IN THE SUPREME COURT FOR THE STATE OF FLORIDA

IN THE SUPREME COURT FOR THE STATE OF FLORIDA FOREST RIVER, INC., v. Petitioner, CASE NO.: SC06-1654 DCA Case No.: 4D05-2656 JOSEPH GELINAS, Respondent. PETITIONER S BRIEF ON JURISDICTION ANDERSONGLENN, LLC JOHN J. GLENN Florida Bar No. 957860 GREGORY A. ANDERSON Florida Bar No. 398853 E. HOLLAND BRABHAM Florida Bar No. 0015927 2201 N.W. Corporate Blvd. Suite 100 Boca Raton, Florida 33431 Telephone: (561) 893-9192 Facsimile: (561) 893-9194 Attorneys for Petitioner

TABLE OF CONTENTS TABLE OF CONTENTS...i-ii PAGE TABLE OF AUTHORITIES...iii-iv I. PREFACE...1 II. STATEMENT OF THE CASE AND FACTS...1-2 III. SUMMARY OF ARGUMENT...3 IV. LEGAL ARGUMENT...4 A. Issue I...4-8 Whether the Supreme Court should grant Jurisdiction to decide if Gelinas second action filed in the circuit court is barred by the Court s application of the doctrines Res Judicata, Collateral Estoppel and/or the impermissible splitting of causes of action where Gelinas accepted a decision of the Lemon Law Board, without appeal, relating to the same vehicle that is the subject of Gelinas second action. B. Issue II...8-9 Whether the District Court s decision that Gelinas is entitled to attorneys fees as damages in his subsequent Lemon Law action conflicts with this Court s decision in Price v. Tyler C. Issue III...9-10 Whether the Supreme Court should grant jurisdiction to decide if the decision in Gelinas affects the powers of the members of the Florida New Motor Vehicle Board as constitutional or state officers.

V. CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...11 ii

TABLE OF AUTHORITIES PAGE Burns v. DaimlerChrysler Corporation, 914 So. 2d 451 (Fla. 4th DCA 2005)... 8 Chrysler Corp. v. Pitsirelos, 721 So. 2d 710 (Fla. 1998)... 8,9,10 Gordon v Gordon, 59 So. 2d 40 (Fla. 1952)... 4, Greenstein v. Greenbrook, Ltd., 443 So. 2d 296 (Fla. 3d DCA 1983)... 4,5,6 Hay v. Salisbury, 109 So. 617 (Fla. 1926)... 4, In re Haskins Estate, 63 So. 2d 320 (Fla. 1953)... 4, Mims v. Reid, 98 So. 2d 498 (Fla. 1957)... 4,5, Price v. Tyler, 890 So. 2d 246, 251 (Fla. 2004)... 3,8,9 State v. McBride, 848 So. 2d 287 (Fla. 2003);... 4, State v. Robinson, 132 So. 2d 156 (Fla. 1961)...10 Woodson v. Woodson, 89 So. 2d 665 (Fla. 1956)... 4,5 iii

TABLE OF AUTHORITIES (continued) PAGE STATUTES Chapter 681, Fla. Stat....passim 681.102(3)and(8), Fla. Stat....6,10 681.104(2)(a), Fla. Stat....6,10 681.1095, Fla. Stat... 9 681.1095 (2), Fla. Stat....9 681.1095 (3), Fla. Stat....9 681.1095 (10), Fla. Stat...7 681.118, Fla. Stat... 10 OTHER AUTHORITY Florida Administrative Code 2-30.001(1)(a),(b),(f)&(g)... 6,10 Fla. R. App. P., 9.030(a)(2)(iii) and (iv)... 1,10 I. PREFACE Petitioner, Forest River, Inc. shall be referenced as Forest River. Respondent Joseph Gelinas shall be referenced as Gelinas. The Record on Appeal will be referred to as R, p., vol.. iv

