# Third District Court of Appeal

State of Florida

Opinion filed on October 29, 2014.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D12-3444

Lower Tribunal No. 06-1163

________________



### REWJB Dairy Plant Associates, etc., et al.

,

Appellants,

vs.



### Bombardier Capital, Inc.

,

Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, Michael A. Genden

, Judge.

Jose Garcia-Pedrosa; Ross & Girten, and Lauri Waldman Ross

, for

appellants.

May, Meacham & Davell, P.A., and Robert C. Meacham and Christopher D.

Barber (Fort Lauderdale)

, for appellee.

Before ROTHENBERG, LOGUE, and SCALES, JJ.

SCALES, J.REWJB Dairy Plant Associates, etc., et al. (REWJB or Farm Stores),

Defendants below, appeal from the trial court’s December 4, 2012, order granting

Plaintiff Bombardier Capital Inc.’s (Bombardier) motion for additur. The order

granting Bombardier’s additur motion also retroactively granted Bombardier’s

motion for directed verdict on Farm Stores’ accord and satisfaction defense. We

reverse and remand for a new trial on both liability and damages. We likewise

reverse the order insofar as it granted a directed verdict on Farm Stores’ defense of

accord and satisfaction.

I. Facts

A. The Contract

In August 1999, REWJB, doing business as Farm Stores, executed and

delivered to Bombardier, its financer, a master lease agreement; an amendment to

the master lease agreement; an interim lease addendum; and, at various times after

August 1999, fourteen sequentially-numbered equipment schedules, which

expressly incorporate the master lease agreement into each equipment schedule

(collectively, all delivered documents are referred to as “the Contract”). The

Contract consisted of certain voluminous equipment schedules (equipment

schedule or equipment schedules referred to as “ES”), whereby Bombardier leased

to Farm Stores eight prefabricated buildings (“prefabs”), 1

, 2 certain computer

equipment and related items, 3 and an icemaker. 4

2The ES relevant to this appeal relate to seven of the prefabs leased pursuant

to ES 4-10, and the computer equipment leased pursuant to ES 2.

The Contract provided that each ES was separately enforceable and that the

terms and conditions of the Contract would apply to each ES. Thus, each ES

represented a separate contract.

Some of the ES contained an automatic renewal provision, which included

an option allowing Farm Stores to purchase the leased property for a specific price.

Pursuant to this provision, the lease would automatically renew unless Farm Stores

provided Bombardier with notice at least 270 days prior to the lease term’s

expiration. 5

1 ES 4, 5, 6, 7, 8, 9, and 10.

2 ES 1, which also was a prefab, is not at issue in this appeal.

3 ES 2.

4 ES 3.

5 The automatic renewal provision appearing in some of the ES is quite confusing,

and appears to be the victim of a typographical error. Specifically, the automatic

renewal provision references subparagraph (ii), which provides for the return of

the equipment, rather than a lease extension. The provision reads, in relevant part,

as follows:

Purchase, and Renewal, Options: At the end of the initial noncancelable term, provided that no Event of Default as defined in the

Lease has occurred and is continuing to occur at the end of the initial

non-cancelable term or subsequent renewal term, Lessee shall have

the option to exercise the following options by providing Lessor with

at least (270) days written notice of its intent to do one or more of the

following:

(i) purchase all and only all of the equipment for an amount

equivalent to 20.00% of the original equipment cost;

3B. The Parties’ Correspondence

On May 1, 2005, Farm Stores wrote to Bombardier, stating:

As we have previously advised your firm, Farm Stores desires

to return all the equipment under schedule 002. Please notify us as to

where we may return the equipment and kindly forward the necessary

documentation to terminate the above referenced lease to my

attention.

On June 9, 2005, Bombardier responded that ES 2

— whose five-year term

commenced in August 2000 and expired July 1, 2005

— required Farm Stores to

provide 270 days’ (i.e., on or before October 4, 2004) written notice prior to the

end of the lease term. Bombardier advised Farm Stores that, since Farm Stores’

May 1, 2005, notice was untimely, ES 2 would be automatically renewed for a

one-year term, but Farm Stores could purchase the equipment for the price outlined

in ES 2.

(ii) Return, all and only all, the Equipment to Lessor at Lessee’s

expense, with the original documentation, in the original

packaging, at a location chosen by the Lessor.

. . . .

