Parsons v. Motor Homes of America, Inc.
| Citation | 465 So.2d 1285,10 Fla. L. Weekly 576 |
| Decision Date | 07 March 1985 |
| Docket Number | No. AY-190,AY-190 |
| Parties | 10 Fla. L. Weekly 576, 40 UCC Rep.Serv. 1264 Willard E. PARSONS and Patricia G. Parsons, Appellants, v. MOTOR HOMES OF AMERICA, INC., Appellee. |
| Court | Florida District Court of Appeals |
William H. Folsom, Jr., Jacksonville, for appellants.
Harris Brown of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
This is an appeal from a final judgment denying appellants' (hereinafter "the Parsons") claim for revocation of acceptance of a Winnebago motor home purchased from Motor Homes of America, Inc. (hereinafter "Motor Homes"). The Parsons have raised five points for review: (1) whether the trial court erred in requiring an election of remedies at pre-trial conference; (2) whether the trial court erred in refusing to admit evidence on the Parsons' claim for revocation against Motor Homes because of an expressed inability to distinguish such evidence from the claim against Winnebago Industries, Inc. (co-defendant in the lower tribunal), and in admitting but not separately considering evidence not germane to the Parsons' claim against Motor Homes; (3) whether the trial court erred in failing to recuse himself; (4) whether the trial court erred in ruling the warranty notice provision was a limitation of remedy provision pursuant to Section 672.719, Florida Statutes; and (5) whether the trial court erred in finding there was not a showing of substantial impairment of value pursuant to Section 672.608, Florida Statutes. We affirm in part, reverse in part, and remand with directions.
In their suit against Motor Homes, the Parsons claimed damages for breach of implied warranty of merchantability and deceptive trade practice violations, attorney's fees, costs, and revocation of acceptance. The Parsons sued Winnebago Industries, Inc., alleging breach of implied warranty of merchantability, breach of manufacturer's limited warranty, violation of the Magnuson-Moss Federal Warranty Act, and violation of Section 320.835, Florida Statutes (1981).
The Parsons took delivery of the motor home on December 28, 1981. The purchase price was $25,680. At the time of delivery the motor home showed mileage of 2,820 miles. The Parsons received a written limited warranty in a package of other materials concerning the motor home, and they purchased an additional extended warranty from Motor Homes, Inc. which covered the unit for up to five years or 50,000 miles.
Immediately upon taking delivery of the motor home, the Parsons departed with their three children for a vacation in the North Georgia mountains. During their first trip in the motor home the Parsons experienced problems with (1) water leaks around the windshield and over the cooking area, (2) malfunctioning windshield wipers, (3) non-functioning cruise control, (4) water pump failure, and (5) a broken cabinet latch. Upon their return from vacation, the Parsons took the unit back to Motor Homes for repairs.
On their second trip in the motor home the Parsons noted malfunctions in the radio, the key switch, the furnace, and the electric cord switch. In addition, the water leaks continued and the metal on the side of the motor home was delaminating. The unit was again returned to Motor Homes for repairs.
The record reflects that the Parsons continued to experience repeat or similar problems on each trip they made in the motor home. The pattern which evolved was a family trip marred by problems with the motor home, then a return of the unit to the dealer for repairs. Each return to the dealer encompassed periods when the unit sat on the lot as the dealer attempted to reach Winnebago's representative for repair authorization. On September 23, 1982, nine months after purchase, the Parsons revoked their acceptance of the motor home. A month later the Parsons filed suit against Motor Homes and Winnebago Industries, Inc.
After receipt of the Parsons' claim, Motor Homes filed a motion to require the Parsons to make an election of remedies at pre-trial conference. Co-defendant Winnebago Industries, Inc., filed a motion to strike the Parsons' demand for jury trial, and Motor Homes filed a cross-claim against Winnebago alleging breach of warranty and seeking indemnity and contribution. The trial court granted Motor Homes's motion to require election of remedies at pre-trial conference, and ruled that Winnebago's motion to strike demand for jury trial would be granted if the Parsons elected revocation of acceptance as the remedy they intended to pursue.
