Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DR. MARTINA MALLERY, ) ) Petitioner, ) ) v. ) Case No. 2D19-1466 ) NORMAN L. BUSH AUTO SALES & ) SERVICE, INC. d/b/a NORM'S ) TOWING, ) ) Respondent. ) ___________________________________) Opinion filed March 18, 2020. Petition for Writ of Certiorari to the Circuit Court for the Twelfth Judicial Circuit for Manatee County; sitting in its appellate capacity. Courtney A. Umberger, Felipe B. Fulgencio, and Megan N. Daniel of Fulgencio Law, PLLC, Tampa, for Petitioner. Terence Matthews of Law Office of Terence Matthews, Chartered, Bradenton, for Respondent. BADALAMENTI, Judge. Dr. Martina Mallery seeks second-tier certiorari review of a circuit court opinion and order that affirmed the county court's final judgment dismissing count two of her first amended complaint with prejudice in favor of Norm's Towing. In affirming the county court's order, the circuit court determined that section 715.07(2)(a)(9), Florida Statutes (2014), does not impose civil liability on a towing company for its noncompliance with that subsection. We agree with the circuit court and deny the petition. According to the allegations in Dr. Mallery's first amended complaint, Dr. Mallery's car was towed by Norm's Towing at the request of Heritage Harbour Master Association, Inc. (Heritage). When Dr. Mallery arrived at Norm's Towing to retrieve her vehicle, Norm's Towing did not release it to her within one hour. Based in part on the actions of Norm's Towing, Dr. Mallery filed an amended complaint for damages in the County Court in and for Manatee County against Heritage and Norm's Towing. This case involves Dr. Mallery's claim as to Norm's Towing. Specifically, in count two of the first amended complaint, Dr. Mallery alleged that Norm's Towing violated section 715.07(2)(a)(9) by failing to release her vehicle to her within one hour of her request. She alleged that the violation rendered Norm's Towing liable to her for damages for, among other things, the costs of removal, transportation, and storage of her vehicle. Norm's Towing moved to dismiss count two of Dr. Mallery's first amended complaint. It argued that section 715.07(2)(a)(9) does not provide a civil cause of action against a towing company for its violation of subsection (2)(a)(9). Instead, Norm's Towing asserted, section 715.07(5)(b) provides for a criminal sanction, a third-degree felony, for failing to comply with section 715.07(2)(a)(9). The county court granted the motion to dismiss, finding that "[t]he language of [section] 715.07 does not contain any provision for a private civil cause of action against the towing company for following the -2- instructions of the owner of the land from which it was towed." The order afforded Dr. Mallery twenty days within which to file an amended complaint. Dr. Mallery did not file an amended complaint within that twenty-day period. Norm's Towing thus moved to dismiss count two of Dr. Mallery's first amended complaint with prejudice. The county court granted the motion and rendered a final judgment of dismissal with prejudice in favor of Norm's Towing. In that order, the court "reaffirm[ed] the substance of the ruling of" the order of dismissal, concluding that "[s]ection 715.07, Florida Statutes does not provide the basis for a statutory civil action by the Plaintiff against the Defendant, Norm's Towing." Dr. Mallery appealed the county court's order dismissing count two of her first amended complaint with prejudice to the circuit court. Though its reasoning was different than the county court's reasoning, the circuit court rendered an order affirming the county court's ruling that Dr. Mallery could not sue Norm's Towing for its violation of section 715.07(2)(a)(9). Dr. Mallery timely petitioned this court, seeking second-tier certiorari review of the circuit court's order. Second-tier certiorari review is not a second appeal. See Wiggins v. Fla. Dep't of Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1170 n.2 (Fla. 2017). Our review of final orders rendered by the circuit court in its appellate capacity is limited to only two questions: (1) whether the circuit court afforded procedural due process and (2) whether the circuit court applied the correct law. Id. at 1170; see also Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (explaining that whether the circuit court applied the correct law is the same standard as whether the circuit court departed from the essential requirements of the law). "[A] district court should exercise -3- its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice." Custer, 62 So. 3d at 1092. Here, Dr. Mallery contends that the circuit court departed from the essential requirements of the law by holding that a towing company's noncompliance with section 715.07(2)(a)(9) does not create a civil cause of action.1 Our determination as