Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ALEXIS MACK, Appellant, v. HYUNDAI MOTOR AMERICA CORPORATION, Appellee. No. 2D21-20 July 29, 2022 Appeal from the Circuit Court for Hillsborough County; Emily A. Peacock, Judge. Theodore F. Greene III of Law Offices of Theodore F. Greene, LC, Orlando, for Appellant. David B. Shelton and Charles P. Mitchell of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellee. NORTHCUTT, Judge. Alexis Mack challenges a final summary judgment that terminated her lawsuit against Hyundai Motor America Corporation. We reverse because the circuit court erred when concluding that Mack failed to satisfy a condition precedent to filing suit under the Magnuson-Moss Warranty Act. Mack purchased a new 2016 Hyundai Sonata from Hyundai of New Port Richey in December 2015. The vehicle was covered by several warranties from Hyundai Motor Company, two of which are pertinent here. The Hyundai New Vehicle Limited Warranty covered Mack's car for the lesser of five years or 60,000 miles. The Hyundai Powertrain Limited Warranty extended warranty coverage for certain engine and transaxle components from the expiration of the New Vehicle Limited Warranty until the lesser of ten years or 100,000 miles after the purchase. The Sonata began giving Mack problems early on. Five months after the purchase, she contacted Hyundai directly through the Service Link system programmed into her car to obtain a service appointment to investigate an illuminated check engine light. Hyundai made an appointment for Mack at a dealer, who updated the vehicle's engine control module. Two months later, the check engine light came on again. Again, Mack called Hyundai through the onboard system, and she was given another dealer appointment. On another occasion, Mack 2 contacted Hyundai through the Service Link system to complain that her check engine light was on and that she would "[p]ush the gas and the veh[icle] barely goes." This time, Hyundai's representative told Mack that the company could not help her find a service appointment because none were available through the dealer scheduling system. The representative apologized and told her to call a dealer directly to obtain service. Over the next several years, Mack had to bring her vehicle to Hyundai dealers numerous times to rectify engine problems. On more than one occasion, the dealers had to keep the vehicle to attempt remedies that included replacing engine seals, reprogramming the computer, and various other repairs. But the engine problems persisted. Many of the repairs were reviewed and approved by Hyundai before the dealers were authorized to perform them. None of the fixes ever permanently repaired the engine. Eventually, Mack attempted to escalate the dispute according to the terms of the Hyundai's warranty documents. Those documents prescribed an "Alternative Dispute Resolution (arbitration) program" offered through BBB Auto Line. The documents warned that a customer "must use BBB AUTO LINE 3 prior to seeking remedies through a court action pursuant to the Magnuson-Moss Warranty Act" or "[u]nder the 'Lemon Laws' of your state if your state statute requires you to do so." In May 2019, Mack contacted BBB in an attempt to resolve her issues. But BBB turned her away, advising that the mileage on Mack's vehicle exceeded the program parameters and that BBB would "not be able to help." In September 2019, at around 85,000 miles, the check engine light illuminated again, and the vehicle was leaking oil. This time, a Hyundai dealer confirmed that the engine had an internal fault that necessitated a full engine replacement. The dealer contacted Hyundai, which approved the repair under warranty. But Hyundai advised that it had no engines available, and so Mack's car sat in wait. Mack was without her vehicle for about seven months before she took further steps. On April 25, 2019, Mack's attorney wrote a letter to Hyundai, explaining that Mack had claims "pursuant to the federal Magnuson-Moss Warranty Act and/or the Florida Lemon Law." Counsel listed the many problems with the vehicle and asserted that Mack had given Hyundai numerous and sufficient 4 opportunities to repair the vehicle by tendering it to Hyundai's dealers. She demanded that Hyundai repurchase the vehicle and return the payments she had made. Finally, she gave Hyundai ten days to respond, failing which she would file suit. Hyundai failed to respond for more than a month. Meanwhile, the dealership that had Mack's vehicle finally replaced the engine— under warranty and with Hyundai's approval—and returned the car to her in late May 2019. On June 5, 2019, a paralegal with Hyundai emailed Mack's counsel. The paralegal did not substantively respond to Mack's demand. Instead, the email asked for more information and an "opportunity to review this matter prior to any litigation." A couple of days later, Hyundai wrote a one-sentence email to Mack's counsel, "Please let me know where your client stands