KIA MOTORS AMERICA, INC. v. KHRISTOPHER DOUGHTY & KATARZYNA DZIEWIECIEN , 242 So. 3d 1172 ( 2018 )


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  •                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    KIA MOTORS AMERICA, INC.,                    )
    )
    Appellant,                      )
    )
    v.                                           )        Case No. 2D16-3861
    )
    KHRISTOPHER DOUGHTY and                      )
    KATARZYNA DZIEWIECIEN,                       )
    )
    Appellees.                      )
    )
    Opinion filed March 14, 2018.
    Appeal from the Circuit Court for Pinellas
    County; Bruce Boyer, Judge.
    Brooks C. Rathet of Bromagen & Rathet,
    P.A., Tampa, for Appellant.
    Jeanne M. Cremeens of The Law Office
    of Patrick J. Cremeens, P.L., Tampa, for
    Appellees.
    SALARIO, Judge.
    In this action for breach of a motor vehicle warranty, Kia Motors America,
    Inc. appeals from a final judgment after a jury trial awarding $15,000 in damages to
    Khristopher Doughty and Katarzyna Dziewiecien. We affirm without comment in all
    respects but one. We agree with Kia that the evidence produced by Mr. Doughty and
    Ms. Dziewiecien was legally insufficient to establish the amount of their damages. We
    reverse the damages portion of the judgment and remand for entry of a judgment
    awarding nominal damages.
    The evidence at trial, which consisted of the testimony of Mr. Doughty and
    some documents introduced during that testimony, was sufficient to establish the
    following. In April 2013, Mr. Doughty and Ms. Dziewiecien bought a new 2012 Kia
    Optima hybrid from a dealership in Pennsylvania. The purchase price of the car was
    $25,676.50. After factoring in rebates, Mr. Doughty and Ms. Dziewiecien paid $21,867.
    They received a written limited warranty from Kia. In substance, the warranty provided
    that if the car failed to work correctly when it was being used normally, Kia would have
    an authorized Kia dealer fix the car. The repairs would be paid for by Kia. The warranty
    was good for six years or sixty thousand miles, whichever came first.
    Mr. Doughty and Ms. Dziewiecien began having problems with the car in
    early to mid-2014. The car's "check engine light" was on, the car displayed a message
    reading "hybrid system failure" and alerted the driver to pull over and not drive, the
    transmission was making a grinding noise, and the car was losing power. At that time,
    Mr. Doughty, who serves in the Air Force, was stationed at a base in North Dakota. He
    contacted Kia and took the car to the dealership as instructed. After a first attempt at
    repair did not fix the problem, he returned to the dealership, which again attempted to
    repair the car and then gave it back to him.
    The car was not fixed. While Mr. Doughty and Ms. Dziewiecien were
    traveling in the car with their family, they heard a loud sound, the car's wheels locked
    up, and the vehicle skidded off to the side of the road. Kia had the car towed to a
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    different dealership, which replaced the engine and returned the car two months later.
    Not too long thereafter, there was another incident in which the car made a loud sound,
    the wheels locked up, and the car skidded off to the side of the road.
    Mr. Doughty returned the car to the dealership. It remained there for a
    year, unrepaired. Mr. Doughty had the car towed to Florida, where Mr. Doughty and
    Ms. Dziewiecien were then living and where the car remained parked. Mr. Doughty
    went to a Kia dealership to trade the car for another one of the same year, make, and
    model. The dealership would not accept the trade. He also attempted to sell the
    vehicle privately for $5000, but he was unable to do so.
    Mr. Doughty and Ms. Dziewiecien commenced this action against Kia.
    The operative complaint asserted a single count for breach of express warranty
    pursuant to 15 U.S.C. § 2310(d)(1) (2014), a provision of the Magnuson-Moss Warranty
    Act, 15 U.S.C. §§ 2301-2312. Mr. Doughty and Ms. Dziewiecien alleged that the car's
    problems were the result of defects in manufacturing workmanship or materials and that
    Kia had failed to repair the vehicle as required by the warranty.
    The case proceeded to a jury trial, where Mr. Doughty and Ms.
    Dziewiecien sought damages for the diminished value of their defective car as well as
    incidental and consequential damages. Kia made motions for directed verdict arguing,
    among other things, that Mr. Doughty and Ms. Dziewiecien failed to present legally
    sufficient evidence of diminished-value damages. The trial court denied that motion,
    and the jury returned a verdict in favor of Mr. Doughty and Ms. Dziewiecien. In answers
    to special interrogatories on the verdict form, the jury found that they had diminished-
    value damages of $15,000 and had not suffered any incidental or consequential
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    damages at all. Kia renewed its motion for directed verdict. The trial court denied the
    motion and entered judgment in accord with the jury's verdict.
    On appeal, Kia asserts that the trial court should have granted it a directed
    verdict because the evidence was insufficient as a matter of law to establish damages.
