Global Quest, LLC v. Horizon Yachts, Inc. , 849 F.3d 1022 ( 2017 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10713
________________________
D.C. Docket No. 9:13-cv-80283-KLR
GLOBAL QUEST, LLC,
Plaintiff –
Counter Defendant –
Appellant,
versus
HORIZON YACHTS, INC,
HORIZON GROUP, et al.,
Defendants –
Counter Claimants –
Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 24, 2017)
Before MARCUS and FAY, Circuit Judges, and FRIEDMAN, ∗ District Judge.
∗
Honorable Paul L. Friedman, United States District Judge for the District of Columbia,
sitting by designation.
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FRIEDMAN, District Judge:
Plaintiff Global Quest, LLC appeals from the district court’s grant of
summary judgment to defendants on all but one count of plaintiff’s amended
complaint and to defendant Horizon Yachts, Inc. on its counterclaim for
foreclosure of a promissory note. Plaintiff appeals from the district court’s entry of
partial final judgment pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure.1 We reverse the district court’s grant of summary judgment to
defendants on Counts I, III, IV, VII, and VIII of plaintiff’s amended complaint and
the grant of summary judgment to defendant Horizon Yachts, Inc. on its
counterclaim. 2
I. BACKGROUND
Plaintiff purchased a 105 foot luxury super-yacht, specifically a CC-105
Horizon Explorer named “Starlight,” from defendant Horizon Yachts, Inc.
(“Seller”). The yacht was manufactured by defendant Horizon Yacht Co., Ltd.
(“Horizon”) and its wholly-owned subsidiary Premier Yacht Co., Ltd. (“Premier”)
1
“When an action presents more than one claim for relief . . . or when multiple parties
are involved, the court may direct entry of a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines that there is no just reason for delay.”
FED. R. CIV. P. 54(b); see Lloyd Noland Found., Inc. v. Tenet Health Care Corp., 483 F.3d 773,
778-80 (11th Cir. 2007).
2
Plaintiff does not challenge the district court’s entry of summary judgment on Counts II,
V, VI, IX, and X of the amended complaint. Counts VIII, IX, and X incorrectly are labeled in
the amended complaint as IX, X, and XI respectively.
2
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in Taiwan. While both Horizon and Premier are Taiwanese companies, Seller is an
independent U.S. Corporation based in Florida. It is undisputed, however, that the
Seller is Horizon’s agent and appears to be owned, at least in part, by Horizon and
Premier’s founder and CEO, John Lu. HORIZON YACHTS, INC.,
http://www.horizonyachtusa.com (last visited May 10, 2016) (“Horizon Yacht
USA is the U.S. agent for Horizon Yachts”).
Plaintiff purchased the Starlight for $6,835,000 after negotiating and
executing a Purchase and Sale Agreement with Seller, along with an Addendum
executed shortly thereafter. That contract, as modified by the Addendum, contains
a seemingly self-contradictory provision. The “as is” clause in the original
Agreement, paragraph 10, states that “upon closing, buyer will have accepted the
vessel in its ‘as is’ condition. Seller and the brokers have given no warranty, either
express or implied, and make no representation as to the condition of the vessel, its
fitness for any particular purpose or merchantability, all of which are disclaimed.”
The Addendum, however, modifies this clause — providing that before the word
“Seller,” “the following language is inserted: ‘Other than the limited express
warranty attached here as Exhibit A.’” With this alteration, paragraph 10 thus
reads: “Other than the limited express warranty attached here as Exhibit A, Seller
and the broker have given no warranty, either express or implied . . . .” Thus,
while the original Agreement purported to disclaim all warranties, express or
3
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implied, the Addendum inserted an express limited warranty into the contract. But
the Addendum also contains a further provision stating that “[t]he terms of this
Acceptance shall govern over any inconsistent terms in the Purchase Agreement
which is hereby ratified and declared to be in full force and effect.”
As stated in the Addendum, Plaintiff was given a limited express warranty,
the terms of which were negotiated by the parties as part of the sale. Issued on
Seller’s letterhead but purporting to be from “Horizon Group,” a trade name for
Horizon’s companies, the limited warranty covers certain manufacturing and
design defects for a period of one year from the contract date. It is limited,
however, to “covered defects first discovered and reported to Horizon or the
Original Selling Dealer.” The limited warranty also disclaims “all other express
and implied warranties (except title),” and states that “[n]o employee,
representative, authorized dealer or agent of Horizon other than an executive
officer of Horizon is authorized to alter or modify any provision of the Limited
Warranty or to make any guaranty, warranty or representation, express or implied,
orally or in writing which is contrary to the foregoing.” The limited warranty also
lists Premier and its contact details on the final page, without any explanation as to
their relationship to the warranty.
