Preview
Filing # 77899966 E-Filed 09/14/2018 11:05:26 AM
IN THE CIRCUIT COURT OF THE
EIGHTEENTH JUDICIAL CIRCUIT, IN AND
FOR BREVARD COUNTY, FLORIDA.
CASE NUMBER: 05-2018-CA-017746
PATRICIA ANNETTE BAXTER and
WILLIAM LEE BAXTER,
Plaintiffs,
v
FORD MOTOR COMPANY,
Defendant.
/
DEFENDANT’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S
MOTION TO DISMISS OR STRIKE PORTIONS OF PLAINTIFFS’? COMPLAINT
Defendant, FORD MOTOR COMPANY (“Ford”), by and through its undersigned
counsel, hereby files its Reply to Plaintiffs’ Response to Ford’s Motion to Dismiss or Strike
Portions of Plaintiffs’ Complaint and states:
Plaintiffs rely heavily on non-binding, out-of-state or federal decisions to support their
position that they are entitled to seek revocation from a manufacturer with whom they do not
have direct privity. For the reasons more fully explained in Ford’s Motion to Dismiss or Strike
Portions of Plaintiffs’ Complaint (Ford’s “Motion”), this is simply not the law in Florida.
Similarly, the law in Florida is clear as to the appropriate procedure for a consumer who is
unsatisfied with the outcome of a hearing before Florida’s New Motor Vehicle Arbitration
Board. See Florida’s Lemon Law, § 681.10 et seg. As explained in Ford’s Motion, the
appropriate method for Plaintiffs under these circumstances is an appeal by trial de novo before
the appropriate Circuit Court and not by seeking pecuniary damages under § 681.112, Fla. Stat.
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
I, PECUNIARY DAMAGES
King explains — albeit somewhat inconsistently - when a consumer can seek damages
pursuant to section 681.112:
Section 681.112 thus allows for a Chapter 681 damages case in circumstances
where a refund or replacement is not an option. Such circumstances might
include: (1) a warranty violation under section 681.103 which does not rise to the
level of a “nonconformity” under section 681.104 because it does not
substantially impair the use, value, or safety of a motor vehicle within the
meaning of section 681.102(16); (2) a violation of a provision of Chapter 681
other than sections 681.104 or 681.103, such as section 681.114, pertaining to the
resale of returned vehicles; (3) where the refund/replacement remedy does not
fully compensate the consumer, see Maserati Autos., Inc. v. Caplan, 522 So.2d
993, 996 (Fla. 3d DCA 1988); or (4) the situation presented in this case, where the
consumer cannot take advantage of the refund/replacement option because he
cannot furnish clear title to and possession of the motor vehicle.
King v. King Motors, 780 So.2d 937, 941 (Fla. 4th DCA 2001).
King is internally inconsistent as to whether 681.112 may be used where a “refund or
replacement is not an option” or where “the refund/replacement does not fully compensate the
consumer.” See id.
Irrespective of that inconsistency, section 681.112 does no more than set forth the
damages that may be obtained in a civil action.
The Lemon Law favors resolution of cases outside of the court system in either dispute
settlement procedures established by a manufacturer under section 681.108 or arbitration before
the Board pursuant to sections 681.109-681.1095. This preference is implemented by section
681.1095(4). See King, 780 So. 2d at 940.
Section 681.112 provides for an action for damages caused by a statutory violation,
separate and apart from the replacement/refund remedy that is available by following the
procedural pathway through arbitration contained in sections 681.109 and 681.1095. Jd. By
requiring submission to the division and to arbitration, if appropriate, section 681.1095(4) guides
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
consumers in the direction of the broadest remedy and the most streamlined procedure. Jd.
The analysis of what Plaintiffs seek to recover and why they think they have a right to
additional recovery beyond the BBB or Lemon Law refund requires careful review of legislative
intent, the legislation itself, the notion of statutory consistency and rationality, the context of the
case and the dates and context of the Florida cases interpreting the statute.
