       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 17, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1149
                         Lower Tribunal No. 13-16523
                             ________________


                             Thomas DePrince,
                                    Appellant,

                                        vs.

                     Starboard Cruise Services, Inc.,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, 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.


Before LAGOA, SCALES and LUCK, JJ.

      LUCK, J.
      In the 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found the jewelry shop made a unilateral mistake and rescinded the contract for the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.

              FACTUAL AND PROCEDURAL BACKGROUND

      1. 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.1 DePrince specified he wanted an emerald cut, high quality, color D, E,


                                         2
or F diamond with a G.I.A. certificate.2 Because the shipboard jewelry store did

not have such a diamond, the store’s manager, Mr. Rusan, electronically mailed

Starboard’s corporate office.

      Ms. 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 questions.

      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

Ms. Jimenez forwarded this information to Mr. Rusan on the ship. Mr. Rusan, in

turn, presented the information to DePrince and his partner, Mr. Crawford.




1 “A ‘loose diamond’ refers only to the gemstone itself, rather than a gemstone that
is a component of a larger piece of jewelry.” DePrince I, 163 So. 3d at 589 n.1.
2 “[T]he Gemological Institute of America (the ‘GIA’), [is] a not-for-profit entity

that grades and certifies gemstones . . . .” Zaretsky v. William Goldberg Diamond
Corp., 820 F.3d 513, 516 (2d Cir. 2016)
                                         3
      Neither 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.

      Disregarding 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 parties’ contract.3

      2. 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



3 DePrince’s complaint also included claims for specific performance and
conversion but he voluntarily dismissed those before trial.
                                             4
      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.

      The 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 aggrieved party.


                                          5
Id. at 592 n.6 (emphasis added).

      The 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.

      3. 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 affirmative defenses:

             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.
                                          6
             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 length.
             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.

The 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.

                            STANDARD OF REVIEW

      Because 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.
                                          7
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).

                                  DISCUSSION

      DePrince 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.4 We address each of these contentions below.

    1. Fraudulent Inducement Affirmative Defense: Directed Verdict Motion


4 DePrince, finally, contends that the trial court should have granted his motion for
summary judgment on Starboard’s unilateral mistake affirmative defense. We
addressed the summary judgment issue in DePrince I, finding the evidence
“sufficient at the summary judgment phase of the proceedings to create a genuine
issue of material fact.” DePrince I, 163 So. 3d at 592.
                                         8
      DePrince, 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.

      Starboard 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


                                          9
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.

      Starboard 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.

      In each 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


                                          10
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 the transaction.

      Without 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


                                          11
agreement. The trial court should have directed a verdict on Starboard’s fraudulent

inducement affirmative defense, and erred by not doing so.

           2. Unilateral Mistake Affirmative Defense: Jury Instruction

      Even 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 rather than some kind of action, and on the second prong that some

degree of negligence by Starboard was excusable in selling the diamond at the

wrong price.

                     a. What are the holdings of DePrince I?

      Sometimes finding the holdings in a judicial opinion can be like searching

for diamonds in a coal mine – hard and messy. Thankfully, DePrince I is not one

of those cases. Its holdings are clear because the court told us in clear language,

three times, that we were bound by the four-part test for unilateral mistake from

Rachid v. Perez, 26 So. 3d 70 (Fla. 3d DCA 2010).




                                        12
          First time. “This Court’s most recent decisions on this topic clearly

            articulated and reaffirmed the viability of the four-prong test to

            establish a unilateral mistake, [citing Rachid], and this panel – along

            with the trial court – is of course bound by that decision.” DePrince I,

            163 So. 3d at 591.

          Second time.      “This Court has held that in order to rescind an

            otherwise-valid contract based on 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 591-

            92 (quoting Rachid, 26 So. 3d at 72).

          Third time. “To reiterate our position on unilateral mistake of fact,

            this Court currently adheres to the four-prong test as stated in Rachid

            [and another case].” Id. at 594.

Even the dissenting opinion conceded that “[t]he DePrince I court determined that,

among competing tests for the application of the unilateral mistake of fact defense,




                                        13
this District’s case law required that the four-prong test applied to DePrince’s

claim,” and quoted from Rachid. Dissenting Op. at 2 & n.1.

      The DePrince I court applied the four-part test to the trial court’s summary

judgment for Starboard on its unilateral mistake defense. DePrince I, 163 So. 3d at

588 (DePrince “appeals the trial court’s order granting summary judgment in favor

of Starboard . . . on DePrince’s claims against Starboard for breach of contract,

specific performance, and conversion.”); see also id. at 591 (“On appeal, Starboard

has raised two defenses to the sales agreement’s formation and enforcement. First

and primarily, Starboard claims that a unilateral mistake of law prevents the

contract from being formed.”). As to the inducement prong, the court explained

“that inducement requires some type of action,” like making a false statement of

material fact – “mere knowledge” was not enough – in concluding that there was

no evidence of inducement. Id. at 592 & n.6. As to the negligence prong, the

court held that “whether Starboard made a reasonable and understandable mistake

or acted negligently in its handling of the sale is a disputed issue of fact.” Id. at

593. Because there was a genuine issue of material fact on both prongs, the court

reversed the summary judgment for Starboard and remanded for further

proceedings. Id. at 588.

