee’s consideration: o Lee Barrett o Scott Rost o Albert Sanchez o Judge Donald Scaglione
• Subcommittee to review the various proposed 504 verdict forms, suggest any necessary revisions, consider the adoption of a 504.5 form, consider the addition of a damages line in the 504.3 lost profits form, and bring a consolidated proposal back to the full Committee: o Judge Jeffrey Burns o Mark Nation o Albert Sanchez
• Subcommittee to review the state of the law on restrictive covenants to determine whether an instruction is needed and, if so, to draft a proposal: o Mark Osherow o Stephanie Serafin o Scott Rost
• Subcommittee to review the state of the law on tortious interference and the applicable Civil instruction, and to consider any necessary proposals for the full Committee’s consideration, including whether that instruction should be tweaked and whether it should be moved to the Business instructions: o Ken Turkel (chair) o Richard Benrubi o Ronnie Bitman o Ron Gache o Eric Lee
• Subcommittee to review areas of overlap between the Civil and Business instructions, determine whether certain topics and instructions should be moved from Civil to Business, and consider whether some issues require separate instructions for commercial cases: o Ken Turkel (chair) o Judge Paul Huey o Chris Altenbernd o Mark Boyle
• Subcommittee to review the independent tort doctrine to determine whether an instruction is needed and, if so, to draft a proposal: o Judge Jeffrey Burns (chair) o Mark Boyle o Judge Janet Croom o Albert Sanchez o Joshua Spector
• Subcommittee to review the state of the law on unclean hands to determine whether an instruction is needed and, if so, to draft a proposal: o Lee Haas o Mitchell Palmer o Judge Donald Scaglione o Joshua Spector
• Subcommittee to review the state of the law on FDUTPA to determine whether an instruction is needed and, if so, to draft a proposal: o Ronnie Bitman o Martin Sipple o Donna Solomon
• Subcommittee to review the state of the law on trespass to determine whether an instruction is needed and, if so, to draft a proposal: o Chris Altenbernd o Jerry Gewirtz o Mitchell Palmer o Judge Geoffrey Gentile o • Subcommittee to review the state of the law on unilateral mistake, in light of DePrince v. Starboard, to determine whether an instruction is needed and, if so, to draft a proposal, along with a proposed verdict form: o Chris Altenbernd o Judge Geoffrey Gentile o Tracy Gunn o Mitchell Palmer • Subcommittee for new members o Martin Sipple, Chair o Judge Croom o Tracey Gunn o Jerry Gerwitz o Mark Boyle