Consumer Law cases

These are summaries of Florida Appellate decisions concerning consumer law

cases categorized as follows: Consumer Collection Practices Damages and

Penalties Fair Credit Reporting Lemon Law Miscellaneous Statutory Actions

Unfair and Deceptive Trade Practices Venue Warranties

CONSUMER COLLECTION PRACTICES

County court properly granted summary judgment in favor of defendant bank in

claim for violation of the Florida Consumer Collection Practices Act as bank

submitted affidavit it did not know of plaintiff's bankruptcy and although

plaintiff submitted letters indicating the contrary, they were not

authenticated nor supported by affidavit. First North American National

Bank v. Hummel, 825 So. 2d 502, 27 Fla. L. Weekly D2010 (Fla. 2d DCA Sept.

6, 2002).

The Consumer Protection law, the Fair Credit Reporting Act and the right to

privacy do not prohibit a collection agency from having to disclose the

home addresses of its employees and telephone records and correspondence

concerning other debtors. Florida First Financial Group, Inc. v. De Castro,

815 So. 2d 789, 27 Fla. L. Weekly D1161 (Fla. 4th DCA May 15, 2002).

DAMAGES AND PENALTIES

"Legislature did not intend to authorize the imposition of daily penalties

for continuing conduct under section 501.2075." 3B TV, Inc. v. State of

Florida, 794 So.2d 744 (Fla. 1st DCA 2001).

FAIR CREDIT REPORTING

The Consumer Protection law, the Fair Credit Reporting Act and the right to

privacy do not prohibit a collection agency from having to disclose the

home addresses of its employees and telephone records and correspondence

concerning other debtors. Florida First Financial Group, Inc. v. De Castro,

815 So. 2d 789, 27 Fla. L. Weekly D1161 (Fla. 4th DCA May 15, 2002).

LEMON LAW

A party's failure to follow the procedural rules in a Lemon Law arbitration

proceeding did not prohibit him from his statutory right to present evidence

to a circuit judge in a "trial de novo appeal." T.A. Enterprises, Inc. v.

Olarte, Inc., 835 So. 2d 1235, 28 Fla. L. Weekly D367 (Fla. 4th DCA Jan. 29,

2003).

Trial court properly dismissed class action suit under Lemon law as it was

not filed within three year statute of limitations, which period was not

tolled until the discovery of the alleged violations. Williams v. Potamkin

Motor Cars, Inc., 835 So. 2d 310, 28 Fla. L. Weekly D16 (Fla. 3d DCA Dec.

26, 2003).

A consumer's inability to "furnish to the manufacturer clear title to and

possession of" an automobile does not preclude him from maintaining an

action under Florida's Lemon Law or the Magnuson-Moss Warranty Act. King v.

King Motor Co. of Ft. Lauderdale, 780 So.2d 937 (Fla. 4th DCA 2001).

A consumer's inability to "furnish to the manufacturer clear title to and

possession of" an automobile does not preclude him from maintaining an

action under Florida's Lemon Law or the Magnuson-Moss Warranty Act. King v.

King Motor Co. of Ft. Lauderdale, 780 So.2d 937 (Fla. 4th DCA 2001).

MISCELLANEOUS STATUTORY ACTIONS

The Self Storage Facility Act (Part III, Chapter 83, Florida Statutes) does

not create an independent statutory cause of action. Shurgard Income

Properties Fund 16 - Limited Partnership v. Muns, 761 So.2d 340 (Fla. 4th

DCA 1999).

UNFAIR AND DECEPTIVE TRADE PRACTICES

Arbitration provision in motor vehicle sales contract specifically

referencing Florida’s Unfair and Deceptive Trade Practices Act is not

substantively unconscionable and therefore enforceable despite judge’s

finding it was procedurally unconscionable as purchaser was “academically

handicapped.” Stewart Agency, Inc. v. Robinson, 855 So. 2d 726, 28 Fla. L.

Weekly D1775 (Fla. 4th DCA July 30, 2003).

Arbitration clause in new vehicle purchase agreement requiring arbitration

of “any controversy or claim arising out of or relating to this contract”

applies to claims for violation of Magnuson-Moss Warranty Act and Florida’s

Unfair and Deceptive Trade Practices Act, notwithstanding agreement was not

signed by dealership. Stacy David, Inc. v. Conseugra, 845 So. 2d 303, 28

Fla. L. Weekly D1184 (Fla. 2d DCA May 16, 2003).

Although purchaser could not maintain an action for breach of contract

because reservation form which identified a particular lot at a particular

price was not a binding option agreement as either party could terminate,

purchaser could maintain an action for unfair and deceptive trade practices.

Fendrich v. RBF, LLC., 842 So. 2d 1076, 28 Fla. L. Weekly D1063 (Fla. 4th

DCA April 30, 2003).

Trial court properly denied motion to certify nationwide class action on

case filed alleging violation of Florida's Unfair Deceptive Trade Practices

Act as sale of product and damage done occurred in other states which own

consumer protection laws would apply. Hutson v. Rexall Sundown, Inc., 837

So. 2d 1090, 28 Fla. L. Weekly D508 (Fla. 4th DCA Feb. 19, 2003).

Trial court did not err in not granting class action statutes in suit that

company violated Florida's Unfair Deceptive Trade Practices Act by

advertising its products as "Calcium 900" and "Calcium 1200" when in fact

they contained 300 and 600 milligrams as appellant failed to establish

typicality and commonality requirements as some of the persons may have had

actual knowledge of the number of soft gels they needed to take per serving.

Hutson v. Rexall Sundown, Inc., 837 So. 2d 1090, 28 Fla. L. Weekly D508

(Fla. 4th DCA Feb. 19, 2003).