      The court, in sum, decided four questions of law in DePrince I: First, this

court and the trial court were bound to apply the four-prong test from Rachid in


                                         14
analyzing Starboard’s unilateral mistake affirmative defense.          Second, the

inducement prong required the inducing party to make a false statement or engage

in some type of action; mere knowledge was not enough. Third, the absence-of-

negligence prong required the jury to find that the mistake was not the result of

Starboard’s negligence or want of due care. Fourth, based on this legal framework

of the inducement and negligence prongs, there were genuine issues of material

fact as to these elements, and the summary judgment for Starboard had to be

reversed.

      The dissenting opinion calls “ancillary” and “non-essential dicta” the second

holding in DePrince I that the inducement prong required the inducing party to

make a false statement or engage in some type action; that mere knowledge was

not enough. Dissenting Op. at 5-6. The dissenting opinion is wrong for two

reasons.

      First, the dissenting opinion says that because DePrince I used the

expression “even if” before concluding that “knowledge of an error is markedly

different than inducement of that error,” that means the sentence is not essential to

DePrince I’s ultimate decision on summary judgment. But the dissenting opinion

selectively quotes DePrince I by hacking off the first part of the sentence. The

unhacked full sentence reads: “More importantly, we note that even if DePrince

had known that the price he was quoted to purchase the diamond was in error,


                                         15
knowledge of an error is markedly different than inducement.” DePrince I, 163

So. 3d at 592 (emphasis added). A rationale labeled more important than others

cannot be “ancillary” and “non-essential.”

      Second, the dissenting opinion assumes that any alternative rationales a

court gives for its decision after the first one are non-essential dicta. This is not the

law. “[W]here a decision rests on two or more grounds, none can be relegated to

the category of obiter dicta.” Clemons v. Flagler Hosp., Inc., 385 So. 2d 1134,

1136 n.3 (Fla. 5th DCA 1980) (Schwartz, J.) (alteration in original) (quoting

Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949)). “It has long been

settled that all alternative rationales for a given result have precedential value. ‘It

does not make a reason given for a conclusion in a case obiter dictum, because it is

only one of two reasons for the same conclusion.’” McLellan v. Mississippi Power

& Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (en banc) (quoting Richmond

Screw Anchor Co. v. United States, 275 U.S. 331, 340 (1928)).

      With regard to the inducement prong of the unilateral mistake test, the

DePrince I court gave two grounds for its conclusion that summary judgment for

Starboard was due to be reversed. The first was that “DePrince . . . denied that he

knew there had been a pricing mistake in his affidavit, which is sufficient at the

summary judgment phase of the proceedings to create a genuine issue of material

fact.” And the second was that “even if DePrince has known that the price he was


                                           16
quoted to purchase the diamond was in error, knowledge of the error is markedly

different than inducement of that error.” Just as in Clemons and McLellan, we do

not discard one ground in favor of another, but rather treat them as alternative

holdings and give them equal precedential value.5

                      b. Did the trial court follow DePrince I
                     in its unilateral mistake jury instructions?

      We, next, consider whether the trial court instructed the jury on the four

prong test spelled out in DePrince I. We agree with DePrince that the trial court

instructed the jury on four-prongs but it did not follow the articulation of those

prongs by DePrince I.




5 The dissenting opinion spends a lot of time talking about the limitations of the
law of the case doctrine in summary judgment cases, citing Florida Supreme Court
cases from the 1950s and Judge Padovano’s treatise on appellate law. Judge
Padovano, and the dissenting opinion, are, of course, right that in the run-of-the-
mill summary judgment case, the law of the case doctrine is “unlikely" to be
implicated because all the court is doing is determining whether there’s a genuine
issue of material fact on the essential elements of the plaintiff’s claim, which facts
may change as the case progresses to trial (as happened in the Myers cases). In the
run-of-the-mill case, the elements of the cause of action or affirmative defense are
not in dispute. The court in the run-of-the-mill case doesn’t have to decide on the
elements of breach of contract or negligence. Those have been the same since
Lincoln was riding circuit in Illinois.
       But DePrince I was not a run-of-the-mill summary judgment case. In
DePrince I, because of “the great deal of confusion in the case law,” the court first
had to define unilateral mistake before it could rule on whether there was a genuine
dispute about the evidence of unilateral mistake. Defining what unilateral mistake
meant was as pivotal and necessary to DePrince I’s decision as the conclusion that
there were disputed facts.
                                         17
      On the inducement prong, the trial court defined inducement for the jury as

“misrepresentations, statements, or omissions which cause the contracting party to

enter into a transaction.” Defining inducement as making misrepresentations and

statements is correct, but the trial court went astray by telling the jury that an

omission of information can be an inducement. DePrince I was clear “that

inducement requires some type of action, not mere knowledge,” and as an example

gave making a false statement. Id. at 592 & n.6. To be a unilateral-mistake

inducement, the DePrince I court explained, the inducing party had to act in some

way to induce the other party into making a mistake.            Knowing material

information but omitting to tell the other party was not enough for the first prong

of the unilateral mistake test.