Chapter 681 is the Lemon Law statute. Chapter 15 USC 2310 and CFR 703 are the
statute and rule relevant to the federal Magnuson-Moss Warranty Act.
To understand this case, one must first address Chapter 681.
Section 681.101, Florida Statutes
Section 681.101 is entitled “Legislative intent” and states:
The Legislature recognizes that a motor vehicle is a major consumer purchase and
that a defective motor vehicle undoubtedly creates a hardship for the consumer ...
It is further the intent of the Legislature to provide the statutory procedures
whereby a consumer may receive a replacement motor vehicle, or a full refund,
for a motor vehicle which cannot be brought into conformity with the warranty
provided for in this chapter. However, nothing in this chapter shall in any way
limit or expand the rights or remedies which are otherwise available to a
consumer under any other law.
Thus, under this law, the Lemon Law, the intent is to award an entitled consumer to
whatever a BBB decisionmaker offers and the consumer accepts, which can be a new vehicle or
a refund for a defective vehicle, plus other charges. This law, the Lemon Law, does not
contemplate other remedies for a defective vehicle. The remedies for a defective motor vehicle
are the BBB awards, a refund or repurchase as set forth in the Lemon Law and other charges.
Section 681.108, Florida Statutes
Section 681.108 is entitled Dispute-settlement procedures.
(1) If a manufacturer has established a procedure that the department has certified as
substantially complying with the provisions of 16 C.F.R. part 703, in effect October 1, 1983, as
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
amended, and with the provisions of this chapter and the rules adopted under this chapter, and
has informed the consumer how and where to file a claim with such procedure pursuant to s.
681.103(3), the provisions of s. 681.104(2) apply to the consumer only if the consumer has first
resorted to such procedure. The decisionmakers for a certified procedure shall, in rendering
decisions, take into account all legal and equitable factors germane to a fair and just decision,
including, but not limited to, the warranty; the rights and remedies conferred under 16 C.F.R.
part 703, in effect October 1, 1983, as amended; the provisions of this chapter; and any other
equitable considerations appropriate under the circumstances.
Section 681.104, Florida Statutes
681.104 is entitled Nonconformity of motor vehicles.
Under Section 681.104 (2) (a) If the manufacturer, or its authorized service agent,
cannot conform the motor vehicle to the warranty by repairing or correcting any
nonconformity after a reasonable number of attempts, the manufacturer, within 40 days, shall
repurchase the motor vehicle and refund the full purchase price to the consumer, less a
reasonable offset for use, or, in consideration of its receipt of payment from the consumer of a
reasonable offset for use, replace the motor vehicle with a replacement motor vehicle
acceptable to the consumer. The refund or replacement must include all reasonably incurred
collateral and incidental charges. However, the consumer has an unconditional right to
choose a refund rather than a replacement motor vehicle. Upon receipt of such refund or
replacement, the consumer, lienholder, or lessor shall furnish to the manufacturer clear title
to and possession of the motor vehicle. (emphasis added)
Section 681.111, Florida Statutes
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
681.111 is entitled Unfair or deceptive trade practice. A violation by a manufacturer of
this chapter is an unfair or deceptive trade practice as defined in part II of chapter 501.
Section 681.112, Florida Statutes
681.112 Consumer remedies.—
(1) A consumer may file an action to recover damages caused by a violation of this
chapter. The court shall award a consumer who prevails in such action the amount of any
pecuniary loss, litigation costs, reasonable attorney’s fees, and appropriate equitable relief.
(2) An action brought under this chapter must be commenced within 1 year after the
expiration of the Lemon Law rights period, or, if a consumer resorts to an informal dispute-
settlement procedure or submits a dispute to the department or board, within 1 year after the final
action of the procedure, department, or board.
(3) This chapter does not prohibit a consumer from pursuing other rights or remedies
under any other law.
