CHRYSLER CORPORATION, Petitioner, v. Spiro PITSIRELOS, Respondent, 721 So. 2d 710

WELLS, Justice. We have for review Chrysler Corporation v. Pitsirelos, 689 So.2d 1132 (Fla. 4th DCA 1997), in which the Fourth District Court of Appeal: (1) expressly declared valid

chapter 681, Florida Statutes (1989), the Motor Vehicle Warranty Enforcement Act (Lemon Law); and (2) affirmed a trial de novo appeal process in which the burden of persuasion was placed on the automobile manufacturer and a presumption of correctness was given to the decision of the Florida New Motor Vehicle Arbitration Board (Arbitration Board). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. For the reasons expressed in this opinion, we hold that Florida’s Lemon Law as we now construe it and require it to be applied is constitutional.

In so holding, we conclude that the Arbitration Board’s decision is to be admitted into evidence in the trial de novo appeal proceeding but that the decision is not to be afforded a presumption of correctness. Rather, it is to be considered as other evidence and given the weight the fact-finder deems appropriate. We therefore quash the decision below and remand this case' with directions that the trial court conduct a new proceeding in accordance with this opinion. FACTS In August of 1989, Spiro Pitsirelos purchased a Dodge Daytona with a T-top from Charlie’s Dodge in Fort Pierce, Florida.

Pit-sirelos experienced a problem closing the driver-side window and returned the vehicle to the dealership for repairs. After several failed attempts by the dealership to correct the problem, Pitsirelos provided written notification of the defect to Chrysler Corporation, the manufacturer of the vehicle, in accordance with

section 681.104(1), Florida Statutes (1989), affording Chrysler a final opportunity to repair the vehicle. The defect was not repaired, and Pitsirelos, pursuant to

section 681.1095, Florida Statutes (1989), applied for arbitration proceedings before the Arbitration Board. Following a hearing, tíié' Arbitration Board concluded that Pitsirelos’s vehicle was a “lemon” within the meaning of the Lemon Law and ordered Chrysler to pay Pitsirelos the value of the vehicle plus incidental charges. Chrysler filed a petition for a trial de novo appeal with the Circuit Court for St. Lucie County under

section 681.1095(13). The case was tried before a jury, and the Arbitration Board’s decision was introduced as evidence. Following closing arguments, the trial judge instructed the jury that the trial de novo is an appeal by Chrysler of the Arbitration Board’s decision. The judge further instructed the jury that the Arbitration Board’s decision was presumed correct and that Chrysler bore the burden of proving the decision to be incorrect. The jury determined that Chrysler violated the Lemon Law and awarded Pitsirelos the value of the vehicle, continuing damages of $25 per day, attorney fees, and costs.

On appeal, the Fourth District affirmed. Pitsirelos, 689 So.2d at 1135. First, the district court concluded that the trial court correctly placed the burden of proof on Chrysler and that the Arbitration Board’s decision was admissible and presumed correct. Id. at 1133. The court then addressed the constitutionality of the $25-per-day continuing damage provision of

section 681.1095(14), Florida Statutes (1989). On this issue, the court concluded that the award satisfied due process requirements and that it did not deny Chrysler access to our courts. Id. at 1134. The court reasoned that

chapter 681, Florida Statutes (1989), did not modify an existing right; rather, it created a new right and remedy. Last, the district court rejected the argument that the Lemon Law violates separation-of-powers principles by permitting an executive branch arbitration board to exercise judicial power. Id. at 1135. THE FLORIDA LEMON LAW Florida enacted its version of the Model Lemon Law in 1983 to provide consumers with an alternative dispute resolution procedure to traditional court breach-of-warranty actions or federal actions under the Magnu-son-Moss Warranty Act.

Section 681.103(1), Florida Statutes (1989), requires a motor vehicle manufacturer or its authorized service agent to make repairs necessary to conform a vehicle to its warranty. If the manufacturer or service agent is unable to correct a nonconformity within a reasonable number of attempts, the consumer is entitled to a replacement vehicle or a refund of the full purchase price of the vehicle.

If the manufacturer decides not to provide the consumer with a refund or replacement vehicle and the manufacturer has not established informal dispute settlement procedures, the consumer may apply for arbitration before the Arbitration Board. An application for arbitration by the Arbitration Board is a precondition to the consumer filing a court action predicated on the Lemon Law. The statute expressly states that the Administrative Procedure Act,

chapter 120, Florida Statutes, does not apply to Arbitration Board proceedings or decisions or to any appeals therefrom. The legislative intent of the Lemon Law is set forth in

section 681.101, Florida Statutes (1989): The Legislature recognizes that a motor vehicle is a major consumer purchase and that a defective motor vehicle undoubtedly creates a hardship for the consumer. The Legislature further recognizes that a duly franchised motor vehicle dealer is an authorized service agent of the manufacturer. It is the intent of the Legislature that a good faith motor vehicle warranty complaint by a consumer be resolved by the manufacturer within a specified period of time.