      The DePrince I court gave one example of action satisfying the inducement

prong: making a false statement, such as if DePrince had told the jewelry store

manager, “You’re getting a great deal.” We can think of some others. If DePrince

had drummed up other, less than $235,000 offers for the diamond to show the

jewelry store it should jump on his full price offer for $235,000. Or if DePrince

kept hounding the jewelry store manager to do the deal because of the big

commission the manager would get on the $235,000 sale. These examples are

“some kind of action” more than the omission of information but less than making

a false statement like in a fraudulent inducement case.


                                         18
      The trial court’s definition of inducement allowed the jury to find Starboard

made a unilateral mistake based solely on DePrince omitting to disclose material

information that was available to both parties. While the trial court has broad

discretion in crafting the jury instructions so they are an understandable and

accurate statement of the law, that discretion does not extend to instructing the jury

contrary to the law. The trial court’s definition of inducement in the unilateral

mistake instruction was contrary to DePrince I.

      There, also, is a problem with the trial court’s unilateral mistake instruction

on the negligence prong. The trial court instructed the jury that “[w]hile 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 to return to the status quo.” The “some degree of negligence”

language was contrary to DePrince I’s articulation of the negligence prong. In

DePrince I, the court described the negligence prong this way: “the party seeking

to avoid the contract must show . . . there is no negligence or want of due care on

the part of the party seeking a return to the status quo.” Id. at 592 (emphasis

added).

      The trial court’s instruction allowed the jury to find that Starboard could be a

little or somewhat negligent, just not inexcusably negligent. The trial court, in

other words, made it so Starboard could have been negligent about the price for the


                                         19
diamond, and still be entitled to rescind the contract.       The “some degree of

negligence” language lightened the burden on Starboard.

      The dissenting opinion would not grant a new trial because the “no

negligence” language, it says, was “dicta.” Dissenting Op. at 7. The dissenting

opinion explains that the trial court’s jury instruction was consistent with other

language in DePrince I suggesting some negligence was allowed for unilateral

mistake as long as the negligent party wasn’t “unduly negligent.” Dissenting Op.

at 7-9. The dissenting opinion is wrong for two reasons.

      First, DePrince I, three times, said we and the trial court were bound to

follow the “no negligence” language.       It is as holding as holding gets.      For

example, on page 591, DePrince I said: “This Court’s most recent decisions on

this topic clearly articulated and reaffirmed the viability of the four-prong test to

establish a unilateral mistake, [citing Rachid], and this panel – along with the trial

court – is of course bound by that decision.” DePrince I, 163 So. 3d at 591

(emphasis added). The “most recent decision” the court was bound by was Rachid,

which had held the party asserting unilateral mistake must show “there is no

negligence or want of due care on the part of the party seeking a return to the status

quo.” Rachid, 26 So. 3d at 72.

      Later on page 591 and into page 592, DePrince I said: “This Court has held

that in order to rescind an otherwise-valid contract based on a unilateral mistake,


                                         20
the party seeking to avoid the contract must show . . . ‘there is no negligence or

want of due care on part of the party seeking a return to the status quo.” DePrince

I, 163 So. 3d at 591-92 (footnote omitted) (quoting Rachid). And to underscore the

test for unilateral mistake, DePrince I said: “To reiterate our position on unilateral

mistake of fact, this Court currently adheres to the four-prong test as stated in

Rachid and Lechuga. Id. at 594 (emphasis added). The four-prong test “as stated”

in Rachid and Lechuga included that “there [be] no negligence or want of due care

on part of the party seeking a return to the status quo.” Rachid, 26 So. 3d at 72;

Lechuga v. Flanigan’s Enters., Inc., 533 So. 2d 856, 857 (Fla. 3d DCA 1988). Call

DePrince I wrong; call it repetitive; but there can be no doubt that DePrince I held

that unilateral mistake required “no negligence” on the part of the party seeking to

undo the otherwise-valid contract.

