ORDER
GREGORY PRESNELL, District Judge
This matter comes before the Court on the Motion to Dismiss the Second Amended Complaint (Doc. 39) filed by the Defendant, thelaundrylist.com, Inc. ("LaundryList"), and the response (Doc. 40) filed by the Plaintiff, H H Laundry Corporation of Orlando, Inc. ("H H").
According to the allegations of the Second Amended Complaint (Doc. 37), which are accepted as true for purposes of resolving this motion, LaundryList — as the seller — and H H — as the buyer — entered into a series of contracts for the sale and purchase of laundry equipment. H H complains that LaundryList has failed to send it some of the equipment it bought, and that some of the equipment was in bad condition, despite "verbal and written communications" (presumably from LaundryList) attesting to the equipment being in good working condition. (Doc. 37 at 3). The Second Amended Complaint contains three counts. The first is for breach of contract, the second is for unjust enrichment, and the third asserts a claim under the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201 et seq. (Doc. 37 at 5-8).
The theory of unjust enrichment is equitable in nature and is not available where there is an adequate legal remedy. See, e.g., David v. American Suzuki Motor Corp., 629 F.Supp.2d 1309 (S.D.Fla. 2009). Such is the case here; the recovery sought by the Plaintiff under the contracts is the same as the recovery it seeks pursuant to its unjust enrichment claim. The Plaintiff argues that the Federal Rules of Civil Procedure permit it to seek inconsistent remedies. Generally speaking, this is true. However, recovery on a theory of unjust enrichment is only available when, as a matter of fact, there is no legal contract. See, e.g., Camp Creek Hospitality Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1413 (11th Cir. 1998). Both parties agree that they entered into these contracts, and no party has argued that the contracts were illegal or unenforceable. The Plaintiff's unjust enrichment claim will be dismissed with prejudice.
LaundryList argues that the existence of these two causes of action in a single complaint requires dismissal of both the contract claim and the unjust enrichment claim. LaundryList has not cited any cases that reach this result, and the Court will therefore not dismiss the contract claim on this basis.
In Count III, H H contends that LaundryList committed unfair and deceptive acts during their negotiations by informing it that the equipment, though used, was in good condition. (Doc. 37 at 8-13). In fact, according to H H, much of the equipment was in poor condition, requiring extensive repairs. LaundryList argues that the FDUTPA claim is barred by the "Used, As Is" disclaimer language found in the contracts. A party that signs a contract whose terms contradict the alleged misrepresentations on which it relied is barred from seeking relief pursuant to FDUTPA, because it has acted unreasonably. TRG Night Hawk Ltd. v. Registry Development Corp., 17 So.3d 782, 784 (Fla. 2d DCA 2009) (citing Rosa v. Amoco Oil Co., 262 F.Supp.2d 1364, 1368 (S.D.Fla. 2003). In this case, the disclaimer language in the contracts is inconsistent with the alleged oral representations/warranties that the equipment was in good working order. As a result, H H's FDUTPA claim is barred. See TRG Night Hawk Ltd. at 784-85.
In consideration of the foregoing, it is hereby
ORDERED that the Motion to Dismiss the Second Amended Complaint (Doc. 39) is GRANTED IN PART AND DENIED IN PART. Count II and Count III of the Second Amended Complaint are DISMISSED WITH PREJUDICE. In all other respects, the motion is DENIED. DONE and ORDERED in Chambers, Orlando, Florida on November 12, 2010.
as a result of the negligent actions of another to avoid injury and to mitigate damages. Minn. Stat. § 604.01, subd. la.
Having concluded that the district court erred when it failed to submit the issue of comparative fault to the jury, we must next determine whether the court's error requires remand for a new trial on damages. A jury-instruction error is fundamental and warrants a new trial if it "destroy[s] the substantial correctness of the charge as a whole, causes a miscarriage of justice, or result[s] in substantial prejudice." Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).
