Foliage Forest, Inc. v. E.I. Dupont De Nemours and Co., s. 97-5696

• Decision Date: 19 April 1999
• Docket Number: Nos. 97-5696,s. 97-5696
• Citation: 172 F.3d 1284
• Parties: 12 Fla. L. Weekly Fed. C 745 FOLIAGE FOREST, INC., a Florida Corporation, Plaintiff-Appellant, v. E.I. DUPONT DE NEMOURS AND COMPANY, a Delaware Corporation d.b.a Dupont, Crawford & Company, a Georgia Corporation, Defendants-Appellees. Country Joe's Nursery, Inc., Plaintiff-Appellant, v. E.I. Dupont De Nemours and Company, a Delaware Corporation d.b.a. Dupont, Crawford & Company, a Georgia Corporation, Defendants-Appellees. Castleton Gardens, Inc., a Florida Corporation, Plaintiff-Appellant, v. E.I. Dupont De Nemours and Company, a Delaware Corporation d.b.a. Dupont, Crawford & Company, Georgia Corporation, Defendants-Appellees. Palm Beach Greenery, Inc., a Florida Corporation, Plaintiff-Appellant, v. E.I. Dupont De Nemours and Company, a Delaware Corporation d.b.a. Dupont, Crawford & Company, a Georgia Corporation, Defendants-Appellees. Morningstar Nursery, Inc., a Florida Corporation, Plaintiff-Appellant, v. E.I. Dupont De Nemours and Company, a Delaware Corporation d.b.a. Dupont, Crawford & Company, Defendants-Appellees. to 97-5700.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1284

172 F.3d 1284

12 Fla. L. Weekly Fed. C 745

FOLIAGE FOREST, INC., a Florida Corporation, Plaintiff-Appellant, v. E.I. DUPONT DE NEMOURS AND COMPANY, a Delaware Corporation

d.b.a Dupont, Crawford & Company, a Georgia

Corporation, Defendants-Appellees.

Country Joe's Nursery, Inc., Plaintiff-Appellant, v. E.I. Dupont De Nemours and Company, a Delaware Corporation d.b.a. Dupont, Crawford & Company, a Georgia

Corporation, Defendants-Appellees.

Castleton Gardens, Inc., a Florida Corporation, Plaintiff-Appellant, v. E.I. Dupont De Nemours and Company, a Delaware Corporation d.b.a. Dupont, Crawford & Company, Georgia

Corporation, Defendants-Appellees.

Palm Beach Greenery, Inc., a Florida Corporation, Plaintiff-Appellant, v. E.I. Dupont De Nemours and Company, a Delaware Corporation d.b.a. Dupont, Crawford & Company, a Georgia

Corporation, Defendants-Appellees.

Morningstar Nursery, Inc., a Florida Corporation, Plaintiff-Appellant, v. E.I. Dupont De Nemours and Company, a Delaware Corporation d.b.a. Dupont, Crawford & Company, Defendants-Appellees.

Nos. 97-5696 to 97-5700.

United States Court of Appeals, Eleventh Circuit.

April 19, 1999.

Elizabeth Koebel Russo, Kimberly Lynn Boldt, Russo, Wells & Associates, P.A., Miami, FL, for Plaintiff-Appellant in No. 97-5696.

Elizabeth Koebel Russo, Kimberly Lynn Boldt, Russo, Wells and Associates, P.A., Ana M. Rivero, Ferraro & Associates, P.A., Miami, FL, for Plaintiff-Appellant in Nos. 97-5697 and 97-5699.

Elizabeth Koebel Russo, Kimberly Lynn Boldt, Russo, Wells and Assoc., P.A., James L. Ferraro, Ana M. Rivero, Miami, FL, for Plaintiff-Appellant in No. 97-5698.

Elizabeth Koebel Russo, Kimberly Lynn Boldt, Russo, Wells and Assoc., P.A., Ana M. Rivero, Ferraro & Associates, P.A., Miami, FL, for Plaintiff-Appellant in No. 97-5700.

Paul Nettleton, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Miami, FL, A. Stephens Clay, William H. Boice, James F. Bogan, III, Kilpatrick, Stockton, LLP, Atlanta, GA, for Defendants-Appellees in Nos. 97-5696, 97-5697, 97-5699 and 97-5700.

Paul Nettleton, Lea Ann Souza-Rasile, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Miami, FL, A. Stephens Clay, William H. Boice, James F. Bogan, III, Kilpatrick, Stockton, LLP, Atlanta, GA, for Defendants-Appellees in No. 97-5698.

Appeals from the United States District Court for the Southern District of Florida.

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 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.

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 agreement which released all claims against Dupont and therefore...