(emphasis added)
In analyzing the Lemon Law, it is clear that the legislature intended for consumers with
defective vehicles to get a refund or replacement in an expedited, simpler way than litigation. See
Sections 681.101, 681.104, 681.108, 681.1095, Fla. Stat. To do that, first, the consumer
participates in a less formal alternative dispute resolution process, here the BBB Autoline
process. See Section 681.108. The consumer must go through BBB to be allowed to go through
Lemon Law Arbitration set out in Section 681.104. There is no mention, reference, suggestion or
direction in Sections 681.108 or Section 681.104 to Section 681.112. The legislature did not in
any explicit way associate 681.108 or 681.104 with 681.112.
A 681.104 Lemon Law Arbitration allows for a refund or replacement and other charges.
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
The legislature makes no reference to attorney’s fees or to Section 681.112 in Section 681.104.
There is no basis to receive an award of attorney’s fees when a consumer gets a refund. There is
no reference to a manufacturer having violated the Lemon Law based solely on the fact that a
vehicle was deemed defective enough to be merit a refund.
The legislature makes clear in the legislation — if a defective vehicle is deemed a Lemon,
you can get a refund and other charges under this statute and nothing more under this statute.
Attorneys, not pleased with the lack of entitlement to attorneys’ fees when the BBB or
Board award a refund, sought a mechanism to recover fees. They looked inside the Lemon Law
statute to Section 681.112, ignoring the fact that no other section refers to Section 681.112 and
misconstruing the context of Sections 681.101, 681.108 and 681.104 while also ignoring Section
681.111 completely. Courts rejected these attempts. See, e.g., General Motors, LLC v. Bowie, 58
So. 3d 934.
So, attorneys not satisfied with the statute and case law denying them access to attorney’s
fees through the BBB and Lemon Law vehicle refund statutory sections, looked to Section
681.112 and offered an alternative argument. Rather than seek attorney’s fees alone as the
“pecuniary loss” referenced in that section, they would argue that there were other “pecuniary
losses” not provided for in the BBB process or Lemon Law and that this somehow elevated a
BBB or Section 681.104 refund decision to a “violation” which Section 681.111 deems a
deceptive and unfair trade practice, thus triggering Section 681.112 and thus allowing for
attorney’s fees in an action brought for a “violation” causing other “pecuniary loss.”
This approach is completely nonsensical when analyzing the intent and language of
Chapter 681.
Under a plain reading of the statute, when a manufacturer complies with the alternative
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
dispute process, a consumer gets a refund and there is no hint that there is any statutory violation
at that point or basis for attorney’s fees. But, for some inexplicable reason, under the plaintiffs
approach, the legislature chose to limit the “pecuniary loss” awardable to a consumer without
referencing that term in Sections 681.101, 681.104, or 681.108. And, the legislature did not
allow for attorney’s fees where a consumer is awarded a refund, but for some reason does so
indirectly through Section 681.112.
Also, according to this plaintiff's approach, for some reason, the legislature refers to
violations as unfair trade practices for the first time in Section 681.111, having never defined
violations before and having not used the term at all in Sections 681.108 or 681.104. Still,
somehow, plaintiff asserts that Section 681.111 relates back to Sections 681.108 and 681.104.
There is no plausible explanation for why the legislature would create an entirely separate
section of a statute using the term violation for the first time and equating it to an unfair trade
practice without having included it explicitly in the very sections that deal with a vehicle being
defective and a manufacturer being ordered to refund a purchase.
Then, plaintiffs take this “a repurchase means a violation” argument a step further. They
argue that this “violation” caused damages. And that, for some inexplicable reason, those
damages were ignored or excluded by the legislature in Sections 681.108 and 681.104, but are
inherently included in Section 681.112, although not categorized or defined in any way. Then,
plaintiffs approach requires that, for some reason, the legislature and all the case law interpreting
the statute, disallows attorney’s fees when a consumer gets a refund through a lawsuit-avoidance
mechanism, but somehow allows for a lawsuit for “separate damages” somehow never
contemplated by the legislature in the refund process, deeming that manufacturer committed
some violation and the statute now allows for attorney’s fees.