      Second, even if DePrince I could be read to allow for some negligence by

the party claiming mistake, that cannot be the holding of the case. Rachid and

Lechuga held that a party claiming unilateral mistake must show “no negligence or

want of due care,” and a later panel could not recede from this holding without the

approval of the en banc court or the supreme court. See State v. Washington, 114

So.3d 182, 188-89 (Fla. 3d DCA 2012) (“This panel is not free to disregard, or

recede from, [a prior decision from this Court]; only this Court, sitting en banc,

may recede from an earlier opinion.”). To the extent there was conflict between


                                         21
the language in DePrince I and Rachid and Lechuga, DePrince I could not recede

from the clear holdings in the earlier cases. The “no negligence” standard was

binding precedent, and the trial court was as bound to follow it as we are.6

                             c. What to do on remand?

      Rather than send this back for a new trial, DePrince asks us to direct a

verdict for him because even if the jury had been properly instructed there was no

evidence that he induced Starboard or Starboard made a mistake. We decline to do

so. Now that the jury instructions are clear, it should be for the trial court in the

first instance to determine after a new trial whether the evidence, with all

reasonable inferences in favor of Starboard – the nonmoving party – was sufficient

to meet the first (inducement) and second (negligence) prongs of the unilateral

mistake test. Allowing the trial court to make the directed verdict determination in

the first instance after a new trial is consistent with the Florida Rules of Civil

Procedure, which invest the trial court with the directed verdict determination, and

6 The dissenting opinion also disagrees that the holdings of DePrince I were meant
to guide the trial court on “how a jury should be instructed.” Dissenting Op. at 9.
This is not correct. DePrince I reviewed the standard jury instruction for unilateral
mistake, and then rejected it because: it “ha[d] not been adopted or cited by any
Florida decision”; the standard instructions “are not binding precedent”; and
“because there are definitive cases in this jurisdiction, we are bound by those
cases.” DePrince I, 163 So. 3d at 594 (citation omitted). In the next sentence,
DePrince I said that our binding precedent “clearly applied the four-prong test.”
Id. Two paragraphs later, the court “reiterate[d] [its] position on unilateral
mistakes of fact”: “this Court currently adheres to the four-prong test as stated in
Rachid and Lechuga.” Id. DePrince I had jury instructions in mind when it
reiterated that the district was bound by the four-prong test.
                                         22
our role in the judicial hierarchy, which is to review the decisions of the trial court

and correct errors that must be corrected.

                                3. Evidentiary Issues

      We consider, finally, DePrince’s three claims of evidentiary errors made

during the trial: (a) DePrince was prohibited from bringing up the language in the

invoice that special mail orders were nonrefundable; (b) DePrince was prohibited

from eliciting testimony that the retail price of the diamond was marked up by $2

million from what Starboard was charged by its supplier; and (c) Starboard was

allowed to ask DePrince about his legal obligation to disclose what he knew about

the true price of the diamond. None of these evidentiary issues, separately or

together, constituted reversible error warranting a new trial. Because, however, we

are remanding this case for a new trial on unilateral mistake, it would be helpful to

address one of DePrince’s evidentiary claims. See Richardson v. State, 706 So. 2d

1349, 1356 (Fla. 1998) (“[F]or the sake of judicial efficiency, we address some of

the issues raised in Richardson’s appeal for the benefit of the trial court on

remand.”); Griffin v. Kia Motors Corp., 843 So. 2d 336, 339 (Fla. 1st DCA 2003)

(“Although we find no reversible error as to any of Griffin’s remaining issues,

because this case must be remanded for new trial, we consider it helpful to address

certain of them.”).

      During trial, Starboard asked DePrince the following questions:


                                          23
    So you didn’t have any obligation once you found out the quote was ten
     times below based on your sister’s research, you had no obligation to say
     anything to anybody. That’s your view?

    Mr. DePrince, that’s your view, that you had this information from your
     graduate gemologist sister, your companion who is a gemologist telling you
     this price is ten times higher, just some quick research and your view is you
     have no obligation to say anything to anybody?

    Given the fact that Mr. Crawford had communicated with your sister at this
     point and through the secret code system, you now had an understanding,
     before any purchase had occurred, that this price that was being quoted to
     you, even based on her research was ten times below what it should cost,
     your belief was you didn’t have any obligation to say anything; isn’t that
     right?

    Did you think you had an obligation to say something with the information
     that you had?

DePrince objected that this called for a legal conclusion and was irrelevant. The

trial court instructed the jury that it could consider DePrince’s testimony for what

“he felt would have been appropriate to do at the time,” overruled the objections,

and had DePrince answer the question. (DePrince testified, “No, I don’t.”)

      We agree it was error to allow Starboard to ask these questions. As we

noted earlier, in the run-of-the-mill commercial transaction, “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, 622 So. 2d at 1065. DePrince’s view of his obligation is not relevant to

what his obligation actually was under Florida law. This would be like asking a

witness to a car accident whether he felt he had an obligation to help the injured.
                                         24
The law does not impose a duty on a bystander to act, and his opinion on this

common law rule does not make it more or less so. See Lacey v. United States, 98

F. Supp. 219, 220 (D. Mass. 1951) (“It is well settled common law that a mere

bystander incurs no liability where he fails to take any action, however negligently

or even intentionally, to rescue another in distress.”).