If Lessee fails to notify Lessor of its intentions at least two hundred

seventy (270) days prior to the expiration of this Schedule, it is agreed

that Lessee shall extend the Lease as to all of the Equipment covered

hereunder in accordance with option (ii) above

. During the renewal

period, Lessee may purchase any or all of the Equipment covered

hereunder for the price computed in accordance with option (i) above

by providing Lessor with sixty (60) days prior written notice.

(emphasis added).

4Between Bombardier’s June 9, 2005, response letter and August 22, 2005,

the parties engaged in discussions regarding the Contract and the various ES. As a

result of such discussions, Farm Stores’ president sent Bombardier an August 23,

2005, letter, which Farm Stores characterizes as the memorialization of the parties’

“goodbye agreement.”

In that August 23, 2005, “goodbye agreement” letter, Farm Stores states that

it will continue to lease the computer equipment covered by ES 2 for an additional

year (i.e., from July 1, 2005, through January 30, 2006), after which time Farm

Stores will own the equipment. In furtherance of this “goodbye agreement,” Farm

Stores issued a $31,560.71 check to Bombardier (rent for the months of July,

August, and September 2005), which Bombardier negotiated.

Farm Stores’ “goodbye agreement” letter also purported to address that

portion of the parties’ Contract related to the prefabs. The relevant part of the

letter reads as follows:

As for the prefabricated buildings, Farm Stores proposes to issue one

final payment per month per building until such time as all the

buildings are paid in full. Farm Stores will commence with the first

such payment on or about September 1, 2005.

Consistent with the “goodbye agreement” letter, payments in full for prefabs

identified in ES 4, 9, and 10, followed sequentially in August, September, and

October 2005. Cover letters

— dated August 25, 2005; September 11, 2005; and

October 4, 2005

— accompanied the payments and made clear that each payment

5was tendered for each of these prefabs, and was intended as payment in full

satisfaction of Bombardier’s claims regarding ES 4, 9, and 10. Bombardier cashed

each check.

C. Pre-trial Proceedings

Bombardier disputes that the parties had a “goodbye agreement,” and that,

even if such “goodbye agreement” existed, Farm Stores did not fully perform

same, thus rendering Farm Stores liable for all sums due under the Contract.

Farm Stores asserts that the “goodbye agreement” letter constituted an

accord and satisfaction, and, to the extent that the account was not satisfied, it was

Bombardier who prevented such satisfaction.

On January 19, 2006, Bombardier filed a single-count complaint against

Farm Stores for breach of contract. While not expressly delineated in its

complaint, Bombardier essentially claimed that Farm Stores: (1) failed to pay

certain sums in connection with computer equipment and related items leased

under ES 2; (2) failed to pay certain sums in connection with the prefabs leased

under ES 4 through 10; and (3) failed to reimburse Bombardier, as required by the

Contract, for certain personal property tax payments, which Bombardier allegedly

made to taxing authorities. Farm Stores answered, raising accord and satisfaction 6

and set off

7 as affirmative defenses.

6 Farm Stores’ accord and satisfaction affirmative defense read as follows:

6Farm Stores subsequently filed amended affirmative defenses to assert

equitable estoppel as a defense to Bombardier’s claims, i.e., that Bombardier was

equitably estopped from pursing certain of its claims because Farm Stores had

detrimentally relied upon Bombardier’s acquiescence to the “goodbye agreement”

and related payments and correspondence. Farm Stores also raised a defense of

[A]n agreement was reached between the parties, first verbally and

then confirmed in correspondence passing between them, that

Defendants would pay off the prefabricated buildings that remained

unpaid, at the rate of one building per month, at the buy-out amount of

20% of original cost, as set forth in the contract between the parties.

For a period of several months, Defendants paid to Plaintiff the exact

buy-out amounts required by mailing checks in those amounts to

Plaintiff, which checks Plaintiff accepted, presented for payment, and

was paid.

7 Farm Stores’ affirmative defense for set-off read:

Plaintiff improperly applied payments that it received from defendants

by applying to equipment (Schedule 2) payments made for

prefabricated buildings (Schedules 1 and 3-10), although nothing was

owed to Plaintiff for equipment under Schedule 2. The payments

improperly applied should instead be set off against any sums that

may remain due for prefabricated buildings.

During the course of litigation, Farm Stores took the position that its agreement

—

as manifested in its August 23, 2005, “goodbye agreement” letter to Bombardier

—

to pay an additional year of rent for the computer equipment leased per ES 2 was

based on Farm Stores’ erroneous belief that the 270-day notice provision was

contained in ES 2. Farm Stores’ president testified that he had actually stricken the

270-day notice provision from ES 2, so that his initial May 1, 2005, purported

termination of ES 2 should have been effective. Thus, Farm Stores should receive

a set off for sums Farm Stores paid to Bombardier after Farm Stores’ May 1, 2005,

purported termination of ES 2.

