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 and Eric D. Isicoff and Carolina A. Latour,
ROTHENBERG, C.J., and SUAREZ, LAGOA, SALTER, EMAS, FERNANDEZ,
LOGUE, SCALES, LUCK and LINDSEY, JJ.
Motion for Rehearing En Banc
1965, our state Supreme Court held that Florida law allowed
for rescission of a contract based on unilateral mistake.
Maryland Cas. Co. v. Krasnek, 174 So.2d 541, 542
(Fla. 1965) ("Although there is little doubt that the
statement in the District Court's opinion that unilateral
mistake provides no basis for rescission of a contract or for
other equitable relief therefrom, represents the majority
view, we are of opinion that it does not accurately reflect
Florida case law." (citations omitted)). But what
elements are required to prove unilateral mistake? Our court
has read Krasnek to answer the question in two ways.
In one line of cases, we have read Krasnek to
require that the party seeking rescission prove "the
mistake was induced by the party seeking to benefit from the
mistake." DePrince v. Starboard Cruise Servs.,
Inc., 163 So.3d 586, 592 (Fla. 3d DCA 2015)
(DePrince I); Rachid v. Perez, 26 So.3d 70,
72 (Fla. 3d DCA 2010); Lechuga v. Flanigan's Enters.,
Inc., 533 So.2d 856, 857 (Fla. 3d DCA 1988). In another
line of cases, we have not required the party seeking
rescission to prove that she was induced to make the mistake.
See U.S. Alliance Corp. v. Tobon, 715 So.2d 1122,
1123 (Fla. 3d DCA 1998); Penn. Nat'l Mut. Cas. Ins.
Co. v. Anderson, 445 So.2d 612, 613 (Fla. 3d DCA 1984).
To address the lack of uniformity, we grant Starboard Cruise
Service's motion for rehearing en banc, vacate the panel
opinion, DePrince v. Starboard Cruise Servs., Inc.,
43 Fla.L.Weekly D171 (Fla. 3d DCA Jan. 17, 2018)
(DePrince II), and recede from Lachuga,
Rachid, and DePrince I to the extent they
require inducement as an element of unilateral mistake. We
conclude that a party seeking rescission of a contract based
on a unilateral mistake does not have to prove that she was
induced into making the mistake by the other party, and
affirm the judgment for Starboard.
AND PROCEDURAL BACKGROUND
February 11, 2013, Thomas DePrince, a passenger aboard a
cruise ship, visited the ship's jewelry boutique,
operated by Starboard, 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 this complaint seeking to enforce the parties'
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. at 592. As an example of
inducement, the court quoted ...