Aery v. Wallace Lincoln-Mercury, LLC

• Decision Date: 31 July 2013
• Docket Number: No. 4D12–1615.,4D12–1615.
• Parties: John R. AERY, Appellant, v. WALLACE LINCOLN–MERCURY, LLC d/b/a Maroone Lincoln Mercury of Lake Park, Appellee.
• Court: Florida District Court of Appeals

118 So.3d 904

John R. AERY, Appellant,

v.WALLACE LINCOLN–MERCURY, LLC d/b/a Maroone Lincoln Mercury of Lake Park, Appellee.

No. 4D12–1615.

District Court of Appeal of Florida,

Fourth District.

July 31, 2013.

Marsha L. Lyons and Douglas S. Lyons of Lyons & Farrar, P.A., Tallahassee, for appellant.

Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Richard A. Ivers of Law Office of Richard A. Ivers, Coral Springs, for appellee.

GROSS, J.

John Aery timely appeals a final summary judgment entered in favor of Wallace Lincoln–Mercury, LLC d/b/a Maroone Lincoln Mercury of Lake Park, the defendant below, based upon three grounds: (1) that Aery lacked standing to pursue his claim under Florida's Whistleblower Act since he filed for Chapter 13 bankruptcy while his suit was pending; (2) that Aery was judicially estopped from claiming lost wages since he successfully demonstrated total disability to recover social security disability benefits; and (3) that Aery was otherwise barred from recovering lost wages since he failed to mitigate his damages. We reverse, holding that (1) as a Chapter 13 debtor, Aery retained the power to bring suit on behalf of his estate; (2) judicial estoppel does not preclude recovery of lost wages because Aery raised the factual issue that the retaliatory firing was the cause of his disability; and (3) in the light most favorable to Aery, issues of fact remain as to whether he failed to mitigate his damages.

Factual Background

We state the facts in the light most favorable to Aery, the non-moving party who lost the summary judgment below. See Winn–Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So.2d 261, 262–63 (Fla. 4th DCA 2007).

Beginning on March 11, 2003, Aery worked as the automobile parts manager for Maroone. Aery soon took issue with the conduct of the body shop manager, who had both the access and authority to submit orders for parts. Aery alleged that the body shop manager was engaging in purportedly illegal acts. Specifically, Aery claimed that when a customer would bring an automobile to the body shop for repair, the body shop manager would order new parts from a parts vendor, while also purchasing corresponding, and far cheaper, used parts from a separate dealer. The body shop manager would then install the used part in the customer's car and return the new part to the original vendor for credit. Thereafter, he would send an invoice to the insurance company to receive reimbursement for the amount of the new part.

Aery informed his general manager of the part-switching scheme in May 2003. Later that month, he and the general manager had a sit-down meeting to discuss the issue, during which Aery informed him that such practice “was not only against industry standards” but “against the law.” The general manager assured Aery that he would straighten everything out. However, as the months went by, no action was taken.

For the next several months, Aery continued to report the dishonest practices to the general manager, with no results. Eventually, in September 2003, the general manager met with the body shop manager. After the meeting, the body shop manager made a scene and angrily peeled out of the company's parking lot in his car. However, despite this outburst, the practices continued.

With the issue still lingering, Aery, in late 2003, reported the matter directly to Maroone's corporate headquarters. In response, headquarters attempted to set up a meeting with Aery and his general manager, but the meeting never took place. Aery tried again to bring the issue to headquarters' attention in January 2004, but he was ignored. Eventually, on March 1, 2004, with the part-switching practices continuing, the general manager fired Aery, citing a necessary “reduction in the workforce.” No one else was fired, although several others resigned shortly thereafter.

After his firing, Aery began to suffer bouts of depression. Nevertheless, he entered the job market and eventually found a job as a sales associate at a Ford dealership in May 2004; however, he resigned from that position just three days after starting since “they didn't have it set up properly” and he “couldn't make money the way they had it set up.” Thereafter, in October 2004, Aery landed another job in Leesburg, Florida. By May 2005, he was once again terminated for reasons Aery deemed to be unfair. At age 62, Aery found that, given the unjust nature of his last two firings, he was “unable mentally to continue to look for work.” He eventually applied for, and received, Social Security Disability Benefits.

