This is an appeal from certain orders — following this court's remand in an earlier appeal
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.
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.
Both Griffin and Smith appealed; Volkswagen was not a party to the appeal. This court in Griffin I affirmed all issues,
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):
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 case, we would be required to conclude that as the judgment was reversed only insofar as it affected Smith's right to recover damages on his revocation of acceptance claim, the portion of the judgment which was unaffected by this court's reversal remained final and binding, i.e., that Smith take nothing by his action against Volkswagen. Thus, Smith's right to make further election against Volkswagen would be barred.
Nevertheless, we are not asked to decide only whether the lower court erred in denying Smith's right to seek further election of remedy against Volkswagen, because Smith also moved for relief from judgment under Florida Rule of Civil Procedure 1.540(b). That rule permits relief when, inter alia, the "prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application."
Our task, then, is to determine whether rule 1.540(b) should be applied to release Smith from the bar of that portion of the former judgment which was unaffected by this court's reversal in Griffin I. We conclude that the rule is applicable because, in our opinion, it is no longer equitable that the judgment should continue to have prospective application. As stated, this court determined that Smith's election of revocation of acceptance against Griffin was ineffective. Yet, despite Smith's attempt to make further
As explained in Cutler Ridge Corp. v. Green Springs, Inc., 249 So.2d 91, 93 (Fla. 3d DCA 1971), "The general purpose of the rule [1.540(b)] is to enable the court to grant relief against an unjust decree, and should be liberally construed to advance such remedy." The Second District Court of Appeal construed the rule in the following manner:
Hensel v. Hensel, 276 So.2d 227, 228 (Fla. 2d DCA 1973) (emphasis added).
Considering, then, the liberal purpose of the rule, we conclude that it would be inequitable to enforce that portion of the judgment barring Smith from taking anything by his action against Volkswagen, particularly in view of the fact that the judgment was predicated on Smith's election of a remedy against Griffin, which remedy, following appeal, was discovered to be illusory. As the Florida Supreme Court observed in Perry v. Benson, 94 So.2d 819, 821 (Fla. 1957):
Therefore, we reverse the orders denying Smith's motions to elect a further remedy against Griffin and for relief from judgment against Volkswagen, and the final judgment declaring that Smith take nothing by his action, and remand the case with directions that the remaining verdicts on the counts which Smith recovered against Griffin and Volkswagen, unaffected by this court's decision in Griffin I (counts I, III, IV and VI), be reinstated, and that Smith shall be given the opportunity to make a further election among one or more of the remaining remedies, and judgment be entered thereafter. If Smith should elect a combination of more than one of such remedies, the trial court must determine whether any of the same are both coexistent and inconsistent, in that the doctrine of election of remedies only applies under such circumstances.
REVERSED and REMANDED for further consistent proceedings.
JOANOS and BARFIELD, JJ., concur.