II. STATEMENT OF THE CASE AND FACTS Pursuant to Fla. R. App. P., 9.030(a)(2)(iii) and (iv), Forest River seeks to have reviewed a decision of the Fourth District Court of Appeal dated May 24, 2006. Appendix at 1. Forest River s Motion for Rehearing, Clarification, and/or Certification and its Motion for Rehearing En Banc were denied on July 18, 2006. Gelinas first sought legal relief relating to his 1999 Forest River 3465 Georgetown recreational vehicle ( vehicle ) from Florida s New Motor Vehicle Board Board ( Board ) pursuant to Chapter 681, Fla. Stat., and the matter was heard on July 20, 2000. A.R. Vol. 1 pp. 1-8. Approximately nine months after the Chapter 681, Fla. Stat., proceeding, awarding Gelinas a refund for the subject vehicle, Gelinas filed suit in circuit court on April 12, 2001, seeking an award of pecuniary losses, reasonable attorneys fees, and other appropriate equitable relief pursuant to section 681.112, Florida Statutes Id. His Complaint, however, did not seek to appeal the decision of the Board, and no violation of Chapter 681 was alleged, other than Forest River s failure to conform Gelinas vehicle to the Warranty which was the basis for the Board s decision. Id. In short, Gelinas received a revocation of the vehicle but still sued a second time, now in state court, to recover more damages and attorneys fees. Gelinas had previously been given the opportunity to claim the same relief before the Board but had failed to plead it. More specifically, within the v

application filed with the Board, 1 Gelinas had been asked at paragraph 24 of the application the following question: 24. Did you incur any reasonable expenses (e.g. towing, rental car, repair bills, postage, etc.) as a direct result of the defects for which you were not reimbursed? Yes No If yes, please attach copies of receipts, invoices, etc. Rule 2-30.001(1)(b)&(j) F.A.C.; See Appendix at 2. In response to this question, Gelinas checked the box that read No, indicating that he did not incur such expenses or damages. Moreover, he did not attach any invoices, receipts, etc. to support such expenses or damages. Id. Since Gelinas had brought a subsequent Lemon Law action based on the same facts and circumstances as the action which he had brought before the Board, Forest River immediately moved for Summary Judgment. AR. Vol. 1, pp. 164-67. After hearing argument, the circuit court granted Forest River s Motion. AR. Vol. 2, pp. 319-20. On appeal, the District Court reversed the circuit court s ruling, finding that the doctrines of Res Judicata, Collateral Estoppel and the Rule Against Splitting Causes of Action were not applicable to the case. 1 The application referenced has been adopted as a Rule under Florida s Administrative Code at Rule 2-30.001(1)(b)&(j), F.A.C. vi

III. SUMMARY OF ARGUMENT Here is a decision whereby Plaintiffs may recover attorneys fees in actions subsequent to the Lemon Law Boards decisions that were never contemplated by the legislature and confound the very essence of what the Lemon Law Boards were created to do. The District Court s decision in Gelinas conflicts with this Court s and another District Court s application of the doctrines of Res Judicata, Collateral Estoppel, and/or the Rule Against Splitting of Causes of Action (collectively, Res Judicata ). Gelinas action before the Board and his subsequently filed action are identical, and both arise out of the same transaction or occurrence. There were and are no other vehicles or damages. No other relief could have been obtained by Gelinas in his subsequent action that he could not have received in his action before the Board. Having failed to appeal the Board s decision, Gelinas is now precluded from seeking the same relief on the identical facts pursuant to his subsequent Lemon Law action. The District Court s decision categorizing attorneys fees as an element of damages conflicts with Price v. Tyler, 890 So. 2d 246 (Fla. 2004). Actual or compensatory damages are not defined as including attorneys fees. The District Court s decision affects the powers of the Board as constitutional or state officers. Arbitrators are vested with the authority to make decisions on cases approved for vii