Here, there was no instruction regarding comparative fault and the jury was not asked on the special verdict form to compare fault or assign fault percentages. The district court did not "direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each party." See Minn. Stat. § 604.01. We conclude that the court's error warrants a new trial on the issue of damages because the failure to instruct the jury on comparative fault destroyed the substantial correctness of the jury's charge as a whole. See Lindstrom, 298 Minn, at 229, 214 N.W.2d at 676.
VII.
Anda's final argument is that the district court should have granted him a new trial because the court's conduct rendered a fair and impartial determination by the jury improbable. Anda claims the court interrupted Anda's counsel during his examination of witnesses and his closing argument and made evidentiary rulings even though MEDA had not made an objection. Additionally, Anda claims that the court exhibited hostility toward Anda when, in the presence of the jury, it characterized Anda's counsel's examination of witnesses as "wildly speculative" and it ordered Anda's counsel to ask hypothetical questions that were "within the realm of reason or remotely possible." Anda asserts that the court's conduct demonstrated a bias that prejudiced his case and requires a new trial. MEDA argues that the court properly intervened during the trial to preserve the integrity of the trial proceedings. MEDA maintains that Anda's counsel engaged in misconduct because he "testified" while examining witnesses and violated the court's evidentiary rulings and orders.
We review a district court's new trial decision under an abuse of discretion standard. Halla Nursery, Inc. v. Baumann-Furrie Co., 454 N.W.2d 905, 910 (Minn. 1990). We must therefore determine whether the court abused its discretion in denying Anda a new trial on grounds of its own conduct. In Fortier v. Ritter's Hairdressing Studios, Inc., we said, "The influence which a trial judge has over lay jurors . . . is so great that he must be extraordinarily careful to avoid all acts, signs, words, gestures, or tones of voice which might indicate to the jury either hostility or partiality toward a litigant or counsel." 282 Minn. 382, 385, 164 N.W.2d 897, 899 (1969).
In Fortier we also acknowledged that a district court "must have the power to discourage and eliminate impropriety or misconduct by attorneys at trial," but we were hesitant to approve even a "guarded and temperate reprimand in the presence of the jury." Id. While we agree that a court must be allowed to act to arrest and prevent impropriety or misconduct by attorneys, we have stated that "it is almost always preferable" that the reprimand not be made in the jury's presence because such reprimands are likely to influence the jurors. See id. at 386, 164 N.W.2d at 899. In Hansen v. St. Paul City Ry. Co., we described what conduct is appropriate, and what conduct is inappropriate by stating:
While it is undoubtedly within the province of the trial judge to admonish and rebuke counsel when guilty of misconduct, it is improper for him to unduly criticize counsel in the presence of the jury or make remarks in the course of the trial showing bias in favor of one of the parties or which will tend to incite hostility or prejudice in the minds of the jury toward one party and sympathy for another.
231 Minn. 354, 360-61, 43 N.W.2d 260, 264 (1950). With regard to sua sponte evidentiary rulings, we have said that a district court "should refrain from remarks which might injure either of the parties to the litigation." and the court "should not act as counsel for a party by raising objections which the party should make."
Id.
Here, Anda does not argue that the district court's evidentiary rulings were incorrect. Further, the court had a duty to interject in instances where Anda's counsel failed to heed the court's earlier admonitions and rulings. See Fortier, 282 Minn, at 385, 164 N.W.2d at 899. During closing argument, for example, Anda's counsel failed to follow instructions regarding the scope of the argument. Counsel for both parties and the court agreed that Anda's counsel would argue first, addressing only the liability action, and then ME DA would make its closing argument. Then, in accordance with Anda's right as a property owner to make the last closing argument, Anda's counsel would get a second argument to address the condemnation action. Anda's counsel was explicitly instructed to avoid discussing the value of Anda's property in his first closing argument. Yet, Anda's counsel repeatedly discussed the value of Anda's property in his first closing argument, and the court admonished Anda four times during the argument. The following are examples of how the court admonished Anda's counsel during the closing argument:
[Anda's counsel]: We think we had a $2 million building here, and so we appealed from the condemnation award of roughly $488,000. We had no choice about the fact that the building was taken from us, we felt that the condemnation award was —
The Court: [Counsel], that's the second argument. Please don't go into that now.
