Foliage Forest v. E.I. DuPont

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
FILED
No. 97-5696 U.S. COURT OF APPEALS
________________________________ ELEVENTH CIRCUIT
04/19/99
D.C. Docket No. 97-59-CV-JAL THOMAS K. KAHN
CLERK
FOLIAGE FOREST, INC., a Florida Corporation,
Plaintiff-Appellant,
versus
E.I. DUPONT DE NEMOURS AND COMPANY,
a Delaware Corporation d.b.a Dupont, CRAWFORD
& COMPANY, a Georgia Corporation,
Defendants-Appellees.
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________________________________
No. 97-5697
_________________________________
D.C. Docket No. 97-60-CV-JAL
COUNTRY JOE’S NURSERY, INC.,
Plaintiff-Appellant,
versus
E.I. DUPONT DE NEMOURS AND COMPANY,
a Delaware Corporation d.b.a. Dupont,
CRAWFORD & COMPANY,
Defendants-Appellees.
_____________________________
No. 97-5698
______________________________
D.C. Docket No. 97-61-CV-JAL
CASTLETON GARDENS, INC., a Florida
Corporation,
Plaintiff-Appellant,
versus
E.I. DUPONT DE NEMOURS AND COMPANY,
a Delaware Corporation d.b.a. Dupont, CRAWFORD
& COMPANY, a Georgia Corporation,
Defendants-Appellees.
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___________________________
No. 97-5699
____________________________
D.C. Docket No. 97-64-CV-JAL
PALM BEACH GREENERY, INC., a
Florida Corporation,
Plaintiff-Appellant,
versus
E.I. DUPONT DE NEMOURS AND COMPANY,
a Delaware Corporation d.b.a. Dupont, CRAWFORD
& COMPANY, a Georgia Corporation,
Defendants-Appellees.
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_______________________________
No. 97-5700
________________________________
D.C. Docket No. 97-65-CV-JAL
MORNINGSTAR NURSERY, INC., a
Florida Corporation,
Plaintiff-Appellant,
versus
E.I. DUPONT DE NEMOURS AND COMPANY,
a Delaware Corporation d.b.a. Dupont, CRAWFORD
& COMPANY, Georgia Corporation,
Defendants-Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________________________________________________
(April 19, 1999)
Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit
Judge.
PER CURIAM:
These consolidated cases present similar issues that a panel of this court confronted in
Mazzoni Farms, Inc. v. E.I. Dupont De Nemours & Co., 166 F.3d 1162 (11th Cir. 1999). The
principal issue is whether a release in a settlement agreement bars a claim that appellee E.I.
Dupont De Nemours (Dupont) fraudulently induced appellants to settle. As an initial matter,
however, we must decide whether a choice-of-law provision in the settlement agreements that
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appellants Foliage Forest and Castleton Gardens executed applies to the fraudulent inducement
claim. The Mazzoni Farms court certified questions to the Florida Supreme Court regarding the
choice-of-law provision and, if the Florida Supreme Court decided that Florida law applies, it
also certified the merits question. We consolidate these cases with Mazzoni Farms and certify
questions to the Florida Supreme Court. As we have nothing to add to the discussion presented
in Mazzoni Farms, we provide a brief set of facts concerning the parties in the case at bar.
FACTS
Appellants are commercial plant nurseries who alleged that Dupont’s Benlate fungicide
damaged their plants. Foliage Forest and Castleton Gardens entered into a settlement agreement
in May 1994, which provided:
1. In consideration of Du Pont’s payment of the amount set forth . . . Grower
hereby releases Du Pont, et al., from any and all causes of action, claims,
demands, actions, obligations, damages, or liability, whether known or unknown,
that Grower ever had, now has, or may hereafter have against Du Pont, et al., by
reason of any fact of matter whatsoever, existing, or occurring at any time up to
and including the date this Release is signed, including the claim presently being
asserted.
....
3. Grower covenants that Grower will not commence, prosecute, or permit to be
commenced or prosecuted against Du Pont, et al., any action or other proceedings
based upon or in any way related to any causes of action, claims, demands,
actions, obligations, damages, or liabilities which are the subject of this Release.
....
14. This release shall be governed and construed in accordance with the laws of
the State of Delaware without giving effect to the conflict of laws or choice of law
provisions thereof.
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Appellants Country Joe’s Nursery, Palm Beach Greenery and Morningstar Nursery, however,
executed settlement agreements that did not contain the Delaware choice-of-law provision that
stated:
Undersigned . . . does acknowledge and agree . . . to release, acquit and forever
discharge E.I. Du Pont de NeMours and Company (Du Pont) . . . from any and all
claims, actions, causes of action, including consequential damages, demands,
rights, damages, costs, losses, and any other liability or expense of whatsoever
kind, which the undersigned or said firm has or may or shall have by reason of the
use of or application of DU PONT BENOMYL products . . . .
