final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 13-16523 Michael Hanzman, Judge.
McDonald Hopkins, and Robert A. Cohen, Mario M. Ruiz and
Joelle H. Dvir, for appellant.
Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff and
Carolina A. Latour, for appellee.
LAGOA, SCALES and LUCK, JJ.
1932 movie Night After Night, a cloakroom attendant
comments to Mae West on her ring, "Goodness, what a
lovely diamond!" Mae West, in her first movie role,
responds: "Goodness had nothing to do with it."
Night After Night (Paramount Pictures, 1932).
Goodness, too, had nothing to do with how Thomas DePrince
bought his twenty-carat diamond. Through a comedy of errors,
and an e-mail miscommunication, a cruise line jewelry shop
sold the twenty-carat diamond to DePrince for one-twentieth
of its retail value. DePrince knew the jewelry shop was
selling the diamond for millions less than it should but said
nothing. This breach of contract claim arose out of the
jewelry shop reversing the charges and canceling the sale
once it learned about the price. The jury, after a five day
trial, found the jewelry shop made a unilateral mistake and
rescinded the contract for the purchase of the diamond.
Because the trial court did not follow the holdings from the
first appeal, DePrince v. Starboard Cruise Servs.,
Inc., 163 So.3d 586 (Fla. 3d DCA 2015) (DePrince
I), in instructing the jury on the elements of
unilateral mistake, we reverse and remand for a new trial.
AND PROCEDURAL BACKGROUND
The cruise. On February 11, 2013, DePrince, a passenger
aboard a cruise ship, visited the ship's jewelry
boutique, operated by Starboard Cruise Services, Inc., where
he indicated his interest in purchasing a fifteen to twenty
carat loose diamond. DePrince specified he wanted an emerald
cut, high quality, color D, E, or F diamond with a G.I.A.
certificate. Because the shipboard jewelry store did
not have such a diamond, the store's manager, Mr. Rusan,
electronically mailed Starboard's corporate office.
Jimenez, at the corporate office, reached out to
Starboard's diamond vendor in California, Sophia Fiori.
Mr. Bachoura from Sophia Fiori, with some reservations
because he did not believe a sale of this magnitude should
take place aboard a ship, called a diamond broker in New
York, Julius Klein, for its available inventory. Julius Klein
sent Mr. Bachoura a list of diamonds available with the
desired specifications. The list provided a per-carat price
and a net price for each diamond. Mr. Bachoura selected two
diamonds from the inventory listing, and electronically
mailed the following information to Ms. Jimenez:
These prices are ship sailing prices based on the lowest tier
diamond margin we have. Let me know if you have any
EC 20.64 D VVS2 GIA VG G NON selling price $235, 000
EC 20.73 E VVS2 GIA EX EX FNT selling price $245, 000
Jimenez forwarded this information to Mr. Rusan on the ship.
Mr. Rusan, in turn, presented the information to DePrince and
his partner, Mr. Crawford.
Ms. Jimenez nor Mr. Rusan had ever sold a large loose diamond
before, and did not realize the quoted price was per carat.
Mr. Crawford, who was a certified gemologist, asked the
opinion of DePrince's sister, a graduate gemologist. Ms.
DePrince warned that something was not right because the
price for a diamond of that size should be in the millions
and recommended not buying the diamond.
his sister's advice, DePrince contracted with Starboard
to purchase the 20.64 carat diamond for the quoted $235, 000
price, paying with his American Express credit card. Shortly
after the sale, Starboard discovered that the $235, 000 price
was per carat. Starboard immediately notified DePrince of the
error and reversed the charges to his credit card. DePrince
then filed the instant action seeking to enforce the
DePrince I. The trial court initially granted summary
judgment in favor of Starboard on June 20, 2014, based on
Starboard's defense of unilateral mistake. This court
reversed that judgment in DePrince I. There, the
court reviewed the various tests for determining whether a
party's agreement could be rescinded based on a
unilateral mistake. Concluding that the panel and trial court
were bound by the "four-prong test to establish
unilateral mistake, " the court
held that in order to rescind an otherwise-valid contract
based on a unilateral mistake, the party seeking to avoid the
contract must show: (1) [T]he mistake was induced by the
party seeking to benefit from the mistake, (2) there is no
negligence or want of due care on the part of the party
seeking a return to the status quo, (3) denial of release
from the agreement would be inequitable, and (4) the position
of the opposing party has not so changed that granting the
relief would be unjust.
Id. at 592 (quotation omitted; footnote omitted).
The court explained that "this panel - along with the
trial court - is of course bound by" the four-prong
test. Id. at 591. Later in the opinion, the court
"reiterate[d] our position" that we "currently
adhere to the four-prong test." Id. at 594.