. .
[Anda's counsel]: The government had argued in the condemnation case before the commissioners that [M.A.], the appraiser from St. Cloud, there —
The Court: [Counsel,] that is not an issue in this case. Please remember, we're not going to give you two arguments on the same issue.
We conclude that some of the court's admonitions, like the foregoing, were benign and necessary to preserve the integrity of the trial, especially in light of the court's earlier ruling that Anda's counsel was to refrain from discussing the value of Anda's property in his first closing argument. The court made appropriate, measured responses in order to enforce its earlier ruling.
But we conclude that some of the court's other conduct is troublesome. Several times the court sua sponte ruled that Anda's counsel's questions during direct or cross-examination were irrelevant, speculative, or otherwise inadmissible even though ME DA had not objected to the questions.
The Court: [Counsel], I don't see where you're going with this. This gentleman is a city assessor. In the absence of some indication that his scope of his employment has to do with these kind of departments that you are asking him about, it seems to me that it's irrelevant. And, frankly, I don't know, it's a waste of time.
[Anda's counsel]: I'll move on, Your Honor. Thank you.
The Court: Thank you.
. . .
The Court: [Counsel], I am going to rule that this line of questioning is beyond the scope of direct examination, and it's improper to assume facts which are not in evidence, which is what you are doing. So don't ask any more hypothetical questions of this witness as to
what someone else may or may not have said.
[Anda's counsel]: Thank you, Your Honor. Very good.
This type of conduct contravened our instruction in Hansen that a district court must not show its bias against a party and "should not act as counsel for a party by raising objections which the party should make." See Hansen, 231 Minn, at 360, 43 N.W.2d at 264. Further, these admonitions were less measured and controlled than others. If the court believed it needed to intervene, its admonitions should have been more restrained.
In prior case law, we have attempted to make clear that district courts should refrain from raising objections and should avoid demonstrating bias against one party in front of the jury. We have also said we will grant a new trial based on judicial conduct "only in those rare cases where the remark of the trial judge was so prejudicial to one party that it rendered a fair and impartial determination by the jury improbable." Fortier, 282 Minn, at 386, 164 N.W.2d at 899-900. Here, most of the court's comments were evidentiary rulings aimed at arresting or preventing misconduct and maintaining control of the proceedings rather than criticisms or overt reprimands in the jury's presence. With regard to the court's comments during Anda's closing argument, the court was responding to Anda's failure to follow instructions. The court's conduct was often necessary, and was not so prejudicial as to poison the jury's mind or set the jury against Anda. Further, we note and appreciate the court's frustration with Anda's counsel's inability to follow the court's directions and sometimes cumbrous examination of witnesses. Nevertheless, the court in certain situations should have demonstrated more restraint and objectivity. That said, we conclude that the court's conduct does not require a new trial because the court's conduct did not "render a fair and impartial determination by the jury improbable." Id., 164 N.W.2d at 899900
For all the foregoing reasons, we reverse the court of appeals and remand to the district court for further proceeding consistent with this decision.
Reversed and remanded.
Concurring in part, dissenting in part, DIETZEN, J.
STRAS, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
DIETZEN, Justice (concurring in part, dissenting in part).
In this consolidated proceeding, the Moorhead Economic Development Authority (ME DA) brought a contamination liability action involving two parcels of land adjacent to property owned by Roger Anda (Parcels I and II), and a condemnation action to acquire a parcel of land owned by Anda (Anda property). In the contamination liability action, ME DA asserts that Anda is liable for the contamination of Parcels I and II. The majority concludes, and I agree, that the jury verdict finding Anda liable for the contamination of Parcels I and II should be affirmed, but that a new trial is required on the issue of damages.