7payment, asserting that Bombardier had been paid for ES 2 and “most or all” of the

prefabs.

In May 2011, the parties filed cross-motions for summary judgment. The

trial court found that, despite the confusing language contained in the automatic

renewal provisions, the automatic renewal provisions were applicable, and,

therefore, the leases on the prefabs were automatically renewed for twelve months

because Farm Stores “did not give the applicable 270[-]day notice.”

However, the trial court denied Bombardier’s motion for summary judgment

on Farm Stores’ defenses of accord and satisfaction and setoff. The trial court

determined that disputed issues of fact remained as to: (1) whether an accord had

been reached, and, if so, whether the parties had satisfied that accord; and (2) the

related issue of whether Bombardier had appropriately applied the funds paid by

Farm Stores. 8

With regard to the computer equipment lease (i.e., ES 2), the trial court

denied Bombardier’s summary judgment motion, holding that the parties’ dispute

regarding whether a valid notice obligation existed presented a fact question for the

jury.

D. Trial Proceedings

8 While not entirely clear, it seems that, given the trial court’s summary judgment

rulings, if the jury found that the parties had entered into the “goodbye agreement,”

then, presumably, whether Farm Stores had failed to provide the required lease

termination notice with regard to the prefabs would be irrelevant.

8A new trial judge inherited this case on the morning of trial, and the trial

ensued on May 14, 2012.

During trial, Bombardier presented alternative damage schedules, and its

damage witness presented the jury with different damage options. Farm Stores

presented no evidence of damages during trial, but in closing argument suggested it

was owed $11,000 from Bombardier.

At the conclusion of the evidence, Bombardier moved for a directed verdict

on Farm Stores’ accord and satisfaction defense. The trial court reserved ruling,

but, at least initially, determined that the defense presented a factual question for

jury determination, and the jury was instructed on this defense. Recognizing the

previously entered summary judgment, the trial court instructed the jury as

follows:

One. As to schedules 4 through 10 (the leases on the prefabricated

buildings), I have ruled that, A, the lease contains a 270-day notice

provision if Farm Stores did not wish to renew the lease; B, Farm

Stores did not give the 270-day notice as required by the leases; C, as

a result, pursuant to the terms of the schedule, the leases on the prefab

building[s] were renewed for 12 months. Accordingly, the Court has

granted Summary Judgment in Bombardier’s favor as to the

equipment schedules.

Number two, as to Farm Store’s [sic] defense of payment, Farm

Stores admits that it did not make full payment. Accordingly, the

Court finds in Bombardier’s favor as to Farm Stores’ defense of

payment.

The trial court also instructed the jury on Farm Stores’ defense of accord and

satisfaction.

9The trial court proposed, and both parties agreed to use, a general verdict

form. The verdict form simply stated:

1. Did Farm Stores breach their contracts with Bombardier in any

way?

YES

____ NO

____

2. If the answer to this question is No, your verdict is for Farm Stores

and do nothing but sign and date this verdict.

If the answer to this question is Yes, please state in dollars the total

amount of damages that the greater weight of the evidence shows

has been proven by Bombardier.

$

________

After a week-long trial, on May 21, 2012, the jury returned a verdict,

answering “Yes” to question one. It awarded damages to Bombardier in the

amount of $51,000.

E

. Post-Trial Motions

Pursuant to section 768.74, Florida Statutes (2012) 9

, Bombardier filed posttrial motions: (1) for additur or for a new trial on damages, (2) to set aside the

9 Section 768.74, Florida Statutes (2012), provides, in pertinent part:

(1) In any action to which this part applies wherein the trier of fact

determines that liability exists on the part of the defendant and a

verdict is rendered which awards money damages to the plaintiff, it

shall be the responsibility of the court, upon proper motion, to review

the amount of such award to determine if such amount is excessive or

inadequate in light of the facts and circumstances which were

presented to the trier of fact.

(2) If the court finds that the amount awarded is excessive or

10verdict, and (3) for entry of judgment in accordance with its motion for directed

verdict. Bombardier urged:

Clearly, the jury believed (and found that) Farm Stores was in breach

of one or more of the schedules entered into between the parties.

However,

. . . the amount of damages awarded to Bombardier cannot

be explained under any view of the evidence. Moreover, even taking

into consideration Bombardier’s motion for a directed verdict on the

defense of accord and satisfaction, there is still no way to rationalize

the verdict amount.