The court then went on to apply the four-prong test to the
facts in the record at the summary judgment hearing.
court concluded that there was a genuine issue of material
fact on the inducement prong because "knowledge of an
error is markedly different than inducement of that
error." Id. As an example of inducement, the
court quoted the test for fraudulent inducement, and
explained in a footnote:
We do not hold that the burden to establish inducement for
purposes of the first prong of a unilateral mistake defense
is the same as proving the elements for a fraudulent
inducement defense, but merely use fraudulent inducement by
way of example to demonstrate that inducement requires
some type of action, not mere knowledge. In fact, the
burden of proof cannot be the same because such a requirement
would render the unilateral mistake of fact defense
completely obsolete by requiring a party seeking to avoid a
contract on that basis to prove fraudulent inducement, which
is itself sufficient to render a contract voidable by the
Id. at 592 n.6 (emphasis added).
court also concluded that there was a genuine issue of
material fact on the negligence prong. "[W]hether
Starboard made a reasonable and understandable mistake or
acted negligently in its handling of the sale is a disputed
issue of fact, " the court explained. Id. at
593. Based on this, the court reversed the summary judgment
for Starboard and remanded for further proceedings because
"[t]here remain genuine issues of material fact to be
resolved." Id. at 598.
The trial. The case went to trial on April 4, 2016 on
DePrince's claim of breach of contract, and
Starboard's defenses of unilateral mistake and fraudulent
inducement. By the end of the case the issues had been
whittled down. The parties did not dispute that they entered
into an agreement; the only issues were whether Starboard was
excused from that agreement because it made a unilateral
mistake or had been fraudulently induced into entering into
it. Here are the instructions the trial court gave on the
Now, Starboard's first affirmative defense is that it
made a unilateral mistake of fact and it should be able to
set aside the contract because of its mistake in quoting the
price of the diamond to Mr. DePrince based upon the price
quote it obtained from its vendor.
To establish this defense Starboard must prove the following:
One, that the mistake was induced by the party, here Mr.
DePrince, seeking to benefit from the mistake. Inducement may
occur through misrepresentations, statements, or omissions
which cause the contracting party to enter into a
transaction. While there may be some degree of negligence on
the part of Starboard, Starboard m[u]st show that there was
no inexcusable lack of due care under the circumstance on its
part, the party seeking return to the status quo.
Starboard must also show that denial of release from the
agreement would be inequitable. In other words, it would be
inequitable to hold it to the contract. And it must show that
Mr. DePrince did not change his position in any way and that
granting relief would not be unjust.
Starboard has also asserted the affirmative defense of fraud
in the inducement through nondisclosure. The Court instructs
you that [in the] absence of fiduciary relationship between
parties, which the Court has found as a matter of law does
not exist in this case[, ] [t]here is generally no duty to
disclosure any facts when parties are dealing at arm's
However, where a party undertakes to disclose certain facts
and information, that party must then disclose the entire
truth then known to him regarding the disclosures he made.
In other words, I am going to try to simplify this by telling
you that the law does not allow people to speak half truths.
So if you decide to speak on a matter you have an obligation
to disclose the whole truth regarding that particular matter.
jury found that Starboard should be excused from performing
under the contract because it committed a unilateral mistake
and was fraudulently induced by DePrince. The trial court
denied DePrince's motion for directed verdict on the
affirmative defenses, leading to this appeal.
DePrince appeals the trial court's rulings regarding
directed verdict, jury instructions, and the admission of
evidence, we have multiple standards of review. "The
standard of review of a trial court's ruling on a motion
for directed verdict is de novo. In considering a motion for
directed verdict, the trial court is required to give the
benefit of all reasonable inferences to the nonmoving party
and in favor of submitting the question to the jury."
Diaz v. Impex of Doral, Inc., 7 So.3d 591, 593 (Fla.
3d DCA 2009) (citation omitted). "The standard of review
regarding jury instructions is an abuse of discretion."
Smith v. Orhama Inc., 907 So.2d 594, 596 (Fla. 3d
DCA 2005). Likewise, "appellate courts review a trial
court's ruling on the admissibility of evidence under an
abuse of discretion standard." Bank of Am., N.A. v.
