IN THE SUPREME COURT OF FLORIDA CASE NO. SC L. T. CASE NO.: 4D

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC L. T. CASE NO.: 4D SANDRA H. LAND, vs. Petitioner, GENERAL MOTORS CORPORATION, Respondent. / JURISDICTIONAL BRIEF OF PETITIONER Rebecca J. Covey, Esquire Florida Bar No Counsel for Petitioner LAW OFFICES OF REBECCA J. COVEY, P.A S.E. 1 st Avenue Fort Lauderdale, Florida Rjlaw@attglobal.net (954) TABLE OF CONTENTS

2 Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH THE FOLLOWING DECISIONS, ON THE ISSUE OF WHETHER LAND S CIRCUIT COURT COMPLAINT IMPROPERLY SPLIT HER AVAILABLE CAUSES OF ACTION: Chrysler Corporation v. Pitsirelos, 721 So. 2d 710, 712 (Fla. 1998) Mims v. Reid, 98 So. 2d 498, 501 (Fla. 1957) Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985) Commodores Point Terminal Corp. v. Florida Towing Corp., 280 So. 2d 509, 511 (Fla. 1st DCA 1973) i- TABLE OF CONTENTS (Continued)

3 II. THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH THE FOLLOWING DECISIONS, ON THE ISSUE OF WHETHER LAND S CIRCUIT COURT COMPLAINT HAD TO EXPRESSLY STATE THAT LAND WAS SEEKING REVIEW OF AN ARBITRATION DECISION: Chrysler Corporation v. Pitsirelos, 721 So. 2d 710, 712 (Fla. 1998) City of Ormond Beach v. State ex rel. Del Marco, 426 So. 2d 1029 (Fla. 5th DCA 1983)... 8 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE Cases: ii TABLE OF AUTHORITIES Page Chrysler Corporation v. Pitsirelos,

4 721 So. 2d 710 (Fla. 1998)... 3, 4, 8, 9 City of Ormond Beach v. State ex rel. Del Marco, 426 So. 2d 1029 (Fla. 5th DCA 1983)... 8, 9 Commodores Point Terminal Corp. v. Florida Towing Corp., 280 So. 2d 509 (Fla. 1st DCA 1973)... 3, 6 Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985)... 3, 5 Greenstein v. Greenbrook, 443 So. 2d 296 (Fla. 3d DCA 1983)... 5 Land v. General Motors Corp., 906 So. 2d 1154 (Fla. 4th DCA 2005)... 1 Mims v. Reid, 98 So. 2d 498 (Fla. 1957)... 3, 6 Tyson v. Viacom, Inc., 890 So. 2d 1205(Fla. 4th DCA 2005)... 7 Others: , Fla. Stat (2), Fla. Stat. (2002) (12), Fla. Stat (13), Fla. Stat , Fla. Stat... 1, 4 iii TABLE OF AUTHORITIES (Continued)

5 Magnuson-Moss Warranty Act... 1, 2, 4, 6, 8 Blacks Law Dictionary (6th ed. 1990) Fla. Jur. Actions 42 (1960)... 5, 6 -iv-

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7 INTRODUCTION This Jurisdictional Brief is filed on behalf of the Petitioner, the Plaintiff in the trial court and Appellant in the district court, SANDRA H. LAND. Throughout this brief, Petitioner will be referred to as Land. Respondent, the Defendant in the trial court and Appellee in the district court, GENERAL MOTORS CORPORATION, will be referred to as General Motors. A copy of the District Court opinion is appended to this brief, and is reported as Land v. General Motors Corp., 906 So. 2d 1154 (Fla. 4th DCA 2005). References to the opinion in this brief will be to the page number (pages 1-3) of the opinion as printed from Westlaw. STATEMENT OF THE CASE AND FACTS After purchasing a 1999 Pontiac Firebird from General Motors, Land complained of several defects and returned the vehicle several times to the dealership for repairs. Land brought a Lemon Law claim against General Motors, and sought arbitration pursuant to (2), Fla. Stat. (2002). Within 30 days of receiving notification of an adverse arbitration decision, Land filed a complaint in circuit court. Land s attorney made the tactical decision to exclude from the complaint any reference to arbitration or trial de novo. The Complaint asserted claims for damages under the Lemon Law, pursuant to , Fla. Stat. and under the Federal Magnuson-Moss Warranty Act. (Opinion, p. 2) 1

8 The trial court granted summary judgment to General Motors on two grounds, both of which were affirmed by the Fourth District. First, the lower courts determined that Land s complaint did not sufficiently request a trial de novo of her Lemon Law claim because the complaint did not inform the court that an adverse arbitration decision had been rendered or that Land was seeking circuit court review of that decision, as contemplated by (12), Fla. Stat. (Opinion, p. 2). Second, the lower courts concluded that Land was not permitted to proceed on her Florida Lemon Law claim or on her Federal Magnuson-Moss Warranty Act claim because to do so would constitute an improper splitting of her causes of action. The Fourth District stated: Once the initial arbitration decision became final and binding, Land was unable to seek new avenues of relief for the same wrongful acts of General Motors. (Opinion, p. 2). SUMMARY OF THE ARGUMENT The decision of the Fourth District in this case conflicts with decisions of this Court and other district courts of appeal regarding the rule against splitting of causes of action. Cases have made it clear that this rule applies only where the claims which are asserted in the second suit were available to assert in the first suit and that the first suit provided an ample remedy to the plaintiff. Land could not assert all her claims in the Lemon Law arbitration proceeding. Thus, she was permitted to file her claims in circuit court and not run afoul of the rule against splitting of causes of action. 2