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
In other words, under the statute, if a consumer gets all her money back in a defective car
BBB or Lemon Law proceeding, she is not entitled to attorney’s fees. But, she can sue to prove
she had $100 in “other damages” caused by the vehicle being defective and that those damages
were allegedly not awardable through the refund process because the legislature chose not to
include them. Then, for some reason, the legislature having not allowed attorney’s fees through
Section 681.104 full refund, in a subsequent statutory section allows for attorney’s fees for
recovering the $100.
For the reasons stated above and in Ford’s Motion, Plaintiffs are clearly not entitled to
pecuniary damages under §681.112, Fla. Stat. Therefore, Plaintiffs’ request for damages pursuant
to §681.112, Fla. Stat. should be dismissed or stricken.
Il. REVOCATION OF ACCEPTANCE
Even in the cases cited by Plaintiffs’ in their Response to Ford’s Motion, courts have
found that revocation of acceptance is not a remedy available to a consumer who is not in direct
privity with a manufacturer. Zelyony v. Porsche Cars N. Am., Inc., 2008 U.S. Dist. LEXIS 31439
at *5 (S.D. Fla. 2008) (“Privity is required for Plaintiff to revoke acceptance of the vehicle under
Florida law.”); Mason v. Porsche Cars of N. Am., Inc., 688 So. 2d 361, 370 n. 5 (Fla. Sth DCA
1997) (“We find no error in the directed verdict against [Plaintiff] on his counterclaim for
revocation of acceptance.”).
As was thoroughly explained in Ford’s Motion, Plaintiffs are not able to establish privity
by arguing that the seller in this case was somehow the agent of Ford. Ocana is the clearest
example of why Plaintiffs are unable to succeed on this argument. See Ocana v. Ford Motor Co.,
992 So. 2d 319 (Fla. 3d DCA 2008). Plaintiffs relay on outdated, overruled, or non-binding out
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
of state or federal court decisions in their Response to Ford’s Motion in an attempt to circumvent
the clear law established by Ocana and its progeny.
Plaintiffs go on to cite cases that stand for the proposition that equitable relief is available
to consumers suing manufacturers under the Magnuson-Moss Warranty Act, but none of these
cases amount to binding Florida law that consumers may assert a claim for revocation of
acceptance against a manufacturer with whom they are not in direct privity. As is made clear in
Ford’s Motion, this is simply not the law in Florida. Thus, Plaintiffs have provided no support
for their entitlement to this claim and any reference to revocation against Ford should be
dismissed or stricken from the Complaint.
II. CONCLUSION
Plaintiffs attempt to conflate their ability to bring a suit for breach of warranty with the
ability to revoke acceptance against a non-privity manufacturer. Ford does not argue at this stage
that Plaintiffs are unable to assert any claims under any law against Ford, but merely that two of
the claims alleged in the Complaint are improper according to Florida law. For that reason, the
portions of the Complaint referring to Plaintiffs’ request for revocation of acceptance against
Ford and those portions requesting damages under § 681.112, Fla. Stat. should be dismissed or
stricken.
CERTIFICATE OF SERVICE
J HEREBY CERTIFY that a correct and true copy of the foregoing was sent via Electronic mail
this 14th day of September, 2018 to: Brent Wikgren, Esq., Krohn & Moss, Ltd., 10 N. Dearborn
3M
Street, Floor, Chicago, IL 60602. Bwikgren@consumerlawcenter.com;
nlacina@consumerlawcenter.com; ggrant@consumerlawcenter.com
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
BROMAGEN, RATHET, KLEE
& SMITH, P.A.