Plaintiff contends that defendants made numerous false representations
regarding the yacht’s condition during the negotiation of the sale. Specifically,
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plaintiff claims that the yacht was represented to be MCA LY2 compliant and built
to DNV standards, both in statements made by Seller’s sales representative and on
Horizon’s webpage advertising the Starlight. 3 Plaintiff claims that after it took
possession it quickly discovered that the yacht was not MCA LY2 compliant nor
was it built to DNV standards. The yacht had numerous problems that sharply
limited the range of the vessel to short distances and also had electrical issues that
rendered it unsafe. After defendants refused to repair or address the problems
under the warranty, plaintiff filed suit against the three defendants, bringing ten
claims under the amended complaint against each defendant: (1) fraud in the
inducement; (2) revocation of acceptance under the Magnuson-Moss Warranty
Act; (3) breach of the implied warranties of merchantability and usage of trade;
(4) breach of the implied warranty of fitness for a particular purpose; (5) breach of
a pre-purchase express oral warranty; (6) breach of a post-purchase express oral
warranty; (7) breach of the implied warranty of workmanlike performance;
(8) breach of the express written limited warranty; (9) rescission of the promissory
note executed with the purchase; and (10) an injunction barring defendants from
foreclosing on the promissory note or taking possession of the yacht for
non-payment. Seller counterclaimed to foreclose on the promissory note.
3
MCA is an acronym for the United Kingdom’s Maritime and Coastguard Agency. The
agency publishes, among other codes, the Large Commercial Yacht Code, abbreviated “LY2”,
which is a set of building standards for large yachts. DNV stands for “Det Norske Veritas” and
it is the world’s largest classification society. The organization sets safety, reliability, and
environmental standards for maritime vessels.
5
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The district court entered summary judgment for defendants on all but two
claims: the breach of express warranty claims against Horizon and Premier. The
district court also entered summary judgment for Seller on its counterclaim to
foreclose on the promissory note. Pursuant to Rule 54(b) of the Federal Rules of
Civil Procedure, the district court certified the judgment as a partial final judgment
for interlocutory review. Plaintiff appeals, challenging the district court’s entry of
summary judgment as to Counts I, III, IV, VII, and VIII and the counterclaim.
II. DISCUSSION
We review a district court’s grant of summary judgment de novo. Stephens
v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 (11th Cir. 2014) (citing Kragor v.
Takeda Pharm. Am., Inc., 702 F.3d 1304, 1307 (11th Cir. 2012)). Summary
judgment is appropriate when the evidence, viewed in the light most favorable to
the nonmoving party, presents no genuine issue of material fact and compels
judgment as a matter of law. Id.; see also FED R. CIV. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
Plaintiff challenges the entry of summary judgment as to: (1) the fraudulent
inducement claims against all three defendants (Count I); (2) the breach of implied
warranty claims against all three defendants (Counts III, IV, and VII); and (3) the
breach of express warranty claim against Seller, Horizon Yachts, Inc. (Count VIII).
Each is addressed in turn.
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A. Fraudulent Inducement: Count I
The district court granted summary judgment to all three defendants on
plaintiff’s fraudulent inducement claim, relying on Florida precedent holding that a
plaintiff “cannot recover for fraudulent oral representations which are covered in or
contradicted by a later written agreement.” Sherwin-Williams Co. v. Auto Body
Tech. Inc., No. 12-23362, 2014 WL 2177961, at *4 (S.D. Fla. May 26, 2014)
(citing Giallo v. New Piper Aircraft, Inc., 855 So. 2d 1273, 1275 (Fla. Dist. Ct.
App. 2003)). Relying on the “as is” and “entire agreement” clauses in the contract,
the district court held that the claim is based on alleged pre-contractual
misrepresentations that were expressly contradicted by the later written agreement,
concluding that plaintiff could not have relied on the earlier statements as a matter
of law due to the conflicting conditions in the agreement.