9 The Fourth District s decision is also in conflict with case law from this Court and other district courts on the nature of a Lemon Law circuit court trial de novo. By requiring Land to identify the arbitration decision in her circuit court complaint, the Fourth District has incorrectly treated such a proceeding as an appellate review proceeding, as opposed to a trial de novo. ARGUMENT I. THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH THE FOLLOWING DECISIONS, ON THE ISSUE OF WHETHER LAND S CIRCUIT COURT COMPLAINT IMPROPERLY SPLIT HER AVAILABLE CAUSES OF ACTION: Chrysler Corporation v. Pitsirelos, 721 So. 2d 710, 712 (Fla. 1998) Mims v. Reid, 98 So. 2d 498, 501 (Fla. 1957) Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985) Commodores Point Terminal Corp. v. Florida Towing Corp., 280 So. 2d 509, 511 (Fla. 1st DCA 1973). The Fourth District held that because the arbitration decision had become final and binding, Land was unable to seek new avenues of relief for the same wrongful acts of General Motors. The Fourth District completely misapplied the rule against splitting causes of action; Land was foreclosed from proceeding with her claims in circuit court, even though at least one of those claims -- the Magnuson-Moss Warranty Act claim -- 3

10 could not have been asserted in the arbitration proceeding. 1 The Fourth District s holding is in express and direct conflict with the following language from this Court s decision in Chrysler Corporation v. Pitsirelos, 721 So. 2d 710, 712 (Fla. 1998): Florida enacted its version of the Model Lemon Law in 1983 to provide consumers with an alternative dispute resolution procedure to traditional court breach-of-warranty actions or federal actions under the Magnuson-Moss Warranty Act. Moreover, as recognized in Pitsirelos, 721 So. 2d at 712, the legislature articulated the intent of the Lemon Law in , Fla. Stat., which includes the following: [N]othing in this chapter shall in any way limit or expand the rights and remedies which are otherwise available to a consumer under any other law. 2 1 The Fourth District ruled on other grounds that Land was not permitted to assert a damages claim under , Fla. Stat. independent of the Lemon Law claim that was arbitrated. Land contends this was error, and will address this issue if the Court accepts jurisdiction in this case. 2 Also see (3) Fla. Stat. This chapter does not prohibit a consumer from pursuing other rights or remedies under any other law. 4

11 The Fourth District s opinion improperly limits the rights and remedies which are otherwise available to Land, such as a claim under the Magnuson-Moss Warranty Act. The Fourth District s holding regarding the rule against splitting causes of action expressly and directly conflicts with several other cases from this Court and other district courts of appeal regarding the parameters of the rule. In Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985), the Third District held that a plaintiff who sued an asbestos manufacturer for contracting asbestosis could not collect in his suit for the enhanced risk of contracting cancer in the future. However, the Third District held that a second suit would be authorized in the event the plaintiff later contracted cancer. In discussing the rule against splitting causes of action, the court held that the rule makes it incumbent upon [plaintiffs] to raise all available claims in one action, quoting Greenstein v. Greenbrook, 443 So. 2d 296 (Fla. 3d DCA 1983), and further held that for a second action to be barred under the rule against splitting causes of action recovery of damages for such injury must be available in the first action. (emphasis added) 481 So. 2d at 520. Several cases have adopted the statement of the rule against splitting of causes of action set forth in 1 Fla. Jur. Actions 42 (1960), which includes the following pertinent principles: The law presumes that a single cause of action can be tried and determined in one suit and will not permit the plaintiff to 5

12 maintain more than one action against the same party for the same cause.... If the first suit is effective and available, and affords ample remedy to the plaintiff, the second suit is unnecessary and consequently vexatious. (emphasis added). 1 Fla. Jur. Actions 42 (1960) at , as quoted in Mims v. Reid, 98 So. 2d 498, 501 (Fla. 1957) and Commodores Point Terminal Corp. v. Florida Towing Corp., 280 So. 2d 509, 511 (Fla. 1st DCA 1973). Thus, the rule against the splitting of causes of action applies only where the first suit is effective and available and affords ample remedy to the plaintiff. The Fourth District clearly misapplied the rule in the Lemon Law arbitration context, since Land was unable to present her Magnuson-Moss Warranty Act claim (or any claim other than the arbitral Lemon Law claim) in the arbitration forum (i.e., the first suit ). Thus, the first suit was clearly not effective and available and did not afford an ample remedy to Land. Since she could not assert all her claims in the Lemon Law arbitration, she was free to file them in circuit court before, during or after the Lemon Law arbitration proceedings. Filing a separate circuit court action for any claims she had other than those that were or could be litigated in the arbitration forum could not possibly constitute improper splitting of her causes of action. Therefore, it is clear that the Fourth District s express statement of the rule against 6