Board. Further, the Gelinas opinion inappropriately restricts the authority of the Board despite statutory provisions and Rules to the contrary. IV. LEGAL ARGUMENT A. FIRST ISSUE: Whether the Supreme Court should grant Jurisdiction to decide if Gelinas second action filed in the circuit court is barred by the doctrines Res Judicata, Collateral Estoppel and/or the impermissible splitting of causes of action, where Gelinas accepted a decision of the Lemon Law Board and failed to appeal. Forest River respectfully requests this Honorable Court accept jurisdiction of this case since the District Court s ruling conflicts with this Court s and another District Court s application of the doctrines of Res Judicata, Collateral Estoppel and/or the Rule Against Splitting of Causes of Action (collectively, Res Judicata ). State v. McBride, 848 So. 2d 287 (Fla. 2003); Mims v. Reid, 98 So. 2d 498 (Fla. 1957); Woodson v. Woodson, 89 So. 2d 665 (Fla. 1956); In re Haskins Estate, 63 So. 2d 320 (Fla. 1953); Gordon v Gordon, 59 So. 2d 40 (Fla. 1952); Hay v. Salisbury, 109 So. 617 (Fla. 1926), Greenstein v. Greenbrook, Ltd, 443 So. 2d 296 (Fla. 3d DCA 1983). The issue before the Court in determining the applicability of Res Judicata here is whether the causes of action raised by Gelinas in his action before the Board and in his subsequent Lemon Law action are the same. The test established by this Court to determine this issue is whether the facts in the second action are essentially the same as the facts that were required to be presented in the first viii

action. Gordon, 59 So. 2d at 44-45. Res Judicata not only prohibits re-litigation of claims raised but also the litigation of claims that could have been raised in the prior action. McBride, 848 So. 2d at 290. Collateral estoppel generally prevents identical parties from re-litigating the same issues that were already decided. Id. Similarly, the Rule Against Splitting Causes of Action requires that all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action, or not at all. Mims, 98 So. 2d at 500; Greenstein, 443 So. 2d at 296. This rule has likewise been applied even where the theory of recovery in the second action required different elements from the theory of recovery in the first action. See Id. The question in this case ultimately boils down to determining whether the facts necessary to establish each claim are essentially the same. Even though in his subsequent action Gelinas sought the same relief as that which he had sought before the Board, and in spite of the fact that the subsequent action involved the same vehicle and the same alleged defect, the District Court erroneously found that the doctrine of Res Judicata does not apply to this case because the Board that rendered its decision in favor of Gelinas did not have the authority to award certain other damages that Gelinas supposedly was entitled to pursuant to his subsequent Lemon Law action. The cause of action that gave rise to the claim Gelinas had before the Board and the claim in the circuit court relied ix

upon the identical set of facts in order to sustain each. The relief sought in both actions related the same defects Gelinas claimed to have experienced with the same vehicle. 2 In order to obtain relief under Chapter 681, Fla. Stat., Gelinas was required to prove that the subject vehicle contained a defect or a nonconformity that somehow impaired its use, value or safety. The facts necessary to establish each claim are identical and the relief sought or that could have been sought is identical. The claims at stake are the result of a single wrongful act or transaction. Thus, each action even under a narrow view of Res Judicata, is identical in nature and thus barred. The District Court ignored the Florida Administrative Code. The Board is authorized to award, in addition to a refund or replacement, incidental and consequential charges. 3 See, Rule 2-30.001(1)(a),(b),(f)&(g), F.A.C. A simple review of the statute and the applicable Rules confirms this. The Board has the 2 It is anticipated that Gelinas will attempt to inject issues related to some supposed other damages he sustained after the Board s decision. An example is Gelinas alleged lost time from work. These other damages were damages that could have been sought from the Board and/or were damages not properly appealed by Gelinas to the circuit court after the Board entered its decision. Moreover, some of these damages were otherwise contrived by Gelinas and improperly injected into the appeal as non-record evidence in the District Court, over Forest River s objection. No post-board decision damages were ever part of the Record in this case. And, in any event, said damages are not recoverable as a matter of law. 3 Incidental charges are defined as those reasonable costs to the consumer which are directly caused by the nonconformity of the motor vehicle. 681.102(8), Fla. Stat., and Collateral charges include, without limitation, e.g., manufacturer installed items, finance charges, sales tax, etc. 681.102(3), Fla. Stat. x