Ld Brooky Rathet
BROOKS RATHET, ESQUIRE
Fla. Bar No. 0077658
Attorneys for Ford Motor Company
135 2" Avenue North, Suite #1
Jacksonville Beach, FL 32250
(904) 242-0860 Telephone
(904) 242-0830 Facsimile
For Service of Documents Only
service@bromagenlaw.com
Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX
Preview
Filing # 77899966 E-Filed 09/14/2018 11:05:26 AM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA. CASE NUMBER: 05-2018-CA-017746 PATRICIA ANNETTE BAXTER and WILLIAM LEE BAXTER, Plaintiffs, v FORD MOTOR COMPANY, Defendant. / DEFENDANT’S REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS OR STRIKE PORTIONS OF PLAINTIFFS’? COMPLAINT Defendant, FORD MOTOR COMPANY (“Ford”), by and through its undersigned counsel, hereby files its Reply to Plaintiffs’ Response to Ford’s Motion to Dismiss or Strike Portions of Plaintiffs’ Complaint and states: Plaintiffs rely heavily on non-binding, out-of-state or federal decisions to support their position that they are entitled to seek revocation from a manufacturer with whom they do not have direct privity. For the reasons more fully explained in Ford’s Motion to Dismiss or Strike Portions of Plaintiffs’ Complaint (Ford’s “Motion”), this is simply not the law in Florida. Similarly, the law in Florida is clear as to the appropriate procedure for a consumer who is unsatisfied with the outcome of a hearing before Florida’s New Motor Vehicle Arbitration Board. See Florida’s Lemon Law, § 681.10 et seg. As explained in Ford’s Motion, the appropriate method for Plaintiffs under these circumstances is an appeal by trial de novo before the appropriate Circuit Court and not by seeking pecuniary damages under § 681.112, Fla. Stat. Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX I, PECUNIARY DAMAGES King explains — albeit somewhat inconsistently - when a consumer can seek damages pursuant to section 681.112: Section 681.112 thus allows for a Chapter 681 damages case in circumstances where a refund or replacement is not an option. Such circumstances might include: (1) a warranty violation under section 681.103 which does not rise to the level of a “nonconformity” under section 681.104 because it does not substantially impair the use, value, or safety of a motor vehicle within the meaning of section 681.102(16); (2) a violation of a provision of Chapter 681 other than sections 681.104 or 681.103, such as section 681.114, pertaining to the resale of returned vehicles; (3) where the refund/replacement remedy does not fully compensate the consumer, see Maserati Autos., Inc. v. Caplan, 522 So.2d 993, 996 (Fla. 3d DCA 1988); or (4) the situation presented in this case, where the consumer cannot take advantage of the refund/replacement option because he cannot furnish clear title to and possession of the motor vehicle. King v. King Motors, 780 So.2d 937, 941 (Fla. 4th DCA 2001). King is internally inconsistent as to whether 681.112 may be used where a “refund or replacement is not an option” or where “the refund/replacement does not fully compensate the consumer.” See id. Irrespective of that inconsistency, section 681.112 does no more than set forth the damages that may be obtained in a civil action. The Lemon Law favors resolution of cases outside of the court system in either dispute settlement procedures established by a manufacturer under section 681.108 or arbitration before the Board pursuant to sections 681.109-681.1095. This preference is implemented by section 681.1095(4). See King, 780 So. 2d at 940. Section 681.112 provides for an action for damages caused by a statutory violation, separate and apart from the replacement/refund remedy that is available by following the procedural pathway through arbitration contained in sections 681.109 and 681.1095. Jd. By requiring submission to the division and to arbitration, if appropriate, section 681.1095(4) guides Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX consumers in the direction of the broadest remedy and the most streamlined procedure. Jd. The analysis of what Plaintiffs seek to recover and why they think they have a right to additional recovery beyond the BBB or Lemon Law refund requires careful review of legislative intent, the legislation itself, the notion of statutory consistency and rationality, the context of the case and the dates and context of the Florida cases interpreting the statute. Chapter 681 is the Lemon