The district court expressly declined to follow Oceanic Villas, Inc. v.
Godson, 4 So. 2d 689 (Fla. 1941), which, contrary to the district court’s reasoning,
held that an “as is” clause does not bar a plaintiff from bringing a fraud claim.
Specifically, the Florida Supreme Court in Oceanic Villas held that where an
agreement is procured by fraud or misrepresentation “every part of the [] contract”
is vitiated because “[i]t is well settled that a party can not contract against liability
for his own fraud.” Id. at 690. The district court declined to follow Oceanic Villas
because, in its view, (1) it “is distinguishable because it did not involve a warranty
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disclaimer or address recent Florida law, stating that a party cannot recover in
fraud for misrepresentations covered or expressly contradicted in a later written
agreement;” (2) it was decided before the enactment of Florida’s Uniform
Commercial Code in 1965, which permits “as is” clauses and the exclusion of
warranties; and (3) the Florida Supreme Court’s holdings are “fact intensive and
depend on a review of the conditions of the contract as a whole, not just one
clause.”
Plaintiff argues that the district court erred by refusing to follow Oceanic
Villas and granting summary judgment to defendants on the fraudulent inducement
claim. We agree.
“As a federal court sitting in diversity jurisdiction, we apply the substantive
law of the forum state, in this case Florida, alongside federal procedural law.”
Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1257 (11th Cir. 2011)
(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 (1938)). The Florida Supreme
Court “does not intentionally overrule itself sub silentio.” Puryear v. Florida, 810
So. 2d 901, 905 (Fla. 2002). “Where a court encounters an express holding from
[the Florida Supreme] Court on a specific issue . . . , the court is to apply [the]
express holding in the former decision until such time as [the Supreme] Court
recedes from the express holding.” Id.; see also Hoffman v. Jones, 280 So. 2d 431,
434 (Fla. 1973). The Florida Supreme Court has not overruled Oceanic Villas,
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explicitly or implicitly. In fact, Florida’s intermediate courts of appeal have
continued to apply Oceanic Villas as recently as 2011. See, e.g., Lower Fees, Inc.
v. Bankrate, Inc., 74 So. 3d 517, 519 (Fla. Dist. Ct. App. 2011); D & M Jupiter,
Inc. v. Friedopfer, 853 So. 2d 485, 488-89 (Fla. Dist. Ct. App. 2003); Burton v.
Linotype Co., 556 So. 2d 1126, 1127 (Fla. Dist. Ct. App. 1990); see also Carolina
Acquisition, LLC v. Double Billed, LLC, No. 07-61738-CIV, 2009 WL 3190807,
at *2 (S.D. Fla. 2009). Oceanic Villas therefore remains binding precedent on the
law of fraudulent inducement in Florida, a fact unchanged by the more recent case
law cited by the district court. And neither the district court nor this Court is “at
liberty to disregard binding case law that is so closely on point,” and has not been
directly overruled by the Florida Supreme Court. United States v. Clarke, 780 F.3d
1131, 1133 (11th Cir. 2015) (second alteration in original) (quoting United States
v. Chubbuck, 252 F.3d 1300, 1305 n.7 (11th Cir. 2001)).
Oceanic Villas also is not distinguishable from this case. Nor was its
holding “fact intensive” such that its reasoning must be limited to the precise
contract provisions it considered. Oceanic Villas held that a contract provision,
including an “as is” clause, cannot preclude a fraud claim, unless the contract
expressly states that it is incontestable on the ground of fraud. 4 So. 2d at 690-91
(“We recognize the rule to be that fraud in the procurement of a contract is ground
for rescission and cancellation of any contract unless for consideration or
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expediency the parties agree that the contract may not be cancelled or rescinded for
such cause.”). This rule is directly contrary to the district court’s holding that
plaintiff’s claim is barred by virtue of the provisions of the contract. That the
contract at issue in Oceanic Villas did not contain a warranty disclaimer is a
distinction without a difference. Nothing in Oceanic Villas suggests that the result
would have been different with a warranty disclaimer, or any other contract
provision save a specific disclaimer of liability for fraud. Absent such a
disclaimer, no matter the context, “a party can not contract against liability for [its]
own fraud.” 4 So. 2d at 690.