to whether a towing company's failure to comply with section 715.07(2)(a)(9)'s one- hour vehicle return mandate creates a statutory cause of action is a question of statutory interpretation. See QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, 94 So. 3d 541, 550 (Fla. 2012). Our supreme court has "reaffirmed the principle that whether a statutory cause of action should be judicially implied is a question of legislative intent." Id. at 551 (citing Horowitz v. Plantation Gen. Hosp. Ltd. P'ship, 959 So. 2d 176, 182 (Fla. 2007); Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 23 (Fla. 2004); Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003)). Indeed, "legislative intent has become the primary factor that most courts, including the United States Supreme Court, use to determine whether to judicially infer a cause of action when a statute does not expressly provide for one." Id. at 550-51 (citing Murthy v. N. Sinha Corp., 644 So. 2d 983, 985 (Fla. 1994)). We discern legislative intent from the "actual language used in the statute." Id. at 551 (quoting Borden v. East–European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)); see also DMB Inv. Tr. v. Islamadora, Vill. of Islands, 225 So. 3d 312, 317 (Fla. 3d DCA 2017) ("In 1Dr. Mallery conceded below that there is no express civil cause of action for a violation of section 715.07(2)(a)(9). -4- ascertaining the legislative intent, a court must consider the plain language of the statute, give effect to all statutory provisions, and construe related provisions in harmony with one another." (quoting Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003))). With these principles in mind, our task here, as was the task of the circuit court, is to analyze the text of section 715.07(2)(a)(9). Section 715.07(2) provides, in part, as follows: The owner or lessee of real property, or any person authorized by the owner or lessee, which person may be the designated representative of the condominium association if the real property is a condominium, may cause any vehicle or vessel parked on such property without her or his permission to be removed by a person regularly engaged in the business of towing vehicles or vessels, without liability for the costs of removal, transportation, or storage or damages caused by such removal, transportation, or storage, under any of the following circumstances: (a) The towing or removal of any vehicle or vessel from private property without the consent of the registered owner or other legally authorized person in control of that vehicle or vessel is subject to strict compliance with the following conditions and restrictions: One of the conditions and restrictions arrayed in section 715.07(2)(a) with which a towing company must strictly comply is the release of an owner's vehicle within one hour after the owner's request. § 715.07(2)(a)(9) ("When a vehicle or vessel has been towed or removed pursuant to this section, it must be released to its owner or custodian within one hour after requested." (emphasis added)). A towing company's violation of subsection (2)(a)(9) is punishable as a third-degree felony. § 715.07(5)(b) ("Any person who violates subparagraph (2)(a)9. . . commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." (emphasis -5- added)). Thus, the legislature, based on the plain language of the statute, chose a criminal penalty—a felony for that matter—to enforce a towing company's noncompliance with subsection (a)(9). Having found no textual indication of a civil cause of action within section 715.07(2)(a)(9), we look for textual indicators within the broader section 715.07(2)(a). Section 715.07(2)(a)(1)(a) requires that if a request to redeem a vehicle is made outside a towing company's required 8 a.m. to 6 p.m. business hours, an operator of the towing company "shall return to the site within 1 hour [of the request] or she or he will be in violation of this section." § 715.07(2)(a)(1)(a) (emphasis added). The "violation" the legislature chose for a towing company's noncompliance with section 715.07(2)(a)(1)(a) is, like noncompliance with section 715.07(2)(a), a third-degree felony. § 715.07(5)(b) ("Any person who violates subparagraph (2)(a)1. . . commits a felony of the third degree." (emphasis added)). In fact, if a towing company violates seven of the requirements arrayed in section 715.07(2)(a), the towing company faces a criminal penalty of either a second-degree misdemeanor or a third-degree felony. See §§ 715.07(5)(a) (first-degree misdemeanors for violations of sections 715.07(2)(a)(2) and (6)) and (5)(b) (third-degree felony for violations of sections 715.07(2)(a)(1), (3), (4), (7), and (9)).2 2Although not argued below or here, we note that section 713.78, Florida Statutes (2014), references section 715.07. Section 713.78, titled "Liens for recovering, towing, or storing