DePrince v. Starboard Cruise Servs., Inc.

Decision Date08 April 2015
Docket NumberNo. 3D14–1570.,3D14–1570.
Citation163 So.3d 586
PartiesThomas DePRINCE, Appellant, v. STARBOARD CRUISE SERVICES, INC., Appellee.
CourtFlorida District Court of Appeals

Cohen Ruiz P.A., and Mario M. Ruiz, Miami, for appellant.

Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff and Carolina A. Latour, Miami, for appellee.




Thomas DePrince (DePrince) appeals the trial court's order granting summary judgment in favor of Starboard Cruise Services, Inc. (Starboard) on DePrince's claims against Starboard for breach of contract, specific performance, and conversion. Because we find that disputed issues of material fact remain to be resolved on all three counts of DePrince's complaint, we reverse and remand for further proceedings.

Historical Hollywood starlet Mae West once said, “I never worry about diets. The only carrots that interest me are the number of carats in a diamond.” Thus, it appears quite likely that Ms. West would have been interested in the diamond in this case: a twenty carat diamond that Starboard offered to DePrince for a very low sum. As it turns out, the “too good to be true” price of the diamond was just that, and the price conveyed to DePrince was a mistake. Now DePrince wants his twenty carat diamond; Starboard wants out of its sales contract; and Starboard's supplier, who allegedly misquoted the price of the diamond upon which Starboard and DePrince relied, has not even been added as a party to the lawsuit. In short, this is truly a gem of a case.


DePrince embarked on a cruise from Miami in February 2013. During that cruise, DePrince visited an onboard jewelry shop that is wholly owned and operated by Starboard. When DePrince expressed some interest in a large loose diamond1 and specified to the sales manager of the store, Mihai Rusan (“Rusan”), that the stone should be between 15 and 20 carats, Rusan, who had never dealt with a diamond of such magnitude, sent an email inquiry to Starboard's corporate office in Miami (“the Miami Office).

Starboard maintains a consignment agreement with a supplier, Sophia Fiori (“Fiori”),2 that allows Starboard to obtain gemstones and jewelry for sale in its onboard stores. The consignment agreement between Starboard and Fiori specifies, in relevant part:

3. Title to the Consigned Merchandise shall at all times remain with Consignor until the time of its sale to customers of Consignee, whereupon the Consigned Merchandise shall be deemed to have been purchased from Consignor by Consignee.3

Upon receiving the email inquiry from Rusan, the Miami Office relayed the information to Fiori to determine whether Fiori could fill such an order should DePrince decide to purchase a diamond. Fiori responded to the Miami Office via email, informing Starboard that there were two diamonds of that size available. Fiori's email described the diamonds precisely as follows:

1. EMERALD CUT 20.64 carats D VVS2 GIA VG Price $235,000
2. EMERALD CUT 20.73 carats E VVS2 GIA EX EX FNT Price $245,000

The Miami Office relayed this information to Rusan via email exactly as Fiori had typed it. Rusan notified DePrince of the availability of the size of the diamond he was interested in purchasing and the pricing information contained in the email, telling him that the purchase prices for the diamonds were $235,000 and $245,000 respectively.

DePrince told Rusan that he was interested, but that he would like to take some time to think about the purchase. That night, DePrince spoke with his life partner, Vernon Crawford, a certified gemologist who was on the cruise with DePrince, and also DePrince's sister, Carolyn DePrince, who holds the highest available degree in gemology. Both advised DePrince against making the purchase, telling him that the sale price was too good to be true and that the price for a diamond that large should be at least $2 million.

DePrince, however, ignored their advice and opted to complete the transaction. DePrince returned to Starboard's onboard jewelry store and placed a special mail purchase order for the 20.64 carat diamond the next day. Rusan prepared and signed a one-page sales agreement that listed the total price for the diamond at $235,000 plus a $25 shipping charge. DePrince made an initial down payment of $125,000 on the spot and paid the balance ($110,025) the next day. The parties agreed to have the diamond shipped to the Gemological Institute of America laboratory in New York so that a neutral gemologist could verify that the diamond that was shipped was the same one specified in the sales agreement.

Soon after the sale was completed, Starboard learned that Fiori's $235,000 price quote in the email was the per carat price for the diamond rather than the total price for the diamond ($4,850,400), and thus, Starboard had inadvertently contracted to sell the diamond to DePrince for less than 1/20th of the diamond's actual value. Five days after the sales agreement was executed, Starboard contacted DePrince via telephone to explain the situation, stating that the price on the sales agreement was “seriously in error” due to the mix-up in the email. Starboard offered discounted future cruise rates to DePrince to compensate him for the inconvenience, but DePrince demanded that the sale be completed as specified in the sales agreement. Starboard unilaterally reversed the charges on DePrince's credit card to refund him all the money he had paid and then repudiated the sales agreement, informing DePrince that it would not be shipping the diamond as they had originally agreed. These communications were memorialized in an email Starboard sent to DePrince after the phone call. The record does not disclose how Starboard dealt with the cancellation of the sale with regard to Fiori.