The district court appears to have confused the threshold question of whether
a claim is barred as a matter of law with the later question of whether the evidence
is sufficient to survive summary judgment. The Sixth Circuit, applying Oceanic
Villas in a diversity case, recently explained this distinction as follows:
Attempting to overcome this conclusion [that its alleged
reliance on statements was unreasonable], [Appellant]
relies on two Florida cases — Oceanic Villas, Inc. v.
Godson, 4 So. 2d 689, 690 (Fla. 1941); Allen v. Stephan
Co., 784 So. 2d 456 (Fla. Dist. Ct. App. 2000) — to show
that a fraud claim can survive an integrated lease. But
simply because [Appellant] is not prohibited from
bringing a fraud claim does not mean [Appellant] can
prove the elements of its fraud claim. Neither case
suggests otherwise. In Oceanic Villas, the Florida
Supreme Court held that an integration clause similar to
the ones at issue here did not “estop[]” the lessee from
alleging fraud or “make the contract incontestable
because of fraud.” Oceanic Villas, Inc v. Godson, 4 So.
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2d at 690-91. But the court went on to call an integration
clause “evidence[]” that “neither party has relied upon
the representation of the other party made prior to the
execution of the contract.” Id. at 691; accord Cassara v.
Bowman, 186 So. 514, 514 (1939). Here, we have that
precise “evidence” and [Appellant]s’ actual knowledge
that Best Buy Mobile would enter the relevant malls or
already had done so before any final leases were signed
[directly contradicting the alleged fraudulent
misrepresentations]. . . . But again, no one here thinks
[Appellant]’s claim is barred; the claim just lacks merit.”
Beeper Vibes, Inc v. Simon Property Grp., Inc., 600 Fed. App’x 314, 318-19 (6th
Cir. Dec. 12, 2014). The “as is” clause and the rest of the Purchase Agreement in
this case may constitute evidence against plaintiff’s fraud allegations, but
plaintiff’s claims are not precluded as a matter of law.
The confusion over this distinction appears to have led the district court to
conclude that two Florida cases, Faulk v. Weller K-F Cars, Inc., 70 So. 2d 578
(Fla. 1954), and Lou Bachrodt Chevrolet, Inc. v. Savage, 570 So. 2d 306 (Fla. Dist.
Ct. App. 1990), are irreconcilable and that Faulk suggests an implicit rejection of
Oceanic Villas. In Faulk, the Florida Supreme Court held that a written guarantee
with a clear disclaimer of warranties and representations “negatives the idea of
fraudulent misrepresentations” and that plaintiff’s “allegations and the proof with
reference to fraudulent misrepresentations were wholly insufficient.” 70 So. 2d at
579. Faulk thus is an illustration of the above distinction — the court did not
address whether the claim was barred as a matter of law; the claim just lacked
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merit because the allegations and evidence “were wholly insufficient” and the clear
contract provisions weighed in the other direction. Similarly, in Lou, the Florida
District Court of Appeal did not consider whether a claim was barred as a matter of
law by a contract provision, but instead found sufficient evidence to affirm a jury
verdict because the plaintiff had “produced evidence as to all the elements of fraud
in the inducement” despite the existence of an “as is” provision in the contract.
570 So. 2d at 308. Neither Faulk nor Lou applied the rule from Oceanic Villas,
and they are irrelevant for our purposes here.
Lastly, the fact that Oceanic Villas was decided before Florida’s enactment
of the Uniform Commercial Code also is of no moment because, although the UCC
permits “as is” clauses and warranty disclaimers, it is silent as to the impact, if any,
that such contract provisions have on fraud claims. See Hill v. Florida, 711 So. 2d
1221, 1224 (Fla. Dist. Ct. App. 1998) (“In the absence of clear constitutional or
statutory authority reflecting a change in established law, we do not possess the
authority to disregard controlling precedent of the [Florida Supreme Court].”); see
also Hoffman v. Jones, 280 So. 2d at 434. There is no indication that the Florida
legislature intended to overrule Oceanic Villas by passing the UCC. See also
Tinker v. De Maria Porsche Audi, Inc., 459 So. 2d 487, 491 (Fla. Dist. Ct. App.
1984) (Florida’s UCC “states that the pre-Code law with regard to fraud
supplements the U.C.C. and is not displaced by the Code, unless a particular
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provision specifically provides for such displacement.”) (citing Fla. Stat. §
671.103).