    We review the denial of a motion for directed verdict de novo. Fell v. Carlin, 
    6 So. 3d 119
    , 120 (Fla. 2d DCA 2009). We take the trial evidence and every reasonable
    inference from that evidence in the manner most favorable to Mr. Doughty and Ms.
    Dziewiecien, as the nonmoving parties. Sims v. Cristinzio, 
    898 So. 2d 1004
    , 1005 (Fla.
    2d DCA 2005).
    The Magnuson-Moss Warranty Act "creates a federal private cause of
    action for consumers damaged by the failure of a warrantor to comply with any
    obligation under a written warranty." Ocana v. Ford Motor Co., 
    992 So. 2d 319
    , 323
    (Fla. 3d DCA 2008) (citing 15 U.S.C. § 2310(d)(1)). Because the Act is "virtually silent"
    when it comes to regulating limited express warranties—the type of warranty involved in
    this case—the contours of the cause of action granted by the federal statute are
    generally defined by state law. Id.; see also Mesa v. BMW of N. Am., LLC, 
    904 So. 2d 450
    , 455 (Fla. 3d DCA 2005) ("With regard to warranties on consumer products, [the
    Act] modifies the applicability and operation of the UCC and, to the extent applicable,
    supersedes inconsistent provisions of the UCC."). The parties to this case agree that
    Florida law governs the cause of action Mr. Doughty and Ms. Dziewiecien have alleged,
    including the requirements applicable to a claimant's proof of damages.1
    1Accordingly, we need not and do not consider whether the law of some
    other jurisdiction—such as Pennsylvania, where the car was purchased, or North
    Dakota, where it was taken for repairs—has any bearing on the case.
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    Under Florida law, a claimant in an action for breach of warranty may
    recover damages for the diminished value of the warranted goods as well as incidental
    and consequential damages resulting from the breach. See § 672.714(2), (3), Fla. Stat.
    (2014); Bill Branch Chevrolet, Inc. v. Redmond, 
    378 So. 2d 319
    , 320 (Fla. 2d DCA
    1980). These were the types of damages Mr. Doughty and Ms. Dziewiecien requested.
    They have not cross-appealed the judgment and thus have accepted, at least so far as
    this appeal is concerned, the jury's finding that they had no incidental or consequential
    damages. The only question for us with respect to damages, then, is whether the
    evidence was sufficient to establish the diminished-value damages that Mr. Doughty
    and Ms. Dziewiecien sought.
    With respect to that issue, section 672.714(2) provides as follows:
    The measure of damages for breach of warranty is the
    difference at the time and place of acceptance between the
    value of the goods accepted and the value they would have
    had if they had been as warranted, unless special
    circumstances show proximate damages of a different
    amount.
    Loosely stated, this statute required Mr. Doughty and Ms. Dziewiecien to establish two
    variables to prove their diminished-value damages: (1) the value of the car at the time
    and place of acceptance if the car had been as warranted and (2) the value of the car
    they actually got at the time and place of acceptance. See, e.g., Carter Hawley Hale
    Stores, Inc. v. Conley, 
    372 So. 2d 965
    , 969 (Fla. 3d DCA 1979) (holding, in case where
    jeweler warranted diamond of color grade D and sold diamond of color grade E, that
    damages were the difference in value between a grade D and E diamond at the time
    and place of sale); Johnson v. Thor Motor Coach, Inc., No. 5:15-cv-85-Oc-PRL, 
    2016 WL 8939134
    , at *5 (M.D. Fla. Aug. 1, 2016) (describing, in a case involving a
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    recreational vehicle, that diminished-value damages were "the difference between the
    purchase price of a non-defective RV on [the purchase date], less the value of a
    defective RV [on that date]").
    Here, the parties agree that by proving the price they paid for the car, Mr.
    Doughty and Ms. Dziewiecien presented sufficient evidence of the first variable—the
    value of the car as warranted at the time and place of acceptance. Kia argues,
    however, that there was no evidence to establish the value of the car they received at
    the time and place of acceptance. We agree. Although the evidence was sufficient to
    permit the jury to conclude that there were defects in the car that made it less valuable,
    there was no evidence that would have enabled the jury to determine the actual value of
    that defective car at the time and place of sale. Mr. Doughty's testimony and the
    exhibits introduced through him did not explain what the defects to which Mr. Doughty
    testified, defects that did not begin to manifest themselves until nearly a year after the
    car was purchased, would have meant for the amount of the car's value at the time and
    place it was sold. Mr. Doughty and Ms. Dziewiecien did not present an expert witness
    to testify as to that subject.2 And there is nothing else in the trial evidence upon which
    2We    express no opinion on whether Mr. Doughty himself could have
    testified as to the value of his car with the defect under the general principle that an
    owner of property is generally qualified to testify as to the value of that property. See,
    e.g., Johnson v. Thor Motor Coach, Inc., No. 5:15-cv-85-Oc-30PRL, 
    2016 WL 1182792
    ,
    at *6 (M.D. Fla. Mar. 28, 2016) (relying on the principle that owners could testify as to
    value of allegedly defective recreational vehicle). Mr. Doughty was never asked his
    opinion as to the value of the car in its defective condition, and there is thus no record
    that would permit us to affirm on this basis. See Canon v. Fournier, 
    57 So. 3d 875
    , 882
    (Fla. 2d DCA 2011) (explaining that a tipsy-coachman ground for affirmance must be
    based on facts in the record). Although Mr. Doughty was asked about research he may
    have conducted into his car's value, an objection to that testimony was sustained. Mr.