The Parsons filed a motion seeking recusal and transfer of the case, on the ground that Mr. Parsons had announced his candidacy for the position occupied by the trial judge assigned to the case. The motion for recusal was denied.
The Parsons elected the remedy of revocation of acceptance, and non-jury trial ensued. At trial the Parsons testified that they had returned the motor home to the dealer for repairs ten or twelve times between the December 28, 1981, date of purchase and their revocation of acceptance on September 23, 1982. A witness who had been in the business of motor home repairs for thirteen years testified that in his opinion the number of repair orders that had been written on the Parsons' Winnebago was excessive. The representative for Winnebago Industries, Inc. testified that he first had knowledge of the Parsons' complaints about the Winnebago on January 19, 1982. In his inspection of the motor home in August 1982 the factory representative observed that at that time the ceiling needed repair, the carpet needed cleaning, a strip on the ceiling over a glideaway bunk needed repair, cushions and shades had been replaced (in accordance with prior orders), and the ceiling panel needed to be replaced. He directed Motor Homes to replace the ceiling panel, but this was not done.
When counsel for Winnebago Industries introduced documents concerning parts ordered for the motor home, counsel for the Parsons objected because he had previously sought, unsuccessfully, to have the documents produced at deposition. Counsel for the Parsons indicated he would have no objection to the documents' admission so long as they pertained only to the dealer's case against Winnebago and did not concern the Parsons' case. 1 Following counsel's objection and explanation, the trial court stated:
The Court notes the objection by counsel for the plaintiff and rules that they will be received if offered and properly identified. That is premature to make a ruling on that yet. But the Court should advise Mr. Folsom that once the matter comes in, there is no way I can instruct myself any more than I could instruct a jury, now you may consider this evidence for this purpose but you must completely clear your minds with reference to some other information that it may provide you as a trier of the facts. You are asking too much of six people and you are asking too much of the Judge to be able to do that. If it is received in evidence, it will be received for any probative value it may have on any issues before the Court.
At a later point in the proceeding, the Parsons' counsel attempted to read a portion of a deposition of the general manager of Motor Homes. Counsel for Motor Homes stipulated that he had no objection to introduction of this evidence, but counsel for Winnebago objected because the court had already noted that "it is impossible for the trier of fact to take bits of information and say I won't consider this on one case but I will consider it on the other one." The court ruled that neither counsel for the Parsons or counsel for Motor Homes could stipulate away a right that belonged to Winnebago. The Parsons' counsel then proferred the deposition and the court noted the proffer for the record, but stated that the court would not consider the proffer in arriving at a determination of the case.
After trial, the trial court entered judgment for Motor Homes, finding that the warranty provision was an exclusive and a reasonable and adequate remedy, and the parties had contracted for that remedy. The court further found there had been no showing of a substantial impairment of use or value, the defects complained of were curable and were in fact substantially cured, and the dealer and manufacturer had complied with the contract in making those repairs. We affirm in part and reverse in part.
As first point for review the Parsons allege the trial court erred in requiring them to make an election of remedies at the pre-trial conference. The Comment to U.C.C. § 2-608 (Section 672.608, Florida Statutes) explains the change in a buyer's remedies effected by adoption of the Uniform Commercial Code. The purpose of these changes is to make clear that We agree that a plaintiff should not have to forego the right to a lesser remedy in order to seek the greater remedy of revocation. On this point we are in accord with the view taken by the Fifth District in Monco of Orlando, Inc. v. ITT Industrial Credit Corp., 458 So.2d 332 (Fla. 5th DCA 1984). Although Monco is not a Code case, the court's reasoning with regard to election of remedies is applicable here. In Monco the court held "an election between inconsistent remedies need only occur before judgment is entered." (emphasis supplied). The Fifth District acknowledged that its Monco decision and other Fifth District decisions on point are in conflict with Deemer v. Hallett Pontiac, Inc., 288 So.2d 526 (Fla. 3rd DCA), cert. denied, 298 So.2d 416 (Fla.1974), relied upon by Motor Homes. Conflict notwithstanding, the Monco court went on to say, "[w]e see no policy consideration in the requirement that multiple actions should be required to prove one remedy, if a plaintiff is entitled to one of several inconsistent remedies." In Monco the Fifth District expressed the...
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