13 splitting of causes of action is in conflict with the settled parameters of the rule as announced in the foregoing cases. The Fourth District s ruling on this issue was purportedly based on its decision in Tyson v. Viacom, Inc., 890 So. 2d 1205(Fla. 4th DCA 2005). That case discussed the interplay between res judicata and the rule against splitting causes of action, as follows: The rule against splitting causes of action is an aspect of the doctrine of res judicata. [citations omitted].... Res judicata and impermissible splitting of causes of action are not interchangeable concepts barring the bringing of claims. Because the rule against splitting causes of action is only an aspect of res judicata, it logically follows that if res judicata is not a bar to the bringing of a claim, impermissible splitting of causes of action is not either. 890 So. 2d at The Viacom court correctly recognized that res judicata applies only to matters which were actually litigated in the first suit along with every other matter which could have been litigated and determined in that action. Id. at Land simply could not litigate a Magnuson-Moss claim in the Lemon Law arbitration. Thus, if res judicata did not bar a Magnuson-Moss claim, the rule against splitting causes of action could not bar it either. II. THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH THE FOLLOWING DECISIONS, ON THE ISSUE OF WHETHER LAND S CIRCUIT COURT COMPLAINT HAD TO EXPRESSLY STATE THAT LAND WAS 7

14 SEEKING REVIEW OF AN ARBITRATION DECISION: Chrysler Corporation v. Pitsirelos, 721 So. 2d 710, 712 (Fla. 1998) City of Ormond Beach v. State ex rel. Del Marco, 426 So. 2d 1029 (Fla. 5th DCA 1983). The Fourth District concluded that the losing party in a Lemon Law appeal must inform the court and the opposing party that an arbitration decision had been rendered and must state the action requested, that being a trial de novo to review the correctness of the arbitration decision. (Opinion, p. 2). The decision of the Fourth District in this case is contrary to this Court s decision in Chrysler Corporation v. Pitsirelos, 721 So. 2d 710 (Fla. 1998). That case made it clear that although (13) refers to the trial de novo as an appeal, it is not a standard appeal from a lower court decision because the arbitration decision is not under appellate review. The circuit court conducts a trial de novo at which liability is determined. The plain meaning of trial de novo is a new trial or retrial in which the whole case is retried as if no trial whatever had been held in the first instance. 721 So. 2d at 715, J. Overton, concurring in part and dissenting in part, quoting from Blacks Law Dictionary (6th ed. 1990). This Court made clear in Pitsirelos that the arbitration decision is merely some evidence of the vehicle s defects. We believe that the intent of the statute is achieved by 8

15 requiring the party that petitions for a trial de novo appeal to have the burden of going forward with the evidence but treating the Arbitration Board s decision only as evidence with its weight to be determined by the fact-finder. Id. at 714. Unlike a normal appeal, the circuit court in a Lemon Law appeal is not granted the authority to reverse or remand the case back to the Arbitration Board. Rather, it must take new evidence and weigh the evidence as though an arbitration had not been held, and therefore a petition seeking a trial de novo after an adverse arbitration decision should plead necessary allegations to prove liability on the part of the defendant. The Fourth District decision also conflicts with City of Ormond Beach v. State ex rel. Del Marco, 426 So. 2d 1029, 1032 (Fla. 5th DCA 1983), which defined the parameters of a trial de novo: A trial de novo then must signify the legislative intent that circuit court review involve something more than a mere examination of the record of the board of adjustment. The trial de novo signifies to us the legislative intent that the circuit court take new evidence and conduct a new proceeding, not for the purpose of reviewing the action of the board of adjustment, but for the purpose of acting as the board of adjustment to review the original action of the administrative official, and to grant such relief as the board of adjustment could grant, if a proper showing is made. The pleading requirement imposed by the Fourth District in this case is based on the incorrect notion that the circuit court proceeding was an appeal rather than a trial de novo 9

16 CONCLUSION This case presents important questions regarding the Lemon Law pleading requirements and the right of consumers to pursue other remedies independent of the Lemon Law arbitration claim. The Court is urged to accept jurisdiction in this case in order to resolve the conflicts that exist on these important issues for consumers and defendants in consumer cases. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via U.S. Mail to David Sheldon, Esq., Rumberger, Kirk & Caldwell, Attorneys for Appellee, Post Office Box 1873, Orlando, FL , this day of September,

17 LAW OFFICES OF REBECCA J. COVEY, P.A. Counsel for Petitioner 1318 Southeast 1 st Avenue Fort Lauderdale, FL Telephone: (954) Rjlaw@attglobal.net By: REBECCA J. COVEY Florida Bar No CERTIFICATE OF COMPLIANCE I hereby certify that this Brief is in compliance with the requirements of Rule 9.210(a)(2), Fla. R. App. P. Rebecca J. Covey 11