W.S. Badcock Corp. v. Webb

• Decision Date: 03 October 1997
• Docket Number: No. 97-122,97-122
• Citation: 699 So.2d 859
• Parties: 22 Fla. L. Weekly D2316 W.S. BADCOCK CORPORATION, Appellant, v. Edna Mae WEBB and Evelyn Aretha Keene, Appellees.
• Court: Florida District Court of Appeals

Page 859

699 So.2d 859

22 Fla. L. Weekly D2316

W.S. BADCOCK CORPORATION, Appellant, v. Edna Mae WEBB and Evelyn Aretha Keene, Appellees.

No. 97-122.

District Court of Appeal of Florida Fifth District.

Oct. 3, 1997.

Marvin E. Barkin, John E. Johnson and Lansing C. Scriven of Trenam, Kemker,

Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, and James L. Simon and Steven L. Brannock of Holland & Knight LLP, Tampa, for Appellant

Jerry R. Linscott, I. William Spivey, II, and Mary E. Fitzgibbons of Baker & Hostetler LLP, Orlando, and J. Larry Hanks of J. Larry Hanks, P.A., Orlando, for Appellees.

PETERSON, Judge.

W.S. Badcock Corp., ("Badcock") appeals a non-final order certifying a class pursuant to Rule 1.220, Florida Rules of Civil Procedure ¹. We agree with Badcock that the order certifying the class action should be reversed because the named plaintiffs lack standing.

Badcock, a furniture wholesale company, prepared and executed form contracts with numerous independent dealers to sell furniture. The appellees, Edna Mae Webb and Evelyn Aretha Keene are former independent dealers. Webb and Keene alleged that independent dealers were required to pay Badcock approximately $15 million for "factory labor charges" on all new household appliances and electronics in order to obtain a full manufacturers' warranty. Badcock would deduct the charges from each dealer's monthly royalty check. They further alleged that the standard contract between the dealers and Badcock, drafted by the latter, did not authorize such a deduction.

Based on the above allegations, Webb and Keene brought this class action alleging breach of contract by Badcock against all persons who served as dealers between 1975 and November, 1995. After an evidentiary hearing on their motion to certify as a class all present and former dealers, the court ruled that Webb and Keene, as former dealers, could not adequately represent the interests of current dealers. The trial court did, however, find, as to the group of former dealers, that Webb and Keene satisfied the prerequisites for class certification. See Fla. R. Civ. P. 1.220(a). It is from this order that Badcock brings the instant appeal.

As part of the sale of their businesses, Webb and Keene executed with the buyers an agreement drafted by defendant Badcock. That agreement stated in part:

BILL OF SALE

... the Seller, ... has granted, bargained, sold, transferred and delivered unto the said Buyer, his heirs and assigns, the following goods and chattels, to-wit:

All of that certain furniture and appliance business known as Badcock Home Furnishing Center of Hudson, Florida, together with and including all office furnishings and general equipment of said business as set out on the attached schedule of Tangible Personal Property, which is hereby incorporated by reference as a part hereof, all leasehold interest in the premises presently occupied by said business and any and all goodwill of said business as a going concern. Also included in this sale, as evidenced hereby, is all of Seller's interests as they may appear in that certain dealer contract entered into between Seller and the W.S. Badcock Corporation on July 3, 1986. This sale does not include inventories of merchandise or stock-in-trade, if any or accounts receivable, all of which are now and have always been the property of the W.S. Badcock Corporation.

(Emphasis added). At the hearing to certify, Badcock argued that the plaintiffs, by assigning "all of seller's interests ..." in the contract, assigned away their right to file a cause of action for prior breach of contract. The trial court did not agree. Instead, the trial court found that the clause, "all of seller's interests ..." was simply a part of the definition of what constitutes goods and chattels and that since the right to sue the defendant (a chose in action) is not a good or chattel, the right to sue was not covered by the bill of sale agreement.

We begin our analysis of proper class certification with the issue of standing. No class action may proceed unless there is a named plaintiff with standing to represent the class. Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987) (only after the court determines that the named plaintiffs have standing should it address the question of whether the named plaintiffs have representative capacity, as defined by Federal Rule of Civil Procedure 23(a), to assert the rights of others), cert. denied, 486 U.S. 1005, 108 S.Ct. 1729, 100 L.Ed.2d 193 (U.S.Fla.1988); see also Baptist Hosp. of Miami, Inc. v. Demario, 683 So.2d 641, 643 (Fla. 3d DCA 1996) (court determined inter alia that if the putative class representative has no standing, he has no right to pursue the case as a class action). The trial court's decision that the former dealers, Webb and Keene, have standing to bring these claims is reviewed de novo. Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1022 (11th Cir.), reh. denied, 104 F.3d 373 (11th Cir.1996).

The question here is whether Webb and Keene, as class representatives, still possess the right to sue for alleged...