Defendants suggest two alternatives bases on which we might affirm the
district court. First, defendants maintain that they are entitled to summary
judgment because there are no genuine issues of material fact. Specifically,
defendants argue that plaintiff has failed to present “any record evidence of the
required elements of knowledge and intentional deceit.” In fraud cases, however,
summary judgment “is rarely proper as the issue so frequently turns on the axis of
the circumstances surrounding the complete transaction, including circumstantial
evidence of intent and knowledge.” Coastal Investment Properties, Ltd. v. Weber
Holdings, LLC, 930 So. 2d 833, 834 (Fla. Dist. Ct. App. 2006) (quoting Cohen v.
Kravit Estate Buyers, Inc., 843 So. 2d 989, 991 (Fla. Dist. Ct. App. 2003)); see
also Burton, 556 So. 2d at 1129-30 (“Fraud is ordinarily inappropriate for
summary disposition; only after a full explanation of the facts and circumstances
can the occurrence of fraud be determined.”). To establish a claim of fraud in the
inducement under Florida law, a plaintiff must establish that: (1) the representor
made a false statement concerning a material fact; (2) the representor knew or
should have known that the representation was false; (3) the representor intended
to induce another party to act in reliance on the false statement; and (4) the party
acted in justifiable reliance on the representation and was injured as a result.
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Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) (citing Johnson v. Davis, 480 So.
2d 625, 627 (Fla. 1985)). Despite defendants’ protestations that there is no direct
evidence proving intent and knowledge, suffice it to say that the elements of fraud
— particularly including intent and knowledge — may be, and often are, proven by
circumstantial evidence. See, e.g., Bacon & Bacon Mfg. Co. Inc. v. Bonsey
Partners, 62 So. 3d 1285 (Fla Dist. Ct. App. 2011); Century Properties, Inc. v.
Machtinger, 448 So. 2d 570 (Fla. Dist. Ct. App. 1984). Viewed in the light most
favorable to plaintiff, there is sufficient evidence on the elements of fraudulent
inducement for this case to proceed to trial.
Internal emails of the defendants indicate knowledge of the yacht’s very
poor condition, and plaintiff’s representative, Paul Queyrel, and its brokers
testified in depositions that defendants and their representatives made
representations to them during the sales pitch about the condition of the yacht and
specifically that it met international standards, which allegedly proved false after
delivery. In addition, plaintiff alleges that defendants advertised the yacht, both on
the internet and in physical handouts, as being MCA LY2 compliant and built to
DNV standards. Plaintiff’s representative and its brokers also testified that they
discussed these two standards at length with defendants and relied on defendants’
written and oral representations, and that defendants were aware that these
standards were “the selling point” of the sale. Plaintiff claims that these repeated
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representations induced it to purchase the yacht. Plaintiff’s representative and its
brokers further testified that the yacht was represented to be new, not a used
“dealer-demo” as defendants claim, and that when certain problems were
discovered prior to the sale, defendants “represented that Horizon would ‘take care
of’ and fix th[e] problem.”
The CEO of the Seller, Roger Sowerbutts, denied under oath ever making
representations that the yacht was MCA LY2 compliant, denied that defendants
were aware of manufacturing defects and damage to the yacht, and claimed that
defendants believed the yacht to have been built to DNV standards. Mr.
Sowerbutts conceded, however, that defendants’ website incorrectly described the
yacht as MCA LY2 compliant, despite the fact that the yacht “never was inspected
by MCA.” There therefore are genuine issues of material fact and evidence
sufficient to survive summary judgment as to all four elements of the claim of
fraudulent inducement.
Second, defendants argue that the economic loss rule bars plaintiff’s claim
for fraudulent inducement. The “economic loss rule is a judicially created doctrine
that sets forth the circumstances under which a tort action is prohibited if the only
damages suffered are economic losses.” Tiara Condominium Assoc., Inc. v. Marsh
& McLennan Companies, 110 So. 3d 399, 401 (Fla. 2013). The rule was designed
to prevent the application of tort remedies to traditional contract law damages. Id.
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The economic loss rule “has its roots in the products liability arena,” id., and the
Florida Supreme Court recently clarified in Tiara that under Florida law “the
economic loss rule applies only in the products liability context.” Id. at 407. The
Florida Supreme Court thus “recede[d] from [its] prior rulings to the extent that
they [] applied the economic loss rule to cases other than products liability.” Id.;
see also Alpha Data Corp. v. HX5, L.L.C., 139 So. 3d 907, 910 (Fla. Dist. Ct. App.
