State v. Beach Blvd Automotive, Inc.

139 So. 3d 380, 2014 WL 2040853, 2014 Fla. App. LEXIS 7574
CourtDistrict Court of Appeal of Florida
DecidedMay 19, 2014
DocketNo. 1D13-1086
StatusPublished
Cited by19 cases

This text of 139 So. 3d 380 (State v. Beach Blvd Automotive, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Beach Blvd Automotive, Inc., 139 So. 3d 380, 2014 WL 2040853, 2014 Fla. App. LEXIS 7574 (Fla. Ct. App. 2014).

Opinion

LEWIS, C.J.

Appellant, the Department of Legal Affairs of the Office of the Attorney General, appeals the trial court’s order dismissing its amended complaint against Appellees, Beach Blvd. Automotive, Inc. (“BBA”), Beach Blvd. Auto Finance, Inc. (“BBAF”), John O. King, Sr., individually and as owner, officer, and/or director of the corporations, and Barbara King, individually and as an agent of BBA. For the reasons that follow, we affirm the trial court’s dismissal of Counts 1 and 8 along with the Florida Consumer Collection Practices Act (“FCCPA”) claim in Count 5, but reverse the dismissal of Counts 2, 3, 4, 6, 7, 9, and 10 along with the claim brought under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) in Count 5.

In October 2011, Appellant filed its initial complaint containing eight counts against Appellees1 based upon their al[384]*384leged fraudulent and unfair trade practices. Appellees filed a motion to dismiss, which the trial court granted. In its order, the trial court found that Appellant lacked standing as the enforcing authority under FDUTPA. In providing guidance to Appellant in the event that it filed an amended complaint, the trial court determined that Appellant’s claim that Appel-lees improperly required their customers to purchase credit life, credit disability, and GAP insurance did not constitute a violation of FDUTPA. With respect to Appellant’s claim that Appellees improperly installed GPS devices in the financed vehicles they sold, the trial court found that only installation of GPS tracking devices without notification to the purchaser would support an allegation that such a practice was unfair or deceptive. The court noted that, for all purposes, the liti-. gation commenced on October 7, 2011, the date the original complaint was filed.

In its amended complaint, Appellant sought injunctive and declaratory relief, restitution, civil penalties, damages, attorney’s fees, and any other available statutory relief pursuant to FDUTPA and FCCPA. Appellant alleged ten counts and claimed that it was the enforcing authority under FDUTPA. It attached as Exhibit A a “Notice of Deferral of Action” from the State Attorney of the Fourth Judicial Circuit wherein the State Attorney deferred the litigation against Appellees to Appellant pursuant to section 501.203(2), Florida Statutes.

In Count 1, Appellant alleged a FDUT-PA violation, asserting that Appellees added credit life, credit disability, and GAP insurance to their customers’ monthly payments without proper or adequate disclosure. In Count 2, Appellant alleged a FDUTPA violation, asserting that Appel-lees placed GPS tracking devices on their vehicles without the authorization, approval, or knowledge of their customers. In Count 3, Appellant alleged a FDUTPA violation, asserting that Appellees deceived their customers by adding a pre-delivery inspection (“PDI”) fee to the price of their vehicles without disclosing the nature and purpose of the fee and without providing the proper disclosures, an alleged violation of sections 501.976(11) and (18), Florida Statutes. In Count 4, Appellant alleged a FDUTPA violation, asserting that Appel-lees kept their customers’ deposits or binders without adequate disclosure, an alleged violation of section 501.976(10), Florida Statutes. It also alleged that certain customers were led to believe that their deposits would be returned if they did not purchase vehicles from Appellees. In Count 5, Appellant alleged both FDUTPA and FCCPA violations, asserting that Ap-pellees BBAF and John O. King, Sr. willfully used threats and profane language with debtors and willfully claimed or threatened to enforce illegitimate debts. In Count 6, Appellant alleged a FDUTPA violation, asserting that Appellee Barbara King posted false reviews on internet websites. In Count 7, Appellant alleged a FDUTPA violation, asserting that Appel-lees also posted false reviews on internet websites. In Count 8, Appellant alleged a FDUTPA violation, asserting that Appel-lees engaged in the business of a motor vehicle retail installment seller without a license, an alleged violation of section 520.03(1), Florida Statutes. In Count 9, Appellant alleged a FDUTPA violation, asserting that Appellees wrongfully repossessed customers’ vehicles based on false assertions that the customers’ automobile insurance had lapsed or based on nonexistent liens. In Count 10, Appellant alleged a FDUTPA violation, asserting that Appellees reported false sales and financing.

Appellant attached several documents to its amended complaint, including sworn [385]*385statements of some of Appellees’ customers and employees, bills of sale and schedules of insurance containing language that credit life and credit disability insurance were optional items, a SAFE-GAP Deficiency Waiver Addendum providing in part that the purchase of the additional coverage was voluntary and would not be a factor in the credit approval process, and a December 9, 2011, letter to Appellee John 0. King, Sr. from the Office of Financial Regulation advising him that BBA’s application for licensure as a motor vehicle installment seller had been denied. Also attached was a receipt for one of Appel-lees’ customers that contained a stamp setting forth, “BBA AGREES TO HOLD ABOVE VEHICLE UNTIL'_ FOR NON REFUNDABLE BINDER OF

Appellee Barbara King filed an answer and affirmative defenses in response to the amended complaint. Appellees moved to dismiss the amended complaint. Appellant subsequently filed a final order of the Office of Financial Regulation with the trial court. The order incorporated a stipulation and consent agreement, which set forth that Appellees’ license as a motor vehicle retail installment seller became inactive in December 2010 for an “inadvertent failure to renew.” It also provided that Appellees operated “unintentionally” without a license from January 1, 2011, until April 30, 2012.

During the hearing on Appellees’ motion to dismiss, counsel for Appellee Barbara King stated that King had “no say” in the motion given that she had answered the amended complaint. Appellees’ counsel argued as to Count 1 that Appellant raised the same claim as it had raised in its original complaint.

As to Count 2, Appellees’ counsel argued, “We don’t have exceptions to [it] other than we feel that it misjoins some other general paragraphs .... So we’re not asking it to be dismissed with prejudice; we’re asking it be cleaned up a little bit.”

As to Count 3, Appellees’ counsel argued that res judicata barred the claim given that Appellees “previously settled the class action and [the court] issued a final order on May 10 of 2011.” According to counsel, it was alleged in the class action that Ap-pellees violated FDUTPA, and all class members released Appellees from any and all liability arising out of the PDI fee. Appellant’s counsel acknowledged that the class members received actual damages for Appellees’ PDI fee violation but noted that it was “seeking ... an enforcement or damages based on an enforcement action .... ” Counsel offered to “remove the actual damages language from there” and asked that Appellant be permitted to move forward with regard to it receiving damages “based on a violation of 501 as an enforcement agency.”

With respect to Count 4, Appellees’ counsel argued that the nonrefundable deposit language used by Appellees complied with the pertinent statutes. Appellant’s counsel argued that the “binder stamp” did not give consumers a clear and conspicuous statement as to when a deposit was refundable or nonrefundable as required by section 501.976, Florida Statutes.

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139 So. 3d 380, 2014 WL 2040853, 2014 Fla. App. LEXIS 7574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beach-blvd-automotive-inc-fladistctapp-2014.