The majority concludes that justice requires the case be remanded for a new trial to determine just compensation due Anda for the taking of Anda's property. In so doing, the majority adopts a new rule that the costs of remediation of contaminated property generally are not admissible in a condemnation proceeding and that condemned property must be valued as remediated. Because I conclude that the new rule of exclusion adopted by the majority is contrary to existing law, I respectfully dissent.
Whether the costs of remediation of environmental contamination are admissible requires consideration of the measure of damages in a condemnation proceeding, and analysis of the type of evidence relevant to determine fair market value of the property. The Minnesota Constitution provides that "[p]rivate property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured." Minn. Const., art. I, § 13. The intent of Minnesota law is to provide property owners "just compensation" for property taken by the government through the power of eminent domain. Id., Just compensation includes all elements of value of the property, but "it does not exceed market value fairly determined." Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934); Minrieapolis-St. Paul Sanitary Dist. v. Fitzpatrick 201 Minn. 442, 449, 277 N.W. 394, 398-99 (1937). The "equivalent" of just compensation is the fair market value of the property at the time of the taking. see Hous. Redevelopment Auth. of St. Paul v. Kieffer Bros. Inv. Constr. Co., 284 Minn. 516, 520, 170 N.W.2d 862, 864 (1969); Fitzpatrick, 201 Minn, at 449, 277 N.W. at 398-99; see also 4 Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Civil, CIVJIG 52.35 (5th ed. 2006) (stating that "just compensation" is the fair market value of the property that was taken).
Thus, the measure of damages for the taking of the Anda property is the fair market value of the property as of the date of taking. Our case law is clear that fair market value is the equivalent of just compensation. See City of St. Paul v. Rein Recreation, Inc., 298 N.W.2d 46, 49 (Minn. 1980). The majority erroneously concludes that "just compensation" is not the same as fair market value in this case. The majority has not articulated any basis for overruling our precedent or indicated why fair market value is not the proper measure in this case.
It is well established that in determining fair market value, "`[a]ny competent evidence may be considered if it legitimately bears upon the market value'" of the property. State by Humphrey v. Strom, 493 N.W.2d 554, 558 (Minn. 1992) (quoting Ramsey County v. Miller, 316 N.W.2d .917, 919 (Minn. 1982)); accord Rein Recreation, 298 N.W.2d at 50. In Rein Recreation, we stated the general rule is that evidence of any matter that would influence a prospective purchaser and seller in fixing the price at which a sale of the property could be consummated may be considered. 298 N.W.2d at 50.
The majority of those jurisdictions that have considered the issue have concluded that the costs of remediation affect fair market value and therefore are admissible. See generally 4 Julius L. Sackman, Nichols on Eminent Domain § 13.10 (3d ed. 2009). For example, the Connecticut Supreme Court has held that the costs of remediation of contaminated property are relevant to determine the value of property taken by eminent domain because such evidence would impact a market transaction between a willing buyer and seller. Ne. Conn. Econ. Alliance, Inc. v. ATC P'ship, 256 Conn. 813, 776 A.2d 1068, 1080 (2001). The court observed that "[i]t blinks at reality to say that a willing buyer would simply ignore the fact of contamination" and specifically the costs of remediation in determining the value of the property. Id.; see also Redevelopment Agency v. Thrifty Oil Co., 4 Cal.App.4th 469, 5 Cal.Rptr.2d 687 (1992); Nat'l Compressed Steel Corp. v. Unified Gov't of Wyandotte Cnty./Kansas City, 272 Kan. 1239, 38 P.3d 723, 735 (2002); City of Olathe v. Stott, 253 Kan. 687, 861 P.2d 1287, 1290 (1993); Tennessee v. Brandon, 898 S.W.2d 224 (Tenn. Ct.App. 1995); cf. Finkelstein v. Dep't of Transp., 656 So.2d 921, 922 (Fla. 1995) (holding that admissibility of contamination evidence is limited to those cases where "there is a sufficient factual predicate upon which to conclude that the contamination does affect the market value of the property taken").