settlement-wise." On June 12, counsel responded with a demand for $30,000, plus attorneys' fees. On June 20, 2019, still having received no substantive response from Hyundai, Mack filed suit, pleading a single cause of action under 15 U.S.C. § 2310(d)(1), a provision of the Magnuson- Moss Warranty Act. Mack's complaint demanded several categories 5 of damages, including diminution of value; costs of repair or cost of cover under the Uniform Commercial Code; incidental and consequential damages; attorneys' fees and costs; and equitable relief. Hyundai finally responded to Mack's settlement demand five days after she filed suit. It rejected Mack's proposal and countered with two alternatives: 1. Hyundai would pay a $5,000 cash payment and allow Mack to keep the vehicle; or 2. Hyundai would repurchase the vehicle under terms that, according to Hyundai, would have satisfied a claim under Florida's lemon law. Mack then counteroffered, the details of which are unnecessary to recite here. The parties exchanged several settlement proposals over the following months, but they never reached an agreement. In the lawsuit, Hyundai moved for summary judgment. It argued that Mack had failed to comply with a condition precedent to filing suit under the Act because she had failed to first give Hyundai a reasonable opportunity to cure its failure to comply with its warranty obligations. See 15 U.S.C. § 2310(e) (requiring a 6 purchaser of an automobile to "afford[] a reasonable opportunity to cure such failure to comply [with obligations under the warranty]" before filing suit). Hyundai claimed that counsel's April 25, 2019, letter was Hyundai's "first notice that Plaintiff was dissatisfied with the dealer's repair efforts." Further, it argued that Mack denied Hyundai the "right to cure" by rejecting its postsuit settlement offer, which it characterized as more generous than the one provided under Florida's lemon law statutes. The circuit court agreed with Hyundai. It ruled: "The refund offer was a cure of any alleged warranty breach. By rejecting the refund, Plaintiff failed to comply with a condition precedent to filing a lawsuit under the MMWA." The court therefore granted Hyundai's motion for summary judgment and entered judgment for Hyundai, reserving jurisdiction to adjudicate any claims for fees and costs.1 Mack appealed. We review summary judgments de novo, Scott v. Strategic Realty Fund, 311 So. 3d 113, 116 (Fla. 2d DCA 2020), mindful that 1 Hyundai did subsequently move for and receive a judgment against Mack for fees. That judgment is on appeal before this court in case number 2D21-1547, currently stayed pending the resolution of this appeal. 7 the movant for summary judgment must show that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. See Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383, 389 (Fla. 2d DCA 2018).2 Under this standard, every inference in this case must be drawn in favor of Mack, the respondent below. See Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) ("[T]he court must draw every possible inference in favor of the party against whom a summary judgment is sought."). With these principles in mind, we reverse the summary judgment in favor of Hyundai for several reasons. First, the statutory language governing Mack's lawsuit does not support the circuit court's conclusion that Mack's rejection of Hyundai's postsuit settlement offer precluded her lawsuit. 2 The summary judgment standard that preceded the Florida Supreme Court's 2020 amendment of Florida Rule of Civil Procedure 1.510 applies in this case because the judgment was entered before the amendment's effective date of May 1, 2021. See Guzman v. S. Fid. Ins. Co., 332 So. 3d 67, 70 n.2 (Fla. 2d DCA 2021); see also Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020) (stating that the Florida Supreme Court's amendment in In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192 (Fla. 2020), applies prospectively). 8 Mack proceeded under 5 U.S.C. § 2310(d), which provides a civil action for "the failure of a . . . warrantor . . . to comply with any obligation under . . . a written warranty, implied warranty, or service contract." Hyundai's motion for summary judgment was based on subsection (e) of that same statute, which prescribes a condition precedent to suit: "No action . . . may be brought under subsection (d) for failure to comply with any obligation under any written or implied warranty or service contract . . . unless the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure to comply." We are bound by the plain language of the statute. See State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) (holding that a statute's plain and ordinary meaning must control). We cannot add language or requirements that the legislature did not choose to include. Eastwood Shores Prop. Owners Ass'n v. Dep't of Econ. Opportunity, 264 So. 3d 264, 268 (Fla. 2d DCA 2019). In this case, the circuit court's ruling effectively