It is further the intent of the Legislature to provide the statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the warranty provided for in this chapter. However, nothing in this

chapter shall in any way limit or expand the rights or remedies which are otherwise available to a consumer under any other law. The Lemon Law is clearly intended as an alternative dispute resolution procedure to resolve motor vehicle warranty disputes in expedited proceedings at less cost to consumers than traditional court proceedings.

This clear intent is evidenced by the express time limits set forth in the statutory process, specifically: (1) the manufacturer must submit proceedings to the Arbitration Board within thirty days after a certified informal dispute settlement process has failed; (2) the Arbitration Board must hear the dispute within forty calendar days; (3) the arbitration board shall reach a decision within sixty days after the date the consumer’s request for arbitration is approved; (4) if the decision is in favor of the consumer, the manufacturer must appeal to the circuit court within thirty days or comply with the decision within forty days; (5) if the consumer decides to appeal, he or she must do so within thirty days; and (6) if an appeal by the manufacturer is unsuccessful, the manufacturer is subject to continuing damages of $25 a day for all days beyond forty days after its receipt of the Arbitration Board’s decision.

The entitlement of either the consumer or manufacturer to a trial de novo appeal proceeding in the circuit court after completion of this mandatory alternative dispute resolution procedure respects the access-to-courts provision in the Florida Constitution, due process, and separation of powers.

Based on our review, we conclude that three issues pertaining to the Lemon Law merit discussion: (1) whether the consumer or the manufacturer bears the burden of proof at a trial de novo appeal proceeding; (2) whether the Arbitration Board’s decision is entitled to a presumption of correctness at the trial de novo appeal proceeding; and (

S) whether the continuing damages provision unconstitutionally penalizes the manufacturer for appealing the Arbitration Board’s decision.

(1) BURDEN OF PERSUASION AT TRIAL DE NOYO APPEAL PROCEEDING

Section 681.1095 reads in part as follows:

(13) An appeal of a decision by the board to the circuit court by a consumer or a manufacturer shall be by trial de novo. In a written petition to appeal a decision by the board, the appealing party must state the action requested and the grounds relied upon. Chrysler asserts that it was erroneously required to bear the burden of proof in the trial de novo.

Chrysler argues that the plain meaning of the term “trial de novo” evinces the legislature’s intent for an appeal from an Arbitration Board decision to be a new trial, as if no previous proceeding had been held, and that the party who originally sought relief, i.e., the consumer, should be required to bear the burden of proof. We find that Chrysler’s analysis of the “trial de novo” does not conform with the statutory alternative dispute resolution procedure in

chapter 681, Florida Statutes. We agree with the conclusion reached by the Fifth District in Mason v. Porsche Cars of North America, 621 So.2d 719 (Fla. 5th DCA 1993). In Mason, the district court held that under the procedure established by the legislature in

chapter 681, Florida Statutes, the party appealing the Arbitration Board’s decision carries the burden of proof. The court reasoned as follows:

Section 681.1095(13) provides that the appealing party must state the action requested and the grounds relied upon for appeal. This indicates that the appealing party has the initial burden of going forward with the evidence in a trial de novo governed by the rules of civil procedure, and the overall burden of persuasion remains on the appellant. The benefits and importance of the compulsory arbitration process would be minimized if the simple filing of a petition could force the successful party in arbitration to seek affirmative relief in the circuit court. Id. at 721; see also Aguiar v.

Ford Motor Co., 683 So.2d 1158 (Fla. 3d DCA 1996); Sheehan v. Winnebago Industries, Inc., 635 So .2d 1067 (Fla. 5th DCA 1994). Accepting Chrysler’s position that the burden of persuasion remains with a consumer even after the consumer prevails before the Arbitration Board would relegate the mandatory arbitration to simply being a procedural impediment to the consumer prior to accessing the circuit court without the counterbalancing benefit to which the prevailing par-. ty in the arbitration should be entitled.

The benefit to a prevailing consumer is that the manufacturer is required to petition the circuit court for relief and to go forward with the evidence and have the burden of persuasion in establishing why the Arbitration Board’s decision was erroneous. Moreover, it is only logical that the party that filed the petition' in the circuit court, i.e., the party seeking affirmative relief, be the party that bears the burden of persuading that the relief sought in the circuit court should be granted. We find no constitutional barrier to this procedure.

Accordingly, we hold that in a trial de novo appeal proceeding under

section 681.1095(13), Florida Statutes (1989), the party appealing the decision of the Arbitration Board to the circuit court, whether consumer or manufacturer, bears the burden of going forward with the evidence and of persuasion in the trial de novo appeal proceeding. (2)PRESUMPTION OF CORRECTNESS Although the Arbitration Board’s decision is admissible in a trial de novo, we conclude that the decision is not to be given a presumption of correctness. The district court below held that “[t]he arbitration board decision is introduced in the de novo trial and is presumed to be correct.” Pitsirelos, 689 So.2d at 1133 (citing Aguiar; Mason).

