Computel, Inc., a Florida Corp. v. Emery Air Freight Corp.

JOHNSON, Circuit Judge,

dissenting:

I agree with the panel’s holding that Emery breached its contract with Compu-tel. I cannot agree, however, with the panel’s holding that Computel may have ratified Emery’s action by simply depositing the non-conforming check. I therefore dissent.

As the majority observes, under Florida law, one asserting ratification must show that the principal accepted the agent’s conduct “upon full knowledge of all material facts, or that [the principal] was willfully ignorant, or purposely refrained from seeking information, or that he intended to adopt the unauthorized act at all events, under whatever circumstances.” Oxford Lake Line v. First Nat’l Bank of Pensacola, 40 Fla. 349 , 24 So. 480 , 483 (1898). The majority takes the position that, based on the deposition of Claudio Osario, Computel may have ratified Emery’s acceptance of the non-conforming payment by remaining “willfully ignorant.” Osario’s deposition shows that he was aware that the office clerks at Computel did not analyze the quality of incoming payments or attempt to confirm the payments’ compliance with pri- or instructions before depositing them. From this fact, the majority infers that Computel may have intentionally refrained from investigating whether its carriers complied with instructions regarding the form of payment the carrier was to accept. In my view, such an inference requires a long leap. Though it is possible to infer from Osario’s statement that the system has the effect of keeping the company in the dark as to whether the carrier has performed as promised, I do not believe that we can also infer that Osario “willfully” or intentionally established this office procedure in order to insulate the company from an affirmative defense of ratification.

This long leap is especially troublesome because it goes directly against the language of Oxford Lake Line. That case states that “it does not devolve upon the principal to make inquiries as to the facts. He has a right to presume that his agent has followed instructions.... ” Id. This language clearly places the burden of showing that the principal remained “willfully ignorant” upon the defendant who asserts ratification as an affirmative defense. See also Bach v. Florida State Bd. of Dentistry, 378 So.2d 34, 37 (Fla.Dist.Ct.App.1979) (stating that “[t]here is no duty imposed upon the principal to make inquiries as to whether his agent has carried out his responsibilities”). If we allow the fact that Computel’s office procedure presumes that Emery has followed instructions to stand as the basis for a showing that Computel was “willfully ignorant,” then we inappropriately shift this burden. I find no precedent in Florida law for such a shifting of the burden in an affirmative defense, even when viewing the facts in a light most favorable to the nonmovant on a summary judgment motion.

I would therefore affirm the district court’s grant of summary judgment in favor of Computel.