The Fourth District Court of Appeal Reversed an Order of Dismissal for Fraud on the Court

Herman v. Intracoastal Cardiology Center, 4D11-1214 (Fla. 4th DCA 2013):

Mr. Herman appealed a final order dismissing his wrongful death medical malpractice lawsuit for fraud on the court. The lawsuit started when Mrs. Herman filed a medical malpractice lawsuit against her cardiologist. After her death, Mr. Herman was appointed as a personal representative of her estate and the case converted to a wrongful death suit.

During discovery, the Defendants propounded requests for production which asked for any notes or diaries maintained by Mr. or Mrs. Herman that pertained to the issues raised in the lawsuit. Mr. Herman kept a diary chronicling his wife’s medical condition, but never disclosed the diary to the defense.

(more…)

In Xavier v. Leviev Boymelgreen Marquis Developers, LLC, 3D11-549(Fla. 3d DCA, Nov. 21, 2012), Maiko A. Xavier and Gricell B. Perez (“Plaintiffs”) sought review of the trial court’s dismissal with prejudice of their real estate transaction lawsuit against Leviev Boymelgreen Marquis Developers (“Defendant”) on the grounds that the lawsuit was filed outside the four-year statute of limitations.

The Plaintiffs alleged that they entered into a pre-construction sales agreement on August 2, 2005 to purchase a city view condominium unit in the Marquis, which was being built by the Defendant. The sales agreement provided for, among other things, an initial deposit of $87,500, a subsequent deposit of $87,500, cancellation within certain time limits and return of deposits within thirty days of cancellation. The Plaintiffs further alleged that they cancelled the sales contract on the same day based upon the Defendant’s oral representation that they could “swap” the city view unit for a bay view unit. Relying on the understanding that the Plaintiffs would be provided a written agreement reflecting the bay view unit, they left the initial deposit with the Defendant. The Plaintiffs later made the second deposit at an unspecified date. The Plaintiffs alleged that they asked on undated occasions about the delivery of the corrected written agreement. However, several years passed without delivery of the corrected agreement, and the Defendant held the deposits. The Plaintiff stated that they had no reason to worry until almost four years later when the Defendant gave formal notice that the closing on the city view unit would be on August 17, 2009. On November 10, 2009, the Plaintiffs filed suit against the Defendant seeking the return of the deposits. The Defendant’s motion to dismiss the lawsuit on the basis that the statute of limitations had run was granted. The Third District Court of Appeal reversed and remanded the order of dismissal.

In its reasoning, the Third District Court of Appeal discussed the applicable statute of limitations. Had the lawsuit involved a standard cause of action for the violation of the terms of a real estate contract, it would have been time-barred. However, the Plaintiffs stated causes of action for unjust enrichment, conversion and fraudulent inducement. The statute of limitations for fraud is four years beginning to run “from the time that the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence.” § 95.031(2)(a), Fla. Stat. However, it could not be said “as a matter of law that the exercise of due diligence would have caused the [Plaintiffs] to have discovered the alleged fraud more than four years before November 10, 2009.” Xavier, 3D11-549. A much more detailed record would be required to make such a determination.

Similarly, the statute of limitations for conversion and unjust enrichment are four years. The Third District Court of Appeals stated, “[t]he determination as to when these causes of action accrued and when the statute of limitation expired is also dependent on the development of a more detailed factual record.” Id.

To read the entire opinion, click here.

Miami Auto. Retail, Inc. v. Christine F. Baldwin, No. 3D10-2136 (Fla. 3d DCA June 27, 2012)

This case came up on appeal from an order certifying a class of automobile buyers who traded in a vehicle at Miami Auto Retail, also known as Brickell Honda. In the underlying case the plaintiff, Christine Baldwin, purchased a Honda CR-V at Brickell Honda and traded in the Honda Civic she was currently leasing. Pursuant to the agreement between the parties, Brickell Honda agreed to pay off the remaining amount Baldwin owed on the leased Civic. At the time of purchase, the exact amount Baldwin owed on her Civic was not available, and as a result the parties estimated the payoff amount and trade-in value and this amount was listed in the purchase documents. Baldwin alleged that she was told by Brickell Honda that if the actual payoff amount was less than the amount estimated, she would be refunded the difference. When the actual payoff amount in fact turned out to be less than the estimate, however, Brickell Honda did not notify Baldwin or give her a refund for the difference.

Baldwin sued alleging Brickell Honda violated the Florida Unfair and Deceptive Trade Practices Act (FDUTPA) by failing to refund the difference between the estimated and actual payoff amounts on her trade-in, and sought class certification.  The trial court granted class certification under section 501.976(11), Florida Statutes and appointed Baldwin as class representative. Brickell Honda appealed. 

On appeal, the Third District Court of Appeal held that the trial court abused its discretion by granting the class certification and reversed the order. In its analysis, the court stated that in order to obtain class certification Baldwin was required to submit evidence sufficient to prove the four factors listed in Florida Rule of Civil Procedure 1.220(a) and at least one of the categories of factors listed in Rule 1.220(b). Under Rule 1.220(a), the court must conclude that:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.  Id. at 6 (emphasis in original).

The court found that Baldwin established the first two of the above factors, numerosity and commonality, since the potential class members were large in number and their claims all arose out of Brickell Honda’s overestimating trade-in values and failure to return the difference. For the remaining two factors, typicality of the claim or defense and adequacy of representation, the court found Baldwin failed to satisfy her burden. With regard to the typicality requirement, the court stated that Brickell Honda’s estimate regarding the balance owed on Baldwin’s leased vehicle was based on her own representations and that the difference between the estimated amount and the actual amount paid to satisfy the lease was created by Baldwin inadvertently making an additional monthly lease payment after she signed the contract with Brickell Honda. This presents Brickell Honda with unique defenses against Baldwin’s claim that would preoccupy her to the detriment of the unnamed class members and destroy the typicality requirement. The court also found that Baldwin did not establish the requirement that she be an adequate class representative by failing to offer any evidence on her ability, or the ability of the appointed class counsel, to assume the costs to litigate the case on behalf of the class.

The court then examined whether Baldwin meets the requirements of predominance and superiority as stated in Florida Rule of Civil Procedure 1.220(b)(3), which “requires that common questions of law or fact predominate over any individual questions of the separate members, and that class representation is superior to other available methods for the fair and efficient adjudication of the controversy.” Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1136 (Fla. 3d DCA 2008).

The Third District Court of Appeal concluded that Baldwin’s FDUTPA claims require determination of individual issues regarding representations and negotiations between each class member and Brickell Honda as to the payoff amount of their trade-in vehicle. As a result these determinations of individual issues of fact and law will predominate over common questions of fact and law and render class treatment impractical, and not superior to individual adjudication. Furthermore, the court stated that since FDUPTA does not impose a threshold for claims and provides prevailing party attorney fees the cost of bringing a suit would not deter other potential plaintiffs even if the damages incurred are small. 

To read the entire opinion, click here.