    Doughty was given an opportunity to proffer testimony on that or any related subject,
    but he did not avail himself of that opportunity. See § 90.104(1)(b), Fla. Stat. (2016)
    -6-
    the jury could have hung its collective hat in determining what the diminished value of
    the car was. Mr. Doughty and Ms. Dziewiecien thus failed to present evidence that was
    legally sufficient to establish the value of the car they received from Kia at the time and
    place they received it. See Bill Branch 
    Chevrolet, 378 So. 2d at 321
    (reversing award of
    damages where "[a]ppellee submitted no evidence to show the difference in value
    between the goods as accepted and as warranted"); Johnson, 
    2016 WL 8939134
    at *5-
    6.
    Mr. Doughty and Ms. Dziewiecien argue that the fact that they could not
    trade the car in for another car of the same make and model and that they could not sell
    it privately was evidence of their diminished-value damages. To the extent these facts
    say anything about the value of their car, however, they say only that at some point
    more than two years after they purchased their car, a dealership did not want to give Mr.
    Doughty a new car in exchange for it and that whatever undisclosed group of potential
    buyers Mr. Doughty was able to reach did not want the car for $5000. It is notable that
    the $15,000 verdict here does not appear to bear any relationship whatsoever to these
    facts. More importantly, neither of those facts would permit a jury to determine what the
    value of the car was at the time and place Mr. Doughty and Ms. Dziewiecien received it
    from Kia. Cf. Powers v. Lazy Days' R.V. Ctr., Inc., No. 8:05-cv-1542-T-17-EAJ, 2007
    (discussing the proffer of evidence "[w]hen the ruling is one excluding evidence" for the
    purposes of reviewing an error, setting aside or reversing a judgment, or granting a new
    trial); see also Blackwood v. State, 
    777 So. 2d 399
    , 410-11 (Fla. 2000) (discussing why
    the proffer of excluded evidence is usually necessary for appellate review of the issue);
    Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 
    118 So. 3d 867
    , 869 n.3 (Fla. 3d
    DCA 2013) (noting that the lack of a proffer where such a proffer was not prevented by
    the trial court was also significant to an appellate court's determination of whether the
    issue was reviewable).
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    WL 1064215, at *2 (M.D. Fla. Apr. 4, 2007) (stating that a claimant's "conclusions
    regarding value do not reflect the value in fact of" a defective vehicle). Any conclusion
    about value at the time and place of acceptance that a jury might draw from these facts
    would be nothing but speculation, which is an impermissible basis for an award of
    damages. See Swindell v. Crowson, 
    712 So. 2d 1162
    , 1164 (Fla. 2d DCA 1998)
    ("Damages cannot be based on speculation, conjecture or guesswork.").
    We do not today hold that expert testimony—or any particular type of
    evidence, for that matter—is necessary to establish the value of a warranted good at the
    time and place of acceptance. We hold only that in this case, Mr. Doughty and Ms.
    Dziewiecien failed to produce any evidence to prove that value. Thus, although the
    evidence was sufficient to establish that their car was worth less than it would have
    been had it been delivered as warranted, it was insufficient to prove the amount of that
    diminution in value. Accordingly, although we affirm the judgment insofar as it found a
    breach of warranty, we reverse the damages finding and remand the case with
    instructions to enter a judgment in favor of Mr. Doughty and Ms. Dziewiecien for
    nominal damages. See Rooney v. Skeet'r Beat'r of Sw. Fla., Inc., 
    898 So. 2d 968
    , 970
    (Fla. 2d DCA 2005) ("Because the damages could not be determined with any degree of
    certainty on the evidence presented, we reverse the compensatory damage award and
    remand with directions that judgment be entered . . . for nominal damages." (citations
    omitted)); Abstract Co. of Sarasota v. Roberts, 
    144 So. 2d 3
    , 5 (Fla. 2d DCA 1962)
    (holding that a complaint for breach of warranty is sufficient to sustain an award of
    nominal damages).
    Affirmed in part; reversed in part; remanded with instructions.
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    LaROSE, C.J., and SLEET, J., Concur.
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