2013) (citing Tiara and summarily reversing a district court’s decision that the
economic loss rule barred a fraudulent inducement claim).
Although a fraudulent inducement claim still must be independent of a
breach of contract claim, that minimal requirement is readily met here — the fraud
allegations are separate and distinct from defendants’ performance under the
contract. The fraud allegations concern representations about the yacht’s condition
and certain international building standards. The contract contains no statements
about either the international standards or the yacht’s condition. Such claims
therefore could not form the basis of a breach of contract claim. 4
B. Breach of Implied Warranties: Counts III, IV, and VII
The district court granted summary judgment to all three defendants —
Horizon Yachts, Inc., Horizon Yacht Co., Ltd., and Premier Yacht Co., Ltd. — on
4
Because judgment in favor of plaintiff on the fraudulent inducement claim would
“vitiate” the contract, we also reverse the grant of summary judgment to the Seller on its
counterclaim to foreclose on the promissory note.
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plaintiff’s breach of implied warranty claims due to the contract’s express
disclaimer of all implied warranties. Plaintiff argues that Section 2308(a) of the
Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. § 2308(a), prohibits a seller
from disclaiming implied warranties if an express warranty, including a limited
warranty, is given. The district court rejected this argument because “limited
warranties are not governed by MMWA.” Not so.
The Magnuson-Moss Warranty Act does apply to limited warranties. As
relevant, Section 2308(a) provides that:
(a) No supplier may disclaim or modify (except as
provided in subsection (b) of this section) any implied
warranty to a consumer with respect to such consumer
product if . . . such supplier makes any written warranty
to the consumer with respect to such Consumer
Product . . . .”
15 U.S.C. § 2308(a). As Section 2303 of the Act makes clear, the term “written
warranty” encompasses both “full” warranties, written warranties that meet “the
Federal minimum standards for warranty set forth in section 2304 of [the Act],”
and “limited” warranties, written warranties that do not meet the Federal minimum
standards. 15 U.S.C. § 2303(a). By its plain language, Section 2308 prohibits
sellers from disclaiming implied warranties when either a full or a limited warranty
is provided by the seller. Accord Abraham v. Volkswagen of America, Inc., 795
F.2d 238, 248 (2d Cir. 1986) (“Implied warranties . . . may not be disclaimed if a
written warranty, “full” or “limited,” is given, 15 U.S.C. § 2308(a).”); Boelens v.
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Redman Homes, Inc., 748 F.2d 1058, 1063 (5th Cir. 1984) (“Although ‘limited’
warranties are not subject to [the standards of Section 2304], the Act does provide
that the terms of a limited warranty may limit the duration of implied warranties
only to the duration of the written warranty.”) (quoting 15 U.S.C. § 2308). If a
jury concludes that one or all of the defendants issued or agreed to be bound by the
limited written warranty, the disclaimer of implied warranties therefore would be
ineffective to bar plaintiff’s claim. 5
Defendants argue in the alternative that Horizon and Premier are entitled to
summary judgment because they are not in privity of contract with plaintiff, that
only the Seller — Horizon Yachts, Inc. — is. See Kramer v. Piper Aircraft Corp.,
520 So. 2d 37, 38 (Fla. 1988) (Florida law requires privity of contract for a breach
of implied warranty claim). Because, as we discuss infra at 21-25, there is a
genuine issue of material fact regarding who issued the limited express warranty
(Horizon, Premier, Horizon Yachts, or some combination thereof), there also is a
genuine issue of fact regarding privity of contract. Florida courts have found the
5
The district court’s reliance on Bailey v. Monaco Coach Co., 350 F. Supp. 2d 1036,
1042 (N.D. Ga. 2004), to reach the opposite conclusion was misplaced. In Bailey, the Northern
District of Georgia correctly noted that the MMWA distinguishes between full and limited
warranties and that “[o]nly full warranties are required to meet the minimum standards set forth
in 15 U.S.C. § 2304.” 250 F. Supp. 2d at 1042. The court then concluded that “because the law
relating to limited warranties is not expressly modified, limited warranties . . . are not governed
by Magnuson-Moss but by the Uniform Commercial Code” and went on to discuss relevant state
law warranty standards. Id. This overly broad statement is correct as to Section 2304 — the
minimum standards of Section 2304, by definition, apply only to full warranties — but incorrect
as to Section 2308, which, as discussed above, does apply to limited warranties.