Thereafter, DePrince filed a complaint against Starboard alleging counts for specific performance, breach of contract, and conversion. Starboard answered and pleaded the affirmative defense of unilateral mistake, among others, claiming that Rusan had misquoted DePrince the total price of the diamond rather than the per carat price and that DePrince had known about the error the whole time due to his extensive experience with jewelry. Starboard also counterclaimed for a declaratory judgment that the sales agreement was unenforceable and for rescission of the contract.

Starboard moved for summary judgment on the ground that there had clearly been a unilateral mistake in the pricing, and, after hearing argument on that issue, the trial court granted summary judgment against DePrince on all his claims. Specifically, the trial court ruled at the summary judgment hearing:

I don't find that the plaintiff has established that there were any actionable damages and I don't find that there was a valid and enforceable contract for either the breach of contract or the conversion count. Particularly as to conversion, I don't find that the plaintiff or the defendant ever—there's no record evidence that the plaintiff possessed the diamond, as opposed to remaining in the possession of the vendor. I find, quite frankly, that it may be unconscionable to enforce this particular contract.

This appeal followed.


[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). Summary judgment is only appropriate when an examination of the facts in the light most favorable to the non-movant demonstrates that the movant is entitled to judgment as a matter of law.

Fla. R. Civ. P. 1.510(c) ; Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

The trial court granted summary judgment against DePrince on his breach of contract action due to its finding that there had been a unilateral mistake of fact sufficient to rescind the otherwise-enforceable contract, enforcement of the contract would be “unconscionable,” and DePrince had not alleged any actionable damages. On DePrince's claim for specific performance, the trial court found that the diamond was not unique and was therefore not the proper subject of the remedy of specific performance. And as to DePrince's conversion claim, the trial court granted summary judgment in Starboard's favor based on its finding that Starboard never had possession of the diamond.

We do not agree with the trial court that there are no genuine issues of material fact such that Starboard is entitled to judgment as a matter of law on any of these claims. Thus, Starboard was not entitled to summary judgment.

I. Contract Formation and Enforcement

On appeal, Starboard has raised two defenses to the sales agreement's formation and enforcement. First and primarily, Starboard claims that a unilateral mistake of law prevents the contract from being formed. Second, Starboard summarily raised an unconscionability defense in its briefing and then pressed that point more extensively at oral argument. For the reasons that follow, neither of these arguments entitle Starboard to summary judgment on DePrince's breach of contract claim. Moreover, the trial court seemed to make a sua sponte finding that DePrince had not alleged any actionable damages to support his breach of contract claim. That ruling was also in error. We explain each of these theories at length because there appears to be a great deal of misunderstanding in each of these areas.

A. Unilateral Mistake

There are three potentially viable tests to determine whether a contract may be rescinded based on a unilateral mistake of fact: (1) A four-prong test requiring the highest burden of proof for the party seeking to avoid the contract; (2) a two-prong test requiring the lowest burden of proof for the party seeking to avoid the contract; and (3) a 3–prong disjunctive test that provides several more-flexible methods of establishing a unilateral...

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    ...the totality of the circumstances, the parties had a meaningful choice to refuse the contract terms. DePrince v. Starboard Cruise Servs., Inc. , 163 So.3d 586, 595 (Fla. 3d DCA 2015). Substantive unconscionability deals with the reasonableness of those terms. Murphy , 944 So.2d at 1134. Whi......
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    ...rescission prove "the mistake was induced by the party seeking to benefit from the mistake." DePrince v. Starboard Cruise Servs., Inc., 163 So.3d 586, 592 (Fla. 3d DCA 2015) ( DePrince I ); Rachid v. Perez, 26 So.3d 70, 72 (Fla. 3d DCA 2010) ; Lechuga v. Flanigan's Enters., Inc., 533 So.2d ......
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3 books & journal articles
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    • James Publishing Practical Law Books Florida Causes of Action
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    ...IMC Grp., LLC. v. Outar Inv. Co. LLC ., 2022 WL 163835, *2 (Fla. 3d DCA Jan. 19, 2022). 2. DePrince v. Starboard Cruise Services, Inc. , 163 So.3d 586, 597 (Fla. 3d DCA 2015) (explaining that in a breach of contract for the sale of real property, the seller can elect the remedy of specific ......
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    ...defendant must have taken possession of the item the plaintiff has the right to possess. DePrince v. Starboard Cruise Services, Inc. , 163 So.3d 586, 597 (Fla. 3d DCA 2015). Source Orozco v. McCormick 105, LLC , 276 So.3d 932, 935 (Fla. 3d DCA 2019). See Also 1. Transway Airfreight Cargo, I......
  • Two, Three, or Four Prongs? The Contractual Defense of Unilateral Mistake in Florida.
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    • Florida Bar Journal Vol. 95 No. 6, November 2021
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    ...defense depending on the court where an action was filed. This is now clarified in the DePrince v. Starboard Cruise Services, Inc., 163 So. 3d 586 (Fla. 3d DCA 2015) (DePrince I) and DePrince v. Starboard Cruise Services, Inc., 271 So. 3d 11 (Fla. 3d DCA 2018) (en banc) (DePrince II) cases,......

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