Bill Branch Chevrolet, Inc. v. Burkert, 87-843

• Decision Date: 29 January 1988
• Docket Number: No. 87-843,87-843
• Citation: Bill Branch Chevrolet, Inc. v. Burkert, 521 So.2d 153, 13 Fla. L. Weekly 313 (Fla. App. 1988)
• Parties: 13 Fla. L. Weekly 313 BILL BRANCH CHEVROLET, INC., Appellant, v. Peter C. BURKERT, Appellee.
• Court: Florida District Court of Appeals

Page 153

521 So.2d 153

13 Fla. L. Weekly 313

BILL BRANCH CHEVROLET, INC., Appellant, v. Peter C. BURKERT, Appellee.

No. 87-843.

District Court of Appeal of Florida Second District.

Jan. 29, 1988.

Rehearing Denied March 9, 1988.

Susan E. Trench and Richard M. Goldstein of Goldstein & Tanen, P.A., Miami, for appellant.

Robert L. Donald of Pavese, Garner, Haverfield, Dalton, Harrison & Jensen, Lehigh Acres, for appellee.

PER CURIAM.

Bill Branch Chevrolet, Inc. (Bill Branch) appeals a final judgment in favor of appellee, Peter C. Burkert. We affirm.

For two months during the spring of 1985, Bill Branch engaged in a sales promotion where vacation certificates were given to customers who purchased new vehicles. Burkert purchased a van during the promotion and was provided a certificate entitling him and his wife to a vacation in Acapulco or Puerto Vallarta. When Burkert obtained complete information on the terms and conditions of the vacation, he became dissatisfied with a number of conditions including the requirement that the vacation recipients participate in an interval ownership sales promotional tour. Burkert became increasingly dissatisfied when he applied for the vacation and was advised that the first date available was in November. The time was unacceptable to the Burkerts because their first child was due December 1. Burkert made several complaints but was not satisfied with the efforts Bill Branch made to rectify the situation. As a result, he brought a four count suit alleging that Bill Branch breached its contract with him, violated sections 817.41 (Misleading Advertising) and 817.415 (Florida Free Gift Advertising Law), Florida Statutes (1985), and committed fraud.

At trial, Burkert presented evidence from which the jury could have determined that Bill Branch knew before the sales promotion began that the vacation was part of an interval ownership sales campaign and that there were other restrictions on the vacation which would probably prevent many of its customers from actually taking the vacation. Furthermore, there was evidence from which the jury could have determined that Bill Branch purposely withheld this information from potential customers until after the sale of a vehicle was complete. A jury found Bill Branch liable on all four counts and awarded Burkert $1768 in compensatory damages and $667,000 in punitive damages. Bill Branch's motions for remittitur, new trial, and to interview the jury were denied, and this timely appeal followed.

Although we affirm the final judgment in favor of Burkert in all respects, we believe Bill Branch's contention that the trial court erred in refusing to reduce the punitive damages award merits discussion in view of the large amount of the punitive damages awarded.

Since the degree of punishment to be inflicted on the defendant is peculiarly within the province of the jury, courts will hold punitive damages excessive only in unusual circumstances. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978).

The purposes of punitive damages are served by extracting a sum of money from the defendant which, according to the defendant's financial ability, will hurt but not bankrupt. Hoy v. Poyner, 305 So.2d 306 (Fla. 2d DCA 1974). Bill Branch does not contend that it does not have the financial ability to pay the punitive damages. In fact, the record indicates that Bill Branch grossed approximately $58 million in 1985 and had a profit of $1.4 million during the two months of the vacation promotion. The jury's punitive damages award, therefore, does not warrant reversal on the basis that it will bankrupt the defendant. See Arab Termite & Pest Control v. Jenkins, 409 So.2d 1039 (Fla.1982); Hoy.

In considering the amount of punitive damages awarded to Burkert, this court is aware that Bill Branch may be subject to other lawsuits stemming from the vacation promotion. Evidence of the adverse effects on Bill Branch which would be caused by the award of punitive damages in this and other pending cases was certainly admissible in avoidance or mitigation of punitive...