(footnote omitted).

On July 27, 2012, the trial court held a hearing on Bombardier’s motions but

did not make any oral findings. At the conclusion of the hearing, the trial court

requested the testimony of four witnesses, the transcript of the post-trial motion

hearing, and that the parties submit proposed orders within thirty days of the date

of the hearing.

On September 21, 2012, Farm Stores submitted its proposed order, not

surprisingly, suggesting that the trial court deny Bombardier’s motions for additur

and new trial. Bombardier submitted its proposed order, suggesting that the trial

court grant its motion and add $1,077,062.18 to the existing $51,000 jury award.

On December 4, 2012, the trial court entered a written order, adopting

Bombardier’s proposed order verbatim. The trial court found: (1) Bombardier was

entitled to a directed verdict on Farm Stores’ defense of accord and satisfaction; (2)

inadequate, it shall order a remittitur or additur, as the case may be.

11additur was appropriate “because

. . . no evidence concerning the contractually

required notice of termination was ever presented in connection with the

prefabricated building schedules”; (3) the verdict had “no correlation to any

reasonable evidence presented by any party”; (4) there “is no way to rationalize or

reconcile the verdict amount,” and (5) Bombardier was entitled to judgment in the

amount of $1,128.062.18. 10

Pursuant to section 768.74(4), Florida Statutes (2012), the trial court allowed

Farm Stores seven days to advise whether Farm Stores accepted the additur. As

outlined in the statute, if Farm Stores objected to the additur, the trial court would

order a new trial on damages only. Farm Stores responded to the trial court’s

additur order by filing this appeal, thus rejecting the trial court’s proposed additur

award. 11

II. Analysis

10 The trial court’s additur award is calculated based solely on the automatic

renewal of the leases associated with prefabs 5, 6, and 7, through May 1, 2012, and

interest through May 14, 2012 (the date trial commenced). No portion of the

award is attributable to any of Bombardier’s other claims (i.e., prefabs 4, 8, 9 and

10, computer equipment leased pursuant to ES 2, the ice maker leased pursuant to

ES 3, Bombardier’s claim for taxes).

11 We have jurisdiction pursuant to Florida Rule of Appellate Procedure

9.110(a)(3) and 9.130(a)(4). See Westminster Cmty. Care Servs., Inc. v. Mikesell

, 12 So. 3d 838, 839 n.1 (Fla. 5th DCA 2009) (reviewing a trial court’s order

granting the plaintiff’s motion for additur and new trial on damages as an

appealable nonfinal order pursuant to Rules 9.110(a)(4) and 9.130(a)(4)).

12A. Additur and New Trial

Try as we might, we, like the trial court and the parties, are simply unable to

reconcile the jury’s verdict with the evidence. Nor are we able to discern how the

jury adjudicated Farm Stores’ defenses, how they calculated damages, or how they

applied the trial court’s instructions.

1. The Trial Court’s Additur Order

The verdict form at issue here simply reads, “Did Farm Stores breach their

contracts with Bombardier in any way?” Although both parties agreed to the use of

this general verdict form, it is impossible to determine which ES the jury

determined Farm Stores breached. Similarly, while the jury’s award surely

suggests that Farm Stores prevailed on its defense that an accord was reached on

the prefab disputes, it is impossible to quantify the effect of the defense on the

various contracts implicated. 12

It is similarly impossible to determine how the jury resolved the dispute

regarding the notice provision in ES Number 2. It is also impossible to determine

how (or if) the jury award was affected by Farm Stores’ setoff defense.

12 While the evidence might have established that Farm Stores tendered, and

Bombardier negotiated, payments for prefabs 4, 8, 9, and 10, Farm Stores admitted

it had not yet tendered such payments for prefabs 5, 6, and 7. According to Farm

Stores’ own proposed order on post-trial motions, payments for prefabs 5, 6, and 7,

were valued at $186,062.

13The order on appeal, though, calculated additur very specifically. The trial

court simply assumed the jury found in favor of Farm Stores on ES Number 2

(computer equipment), and awarded nothing to Bombardier on that claim.

However, responding to the jury’s $51,000 breach of contract award, the trial court

also found that, even if the jury “awarded nothing for computer equipment [ES

Number 2], the icemaker [ES Number 3], prefabs 8, 9 and 10 and taxes, the

damage calculation options and evidence for pre-fabs 5, 6, and 7 were

. . . in the

hundreds of thousands of dollars.” Yet, the trial court’s order rejects the jury’s

implicit finding that the parties’ dispute over the prefabs was resolved by Farm

Stores’ asserted accord and satisfaction, and, instead retroactively grants a directed

verdict to Bombardier on that issue.