         While DePrince, like Mae West, may not have acted with “goodness” in

buying his diamond, his opinion about not having the obligation to disclose what

he knew about the diamond Starboard was selling was not relevant to whether

Starboard made a unilateral mistake or DePrince fraudulently induced Starboard

into entering into the contract. These questions should not be asked at the new

trial.

                                   CONCLUSION

         We end on this note. The principle of unilateral mistake, as the DePrince I

court explained, “appears to be a confusing area of the law with inconsistent

application among Florida’s district courts of appeal.” DePrince I, 163 So. 3d at

591. “The existence of three different tests has caused a great deal of confusion in

the case law and to litigants and trial courts.” Id. at 595.

         The record shows the trial court struggling to address this confusion.

Despite its good faith efforts to reconcile the cases, we, ultimately, conclude that

the trial court strayed too far from DePrince I. We look forward to one day having


                                           25
less confusion and inconsistency in the application of unilateral mistake, but until

then, DePrince I controls our decision in this case. The judgment for Starboard is

reversed and the case is remanded for entry of a directed verdict on Starboard’s

fraudulent inducement affirmative defense, and a new trial on its unilateral mistake

affirmative defense.

      Reversed and remanded with instructions.

      LAGOA, J., concurs.



                                      DePrince v. Starboard Cruise Services, Inc.
                                                                    #3D16-1149


      SCALES, J. (dissenting)

      I respectfully dissent, and would affirm the final judgment rendered upon

the jury's verdict for defendant, Starboard Cruise Services, Inc. In my view, the

trial court did not abuse its discretion when it instructed the jury on the unilateral

mistake of fact defense, properly conforming its instructions to the law of the case

as established in DePrince v. Starboard Cruise Services, Inc., 163 So. 3d 586 (Fla.

3d DCA 2015) (“DePrince I”).

      I.     Relevant Background

      This is a textbook unilateral mistake of fact case.




                                         26
         Mr. DePrince, an experienced buyer of diamonds, approached Starboard’s

cruise ship kiosk, seeking to purchase a large diamond. Starboard quoted Mr.

DePrince the per carat price for the large diamond, mistakenly representing it as

the price for the diamond itself. After Mr. DePrince was provided with the

erroneous price quotation, he consulted with two gemologists, both of whom

informed Mr. DePrince that there must be something wrong with the

extraordinarily low price Starboard had quoted for the diamond. Rather than

pointing out this pricing concern to Starboard, DePrince exploited Starboard’s

pricing error and entered into the subject contract. Immediately upon becoming

aware of its error – within 24 hours of the contract’s execution – Starboard notified

Mr. DePrince of its error and sought to terminate the contract, rather than to sell

Mr. DePrince a 20.64 carat diamond for the contracted-for price of $235,000.

         After Mr. DePrince sued Starboard for failing to honor the contract, the trial

court initially entered a summary judgment for Starboard, which we reversed in

DePrince I. The DePrince I court determined that, among competing tests for the

application of the unilateral mistake of fact defense, this District’s case law

required that the four-prong test applied to DePrince’s claim.7 DePrince I, 163 So.

7   DePrince I states the four-prong test as follows:

         [I]n 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
                                            27
3d at 592. The DePrince I court then determined that genuine issues of material

fact existed as to prongs (1) and (2), precluding summary judgment. Id. at 592-93.

      The case proceeded to trial, leaving to the jury to decide whether Starboard

should prevail on its unilateral mistake of fact defense: that is, whether Starboard

should be excused from performing its contract because of its pricing mistake.

Relevant here, the trial court gave the jury the following instruction on the

defense’s inducement prong: “Inducement may occur through misrepresentations,

statements, or omissions which cause the contracting party to enter the

transaction.”

      Also relevant here, the trial court gave the jury the following instruction on

the negligence prong: “While there may be some degree of negligence on the part

of Starboard, Starboard must show that there was no inexcusable lack of due care

under the circumstances on its part, the party seeking return to the status quo.” The


      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 relief would be
      unjust.

DePrince I, 163 So. 3d at 592 (citations omitted). As discussed below in more
detail, other portions of DePrince I express the lack-of-negligence prong
differently. The continuing viability of this four-prong test is questionable in light
of the Florida Supreme Court’s June 2013 promulgation of Standard Jury
Instruction 416.26. Fla. Std. Jury Instr. (Civ.) 416.26. In re Standard Jury
Instructions – Contract and Bus. Cases, 116 So. 3d 284 (Fla. 2013). This jury
instruction essentially adopts the Restatement (Second) of Contracts test for the
unilateral mistake defense.
                                         28
jury returned a verdict for Starboard, finding that Starboard was excused from

performance of its contract with Mr. DePrince, because of Starboard’s pricing

mistake. The majority reverses the judgment for Starboard, and remands for a new

trial. The majority concludes, among other things,8 that the trial court abused its

discretion when instructing the jury on prongs (1) and (2) of the unilateral mistake

defense by not following the law of case that the majority concludes was

established in DePrince I.