and illogically prevented Mack from considering or rejecting settlement offers intended to avoid litigation if she wanted to retain her right to proceed with litigation under the Act. Manifestly, nothing in the language of the statute 9 prohibits a party from entertaining or rejecting settlement offers as a condition precedent to suit. Thus, the circuit court's ruling was error. Second, even if simply rejecting a settlement offer could be a failure of a condition precedent, we could not consider it to be such in this case because of the timing of the offer. A plaintiff's right to sue is determined by the facts existing at the time suit is filed. See Derouin v. Universal Am. Mortg. Co., 254 So. 3d 595, 602 (Fla. 2d DCA 2018) (rejecting the plaintiff's argument that a postfiling offer to engage in a face-to-face meeting could cure a presuit failure to comply with that condition precedent to foreclosure (citing Voges v. Ward, 123 So. 785, 793 (Fla. 1929))). When this suit was filed Hyundai had not made an offer and Mack had not rejected an offer. Those postsuit occurrences are irrelevant to the statutory condition precedent that Mack give Hyundai a reasonable presuit opportunity to cure its breach of its warranty. See 15 U.S.C. § 2310(e). Third, Florida's lemon laws, and Hyundai's alleged effort to satisfy them, could not support the summary judgment. Hyundai argued below and here that its offer was sufficient to "cure" Mack's claim because the offer exceeded what Mack could have received 10 under Florida's lemon laws. But Mack did not sue under Florida's lemon laws. And no language in the Magnuson-Moss Warranty Act, nor in any case that has been cited or discovered in this case, limits a purchaser's remedies under the Act to what is available under state lemon laws.3 See Burzlaff v. Thoroughbred Motorsports, Inc., 758 F.3d 841, 849-50 (7th Cir. 2014) (holding that a trial court correctly allowed both a Wisconsin lemon law claim and a Magnuson-Moss claim to go to the jury where the available damages under each ground were not identical). The damages available under the Magnuson-Moss Warranty Act in Florida cases derive from Florida warranty law under the UCC and are therefore broader than those available under Florida's lemon laws. See Kia Motors Am., Inc. v. Doughty, 242 So. 3d 1172, 1175 (Fla. 2d DCA 2018) (stating that a Magnuson-Moss claim includes damages under Florida's UCC for a breach of warranty and may include damages for diminished value and incidental and consequential 3 The parties dispute whether the offer would actually have satisfied Florida's lemon laws, given some of the conditions attached to Hyundai's offer that are not imposed by the statute. We need not comment on that topic in order to resolve this appeal. 11 damages arising from the breach); § 681.104(2)(a), Fla. Stat. (2018) (providing for more limited and situational remedies). The upshot is that Mack did not pursue a lemon law claim in her lawsuit. Even if the circuit court might have considered Hyundai's postsuit offer in a lemon law action, its resolution of Mack's Magnuson-Moss Act suit on that basis was error. Fourth, courts have held that "[t]he question of whether a seller has been granted a sufficient opportunity to remedy a defect is ordinarily one for the finder of fact." Atchole v. Silver Spring Imps., Inc., 379 F. Supp. 2d 797, 800 (D. Md. 2005); see also Tucker v. Aqua Yacht Harbor Corp., 749 F. Supp. 142, 147 (N.D. Miss. 1990) ("The phrase 'reasonable opportunity to cure' is necessarily a flexible one, and its meaning is dependent on the facts and circumstances of each case."), aff'd sub nom., Tucker v. Aqua Yacht Harbor, 953 F.2d 643 (5th Cir. 1992). Evidence of numerous failed attempts to repair defects in a vehicle can create an issue of material fact as to whether a manufacturer has been furnished a "sufficient opportunity to cure the alleged defects." De Shazer v. Nat'l RV Holdings, Inc., 391 F. Supp. 2d 791, 798 (D. Ariz. 2005) (holding that manufacturer's multiple attempts to repair defects in 12 a recreational vehicle precluded the manufacturer from obtaining summary judgment on the ground that it had not "been given a reasonable opportunity to repair the covered defects"). As outlined above, the record in this case is replete with facts from which a jury could conclude that Hyundai was given any number of reasonable opportunities to cure its failure to satisfy its warranty obligations. As such, it was error to grant Hyundai a summary judgment on that issue. For all the forgoing reasons, the circuit court erred by granting summary judgment on the ground that Mack's refusal to accept Hyundai's postsuit offer affirmatively proved that she had not complied with conditions precedent under the Magnuson-Moss Warranty Act. We reverse the judgment on appeal and remand for further proceedings consistent with this opinion. Reversed and remanded. ROTHSTEIN-YOUAKIM and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 13