Procedural Posture

In April 2006, Aery brought suit against Maroone in the circuit court. In July 2007, Aery filed his third amended complaint, in which he alleged one violation of section 448.101–105, Florida Statutes (2005), also known as Florida's Whistleblower Act. As grounds for his complaint, Aery alleged that Maroone fired him for reporting the practices of the body shop manager, which implicated the following statutes:

a. Section 817.413 F.S.—Sale of Used Motor Vehicle Goods as New, a third degree felony;

b. Section 817.29 F.S.—Cheat, also a third degree felony;

c. Section 812.017—Use of a fraudulently obtained or false receipt, a [misdemeanor] of the second degree; and,

d. Section 812.014—Theft, a felony of varying degrees.

As his prayer for relief, Aery tracked the language of Section 448.103(2), and requested, among other things, “[c]ompensation for lost wages, benefits, and other remuneration; and ... [s]uch other and further relief as allowed at law.”

Bankruptcy Proceedings

In December 2007, while the circuit court suit was pending, Aery filed for Chapter 13 bankruptcy. Four months later, the bankruptcy court confirmed Aery's Chapter 13 Plan, which included a Schedule “B” form listing the “[e]mployment lawsuit against AutoNation” ¹ as a “contingent and unliquidated claim[ ]” valued at approximately $249,000.00.

Upon learning of the bankruptcy proceedings, the trial court, on November 6, 2009, conducted a status conference to determine whether Aery's act of filing for bankruptcy divested himself of standing to pursue his wrongful firing claim. After reviewing each party's memorandum, the trial court entered an order finding that Aery was authorized to bring suit on behalf of the bankruptcy estate since a “plaintiff who files for bankruptcy under Chapter 13 maintains standing to pursue pre-petition litigation claims.”

Summary Judgment

Following the completion of discovery, on January 5, 2012, Maroone moved for summary judgment, stating four grounds: (1) that “Aery [wa]s judicially estopped from pursing his damage claim for lost wages by virtue of his contradictory assertions made to the Social Security Administration that he is disabled and unable to work”; (2) that Aery “failed to mitigate his damages” since he had retired and was not seeking “substantially equivalent employment”; (3) that Aery lacked standing to bring his suit “since the claims are property of his bankruptcy estate”; and (4) that Aery failed to state a cause of action since the statutory violations he had listed in his complaint were materially different than the violations asserted in his original complaint. To support its argument as to Aery's entitlement to damages, Maroone relied upon Aery's response to a question during interrogatories, in which he indicated that he “fe[lt] that if he got his job back he would be able to work at Autonation.”

In a responsive memorandum, Aery claimed, based upon the trial court's previous decision, that he maintained standing to pursue his suit individually since he had filed for bankruptcy under Chapter 13, as opposed to Chapter 7. Concerning his claim for damages, Aery said that he was entitled to lost wages and other compensatory damages since he had acted with due diligence to attain equal employment, but such efforts were stunted by the total disability brought about by his firing. To support the notion that his unlawful firing was the cause of his disability, Aery relied in part on the following snippets from his deposition testimony:

Q. Okay. And is it your position that you've been totally disabled and unable to work since May 2005?

A. Yes.

Q. And why do you believe you've been unable to work since May of 2005?

A. Well, I suffer from PTSD from an injury in the military and I've worked through it all my years without it affecting my ability to work or perform at all. But after what happened to me in the last two jobs, it increased my—they call it stress, you know, level and depression. So that's what that caused. And after that, I—I just had a hard time—it would be hard for me to try to go in and try to get a job. I—I'm just not mentally there. And—and, of course, I—I—for the last almost two years now, I've been laid up with three major surgeries on my stomach, so that—that's chilled me for the last two years from doing anything.

...

Q. And it was only after you were terminated from [Maroone] that you became unable to work?

A. Yeah, I just—I chose not to work anymore. I just didn't have it in me anymore.

Trial Court's Order

Following a hearing, the trial court entered an order granting summary judgment in favor of Maroone upon several grounds. First, relying upon the doctrines of judicial estoppel and failure to mitigate damages, the court ruled that Aery was precluded from recovering the lost wages that had accrued since May 26, 2005, because, on that date, Aery had “successfully asserted before the Social Security Administration that he has been unable to work,” and he had otherwise retired and not sought further employment. In addition, the trial court found that Aery lacked standing to bring his suit altogether since his “wrongful discharge claim [wa]s property of the bankruptcy estate,” subject to the exclusive control of the bankruptcy trustee.

With the trial court's finding on the standing issue effectively bringing litigation to a close, Aery moved for...