Appellees’ Answer Brief – Issue of proper Forum in Marine Manufacturer case

David Irwin — Thu, 23 Oct 2008 16:50:23 +0000

Summary – Florida’s 4^th District Court of Appeals ruled in favor of Appelles’ to keep their action for contract rescission and breach of warranty in a Florida court even when the Defendant yacht manufacturer was a New Jersey corporation. Attorney David E. Irwin authored the Appellees’ Answer Brief which may be reviewed by clicking on the link below. The Court’s final opinion based on this Brief appears in the previous Post.

For the complete Answer Brief, please click on the link below -

Appellees’ Answer Brief

Appeal decision- 112 Nissan v Ocean Yachts

David Irwin — Thu, 23 Oct 2008 12:36:20 +0000

Summary – In the decision below, Florida’s 4^th District Court of Appeals holds that in an action for rescission and breach of warranty, a south Florida forum was proper against a New Jersey yacht manufacturer, where warranty repairs were directed by the manufacturer to be conducted in a Palm Beach boat yard. David E. Irwin was responsible for writing the Appellees’ Brief upon which the Court’s decision was based. The Appellees prevailed in keeping an action for rescission of the purchase contract and for breach of warranty in Palm Beach Circuit Court, rather than the action being transferred to New Jersey.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2008

OCEAN YACHTS, INC. and STATEN ISLAND YACHT SALES, INC.,

Appellants,

ANTHONY TANTILLO and NISSAN 112 SALES CORPORATION,

Appellees.

No. 4D08-269

[August 20, 2008j

KLEIN, J.

Plaintiff Nissan 112 Sales Corporation purchased in New York a boat manufactured by Ocean Yachts in New Jersey. Nissan sued Ocean Yachts in Palm Beach County, where the boat was being operated, and Ocean Yachts moved to dismiss for improper venue. We affirm the denial of the motion, because Ocean Yachts authorized a boat yard in Palm Beach County, as its representative, to perform warranty repair work on the defective boat.

The complaint alleged that Ocean Yachts had made some warranty repairs to the defective boat at its New Jersey facility, but the repairs were not satisfactory, and other defects appeared after the boat was brought to Florida. Ocean Yachts then directed that further warranty work be done at a Florida boat yard.

Section 47.051, Florida Statutes (2007), which addresses venue provides in part:

Actions against foreign corporations doing business in this state shall be brought in a country where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.

The trial court concluded that venue was proper in Palm Beach County, because the complaint alleged that warranty work was performed in Palm Beach County by agents or representatives of Ocean Yachts, and this allegation was not controverted by Ocean Yachts.

Ocean Yachts relies o n its warranty, which provides that its “designated service representatives are not the agents of Ocean Yachts.” Our statute, however, says venue against a foreign corporation will lie in a county where the corporation has “an agent or other representative,” and in Piper Aircraft Corp. v. Schwendemann, 564 So. 2d 546 (Fla. 3d DCA 1990), the court held that a service center which was authorized by the defendant to perform warranty work was a representative, for purposes of venue, even though it may not have been an agent of the manufacturer. See also Breed Techs. v. Allied Signal, Inc., 861 So. 2d 1227 (Fla. 2d DCA 2003) (agreeing with Piper and noting that labels in agreements are not conclusive as to actual legal relationships).

We agree with Piper and Breed and therefore affirm.

SHAHOOD, C.J and DAMOORGIAN, J., concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Robin L. Rosenberg, Judge; L.T. Case No. 50- 2007CA00826 1XXXXMB.

Samuel Cozzo and Michel 0. Weisz of Berger Singerman, Miami, for appellant Ocean Yachts, Inc.

Cindy L. Ebenfeld and Mark Hicks of Hicks & Kneale, P.A., Hollywood, for appellant — Staten Island Yacht Sales, Inc..

Andrew W. Anderson and David E. Irwin of Houck Anderson P.A., Ft. Lauderdale, for appellees.

Not final until disposition of timely filed motion for rehearing

South Florida Admiralty Law » Appeals

Appellees’ Answer Brief – Issue of proper Forum in Marine Manufacturer case

Appeal decision- 112 Nissan v Ocean Yachts