Delgado, 166 So.3d 857, 860 (Fla. 3d DCA 2015).
contends on appeal that the trial court erred by: (1) denying
his motion for directed verdict on Starboard's fraudulent
inducement affirmative defense; and (2) improperly
instructing the jury on the elements of Starboard's
unilateral mistake affirmative defense. DePrince also
contends that the trial court made evidentiary errors by: (a)
excluding as irrelevant the contract's provision that all
special mail orders are non-refundable; (b) excluding
evidence of a $2 million mark up price on the diamond; and
(c) permitting Starboard to question DePrince as to whether
he had an obligation to tell Starboard it was making a
mistake on the price of the diamond. We address each of these
Fraudulent Inducement Affirmative Defense: Directed Verdict
first, argues that the trial court should have granted his
directed verdict motion on Starboard's fraudulent
inducement affirmative defense because Starboard did not
present evidence that DePrince induced it to offer the
diamond for millions less than it was worth. Starboard
responds that DePrince made a single representation to have
the diamond shipped to the GIA in New York. Once he made this
partial misrepresentation, Starboard continues, DePrince had
a duty to tell the manager everything, including that the
diamond was worth much more.
has the law right. In a general commercial transaction like
this one, "there is no duty imposed on either party to
act for the benefit or protection of the other party, or to
disclose facts that the other party could, by its own
diligence have discovered." Watkins v. NCNB
Nat'l Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla.
3d DCA 1993) (quotation omitted). However, "even though
a party to a transaction owes no duty to disclose facts
within his knowledge, or to answer inquiries respecting such
facts, if he undertakes to do so he must disclose the whole
truth." Ramel v. Chasebrook Const. Co., 135
So.2d 876, 882 (Fla. 2d DCA 1961); see also Gutter v.
Wunker, 631 So.2d 1117, 1118-19 (Fla. 4th DCA 1994)
("[W]here a party in an arm's length transaction
undertakes to disclose information, all material facts must
be disclosed."); Nicholson v. Kellin, 481 So.2d
931, 936 (Fla. 5th DCA 1985) ("[E]ven assuming that a
party to a transaction owes no duty to disclose facts within
his knowledge or to answer inquiries respecting such facts,
if he undertakes to do so he must disclose the whole
truth."). Once a party dips her toe into the material
representation waters, in other words, she is required to
jump all the way in head first.
is wrong, however, that DePrince's shipping instructions
were a half-truth compelling him to disclose what he knew
about the diamond. We need only compare what DePrince said
with those partial representations that the Florida courts
have declared to create a duty to disclose the whole truth.
In Ramel, for example, the sellers represented to
the homebuyers that the house "was well constructed and
well built" even though the sellers knew during
construction that the foundation was settling, the pool was
sinking and pulling the patio with it, and the home had
cracks that had been sealed. Ramel, 135 So.2d at
878-79. In Vokes v. Arthur Murray, Inc., 212 So.2d
906 (Fla. 2d DCA 1968), the dancing school instructor told
his student that she had grace, excellent potential, and was
developing into a beautiful dancer even though the instructor
knew this was not true. Id. at 908. And in
Nicholson, the conspirators represented to the
investors that the business opportunity had "guaranteed
returns and profits" even though the conspirators knew
the business was being run as a Ponzi scheme.
Nicholson, 481 So.2d at 934-35.
case, that is, the seller made a partial representation about
the quality or quantity of the product being sold: the
quality of the home in Ramel; the quality of the
student's dancing in Vokes; and the quantity of
money to be gained in the business opportunity in
Nicholson. Here, DePrince did not make a factual
representation about the quality or quantity of the diamond.
His statement to the jewelry store manager was an instruction
on where he wanted the diamond to be shipped after the
purchase, no different than if he asked to have the diamond
wrapped in tissue paper with a bow on top or to have a copy
of his credit card receipt mailed to his home. These
statements do not communicate anything about the diamond or
the transaction; they are not material facts about the
quality and quantity of the diamond that would affect the
seller and buyer's decisions to enter into the
transaction. On the other hand, if DePrince told the jewelry
store manager that the store was getting such a good deal on
the diamond that it was like Starboard was picking his
pocket; or if DePrince said that the deal was worth it only
because the quality of the diamond was so poor; these
statements would create the duty to tell all he knew about
this kind of material representation, the general rule
applies that DePrince and Starboard owed no duty to each
other to disclose facts that they could have discovered
through due diligence. Because the one fact Starboard relies
on was not a half-truth that would trigger a duty to tell the
whole-truth, DePrince did not owe a duty to disclose what he
knew about the true value of the diamond and he did not
fraudulently induce Starboard into entering the sales
agreement. The trial court should have directed a verdict on
Starboard's fraudulent inducement affirmative defense,
and erred by not doing so.
Unilateral Mistake Affirmative Defense: Jury Instruction
though we conclude that a verdict should have been directed
for DePrince on the fraudulent inducement affirmative
defense, we must also address his other arguments because the
jury alternatively found that Starboard was excused from
performing under the contract as a result of Starboard's
unilateral mistake. As to unilateral mistake, DePrince
contends the trial court erred when it instructed the jury on
the elements of the defense. Specifically, DePrince claims it
was error to instruct the jury on the first prong that
Starboard could be induced by omissions ...