      II. Analysis.

      (i) Introduction – Dicta does not constitute “law of the case”

      As the trial court did, I view both DePrince I’s preclusive effect and

DePrince I’s pronouncements that constitute law of the case, more narrowly than

the majority.

      I agree with the majority that two questions of law decided in DePrince I

constitute law of the case: (1) the four-prong test applies to Starboard’s defense,

and (2) genuine issues of material fact regarding the inducement prong and the

lack-of-negligence prong in the then-existing record preclude summary judgment.9

Where the majority and I part ways, though, is the majority’s conclusion that non-

8 I would affirm the trial court’s rulings on the evidentiary issues raised in
DePrince’s appeal, see majority opinion at 23-26, and, because I would affirm the
jury’s verdict, I would not need to reach the directed verdict issue. See majority
opinion at 8.
9 No error is alleged regarding these two DePrince I law of the case holdings, and

these two holdings are not implicated in this appeal.
                                        29
essential, ancillary language in DePrince I, elaborating on the inducement and

lack-of-negligence prongs, also constitutes law of the case. See majority opinion at

14-18.        Given that DePrince I turned on a discrete, procedural, summary

judgment issue – whether the existence of disputed facts precluded summary

judgment – I cannot read the ancillary language in DePrince I as more than dicta.10

I am not comfortable concluding, as does the majority, that DePrince I’s non-

essential language – contained in an opinion that merely decides that fact issues

preclude summary judgment – conclusively dictates the wording of jury

instructions given by the trial court after a jury trial.

       (ii) Inducement Prong

       With regard to the inducement prong, DePrince I held: “DePrince . . . denied

that he knew there had been a pricing mistake in his affidavit, which is sufficient at

the summary judgment phase of the proceedings to create a genuine issue of

material fact.” DePrince I, 163 So. 3d at 592.




10 Florida’s law of the case doctrine bars consideration of a point of law that was
actually considered and decided in a former appeal. U.S. Concrete Pipe Co. v.
Bould, 437 So. 2d 1061, 1063 (Fla. 1983). Because a district court of appeal’s dicta
is not “essential to the decision of that court and is without force of precedent,”
State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation of the Fla. Dept. of
Bus. Regulation, 276 So. 2d 823, 826 (Fla. 1973), then, by definition, an appellate
court’s dicta cannot implicate the doctrine. Golden vs. State, 528 So. 2d 50, 51
(Fla. 1st DCA 1988).

                                            30
      Yet, the majority suggests that the following ancillary, non-essential passage

from DePrince I – immediately following DePrince I’s actual holding quoted

above – constitutes law of the case:

      [E]ven if DePrince had known that the price he was quoted to
      purchase the diamond was error, knowledge of an error is markedly
      different than inducement of that error. See, e.g. Gemini Investors III,
      L.P. v. Nunez, 78 So. 3d 94, 97 (Fla. 3d DCA 2012) (explaining that
      fraudulent inducement requires that the party seeking to enforce the
      contract “(1) made a statement concerning a material fact, (2)
      knowing that the statement was false, (3) with the intent that the
      [mistaken party] act on the false statement; and (4) the [mistaken
      party was] damaged as a result of [its] reasonable reliance on the false
      statement”). [Footnote 6.]

Id. (emphasis supplied)

      Footnote 6 of DePrince I then explains:

      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 aggrieved party. Mazzoni Farms, Inc. v. E.I
      DuPont De Nemours & Co., 761 So. 2d 306, 313 (Fla. 2000) (“It is
      axiomatic that fraudulent inducement renders a contract voidable . . .
      .”).

Id. at 592 n.6; see majority opinion at 5, 14.

      In DePrince I, the Court definitively concluded that Mr. DePrince’s

knowledge of the pricing error is a disputed fact precluding summary judgment;
                                          31
thus this entire passage is non-essential dicta. Further, footnote 6, relied upon by

the majority, see majority opinion at 14, 17, which explains the citation to the

Gemini Investors fraudulent inducement case, expressly cautions against conflating

the unilateral mistake of fact defense with the intentional tort of fraud in the

inducement. DePrince I, 163 So. 3d at 592 n.6. Plainly, the footnote’s statement

that “inducement requires some type of action, not mere knowledge” explains the

inducement prong of the intentional tort of fraud, and has, in my view, little

relation to the unilateral mistake of fact defense. See Md. Cas. Co. v. Krasnek, 174

So. 2d 541 (Fla. 1965); Pa. Nat’l Mut. Cas. Ins. Co. v. Anderson, 445 So. 2d 612,

613 (Fla. 3d DCA 1984).