After entering into this settlement agreement, appellants learned through similar lawsuits
involving Dupont and Benlate that Dupont allegedly knew that Benlate had the propensity to
destroy plants before the parties executed the settlement agreement. Appellants thereafter sued
Dupont in Florida state court, alleging that Dupont fraudulently induced them to settle and
claiming that they relied upon Dupont’s representations “that DUPONT did not have any
evidence that Benlate was capable of causing the damage that Plaintiff alleged and that
DUPONT had conducted extensive testing which confirmed that Benlate was not contaminated
and would not cause the conditions that Plaintiff was experiencing” in the settlement of their
claims. Dupont removed these cases to the federal district court on the basis of diversity of
citizenship and then moved for dismissal.
The district court, relying upon Florida law, dismissed appellants claims, stating that the
releases in the settlement agreement barred appellants’ claims. The district court held that
Florida law requires a party bringing a fraudulent inducement claim to choose between an
equitable or legal remedy. The district court further held that because appellants elected the
legal remedy for damages instead of the equitable remedy of recission (which would have
required appellants to tender back the settlement proceeds), appellants ratified the settlement
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agreement which released all claims against Dupont and therefore barred the action. Appellants
sought leave to amend their complaints to include a claim for recission, and the district court
ruled that their right of appeal had terminated pursuant to Federal Rule of Civil Procedure 15(a)
because the district court’s dismissal was with prejudice.
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO
SECTION 25.031, FLORIDA STATUTES, AND RULE 9.150, FLORIDA RULES OF
APPELLATE PROCEDURE.
TO THE SUPREME COURT OF FLORIDA AND THE HONORABLE
JUSTICES THEREOF:
The United States Court of Appeals for the Eleventh Circuit concludes that these cases
involve determinative questions of state law for which no clear, controlling precedents in the
decisions of the Supreme Court of Florida appear to exist. A panel of this court in Mazzoni
Farms, Inc. v. E.I. Dupont Denemours & Co., 166 F.3d 1162 (11th Cir. 1999), confronted these
issues and certified questions to the Supreme Court of Florida. This court therefore consolidates
these cases with Mazzoni Farms and certifies these questions to the Supreme Court of Florida for
instructions based upon the facts of these cases.
Style of the cases: (1) Foliage Forest, Inc., a Florida corporation, Plaintiff/Appellant, v.
E.I .Dupont De Nemours & Co., a Delaware corporation, d.b.a. Dupont, and Crawford & Co., a
Georgia corporation, Defendants/Appellees, Case No. 97-5696; (2) Country Joe’s Nursery, Inc.,
a Florida corporation, Plaintiff/Appellant, v. E.I. Dupont De Nemours & Co., a Delaware
corporation, d.b.a. Dupont, and Crawford & Co., Defendants/Appellees, No. 97-5697; Castleton
Gardens, Inc., a Florida corporation, Plaintiff/Appellant, v. E.I. Dupont De Nemours & Co., a
Delaware corporation, d.b.a. Dupont, and Crawford & Co., Defendants/Appellees, No. 97-5698;
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(3); (4) Palm Beach Greenery, Inc., a Florida corporation, Plaintiff/Appellant, v. E.I. Dupont De
Nemours & Co., a Delaware corporation, d.b.a. Dupont, and Crawford & Co.,
Defendants/Appellees, No. 97-5699; and (5) Morningstar Nursery, Inc., a Florida corporation,
Plaintiff/Appellant, v. E.I. Dupont De Nemours & Co., a Delaware corporation, d.b.a. Dupont,
and Crawford & Co., Defendants/Appellees, No. 97-5700.
Movant: Dupont is the movant for purposes of the choice-of-law question,
plaintiffs/appellants are the movants for purposes of the substantive question. See Fla. R. App.
P. 9.150(d).
Statement of Facts: We incorporate our statement of facts.
Questions to be Certified to the Supreme Court of Florida:
(1) DOES A CHOICE-OF-LAW PROVISION IN A SETTLEMENT
AGREEMENT CONTROL THE DISPOSITION OF A CLAIM THAT
THE AGREEMENT WAS FRAUDULENTLY PROCURED, EVEN IF
THERE IS NO ALLEGATION THAT THE CHOICE-OF-LAW
PROVISION ITSELF WAS FRAUDULENTLY PROCURED?
(2) UNDER FLORIDA LAW, DOES THE RELEASE IN THESE SETTLEMENT
AGREEMENTS BAR PLAINTIFFS’ FRAUDULENT INDUCEMENT
CLAIMS?
As usual, our sterile phrasing of the issues need not preclude the Florida Supreme Court
from inquiring into the specifics of these cases. See Dorse v. Armstrong World Ind., Inc., 798
F.2d 1372, 1377-78 (11th Cir. 1986). We direct the clerk to send the entire record of these cases
with this certificate.
QUESTIONS CERTIFIED.
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