vehicles," is placed within the broader context of chapter 713's provisions for "Liens." Section 713.78 affords a towing company the authority to place liens on the vehicles "for a reasonable towing fee and for a reasonable storage fee." § 713.78(2). However, the legislature precludes the ability of a towing company to place a lien on a vehicle pursuant to section 713.78 unless the "removal is done in compliance with s[ection] 715.07." § 713.78(2)(c). -6- An examination of the remainder of section 715.07(2)(a) reveals that section 715.07(2)(a)(8) is excluded from criminal punishment for a towing company's noncompliance with it. Specifically, section 715.07(2)(a)(8) permits a towing company to enter the vehicle "for the purpose of removing the vehicle." But subsection 715.07(2)(a)(8) is unlike section 715.07(2)(a)'s other subsections because it mandates that a towing company "shall be liable for any damage occasioned to the vehicle or vessel if such entry is not in accordance with the standard of reasonable care." (Emphasis added.) That is to say that noncompliance of subsection 717.07(2)(a)(8) exposes the towing company to liability rather than criminal penalty. In other words, by excluding section 715.07(2)(a)(8) from criminal penalty for violating it, the legislature intended to impose civil liability for noncompliance with it. See Boatright v. Philip Morris USA Inc., 218 So. 3d 962, 967 (Fla. 2d DCA 2017) ("Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another." (quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996))); see also United States v. Koonce, 991 F.2d 693, 698 (11th Cir. 1993)). Further contextual indicators that the legislature intentionally excluded a civil cause of action from section 715.07(2)(a)(9) is found in section 715.07(4). Section 715.07(4) provides that "[w]hen a person improperly causes a vehicle or vessel to be removed, such person shall be liable to the owner or lessee of the vehicle" for the cost of removal and any damages resulting from the removal, transportation, or storage of the vehicle. And noncompliance with section 715.07(4), like section 715.07(2)(a)(8), is not sanctioned by criminal penalty. See § 715.07(5)(a), (b). -7- Thus, it is clear that a "violat[ion]" of the one-hour vehicle return rule for which Dr. Mallery seeks a civil cause of action, along with six other subsections of 715.07(2)(a) and section 715.07(3), is addressed by the criminal law, not a civil cause of action. See Cauley, 666 So. 2d at 900 ("Under the principle of statutory construction, expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another."). Reading these provisions together and in harmony, as we must, yields the conclusion that the legislature intended not to impose civil liability on towing companies for their violation of section 715.07(2)(a)(9). See Boatright, 218 So. 3d at 967 ("Legal text 'should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.' " (quoting Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 2001))). Thus, the legislature excluded a civil cause of action (and included criminal punishment) for a towing company's violation of section 715.07(2)(a)(9) but included civil liability (and excluded criminal punishment) for a towing company's noncompliance with section 715.07(2)(a)(8) and section 715.07(3). Indeed, we must presume that the legislature said what it meant and meant what it said. See Jefferson v. State, 264 So. 3d 1019, 1024 (Fla. 2d DCA 2018), review denied, no. SC19-268, 2019 WL 1145053 (Fla. Apr. 2, 2019). In sum, we are unable to discern any civil cause of action for a towing company's failure to return a vehicle within the one-hour requirement specified in section 715.07(2)(a)(9). And the text of the broader section 715.07(2)(a) and section 715.07(3) compel the opposite conclusion. Having employed the required statutory construction analysis and utilizing typical canons of statutory construction, it is clear that the legislature intended a violation of section 715.07(2)(a)(9) to be enforced by the -8- criminal law, not by a civil cause of action.3 If this is not what the legislature intended, it can change it with further legislation. Accordingly, the circuit court applied that correct law and, in so doing, did not depart from the essential requirements of the law by affirming the county court's dismissal of Dr. Mallery's amended complaint with prejudice. Petition denied.4 SILBERMAN, J., Concurs. ATKINSON, J., Concurs in result only. 3It may well be that the legislature intended any financial compensation for a towing company's violation of section 705.07(2)(a)(9) to be fashioned by a sentencing court as criminal restitution. But we need not reach or decide this issue. 4We find no departure from the essential requirements of law in the circuit court's affirmance of the county court's denial of her motion to amend. -9-