Smith v. Frank Griffin Volkswagen Inc., 93-2902

• Decision Date: 22 November 1994
• Docket Number: No. 93-2902,93-2902
• Citation: 645 So.2d 585
• Parties: 19 Fla. L. Weekly D2473 Jerry T. SMITH, Appellant, v. FRANK GRIFFIN VOLKSWAGEN INC., a corporation; and Volkswagen of America, Inc., a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 585

645 So.2d 585

19 Fla. L. Weekly D2473

Jerry T. SMITH, Appellant, v. FRANK GRIFFIN VOLKSWAGEN INC., a corporation; and Volkswagen of America, Inc., a corporation, Appellees.

No. 93-2902.

District Court of Appeal of Florida,

First District.

Nov. 22, 1994.

William H. Folsom, Jr., Jacksonville, for appellant.

J. Michael Lindell, Hayes & Lindell, P.A., Jacksonville, for Frank Griffin Volkswagen, Inc.

W. Alan Winter, Jacksonville, for Volkswagen of America, Inc.

ERVIN, Judge.

This is an appeal from certain orders--following this court's remand in an earlier appeal ¹--which denied appellant's motions for further election of remedies and relief from judgment. We reverse and remand with directions that appellant, Jerry T. Smith, be given the right to elect further remedies against appellees, Frank Griffin Volkswagen (Griffin) and Volkswagen of America (Volkswagen).

In the former case, Smith filed a multi-count complaint against Griffin and Volkswagen arising from his purchase of an alleged defective Volkswagen automobile. Following trial, verdicts were returned finding Volkswagen liable to Smith for breach of an implied warranty of merchantability, breach of its obligations under the lemon law and violation of the Magnuson-Moss Act, and damages were assessed as to each of the above claims in the amount of $24,807.76. ² Additionally, Griffin was found liable to Smith on the counts alleging deceptive trade practice and revocation of acceptance of the automobile, and damages were imposed in the sums of $3,771.34 and $24,807.76, as to each claim, respectively.

Before the entry of the final judgment, Smith filed his election of remedy, opting to proceed against Griffin solely on the revocation of acceptance claim, rather than seeking damages under the contract. ³ The amended final judgment entered on April 19, 1990 was therefore based on this election, and it directed Griffin to pay Smith $42,939.94, which included Smith's damages, prejudgment interest, attorney's fees and costs. The court further ordered Smith to take nothing by his action against Volkswagen, and dismissed Volkswagen as a party.

Both Griffin and Smith appealed; Volkswagen was not a party to the appeal. This court in Griffin I affirmed all issues, ⁴ except Griffin's point challenging the denial of its motion for directed verdict on the revocation of acceptance claim. We decided as to it that because Griffin had disclaimed all warranties, there could be no breach of an obligation which made the automobile nonconforming to the sales contract, and, because there was no nonconformity, Smith had no right to revoke acceptance. Consequently, we reversed that portion of the judgment awarding damages on the revocation of acceptance claim, and remanded the case with directions for the trial court to enter a final judgment in accordance with the decision. While the case was still pending before this court, Smith filed a motion requesting clarification of his right to make a further election on remand, which was denied, and mandate thereafter issued.

Following remand to the trial court, Smith moved for a further election of remedy, arguing that he should be permitted to proceed against Griffin on the deceptive trade practices award, for which he had prevailed on appeal, and against Volkswagen on one or more of the claims for which he had recovered verdicts, citing Article V, section 2(a) of the Florida Constitution, which provides that "no cause shall be dismissed because an improper remedy has been sought." He also moved for relief from judgment under Florida Rule of Civil Procedure 1.540(b)(5), urging that it was no longer equitable to enforce the judgment as to Volkswagen. The lower court denied both motions, granted Volkswagen's motion to strike Smith's motion for further election and entered an amended final judgment, directing that Smith take nothing by the action. It is from this judgment that Smith now appeals.

Smith argues that because our decision in Griffin I precluded him from making a further election of remedy against Griffin following remand, this court, pursuant to the mandate in Article V, section 2(a) of the Florida Constitution, should revisit the law of the case and allow him to make a further election of remedy against Griffin. Additionally, he argues that the above constitutional provision conferred continuing jurisdiction over Volkswagen, thereby permitting the court to set aside the final judgment as to Volkswagen and allow Smith to make an election against it.

We do not agree with Smith that this court's decision in Griffin I established the law of the case so as to preclude him from seeking a further election against Griffin. We have carefully reviewed the majority's opinion in Griffin I and find nothing contained therein which barred Smith from thereafter making a second election. That portion of our decision which reversed the judgment affected only the revocation of acceptance claim and directed that a final judgment be entered in accordance with our opinion. No issue was raised in either the appeal or cross appeal regarding Smith's right to elect further if any of the issues Griffin urged were decided adversely to Smith. As was observed in S/D Enterprises, Inc. v. Chase Manhattan Bank, 375 So.2d 1109, 1111 (Fla. 3d DCA 1979):

A prior judgment of reversal is not necessarily an adjudication by the appellate court of any points other than the questions in terms discussed and decided, but if, however, a particular holding is implicit in the decision rendered, it is no longer open for consideration.

Nor do we consider that this court's order denying Smith's motion for clarification, without any elaboration, precluded his right to seek an additional election after remand, because, in addition to the order not being essential to the decision of the court, it can just as easily be interpreted as meaning that the motion was unnecessary in that the opinion did not foreclose a further election. Consequently, we conclude that our decision in Griffin I did not bar Smith from making an additional election against Griffin as to the deceptive trade practices claim, on which he recovered a verdict, and we reverse the trial court's order denying Smith's right to do so.

Turning to Smith's second point, the denial of his motion for relief from judgment as to Volkswagen, we also decide that the trial court abused its discretion in refusing to grant the same. In so concluding, we note that if Smith had filed only a motion for allowance of further election of remedy against Volkswagen, our decision would be more difficult. As previously observed, neither the appeal nor cross appeal in Griffin I raised any issue as to that portion of the judgment which dismissed Volkswagen as a party to the action after Smith elected a remedy against Griffin. In actions in personam, the general rule is that an appellate decision concludes only those parties whose rights were determined by the prior appeal, but the decision is not conclusive as to persons not parties to an appeal whose rights are not decided. In re Local Lodge No. 1248 of Int'l Ass'n of Machinists, 131 So.2d 29, 31 (Fla. 1st DCA 1961), cert. denied, 138 So.2d 333 (Fla.1962). Thus, if the above authority is applicable to the instant...