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privity requirement to be satisfied when a manufacturer directly provides a
warranty to, or otherwise has direct contact with, a buyer who purchases from a
third party. See ISK Biotech Corp. v. Douberly, 640 So. 2d 85 (Fla. Dist. Ct. App.
1994) (finding privity where manufacturer’s representative told third-party seller
that seller could assure plaintiff that product would not destroy plaintiff’s crop);
Cedars of Lebanon Hosp. Corp. v. European X-Ray Distribs. of America, Inc., 444
So. 2d 1068, 1072 n.4 (Fla. Dist. Ct. App. 1984) (finding privity where
manufacturer’s representative made express warranty through direct contacts with
the purchaser who bought product from third-party distributor).
Here, a jury could find that Horizon and Premier directly issued to plaintiff a
unique limited express warranty that was provided and specifically negotiated as
part of the purchase of the yacht they manufactured. See Cedars of Lebanon, 444
So. 2d at 1072 (“It seems fundamentally unfair, and anomalous in the extreme, to
allow the manufacturer to hide behind the doctrine of privity when the product,
which it induced the purchaser to buy, turns out to be worthless.”). There also is
evidence that the founder and CEO of Horizon and Premier was directly involved
in the negotiation of the purchase and limited warranty, it is undisputed that the
Seller, Horizon Yachts, is an agent of Horizon. HORIZON YACHTS, INC.,
http://www.horizonyachtusa.com (last visited May 2, 2016) (“Horizon Yacht USA
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is the U.S. agent for Horizon Yachts”). 6 Plaintiff therefore might well be able at
trial to establish privity through the agency relationship. See Ocana v. Ford Motor
Co., 992 So. 2d 319, 324-25 (Fla. Dist. Ct. App. 2008) (an agency relationship can
establish the requisite privity).
C. Breach of Express Limited Warranty: Count VIII
The district court granted summary judgment to the Seller, Horizon Yachts,
Inc., on plaintiff’s breach of express warranty claim, but not to Horizon Yacht Co.,
Ltd. or to Premier Yacht Co., Ltd. It held that the Seller did not issue or provide an
express limited warranty to plaintiff. The district court concluded that the
Addendum did not incorporate the limited express warranty into the contract
because: (1) “it would be unreasonable to interpret paragraph ten of the
agreement, indicating both that the [Seller] makes no warranties and sells the yacht
“AS IS,” and to thereafter include a limited warranty by the [Seller];” and (2) the
Purchase Agreement, Addendum, and limited warranty “indicate[] that [Horizon
Yachts] is not part of “Horizon” or “Horizon Group,” the party that issued the
limited warranty.”
We disagree that it would be unreasonable to interpret the Purchase
Agreement, as amended by the Addendum, to include both the limited warranty
and an “as is” clause. The amended “as is” clause specifically demarcates the
6
Horizon Yachts, Inc. also uses the name “Horizon Yacht USA.”
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limited warranty as an exception to the clause. And the Addendum states that
“[t]he Terms of this Acceptance shall govern over any inconsistent terms in the
Purchase Agreement.” Thus, to the extent that the original “as is” clause conflicts
with the Addendum or the added limited warranty, the Addendum and limited
warranty would govern — assuming, of course, that they are a part of the contract
— a question to which we now turn.
A collateral document, such as the limited warranty, is deemed to be
incorporated by reference into a contract if the contract “(1) specifically provide[s]
that it is subject to the incorporated [collateral] document and (2) the collateral
document to be incorporated must be sufficiently described or referred to in the
incorporating agreement so that the intent of the parties may be ascertained.” BGT
Grp., Inc. v. Tradewinds Engine Servs., LLC, 62 So. 3d 1192, 1194 (Fla. Dist. Ct.
App. 2011) (quoting Kantner v. Boutin, 624 So. 2d 779, 781 (Fla. Dist. Ct. App.
1993)). The first requirement mandates that “there must be some expression in the
incorporating document . . . of an intention to be bound by the collateral
document.” Kantner, 624 So. 2d at 781. As to the second requirement, “[i]t is a
generally accepted rule of contract law that, where a writing expressly refers to and
sufficiently describes another document, that other document, or so much of it as is
referred to, is to be interpreted as part of the writing.” Id. (quoting OBS Co. v.
