Kearns v. Farmer Acquisition Co.

• Decision Date: 11 February 2015
• Docket Number: No. 2D12–6388.,2D12–6388.
• Citation: 157 So.3d 458
• Parties: Sean KEARNS, Appellant, v. FARMER ACQUISITION COMPANY d/b/a Charlotte Honda, Appellee.
• Court: Florida District Court of Appeals

157 So.3d 458

Sean KEARNS, Appellant
v.
FARMER ACQUISITION COMPANY d/b/a Charlotte Honda, Appellee.

No. 2D12–6388.

District Court of Appeal of Florida, Second District.

Feb. 11, 2015.

157 So.3d 460

Mark F. Kelly and Robert F. McKee of Kelly & McKee, P.A., Tampa, for Appellant.

Lisa Griffin Hodgdon of Broad and Cassel, Tampa, and Ginger Barry Boyd of Broad and Cassel, Destin, for Appellee.

Opinion

SILBERMAN, Judge.

Sean Kearns sued Farmer Acquisition Company d/b/a Charlotte Honda (Charlotte Honda or the Employer), asserting a claim under sections 448.101 to 448.105, Florida Statutes (2009), also known as Florida's private sector Whistleblower's Act (the FWA). He now appeals the trial court's order granting a directed verdict together with the final judgment in favor of Charlotte Honda and the order denying his motion for new trial. The trial court directed a verdict on the basis that Kearns failed to prove elements one and three of his claim. Because the evidence on elements one and three of Kearns' claim was sufficient to go to the jury, we reverse and remand for a new trial. Specifically, we reverse the trial court's ruling on element one that Kearns failed to prove that what he objected to or refused to participate in was an actual violation of law by the Employer and the ruling on element three that Kearns failed to establish a causal link between his statutorily protected activity and the adverse employment action.

Charlotte Honda hired Kearns as a web administrator in 2006. Kearns cross-trained in 2008 to work in other areas of the dealership, including sales and finance. At trial, Kearns testified that he informed Charlotte Honda that he objected to participating in a practice known as power booking. He explained that in power booking the dealership makes a fraudulent representation to a bank regarding the optional features on a car being sold that are not actually on the car. He explained that by representing to the bank that the car had extra features—such as custom wheels, a sunroof, leather seats, etc.—the bank would conclude that the car being sold was of a higher value than it actually was. This higher value would induce the bank to loan the purchaser of the vehicle a higher dollar amount than it would have

157 So.3d 461

loaned had the truth been told. The dealership engaged in this practice to ensure that the purchaser would have the financial ability to proceed with the purchase, thus creating profit for the dealership.

Kearns testified that on one specific occasion he drove one of the dealership's cars home for the evening. The next day, a salesman brought in the paperwork prepared for the sale of that same automobile. In reviewing the paperwork that was to be sent to the bank to obtain financing for the customer, Kearns noted that the options listed for the vehicle were, to his personal knowledge, features not included on that car.

In addition, he testified that the purchaser's occupation was listed on the application as a nurse. Based on his own personal experience, he questioned the salary the applicant had listed. When he asked the customer if she could prove her income, “she said no. That's what they put on there.” The inaccuracies in this application led Kearns to tell the dealership manager, Gene Chavez, that he would not participate in this transaction because it was fraudulent. Kearns specifically testified that Chavez responded, “You will deliver it. I'm tired of your attitude.” Kearns also testified that Chavez then took him to the office of Mike McDonald, where Chavez reiterated to McDonald and Kearns that Chavez was the boss and that they were to deliver cars in the way he structured the sales. However, even with this admonition, Kearns refused to finish the transaction. He was not aware of how the transaction was concluded.

At trial, McDonald also described power booking and testified that Chavez asked him and Kearns to use this scheme to assist in sales. McDonald verified the conversation between Chavez and Kearns that occurred in McDonald's office.

