W.S. BADCOCK CORPORATION, Aрpellant, v. Edna Mae WEBB and Evelyn Aretha Keene, Appellees.
No. 97-122.
District Court of Appeal of Florida, Fifth District.
October 3, 1997.
699 So. 2d 859
PETERSON, Judge.
Marvin E. Barkin, John E. Johnson and Lansing C. Scriven of Trenam, Kemker,
Jerry R. Linscott, I. William Spivey, II, and Mary E. Fitzgibbons of Baker & Hostetler LLP, Orlando, and J. Larry Hanks of J. Lаrry Hanks, P.A., Orlando, for Appellees.
PETERSON, Judge.
W.S. Badcock Corp., (“Badcock“) appeals a non-final order certifying a class рursuant to
Badcock, a furniture wholesale company, prepared and executed form contracts with numerous independent dealers to sell furniture. The appellees, Edna Mae Webb and Evelyn Aretha Keene are former indepеndent dealers. Webb and Keene alleged that independent dealers were required to pay Badcock approximately $15 million for “factory labor charges” on all new household appliances and electronics in order to obtain a full manufacturers’ warranty. Badcock would deduct the charges from each dealer‘s monthly royalty check. They further alleged that the standard contract between the dealers and Badcock, drafted by the latter, did not authorize such a deduction.
Based on the above allegations, Webb and Keene brought this class action alleging breach of contract by Badcock against all persons who served as dealers between 1975 and November, 1995. After an evidentiary hearing on their motion to certify as a class all present and former dealers, the court ruled that Webb and Keene, as former dealers, could not adеquately represent the interests of current dealers. The trial court did, however, find, as to the group of former dealers, that Wеbb and Keene satisfied the prerequisites for class certification. See
As рart of the sale of their businesses, Webb and Keene executed with the buyers an agreement drafted by defendant Badcock. Thаt agreement stated in part:
BILL OF SALE
... the Seller, ... has granted, bargained, sold, transferred and delivered unto the said Buyer, his heirs and assigns, the following goods and chattels, to-wit:
All of that certain furniture and appliance business known as Badcock Home Furnishing Center of Hudson, Floridа, together with and including all office furnishings and general equipment of said business as set out on the attached schedule of Tangible Pеrsonal Property, which is hereby incorporated by reference as a part hereof, all leasehold interest in the рremises presently occupied by said business and any and all goodwill of said business as a going concern. Also included in this sale, as evidenced hereby, is all of Seller‘s interests as they may appear in that certain dealer contract entered into between Seller and the W.S. Badcock Corporation on July 3, 1986. This sale does not include inventories of merchandise or stock-in-trade, if any or accounts receivable, all of which are now and have always been the property of the W.S. Badcоck Corporation.
(Emphasis added). At the hearing to certify, Badcock argued that the plaintiffs, by assigning “all of seller‘s interests ...” in the contract, assigned away their right to file a cause of action for prior breach of contract. The trial court did not аgree. Instead, the trial court found that the clause, “all of seller‘s interests ...” was simply a part of the definition of what constitutes goods and chattels and that since the right to sue the defendant (a chose in action) is not a good or chattel, the right to sue was not covered by the bill of sale agreement.
We begin our analysis of proper class certification with the issue of standing. No class action may proceed unless there is a named plaintiff with standing to represent the class. Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987) (only after the court determines that the named plaintiffs have
The question here is whether Webb and Keene, as class representatives, still possess the right to sue for alleged breaches of the Badcock dealer agreement or whether they transferred this right of action tо the buyer when they sold all of their interests in their Badcock business. Generally, contract rights can be assigned unless they involve obligatiоns of a personal nature, or there is some public policy against the assignment, or an assignment is specifically prohibited by the contract. Kitsos v. Stanford, 291 So.2d 632 (Fla.App.), cert. denied, 307 So.2d 447 (Fla.1974); New Holland, Inc. v. Trunk, 579 So.2d 215 (Fla. 5th DCA 1991); L.V. McClendon Kennels, Inc. v. Investment Corp. of South Florida, 490 So.2d 1374 (Fla. 3d DCA 1986); Brunswick Corp. v. Creel, 471 So.2d 617 (Fla. 5th DCA 1985). Contract rights that can be assigned include choses in aсtion arising out of the parties’ contract. Liberty Mut. Ins. Co. v. Davis, 412 F.2d 475 (5th Cir.1969) (choses in action arising out of contract are assignable); Spears v. West Coast Builders’ Supply Co., 101 Fla. 980, 133 So. 97 (1931) (choses in action arising out of contract are assignable and may be sued upon and recovered by the assignee in his own name and right); United Companies Life Ins. Co. v. State Farm and Fire Cas. Co., 477 So.2d 645 (Fla. 1st DCA 1985). In fact, assignability of а cause of action is the rule rather than the exception. Liberty Mutual Ins. Co.; Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994), rev. denied, 659 So.2d 272 (Fla.1995) (party may assign almost any cause of action, with exception of personal injury claims); Aaron v. Allstate Ins. Co., 559 So.2d 275 (Fla. 4th DCA), rev. denied, 569 So.2d 1278 (Fla.1990); Selfridge v. Allstate Ins. Co., 219 So.2d 127 (Fla. 4th DCA 1969).
We conclude that, by assigning “all of Seller‘s interests as they may appear in that certain dеaler contract entered into between Seller and the W.S. Badcock Corporation...“, Webb and Keene have assignеd away their right to file a cause of action for breach of contract. See Escandar v. Southern Management and Invest. Corp., 534 So.2d 1203 (Fla. 3d DCA 1988) (by virtue of defendant‘s assignment of “all of Assignor‘s right, title аnd interest” in the management agreement, defendant could pursue any cause of action for breach of that contract, including breach of the contract that occurred prior to the date he received the assignment of the contrаct). In so doing, they have terminated their standing to pursue this matter. Accordingly, the trial court‘s order certifying the class action of fоrmer Badcock dealers is vacated and the matter remanded with directions to dismiss Webb and Keene‘s breach of contract action.
ORDER VACATED; REMANDED.
HARRIS and THOMPSON, JJ., concur.