Trial court properly dismissed third amended class action against

check cashing company for usury and deceptive and unfair trade practices as

the company was acting in compliance of the Deferred Presentment Act

contained in Chapter 560. Betts v. Ace Cash Express, Inc., 827 So. 2d 294,

27 Fla. L. Weekly D1973 (Fla. 5th DCA August 30, 2002).

Trial court erred in granting summary judgment in favor of pathologists in

claim against health and welfare fund for unfair and deceptive trade

practices and tortuous interference with business relationship for sending

letter to patients not to pay statements received from pathologists as

pathologists had failed to show where patients had contractual obligation to

pay the "professional component" charge of rendering pathology services.

Central States Southeast and Southwest Area Health and Welfare Fund v.

Florida Society of Pathologists, 824 So. 2d 935, 27 Fla. L. Weekly D1593

(Fla. 5th DCA July 12, 2002).

Although a single incident cannot be a basis for recovery under Florida's

Unfair and Deceptive Trade Practices Act, this issue was not preserved for

review as appellant failed to raise it at trial. Keech v. Yousef, 815 So.

2d 718, 27 Fla. L. Weekly D967 (Fla. 5th DCA April 26, 2002).

A television station's transmitting a bingo game in an effort to promote

other satellite programming could be a violation of Florida's Unfair and

Deceptive Trade Practices Act if it is determined that the game constitutes

a bingo game under section 849.0931. 3B TV, Inc. v. State of Florida, 794

So.2d 744 (Fla. 1st DCA 2001).

Refusing to do business with someone who had filed suit against you is not a

violation of Florida's Deceptive and Unfair Trade Practices Act. Yachting

Promotions, Inc. v. Broward Yachts, Inc., 792 So.2d 660 (Fla. 4th DCA 2001).

Trial court properly certified class action suit against car dealer for

violating Florida's Unfair and Deceptive Trade Practices Act by assuring

customers they have been approved for financing, taking possession of their

automobiles, and then forcing them to sign new retail installment contracts

with less favorable terms under threat they had forfeited their cars.

Autonation USA Corp. v. Miranda, 789 So.2d 1188 (Fla. 4th DCA 2001).

Award of over $53,000 in appellate attorney's fees in obtaining a reversal

of a judgment under Florida's Deceptive and Unfair Trade Practices Act was

proper as there was evidence to support the judge's finding that 415 hours

spent on the appeal was reasonable. General Motors Acceptance Corp. v.

Laesser, 791 So.2d 51 (Fla. 4th DCA 2001).

A breach of a covenant in a commercial lease to maintain premises does not

constitute unfair or deceptive trade practices under section 501.204.

Beacon Property Management, Inc. v. PNR, Inc., 785 So.2d 564 (Fla. 4th DCA

2001).

A car dealer's representation that a buy order was contingent upon the

buyers' obtaining financing and then disposing of the buyer's trade-in

before financing was obtained cannot be "misleading advertising" under

section 817.41 as that section pertains to misleading statements made with

the intent of selling or disposing of property, but could be a claim under

Florida's Deceptive and Unfair Trade Practices Act. Samuels v. King Motor

Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001).

A class action suit under Florida's Deceptive and Unfair Trade Practices Act

does not need to allege that individual members on the allegedly unlawful

act or omission or that the unlawful act or omission will cause continuing

harm to consumers. Davis v. Powertel, Inc., 776 So.2d 971 (Fla. 1st DCA

2000).

A consumer bringing an unfair and deceptive trade practices action may not

be compelled to arbitrate pursuant to a Vehicle Buyer's Order where the car

dealership had rescinded the contract and repossessed the vehicle. Henderson

v. Coral Springs Nissan, Inc., 757 So.2d 577 (Fla. 4th DCA 2000).

Attorney General is not required to post bond to obtain temporary injunction

for violations of Florida's Deceptive and Unfair Trade Practices Act based

upon Defendant's advertising and notifying consumers they would receive

pre-approved credit cards. Sunplus Credit, Inc. v. Office of the Attorney

General, 752 So.2d 1225 (Fla. 4th DCA 2000).

Maritime law does not preclude cruise line customers from filing a complaint

under Florida's Deceptive and Unfair Trade Practices Act. Latman v. Costa

Cruise Lines, N.V., 758 So.2d 699 (Fla. 3d DCA 2000).

A cruise line may be liable for false advertising if the plaintiffs can show

that "port charges" were used to hide additional profits and were not

charges associated with its port stay. The District Court of Appeal reversed

the summary judgment in the cruise line's favor and remanded so the

plaintiffs could take further discovery. Premier Cruise Lines, Ltd., Inc. v.

Picaut, 746 So.2d 1132 (Fla. 5th DCA 1999).

VENUE

Provisions concerning venue and arbitration in business software licensing

agreement do not apply to claims brought under Florida's Little FTC Act.

Contractor's Management Systems of NH, Inc., v. Acree Air Conditioning,

Inc., 799 So.2d 320 (Fla. 2d DCA 2001).

Venue in unfair trade practices claims brought pursuant to sections

501.201-213, Florida Statutes is not governed by the contractual venue

clause. Management Computer Controls, Inc. v. Charles Perry Construction,

Inc., 743 So.2d 627 (Fla. 1st DCA 1999).

WARRANTIES

Plaintiffs suit against General Motors for breach of warranty as they had

signed a general release in previous litigation releasing all claims

"associated with the purchase, repair, operation, use or ownership" of the

vehicle in question. Vermut v. General Motors Corp., 773 So.2d 126 (Fla.

4th DCA 2000).