Pace Constr. Corp., 558 So. 2d 404, 406 (Fla. 1990)).
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Viewing the evidence in the light most favorable to the plaintiff, as we must
on summary judgment, we conclude — while it is a very close question — that
there are genuine issues of material fact as to whether the limited warranty was
incorporated into the contract or whether the Seller, Horizon Yachts, otherwise
agreed to be bound by the warranty. Admittedly, the Purchase Agreement and the
warranty appear to differentiate between “Buyer” and “Seller [Horizon Yachts]”
on the one hand, and the “Horizon Group,” on the other, an indication that the
Seller, Horizon Yachts, is not a part of the Horizon Group, as the district court
found. And paragraph 13 of the warranty suggests that it was not the Seller who
issued the warranty and that the Seller did not agree to be bound by it. But this
evidence, while strong, conflicts with three pieces of evidence that in our view
raise genuine issues of material fact for a jury to resolve.
First, the Purchase Agreement, as amended by the Addendum, states that
“[o]ther than the limited express warranty attached here as Exhibit A, Seller and
the brokers have given no warranty, either express or implied . . . .” This
reasonably could be read to mean that the Seller, Horizon Yachts, itself, at least in
part, issued the limited express warranty. The Purchase Agreement, together with
the Addendum, specifically lists the limited warranty and states that it is attached
“as Exhibit A.” Moreover, the limited warranty was listed in the Closing Index,
along with the Purchase Agreement and the Addendum, as a part of the parties’
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agreement. Second, the limited warranty was issued on the Seller’s letterhead, and
it was negotiated alongside the Purchase Agreement and provided to plaintiff by
the Seller prior to the execution of the Purchase Agreement. Finally, a jury also
could reasonably conclude that the Seller is part of the “Horizon Group”
mentioned in the limited warranty — its website states that it is the U.S. agent of
Horizon and the Seller appears to be owned, at least in part, by Horizon’s founder
and CEO.
The Purchase Agreement as a whole thus contains conflicting provisions as
to the Seller’s relationship with the warranty, and it is bolstered by extrinsic
evidence of the Seller’s relationship with the other Horizon entities. While there is
certainly strong evidence against finding that the Seller, Horizon Yachts, Inc.,
agreed to be bound by the limited warranty, we believe that there is also sufficient
evidence in the record to create a genuine issue of material fact entitling the jury
rather than the court to decide that question.
There is one final point to address with respect to the express limited
warranty. As noted, the Purchase Agreement states that it is “attached here as
Exhibit A,” but it was not actually physically attached as an exhibit. Nevertheless,
the limited warranty was negotiated by the parties in conjunction with the Purchase
Agreement, provided to plaintiff well before the agreement was executed, and was
listed in the Closing Index. See Avatar Properties, Inc. v. Greetham, 27 So. 3d
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764, 766 (Fla. Dist. Ct. App. 2010) (where a home warranty was not attached to
any agreement, language that “the warranty was available for examination at [the
seller’s] offices and that upon request the warranty would be attached as an exhibit
to the purchase and sale agreement” was sufficient to satisfy the second
requirement for incorporation by reference). Reading the documents together, a
jury could conclude that the parties intended for the Purchase Agreement,
Addendum, and limited warranty all to be part of the same contract. See Phoenix
Motor Co. v. Desert Diamond Players Club, Inc., 144 So. 3d 694, 697-98 (Fla.
Dist. Ct. App. 2014) (holding that documents “executed as part of the same
transaction” are incorporated when “they indicate the parties’ intent for the
[incorporating document] and the [collateral document] to be part of the same
contract”); see also Collins v. Citrus Nat’l Bank, 641 So. 2d 458, 459 (Fla. Dist.
Ct. App. 1994) (“Where two or more documents are executed by the same parties,
at or near the same time, in the course of the same transaction, and concern the
same subject matter, they will be read and construed together.”).
III. CONCLUSION
For the foregoing reasons, we vacate the district court’s grant of summary
judgment, as to Counts I, III, IV, VII, and VIII and remand for trial, but affirm the
grant of summary judgment as to the remaining claims. We also reverse the
district court’s grant of summary judgment on defendants’ counterclaim.
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AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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