Law statute. Chapter 15 USC 2310 and CFR 703 are the statute and rule relevant to the federal Magnuson-Moss Warranty Act. To understand this case, one must first address Chapter 681. Section 681.101, Florida Statutes Section 681.101 is entitled “Legislative intent” and states: The Legislature recognizes that a motor vehicle is a major consumer purchase and that a defective motor vehicle undoubtedly creates a hardship for the consumer ... It is further the intent of the Legislature to provide the statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the warranty provided for in this chapter. However, nothing in this chapter shall in any way limit or expand the rights or remedies which are otherwise available to a consumer under any other law. Thus, under this law, the Lemon Law, the intent is to award an entitled consumer to whatever a BBB decisionmaker offers and the consumer accepts, which can be a new vehicle or a refund for a defective vehicle, plus other charges. This law, the Lemon Law, does not contemplate other remedies for a defective vehicle. The remedies for a defective motor vehicle are the BBB awards, a refund or repurchase as set forth in the Lemon Law and other charges. Section 681.108, Florida Statutes Section 681.108 is entitled Dispute-settlement procedures. (1) If a manufacturer has established a procedure that the department has certified as substantially complying with the provisions of 16 C.F.R. part 703, in effect October 1, 1983, as Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX amended, and with the provisions of this chapter and the rules adopted under this chapter, and has informed the consumer how and where to file a claim with such procedure pursuant to s. 681.103(3), the provisions of s. 681.104(2) apply to the consumer only if the consumer has first resorted to such procedure. The decisionmakers for a certified procedure shall, in rendering decisions, take into account all legal and equitable factors germane to a fair and just decision, including, but not limited to, the warranty; the rights and remedies conferred under 16 C.F.R. part 703, in effect October 1, 1983, as amended; the provisions of this chapter; and any other equitable considerations appropriate under the circumstances. Section 681.104, Florida Statutes 681.104 is entitled Nonconformity of motor vehicles. Under Section 681.104 (2) (a) If the manufacturer, or its authorized service agent, cannot conform the motor vehicle to the warranty by repairing or correcting any nonconformity after a reasonable number of attempts, the manufacturer, within 40 days, shall repurchase the motor vehicle and refund the full purchase price to the consumer, less a reasonable offset for use, or, in consideration of its receipt of payment from the consumer of a reasonable offset for use, replace the motor vehicle with a replacement motor vehicle acceptable to the consumer. The refund or replacement must include all reasonably incurred collateral and incidental charges. However, the consumer has an unconditional right to choose a refund rather than a replacement motor vehicle. Upon receipt of such refund or replacement, the consumer, lienholder, or lessor shall furnish to the manufacturer clear title to and possession of the motor vehicle. (emphasis added) Section 681.111, Florida Statutes Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX 681.111 is entitled Unfair or deceptive trade practice. A violation by a manufacturer of this chapter is an unfair or deceptive trade practice as defined in part II of chapter 501. Section 681.112, Florida Statutes 681.112 Consumer remedies.— (1) A consumer may file an action to recover damages caused by a violation of this chapter. The court shall award a consumer who prevails in such action the amount of any pecuniary loss, litigation costs, reasonable attorney’s fees, and appropriate equitable relief. (2) An action brought under this chapter must be commenced within 1 year after the expiration of the Lemon Law rights period, or, if a consumer resorts to an informal dispute- settlement procedure or submits a dispute to the department or board, within 1 year after the final action of the procedure, department, or board. (3) This chapter does not prohibit a consumer from pursuing other rights or remedies under any other law. (emphasis added) In analyzing the Lemon Law, it is clear that the legislature intended for