authority to award all properly preserved damages Gelinas inappropriately continued to seek in his subsequent action. Id.; 681.102(3)and(8); 681.104(2)(a), Fla. Stat. By not appealing the Board decision as to those damages he believed he was entitled to, the decision became Res Judicata as to all further claims for relief. See, 681.1095 (10), Fla. Stat. 4 Gelinas was awarded certain damages by the Board which included a refund of all monies paid, less an offset for use. See Appendix at 3. The record from the Board, however, shows that Gelinas chose not to seek any other relief. See Appendix at 2. Further, Gelinas did not appeal the Board s decision. Instead, he sought the same alleged damages that could have been sought and/or awarded by the Board, as well as additional damages or attorneys fees which are not provided for by Chapter 681 under the circumstances. Based upon the foregoing, the District Court in failing to affirm the trial court s decision established a conflict with how this Court and another District Court apply the doctrine of Res Judicata, and destroys the efficacy of the Florida New Motor Vehicle Arbitration Boards. In considering whether to accept jurisdiction in this case, Forest River requests this Court to consider the effects on public policy behind the enactment of 4 To the extent that the District Court determined that attorneys fees are an element of damages the decision as more fully detailed below conflicts with established law of this Court as well. xi

Chapter 681. The Boards were enacted to provide a simplified fast solution to consumer complaints about their vehicles. The Gelinas decision invites litigation into the procedure since it condones subsequent lawsuits to recover attorneys fees for the action before the Board even though such recovery is not contemplated by Chapter 681. The Board was created specifically to avoid the costs and time involved in a warranty lawsuit. Chrysler Corp. v. Pitsirelos, 721 So. 2d 710 (Fla. 1998). By allowing an end runaround the prohibition of fees before the Board, the decision invites the very thing that the statute was designed to prevent. B. SECOND ISSUE: Whether the District Court s decision that Gelinas is entitled to attorneys fees as damages in his subsequent Lemon Law action conflicts with this Court s decision in Price v. Tyler The District Court found that the Board did not have authority to award certain damages that Gelinas was supposedly otherwise able to recoup in his subsequent Lemon Law action. It found that the Board is not authorized to award certain damages, including attorneys fees which were categorized as a damage by the District Court based on in its prior decision in Burns v. DaimlerChryler Corp., 914 So. 2d 451(Fla. 4th DCA 2005) 5. The District Court ultimately concluded that: Gelinas claim for attorneys fees is also cognizable under section 681.112, because where a consumer s vehicle has been deemed a lemon by the Board, a violation of Chapter 681 has been found, and that consumer can 5 The Burns case is pending before this Court on a Petition for Discretionary Review. However, that matter was recently settled by the parties and a Voluntary Dismissal has been sent for filing pursuant to Fla R. App. P., 9.350(a) xii

seek attorneys fees and costs under section 681.112 because such cannot be sought before the Board as explained in Burns. Appendix 1 at pp. 6-7. The District Court s categorization of attorneys fees as damages is contrary to this Court s decision in Price. In Price, this Court held that actual or compensatory damages are not defined as including attorneys fees. Accordingly, the finding that attorneys fees are a damage recoverable through a separate action based on a Lemon Law Board s decision is in direct conflict with Price. The District Court s decision paves the way for continued litigation in the circuit court for additional attorneys fee damages in every case where a successful consumer prevails before the Board; a result surely not provided for by the Act or contemplated by the legislature. Pitsirelos, supra. 6 Accordingly, Forest River respectfully requests this Court accept jurisdiction to resolve the conflict between the Gelinas and Price decisions. C. THIRD ISSUE: Whether the Supreme Court should grant jurisdiction to decide if the decision in Gelinas affects the powers of the members of the Florida New Motor Vehicle Board as constitutional or state officers. The Board was established within the Department of Legal Affairs for the State of Florida. 681.1095, Fla. Stat. The Board members are the Judges of Lemon Law actions. Chapter 681 empowers Board members to make decisions on 6 Subsection 681.1097(7), Fla. Stat is the only subsection in Chapter 681 where the legislature addressed the recovery of attorneys fees in the context of a Board award and when doing so it specifically limited the recovery of fees to those incurred in circuit court in confirming the award. xiii