      In both Krasnek and Anderson, the unilateral mistake of fact defense was

asserted successfully even though the respective plaintiffs in those cases did far

less to induce the mistakes than did Mr. DePrince. I am unable to make the leap

made by the majority that the statement in DePrince I’s footnote 6 – explaining an

intentional tort citation, following non-essential speculation about evidence that

may or may not be developed at trial – should be extrapolated to inform, much less

govern, the jury instructions for Starboard’s unilateral mistake of fact defense.

      (iii) Lack-of-Negligence Prong

      With regard to the lack-of-negligence prong, De Prince I held: “DePrince

avers in both his complaint and affidavit that Starboard did not act with due care


                                         32
when it sold him the diamond. Starboard claims it simply provided DePrince with

the quote provided to it . . ., and that it did not act negligently. Thus, whether

Starboard made a reasonable and understandable mistake or acted negligently in its

handling of the sale is a disputed issue of fact . . . .” DePrince I, 163 So. 3d at 593

(emphasis in original).

      Notwithstanding this rather unambiguous and unremarkable holding, the

majority concludes that the DePrince I Court adjudicated much more. Relying on

dicta from DePrince I – specifically, DePrince I’s first iteration of the lack-of-

negligence prong – the majority asserts that DePrince I actually determined the

burden Starboard was required to meet regarding the lack-of-negligence prong, and

that the trial court’s jury instructions impermissibly lessened that burden. See

majority opinion at 19-20. DePrince I, however, was not a case about how a jury

should be instructed on the lack-of-negligence prong.          Illustrating as much,

DePrince I expresses the prong in four markedly different and distinct ways:

      (i) “[I]n order to rescind an otherwise-valid contract based on a unilateral

mistake, the party seeking to avoid the contract must show . . . ‘there is no

negligence or want of due care on the part of the party seeking a return to the status

quo[.]’” DePrince I at 591-92 (citations omitted);

      (ii) “[T]he party seeking to avoid the contract [must establish it] was not

inexcusably negligent or failed to act with due care.” Id. at 592-93;


                                          33
      (iii) “[B]oth the two-and the four-prong tests require that the party seeking to

invoke a unilateral mistake of fact as an affirmative defense [must] establish that

he was not unduly negligent in forming the contract[.]” Id. at 593; and

      (iv) “[W]hether Starboard made a reasonable and understandable mistake or

acted negligently in its handling of the sale is a disputed issue of fact[.]” Id. at 593.

      Possibly, having to prove that one’s mistake either was “reasonable and

understandable” (the standard articulated in DePrince I’s fourth iteration of the

prong) or was not “unduly negligent” (the standard articulated in DePrince I’s third

iteration of the prong) is less burdensome than having to prove one’s mistake is

“inexcusably negligent” (the standard articulated in DePrince’s I’s second iteration

of the prong); and, arguably, any of those three standards is less burdensome than

having to prove one’s mistake results from “no negligence” (the standard in

DePrince I’s first iteration of the prong).

      But, if DePrince I’s articulation of the lack-of-negligence prong was

intended to be law of the case, governing jury instructions and the burden of proof

flowing therefrom, then surely the DePrince I Court would not have stated the

prong so differently throughout its opinion. DePrince I, though, did not turn on any

distinctions in how the prong is stated. DePrince I merely determined that a fact

issue regarding the lack-of-negligence prong precluded summary judgment. Hence,




                                              34
all of DePrince I’s varying iterations of the prong are dicta and none constitute law

of the case.

      While the subject jury instructions are, indeed, consistent with DePrince I’s

iteration of the prong, I disagree with the majority’s conclusion that the DePrince I

Court actually adjudicated the issue of how a jury should be instructed on the lack-

of-negligence prong; therefore, in my view, DePrince I created no law of the case

in this regard. Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 107 (Fla. 2001)

(rejecting this Court’s application of the doctrine and holding that law of the case

doctrine bars consideration only of those legal issues that were actually considered

and decided in the former appeal). In any event, I see no abuse of discretion in the

trial court’s instructions to the jury on what type of mistake the jury may find

excusable. I view the given instruction entirely consistent with Florida Supreme

Court precedent. See Krasnek, 174 So. 2d at 543 (holding that the trial court did

not err in granting rescission based on the unilateral mistake defense after finding

that some degree of negligence underlay the alleged mistake).11

               (iv) Myers I and Myers II


11 Finally, with respect to dicta, I note that the Conclusion section of DePrince I,
which summarizes the opinion’s holding as to Starboard’s unilateral mistake of
fact defense, makes no mention of the inducement and negligence prongs. This is
another indication that DePrince I’s elaboration of those prongs is dicta. The
relevant portion of the Conclusion merely states: “There remain genuine issues of
material fact to be resolved, and Starboard has not demonstrated that it is entitled
to judgment as a matter of law.” DePrince I, 153 So. 3d at 598.
                                           35
       My view of the law of the case doctrine’s application is guided by the

Florida Supreme Court’s discussion of the doctrine in Myers v. Atlantic Coast Line

Railroad Company, 112 So. 2d 263 (Fla. 1959) (“Myers II”).