The trial court then awards Bombardier damages, based on automatic

renewals for prefabs 5, 6, and 7, through May 1, 2012, and interest through May

14, 2012 (the first day of trial), resulting in a total damage figure of $1,128,062.18.

2. New Trial on Liability and Damages

Pursuant to section 768.74(4), Florida Statutes (2012), if the party adversely

affected by an additur does not agree to the additur, “ the court shall order a new

trial in the cause on the issue of damages only .” (emphasis added).

However, a new trial on both liability and damages is required where

liability was hotly contested at trial, and it is evident the “jury’s

. . . mingling of the

14issues of liability and damages on the verdict form [is] suggestive of compromise.”

Westminster Cmty. Care Servs., Inc. v. Mikesell

, 12 So. 3d 838, 841-42 (Fla. 5th

DCA 2009); Food Lion v. Jackson

, 712 So. 2d 800, 803 (Fla. 5th DCA 1998)

(recognizing that section 768.74 “instructs that the adverse party be given the

choice of accepting the amount of additur or a new trial on damages only,” and

holding that a new trial on the issue of liability also should be ordered if liability

was hotly contested).

In the instant case, the jury answered “Yes” to the question whether Farm

Stores breached its contracts with Bombardier “in any way.” Unfortunately, the

jury was not asked which of the several ES, comprising the Contract, Farm Stores

had breached. And, as mentioned, it is impossible to discern, from the verdict

form, or from the record, which ES were breached or how the jury’s consideration

of Farm Stores’ affirmative defenses were reflected in the ultimate damage award.

Not only is it clear from the record that liability was hotly disputed, but also it is

clear that the jury’s verdict was the result of some type of compromise on the issue

of liability. Neither party provided any plausible explanation for the jury’s verdict.

Indeed, with this jury verdict form, any explanation would likely be nothing more

than rank speculation. 13

13 Our task is further complicated by the fact that, consistent with the trial court’s

summary judgment, the jury was instructed that Farm Stores had not provided the

required 270-day notice contained in the prefab contracts. While this instruction

was proper, the general verdict form used does not allow for meaningful appellate

15Therefore, given this case’s unique factual backdrop, we are compelled to

reverse and remand for a new trial on all issues. See Timmy Woods Beverly Hills,

Ltd. v. Greenwald

, 475 So. 2d 256, 258 n.5 (Fla. 3d DCA 1985) (“A rule which

requires a complete new trial when liability is close and damages clearly

inadequate prevents appellate courts from having to engage in the type of post-hoc

mind-reading which would be necessary to decide whether the jury was confused,

in which case a new trial on damages alone would be adequate, or compromising,

which would require a new trial on liability as well.”).

B. Directed Verdict

We also reverse the post-trial order granting a directed verdict in favor of

Bombardier on Farm Stores’ defense of accord and satisfaction. See Health

Options, Inc. v. Palmetto Pathology Servs. P.A.

, 983 So. 2d 608, 613 (Fla. 3d DCA

2008) (stating an order granting a motion for directed verdict is reviewed de novo).

There was conflicting evidence on the issue of whether the parties’ conduct

constituted an accord and satisfaction for some, or all, of Bombardier’s ES claims.

The record reflects Bombardier negotiated checks tendered by Farm Stores as full

and final payment for each of several prefabs, and the parties’ correspondence

review of how damages or affirmative defenses were decided by the jury.

16regarding this issue plainly presents a factual issue for jury consideration. Such a

conflict generally is a question for the province of the jury. See Cornette v. Rite

Commc’n Sys., Inc.

, 573 So. 2d 1055, 1056 (Fla. 2d DCA 1991) (reversing

directed verdict on accord and satisfaction where there was conflicting evidence

for the jury to resolve); S. Bell Tel. & Tel. Co. v. Acme Elec. Contractors, Inc.

,

418 So. 2d 1187, 1189 (Fla. 4th DCA 1982) (“ Generally, the determination of

whether there is an accord and satisfaction is left to the finder of fact. ”).

This ruling is, obviously, without prejudice to the parties’ ability to again

move for a directed verdict on this, or any other, issue if the facts established at

trial warrant such relief.

III. Conclusion

We remand for a new trial on both liability and damages. We likewise

reverse the directed verdict on Farm Stores’ defense of accord and satisfaction.

Reversed and remanded with directions consistent herein.

17