Section 681.1095(10), Florida Statutes (1989), states that “[i]n any civil action arising under this

chapter and relating to a dispute arbitrated before the board, any decision by the board is admissible in evidence.” It is important to emphasize that this statute makes no reference to the weight which should be assigned to the Arbitration Board’s decision in the trial de novo. The Arbitration Board was created as a mandatory alternative dispute resolution procedure under the auspices of the Department • of Legal Affairs of the Attorney General’s Office of the State of Florida. Proceedings before the Arbitration Board are informal and exempt from the provisions of

chapter 120. The rules of evidence and civil procedure do not apply. To interpret

section 681.1095(10), Florida Statutes (1989), as mandating that the decision of the Arbitration Board be presumed correct in the trial de novo appeal would raise a serious issue as to whether it would violate

article I,

section 9, and

article II,

section 3, of the Florida Constitution because it would diminish the right to have the ultimate decision in a case made by a court. We believe that the intent of the statute is achieved by requiring the party that petitions for a trial de novo appeal to have the burden of going forward with the evidence but treating the Arbitration Board’s decision only as evidence with its weight to be determined by the fact-finder. The statute says that the decision is to be admitted into evidence and does not say that it is to be afforded a presumption of correctness. We conclude that the statute should be applied as written.

To the limited extent the decisions in Mason, Sheehan, and Aguiar conflict with this opinion on this issue, we disapprove those decisions. We quash the decision of the district court in this case as to this issue. (3)CONTINUING DAMAGES AWARDS The Fourth District affirmed the trial court’s award to Pitsirelos of continuing damages under subsection 681.1095(14), Florida Statutes (1989).

The relevant portion of that statute reads: If a decision of the board in favor of the consumer is upheld by the court, recovery by the consumer shall include, if applicable, the pecuniary value of the award, attorney’s fees incurred in obtaining confirmation of the award, and all costs and continuing damages in the amount of $25 per day for all days beyond the 40 calendar day period following the manufacturer’s receipt of the board’s decision. The Fourth District held that the continuing damages provision does not violate constitutional concepts of access to courts or due process. Pitsirelos, 689 So.2d at 1134.

We qualifiedly agree. Our conclusion is depen-dant upon our view that the continuing damages provision is intended solely to reimburse the consumer for expenses relating to the loss of use of the vehicle during the pendency of the trial de novo appeal proceeding. By providing for replacement and refund remedies, the Lemon Law seeks to place consumers in either the position they would have been in had the vehicle conformed to the warranty or the position they would have been in had they not purchased the vehicle.

We conclude that the statute liquidates the value of the loss of use at $25 per day rather than requiring the consumer to quantify by proof the loss of use. The remedies provided in the Lemon Law, exclusive of bad faith on the part of the consumer or manufacturer, are compensatory in nature. If we construed the continuing damages provision to punish manufacturers for appealing adverse decisions of the Arbitration Board in good faith, the rights of manufacturers to due process and access to courts would be violated.

Consequently, to be constitutional, we hold that the consumer must present evidence of loss of use of the vehicle at the trial de novo appeal to support an award of continuing damages. If the loss of use is proven, the $25 per day represents an appropriate award of liquidated damages. Accordingly, we quash the decision below and remand this case with directions that the trial court conduct a new proceeding in accordance with our opinion. It is so ordered. HARDING, C.J., and SHAW, KOGAN and ANSTEAD, JJ., concur. OVERTON, J., concurs in part and dissents in part with an opinion. .

Pitsirelos "counterclaimed” a violation of the Lemon Law under

chapter 681 and breaches of express and implied warranties under

chapter 672, Florida Statutes (1989). We do not address the propriety of combining a Lemon Law claim with other causes of action. . 15 U.S.C. §§ 2301-2312 (1994). .

Section 681.103(1), Florida Statutes (1989), provides in relevant part: If a motor vehicle does not conform to the warranty and the consumer reports the nonconformity to the manufacturer, or its authorized service agent, during the Lemon Law rights period, the manufacturer, or its authorized service agent, shall, at no cost to the consumer, make such repairs as are necessary to conform the vehicle to the warranty.... . § 681.104, Fla. Stat. (1989). A “nonconformity” is "a defect or condition that substantially impairs the use, value, or safety of a motor vehicle.” § 681.102(12), Fla.

Stat. (1989). . § 681.109(3), Fla. Stat. (1989). . § 681.1095(4), Fla. Stat. (1989). . § 681.1095(12), Fla. Stat. (1989). . § 681.1095(5), Fla. Stat. (1989). . § 681.1095(10), Fla. Stat. (1989). . § 681.1095(10), Fla. Stat. (1989). . §§ 681.1095(10), (11), Fla. Stat. (1989). . § 681.1095(11), Fla. Stat. (1989). . § 681.1095(14), Fla. Stat. (1989). . § 681.1095(13), Fla. Stat. (1989). . Art. I, § 21, Fla. Const. .The concurring and dissenting opinion raises an issue as to the appropriateness of a jury in a trial de novo appeal proceeding under the Lemon Law.

The parties consented to a jury trial and have not raised this issue. Therefore, in this case we do not decide whether there is an entitlement to a jury trial under the Lemon Law.