consumers with defective vehicles to get a refund or replacement in an expedited, simpler way than litigation. See Sections 681.101, 681.104, 681.108, 681.1095, Fla. Stat. To do that, first, the consumer participates in a less formal alternative dispute resolution process, here the BBB Autoline process. See Section 681.108. The consumer must go through BBB to be allowed to go through Lemon Law Arbitration set out in Section 681.104. There is no mention, reference, suggestion or direction in Sections 681.108 or Section 681.104 to Section 681.112. The legislature did not in any explicit way associate 681.108 or 681.104 with 681.112. A 681.104 Lemon Law Arbitration allows for a refund or replacement and other charges. Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX The legislature makes no reference to attorney’s fees or to Section 681.112 in Section 681.104. There is no basis to receive an award of attorney’s fees when a consumer gets a refund. There is no reference to a manufacturer having violated the Lemon Law based solely on the fact that a vehicle was deemed defective enough to be merit a refund. The legislature makes clear in the legislation — if a defective vehicle is deemed a Lemon, you can get a refund and other charges under this statute and nothing more under this statute. Attorneys, not pleased with the lack of entitlement to attorneys’ fees when the BBB or Board award a refund, sought a mechanism to recover fees. They looked inside the Lemon Law statute to Section 681.112, ignoring the fact that no other section refers to Section 681.112 and misconstruing the context of Sections 681.101, 681.108 and 681.104 while also ignoring Section 681.111 completely. Courts rejected these attempts. See, e.g., General Motors, LLC v. Bowie, 58 So. 3d 934. So, attorneys not satisfied with the statute and case law denying them access to attorney’s fees through the BBB and Lemon Law vehicle refund statutory sections, looked to Section 681.112 and offered an alternative argument. Rather than seek attorney’s fees alone as the “pecuniary loss” referenced in that section, they would argue that there were other “pecuniary losses” not provided for in the BBB process or Lemon Law and that this somehow elevated a BBB or Section 681.104 refund decision to a “violation” which Section 681.111 deems a deceptive and unfair trade practice, thus triggering Section 681.112 and thus allowing for attorney’s fees in an action brought for a “violation” causing other “pecuniary loss.” This approach is completely nonsensical when analyzing the intent and language of Chapter 681. Under a plain reading of the statute, when a manufacturer complies with the alternative Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX dispute process, a consumer gets a refund and there is no hint that there is any statutory violation at that point or basis for attorney’s fees. But, for some inexplicable reason, under the plaintiffs approach, the legislature chose to limit the “pecuniary loss” awardable to a consumer without referencing that term in Sections 681.101, 681.104, or 681.108. And, the legislature did not allow for attorney’s fees where a consumer is awarded a refund, but for some reason does so indirectly through Section 681.112. Also, according to this plaintiff's approach, for some reason, the legislature refers to violations as unfair trade practices for the first time in Section 681.111, having never defined violations before and having not used the term at all in Sections 681.108 or 681.104. Still, somehow, plaintiff asserts that Section 681.111 relates back to Sections 681.108 and 681.104. There is no plausible explanation for why the legislature would create an entirely separate section of a statute using the term violation for the first time and equating it to an unfair trade practice without having included it explicitly in the very sections that deal with a vehicle being defective and a manufacturer being ordered to refund a purchase. Then, plaintiffs take this “a repurchase means a violation” argument a step further. They argue that this “violation” caused damages. And that, for some inexplicable reason, those damages were ignored or excluded by the legislature in Sections 681.108 and 681.104, but are inherently included in Section 681.112, although not categorized or defined in any way. Then, plaintiffs approach requires that, for some reason, the legislature and all the case law interpreting the statute, disallows attorney’s fees when a consumer gets a refund through a lawsuit-avoidance mechanism, but somehow allows for a lawsuit for “separate damages” somehow never contemplated by the legislature in the refund process, deeming that manufacturer committed some violation and the statute now allows for attorney’s fees. Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX In other words, under the statute, if a consumer gets all her money back in a defective car BBB or Lemon Law proceeding, she is not entitled to attorney’s fees. But, she can sue to prove she had $100 in “other damages” caused by the vehicle being defective and that those damages were allegedly not awardable through the refund process because the legislature chose not to include them. Then, for some reason, the legislature having not allowed attorney’s fees through Section 681.104 full refund, in a subsequent statutory section allows for attorney’s fees for recovering the $100. For the reasons stated above and in Ford’s Motion, Plaintiffs are clearly not entitled to pecuniary damages under §681.112, Fla. Stat. Therefore, Plaintiffs’ request for damages pursuant to §681.112, Fla. Stat. should be dismissed or stricken. Il. REVOCATION OF ACCEPTANCE Even in the cases cited by Plaintiffs’ in their Response to Ford’s Motion, courts have found that revocation of acceptance is not a remedy available to a consumer who is not in direct privity with a manufacturer. Zelyony v. Porsche Cars N. Am., Inc., 2008 U.S. Dist. LEXIS 31439 at *5 (S.D. Fla. 2008) (“Privity is required for Plaintiff to revoke acceptance of the vehicle under Florida law.”); Mason v. Porsche Cars of N. Am., Inc., 688 So. 2d 361, 370 n. 5 (Fla. Sth DCA 1997) (“We find no error in the directed verdict against [Plaintiff] on his counterclaim for revocation of acceptance.”). As was thoroughly explained in Ford’s Motion, Plaintiffs are not able to establish privity by arguing that the seller in this case was somehow the agent of Ford. Ocana is the clearest example of why Plaintiffs are unable to succeed on this argument. See Ocana v. Ford Motor Co., 992 So. 2d 319 (Fla. 3d DCA 2008). Plaintiffs relay on outdated, overruled, or non-binding out Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX of state or federal court decisions in their Response to Ford’s Motion in an attempt to circumvent the clear law established by Ocana and its progeny. Plaintiffs go on to cite cases that stand for the proposition that equitable relief is available to consumers suing manufacturers under the Magnuson-Moss Warranty Act, but none of these cases amount to binding Florida law that consumers may assert a claim for revocation of acceptance against a manufacturer with whom they are not in direct privity. As is made clear in Ford’s Motion, this is simply not the law in Florida. Thus, Plaintiffs have provided no support for their entitlement to this claim and any reference to revocation against Ford should be dismissed or stricken from the Complaint. II. CONCLUSION Plaintiffs attempt to conflate their ability to bring a suit for breach of warranty with the ability to revoke acceptance against a non-privity manufacturer. Ford does not argue at this stage that Plaintiffs are unable to assert any claims under any law against Ford, but merely that two of the claims alleged in the Complaint are improper according to Florida law. For that reason, the portions of the Complaint referring to Plaintiffs’ request for revocation of acceptance against Ford and those portions requesting damages under § 681.112, Fla. Stat. should be dismissed or stricken. CERTIFICATE OF SERVICE J HEREBY CERTIFY that a correct and true copy of the foregoing was sent via Electronic mail this 14th day of September, 2018 to: Brent Wikgren, Esq., Krohn & Moss, Ltd., 10 N. Dearborn 3M Street, Floor, Chicago, IL 60602. Bwikgren@consumerlawcenter.com; nlacina@consumerlawcenter.com; ggrant@consumerlawcenter.com Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX BROMAGEN, RATHET, KLEE & SMITH, P.A. Ld Brooky Rathet BROOKS RATHET, ESQUIRE Fla. Bar No. 0077658 Attorneys for Ford Motor Company 135 2" Avenue North, Suite #1 Jacksonville Beach, FL 32250 (904) 242-0860 Telephone (904) 242-0830 Facsimile For Service of Documents Only service@bromagenlaw.com Filing 77899966 P A BAXTER VS FORD MOTOR 05-2018-CA-017746-XXXX-XX