cases approved for Arbitration. 681.1095(2), Fla. Stat. In making their decisions, the Board is required to construe and apply the provisions of Chapter 681 and the Rules adopted thereunder. 681.1095(3), Fla. Stat. The District Court s decision directly affects the powers of the individual members of the Board by specifically limiting their authority, despite statutory provisions and Rules to the contrary, by finding that the Board is not authorized to award the type of damages sought by Gelinas. 681.102(3) and (8), 681.104(2)(a), 681.1095, and 681.118, Fla. Stat.; Rule 2-30.001(1)(a),(b),(f),&(g) F.A.C. In addition to the questionable public policy behind the District Court s opinion, the restriction it places on the powers of the Board ultimately thwarts the purpose of providing expedited proceedings at less cost to consumers than traditional court. Pitsirelos, 721 So. 2d at 712. Accordingly, Forest River respectfully requests this Honorable Court grant discretionary review pursuant to Fla. R. App. P. 9.030(a)(2)(iii). State v. Robinson, 132 So. 2d 156 (Fla. 1961). V. CONCLUSION This Court has discretionary jurisdiction to review the decision below, and the Court should exercise that jurisdiction to consider the merits of Forest River s argument. CERTIFICATE OF SERVICE xiv

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail, this day of September, 2006, to Patrick S. Cousins, Esquire, Cousins Law Firm, P.A., 330 Clematis Street, Suite 218, West Palm Beach, FL 33401. ANDERSONGLENN, LLC JOHN J. GLENN Florida Bar No. 0957860 GREGORY A. ANDERSON Florida Bar No.: 398853 E. HOLLAND BRABHAM Florida Bar No.: 0015927 2201 NW Corporate Boulevard Suite 100 Boca Raton, Florida 33431 Phone: (561) 893-9192 Fax: (561) 893-9194 Attorneys for Petitioner CERTIFICATE OF COMPLIANCE WE HEREBY CERTIFY that Forest River s Brief on Jurisdiction is submitted in Times New Roman, 14-point font and complies with the requirements of Fla. R. App. P. 9.210(a)(2). By: E. Holland Brabham IN THE SUPREME COURT FOR THE STATE OF FLORIDA xv

FOREST RIVER CORPORATION, v. Petitioner, CASE NO.: DCA Case No.: 4D05-2656 JOSEPH GELINAS, Respondent. APPENDIX TO PETITIONER S BRIEF ON JURISDICTION ANDERSONGLENN, LLC JOHN J. GLENN Florida Bar No. 957860 GREGORY A. ANDERSON Florida Bar No. 398853 E. HOLLAND BRABHAM Florida Bar No.: 0015927 2201 N.W. Corporate Blvd. Suite 100 Boca Raton, Florida 33431 Telephone: (561) 893-9192 Facsimile: (561) 893-9194 Attorneys for Petitioner CERTIFICATE OF SERVICE xvi

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail, this day of September, 2006, to Patrick S. Cousins, Esquire, Cousins Law Firm, P.A., 330 Clematis Street, Suite 218, West Palm Beach, FL 33401. ANDERSONGLENN, LLC JOHN J. GLENN Florida Bar No. 0957860 GREGORY A. ANDERSON Florida Bar No.: 398853 E. HOLLAND BRABHAM Florida Bar No.: 0015927 2201 NW Corporate Boulevard Suite 100 Boca Raton, Florida 33431 Phone: (561) 893-9192 Fax: (561) 893-9194 Attorneys for Petitioner APPENDIX TO PETITIONER S BRIEF ON JURISDICTION 1. Joseph Gelinas v. Forest River Corporation, xvii

Case No. 4D05-2656, 4th DCA May Term 2006 2. Florida Pilot RV Mediation/Arbitration Program Request for Mediation/Arbitration 3. Florida Recreational Vehicle Mediation/Arbitration Program Decision of the Arbitrator xviii