       Susan Myers was killed when an automobile in which she was a passenger

drove into an oncoming train at a Winter Park crossing. At a first trial, a jury

returned a verdict against the railroad company in favor of her estate. The trial

court granted the defendant railroad company’s motion for new trial, determining

that the evidence did not support the jury verdict for Myers. In its new trial order,

the trial court determined that the sole proximate cause of the accident was the

negligence of the driver. Myers v. Atl. Coast Line R.R. Co., 86 So. 2d 792, 794

(Fla. 1956) (“Myers I”).

       On appeal, the Florida Supreme Court affirmed the trial court’s new trial

order. Id. at 796. Leaving little doubt as to its view of the evidence, the Court in

Myers I stated: “The evidence in this case amply supports the court’s finding that

the sole proximate cause of the accident was the negligence of the driver.” Id. at

795.

       The Court unambiguously and unqualifiedly concluded its opinion as

follows: “After all is said, it cannot be escaped that the sole proximate cause of the

accident was driving on the tracks in front of the oncoming train without looking,

listening or exercising the slightest safety precaution.” Id. at 796.


                                          36
      On retrial, at the conclusion of all of the evidence – which was substantially

similar to the evidence presented at the first trial – the trial court, in reliance on the

Court's language in Myers I, applied the law of the case doctrine to direct a verdict

in the railroad’s favor. Myers II, 112 So. 2d at 264-65. In explaining his directed

verdict to the jury, the trial court quoted, verbatim, the language cited above from

Myers I. Id. at 265.

      In Myers II, the Florida Supreme Court reversed the trial court’s directed

verdict, holding that the trial court misapplied the law of the case doctrine. Id. at

266-67. Admitting that Myers I discussed (even parroted) the trial court’s finding

that the automobile driver’s negligence was the sole proximate cause of the

accident, the Myers II Court nevertheless held: “[O]ur decision [in Myers I] turned

upon a finding that the trial judge had not abused his discretion in granting a

motion for a new trial. The other . . . aspects were merely ancillary and

nonessential gratuitous statements designed to show why there was no abuse and,

as such, were obiter dicta and not a part of ‘law of the case’.” Id.

      I view DePrince I in very much the same way as our Supreme Court viewed

its own language in Myers I. In DePrince I, with regard to the inducement and

lack-of-negligence prongs of the unilateral mistake of fact defense, we included

nonessential, ancillary, gratuitous language explaining our summary judgment




                                           37
reversal. The DePrince I decision, however, turned on the insular issue then before

us: whether there were genuine issues of fact precluding summary judgment.

      I am not convinced that the law of the case doctrine applies beyond that

insular point. Ameriseal of N.E. Fla., Inc. v. Leiffer, 738 So. 2d 993, 994 (Fla. 5th

DCA 1999); Warren v. Palm Beach Cty., 528 So. 2d 413, 415-16 (Fla. 4th DCA

1988); Philip J. Padovano, 2 Florida Appellate Practice § 20.12 (2016 ed.) (“An

appellate decision reversing a summary judgment is unlikely to implicate the law

of the case doctrine”) (footnote omitted). As this Court has expressly recognized,

when we review a summary judgment, we look for whether the record

conclusively establishes the absence of a genuine issue of material fact,

considering only those facts that favor the non-moving party; and therefore, legal

conclusions reached while conducting such a review do not establish the law of the

case. Ponce Dev. Co. v. Espino, 449 So. 2d 317, 319 (Fla 3d DCA 1984) (on

motion for clarification). I would not expand the law of the case doctrine in this

case to incorporate DePrince I’s dicta. Myers II; S.M. Crabtree v. Aetna Cas. &

Sur. Co., 438 So. 2d 102, 105-06 (Fla. 1st DCA 1983).

       III. Conclusion

      Jury instructions are based on facts developed throughout a case, including

at trial; in other words, developed facts must support an instruction. Aubin v.




                                         38
Union Carbide Corp., 177 So. 3d 489, 517 (Fla. 2015); Garrison v. Hertz Corp.,

129 So. 2d 452, 453 (Fla. 3d DCA 1961).

      The record in this case indicates that the trial court was keenly aware of

DePrince I and strived to comply with it. When the trial court formulated its

unilateral mistake of fact instruction – particularly as it defined the inducement and

lack-of-negligence prongs – the trial court was responding to the evidence

developed over the course of the entire proceedings, evidence that painstakingly

showed Starboard’s pricing error and Mr. DePrince’s exploitation of it for gain. I

would not, as the majority has done under the auspices of law of the case, engrave

DePrince I’s nonessential, ancillary dicta into this case so as to negate a verdict

amply supported by competent, substantial evidence and rendered by a well-

instructed jury.

      I would affirm.




                                         39