Moreover, the Appraisal Institute has concluded that "the existence of one or more adverse environmental conditions can reduce the market value of real property interests in a site," and therefore should be considered. Appraisal Institute, The Appraisal of Real Estate 224-25 (13th ed. 2008); see also Appraisal Institute advisory opinion 9.
In my view, the costs of remediation of contaminated property are admissible in a condemnation proceeding provided that the costs directly impact the value of the property. Two reasons support my conclusion. First, Minnesota's condemnation jurisprudence favors the admissibility of any competent evidence that legitimately bears upon the fair market value of the property. It is not disputed that the costs of remediation bear upon the fair market value of the property. Therefore, the costs of remediation are admissible, provided that the condemning authority establishes that the costs directly impact the value of the property.
Previously, we affirmed the decision of the Minnesota Tax Court that the subject property had zero market value due to environmental contamination. Westling v. County of Milk Lacs, 543 N.W.2d 91, 93 (Minn. 1996). In Westling, the tax court accepted appraiser expert testimony that the costs of remediation and stigma of the contamination reduced the market value of the property. Id. at 93. In doing so, we accepted the conclusion that environmental contamination is relevant to determine market value.
If environmental contamination, including the cost of remediation, is admissible in a tax court proceeding, it ought to be admissible in a condemnation proceeding. The valuation question in a condemnation and tax court proceeding is identical — what is the market value of the property on the relevant valuation date. Compare Rein Recreation, 298 N.W.2d at 49 (just compensation is "measured by market value at the time of taking"), with Minn. Stat. § 278.01 (2008) (property owner may challenge property taxes on ground that assessed value is too high), and Minn. Stat. § 273.11 (2008) (subject to exceptions not applicable, all real property subject to taxation "shall be valued at its market value"). The result of the majority rule excluding the costs of remediation means that the market value of the same property would be significantly different in a condemnation proceeding under chapter 117 than in a tax court proceeding under chapter 278. Such a result is illogical and contradictory.
The majority argues that different value determinations obtained in different forms is not "problematic." I disagree. Here, the jury found that the Anda property had a value as contaminated of zero and without contamination of $455,000. It is illogical and contradictory to have different market value determinations for the same property that depends solely on whether it was considered in a condemnation or tax court proceeding.
Second, the Legislature has already determined that the costs of remediation are admissible in a condemnation proceeding. The last sentence of Minn. Stat. § 117.085 provides:
The commissioners shall, if requested by any party, make an express finding of the estimated cost of removal and remedial actions that will be necessary on the taken property because of existing environmental contamination.
This provision of the statute has been in effect since 1991. The premise of the statute is that the costs of remediation are admissible. Otherwise, the commissioners could not make the findings contemplated by the statute. Since the evidence is admissible in condemnation hearings, there is no basis to exclude it in the district court. Thus, the Legislature has already determined that the costs of remediation are admissible in a condemnation proceeding.
The majority raises general concerns over the "fairness" to a property owner of reducing a condemnation award for the costs of remediation, particularly when the property is not responsible for the contamination. But the majority's "fairness" concerns conflate the issue of fair market value of the property in a condemnation proceeding with the issue of responsibility for the contamination in an environmental contamination action. The purpose of the condemnation proceeding, however, is to determine the fair market value of the subject property, not to determine which party is responsible for the contamination. Thus, the "fairness" issue is best resolved in an environmental contamination action.