In February 2009, Kearns made general complaints to Del Farmer, the director of dealer operations who was based in Kentucky, that Charlotte Honda was not inspecting the cars that it sold. Del Farmer's father, Tracy Farmer, is the owner of Charlotte Honda. In August 2009, Kearns again contacted Del Farmer and complained, saying he had a list of issues. Farmer suggested that the conversation should include Joe Marshall, the vice-president of operations for the dealership's parent corporation. When Kearns began to explain to Marshall and Farmer his concerns about fraud, banking fraud, and warranty fraud, Marshall stated that Kearns should be talking to Jean Brown, the attorney for the parent corporation.

Later that day, Brown called Kearns and discussed the misleading paperwork being provided to the banks. She advised that this was of concern to her and that she would call him back. When she did call, she indicated that she would travel from the parent company's location in Kentucky to Florida to meet with him.

Brown traveled to Florida accompanied by the corporate comptroller, Tracy Stefanik. They met with Kearns at a restaurant on September 8, 2009, and he reported the power booking transactions and the artificial inflation of income for a prospective buyer who was seeking financing, along with other questionable activities. Kearns testified that the meeting “became a little contentious” and that when he began to mention things Brown responded that “it's not a part of your job description.” However, Kearns was also advised that Brown and Stefanik would follow up on his complaints by reviewing the dealership's files. After the meal, they agreed to meet back at the dealership, but Brown and Stefanik told Kearns to “keep it quiet” and not tell anyone at the dealership about the investigation.

157 So.3d 462

Later that afternoon, Brown and Stefanik met with Kearns in his office. Brown reported that their review of the files did not reflect the activities of which he complained. She asked him to provide the VIN number of at least one vehicle that was involved in a fraudulent transaction. Kearns replied that he did not have a VIN number but that if they would go with him to the file room, he could locate files that he had earlier marked as suspect transactions. Kearns advised that he had marked twenty-five to thirty such files. In the alternative, he offered to go to the file room and photograph the documents with the camera on his phone. Brown declined Kearns' offers, suggesting that she wanted to keep the investigation quiet.

The next day, upon arriving at work at 8:20 a.m., Gene Chavez told Kearns that John Hamill, the dealership's general manager, wanted to see him. When he arrived at the meeting, there were four other persons present besides Hamill. Hamill announced that Kearns' services were no longer needed at the dealership, and Kearns was immediately escorted off the premises. At trial, Hamill testified that he had been instructed by Tracy Farmer, the owner of the parent corporation, to “fire his ass now.” Hamill further indicated that Farmer had referred to Kearns as a “troublemaker.”

In February 2010, Kearns filed his complaint against Charlotte Honda that asserted a claim under the FWA. He alleged that he was fired because he objected to or refused to participate in violations of law regarding power booking and fraudulent warranty activity. The case went to trial, and at the conclusion of Kearns' case the trial court directed a verdict in favor of Charlotte Honda.

Kearns argues, and we agree, that the trial court erred in granting Charlotte Honda's motion for directed verdict.

A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor [of] the nonmoving party. If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.

GEICO Gen. Ins. Co. v. Hoy, 136 So.3d 647, 651 (Fla. 2d DCA 2013) (quoting Sims v. Cristinzio, 898 So.2d 1004, 1005 (Fla. 2d DCA 2005) ).

In making his claim under the FWA, Kearns proceeded under section 448.102(3), which provides that “[a]n employer may not take any retaliatory personnel action against an employee because the employee has ... [o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” A claim under section 448.102(3) requires the plaintiff to prove “(1) [ ]he engaged in statutorily protected expression; (2)[ ]he suffered an adverse employment action; and (3) the adverse employment action was causally linked to the statutorily protected activity.” White v. Purdue Pharma, Inc., 369 F.Supp.2d 1335, 1336 (M.D.Fla.2005). In granting Charlotte Honda's motion for directed verdict, the trial court concluded that Kearns failed to present...