Moreover, the majority's new rule requires that the condemned property be valued as remediated, and not as it existed on the date of the taking. Of course, the difference between the value of the property as is, and as remediated, is the costs of remediation. Pursuant to the new rule, the condemning authority must pay a condemnation award that includes not only the market value of the property, but also the costs of remediation. Presumably, the condemning authority may bring a separate environmental contamination action (or pursue other remedies) to recover the costs of remediation. But just compensation does not require that the condemning authority pay more than the market value of the property. Requiring the condemning authority to pay the costs of remediation is outside the bounds of just compensation.
For example, when the value of contaminated property as remediated is $1,000,000 and the costs of remediation are $500,000 the majority would require the condemning authority to pay $1,000,000 even though its fair market value is considerably less.
The majority contends that admitting the costs of remediation exposed the property owner to "double liability" — once in the condemnation proceeding by reducing the value of the property, and again as a responsible person under the Minnesota Environmental Response and Liability Act (MERLA), Minn. Stat. ch. 115B (2008), and the Petroleum Tank Release Cleanup Act (PTRCA), Minn. Stat. ch. 115C (2008). But the majority's "double liability" theory did not occur in this case. Moreover, a double recovery is prohibited by statute. Minn. Stat. § 115B.13 (2008).
MEDA asserted that the costs of remediation had a negative impact on the value of Anda's property in the condemnation proceeding; and MEDA sued Anda for negligence, nuisance, and strict liability to recover its costs of remediation only for the other parcels. Thus, MEDA did not seek to recover the same costs of cleanup twice.
The majority suggests that Minn. Stat. § U5B.13 only prohibits a "double recovery" by a person who recovers response costs or damages pursuant to chapter 115B. I disagree. The second sentence of section 115B.13 broadly applies to the converse situation. Specifically, any person who recovers response costs pursuant to "any other state or federal law" may not recover for the same costs or damages under chapter 115B. Id. Thus, when a condemning authority recovers response costs or damages in the form of a reduced condemnation award under chapter 117, it may not seek a double recovery under chapter 115B. Additionally, the right of a property owner to recover the costs of remediation against other responsible parties is explicitly preserved. Minn. Stat. § 115B.12.
Notably, the Legislature has provided protection to condemning authorities for contaminated property subject to MERLA. See Minn. Stat. § 115B.03, subd. 1 (applies to the release or threatened release of a hazardous substance, or pollutant or contaminant as described in the statute). Specifically, a condemning authority is not "a responsible person" under MERLA for the contamination of property it seeks to condemn, and therefore is not liable for the costs of remediation of the condemned property. Id., subd. 5. By requiring the condemning authority to pay the value of the property as remediated, the majority imposes upon the condemning authority the initial obligation to pay the costs of remediation for the condemned property, and then seek to recover those costs through a contribution action. This result appears to contradict the protection given by the Legislature to condemning authorities.
It is not clear whether MERLA would apply to Anda's property. But the majority's exclusionary rule does apply to the condemnation of all contaminated property.
The majority suggests that the fair market value of contaminated property "is often very difficult to find." This conclusion, however, is not based upon any evidence in the record. Moreover, the Appraisal Institute reaches the opposite conclusion. It concludes:
In recent years, contaminated properties have become more marketable and have begun to change hands with increasing frequency. Such transactions will usually provide sufficient basis for valuing or analyzing a site that may be impacted by environmental contamination.
Appraisal Institute, The Appraisal of Real Estate 226 (13th ed. 2008).
The majority also argues that "due process concerns" require that costs of remediation not be admissible. But the majority's argument misses the mark. The purpose of a condemnation proceeding is to determine the fair market value of the property condemned and not to determine liability for the contamination of the property.
Accordingly, Anda is not entitled to a new trial in the condemnation proceeding. Existing case law supports my conclusion. Moreover, the Legislature has already determined that such costs are admissible. It is not the province of this court to second-guess the policy judgments of the Legislature that condemning authorities should not be required to pay the costs of remediation, and that the costs of remediation are admissible in a condemnation proceeding.