Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT LARSENS AUTOMOTIVE, LLC, d/b/a LARSENS TOWING AND AUTOMOTIVE, Appellant, v. STEVE HABERKORN, Appellee. No. 2D21-142 August 20, 2021 Appeal from the County Court for Hillsborough County; Daryl M. Manning, Judge. Allison Kirkwood Simpson and Charles A. Carlson of Barnett, Kirkwood, Koche, Long & Foster, P.A., Tampa, for Appellant. Felipe B. Fulgencio, Courtney A. Umberger, and Christopher W. Mathena, of Fulgencio Law, PLLC, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. Larsens Automotive, LLC, appeals the final judgment rendered in favor of Steve Haberkorn based on Larsens' violation of section 715.07(2)(a)9, Florida Statutes (2017).1 Because we agree with Larsens that Haberkorn has no private civil cause of action for a violation of section 715.07(2)(a)9, we reverse. In January 2017, Haberkorn's vehicle was towed from his apartment complex without his knowledge or consent. Haberkorn subsequently discovered that Larsens had towed the vehicle, and he went to Larsens' tow yard to retrieve it. At the yard, the vehicle was located behind a locked gate, and Haberkorn could not see it. He gave the Larsens attendant $75 and signed the towing receipt, which included a liability/damages waiver that stated, "I agree to hold this company harmless for any damages due to towing or services rendered." The attendant then unlocked the gate for Haberkorn.2 Haberkorn alleged that he had 1 Although the judgment was styled as a "partial" final judgment, the judgment disposed of the sole count of the complaint, and the trial court only "reserve[d] jurisdiction to enter or amend orders as may be required for any and all lawful reasons, including, without limitation, execution, determination of any attorney's fees and costs awards, and/or awards of interest." Our jurisdiction therefore lies pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A) rather than rule 9.110(k). 2 The exact events are not clear from the record. In her affidavit, the attendant averred that she had neither required Haberkorn to sign the release nor told him that he could not retrieve his vehicle without signing the release. In his affidavit, 2 then observed damage to the vehicle, with an estimated repair cost of $700.85. In January 2018, Haberkorn filed a one-count complaint alleging that Larsens had violated section 715.07(2)(a)9 by conditioning the release of his vehicle on the requirement that he sign the towing receipt that included a liability/damages waiver. See § 715.07(2)(a)9 ("[N]o release or waiver of any kind which would release the person or firm towing the vehicle . . . from liability for damages noted by the owner . . . at the time of the redemption may be required from any vehicle . . . owner . . . as a condition of release of the vehicle . . . to its owner."). Haberkorn alleged that based on Larsens' violation of section 715.07(2)(a)9, Larsens was liable for the "cost of removal, transportation, and storage; any damages resulting from the removal, transportation, or storage of the vehicle or vessel, attorney's fees; and court costs." See § 715.07(4) (providing that "[w]hen a person improperly causes a vehicle or Haberkorn averred that the attendant had "asked, directed, and required [him] to sign [the] towing receipt" that included the release. What appears to have happened, therefore, is that before unlocking the gate so that Haberkorn could retrieve his vehicle, the attendant had handed him the receipt and said something to the effect of, "Here, sign this." 3 vessel to be removed, such person shall be liable to the owner or lessee of the vehicle or vessel for" those costs). In January 2019, Haberkorn moved for summary disposition as to liability and filed supporting documentary evidence and affidavits, arguing that there was no triable issue as to Larsens' violation of section 715.07(2)(a)9. See Fla. Sm. Cl. R. 7.135 (directing the court to "summarily enter an appropriate order or judgment" "if there is no triable issue"). Larsens opposed the motion and also filed supporting affidavits. After a hearing, the trial court granted Haberkorn's motion, determining that the undisputed evidence established that Larsens had violated section 715.07(2)(a)9 and that Larsens was therefore liable to Haberkorn for, among other things, damages pursuant to section 715.07(4). The court stated that Haberkorn could request an evidentiary hearing on the amount of damage to the vehicle. Instead, Haberkorn moved for entry of final judgment and submitted a proposed judgment setting damages at $775.85 ($700.85 in damage to the vehicle, plus $75 for the cost of the tow). The judgment stated that "[b]y presenting [Haberkorn] with a towing receipt for signature that contained a release of liability, Defendant, 4 Larsens, violated section 715.07(2)(a)(9), Florida Statutes, and, as a result, the towing removal and/or storage of [Haberkorn]'s vehicle was improper." Over Larsens' objection, the trial court entered the proposed judgment. That same day, this court decided Mallery v. Norman L. Bush Auto Sales & Service, Inc., 301 So. 3d 361, 366 (Fla. 2d DCA 2020), which, on second-tier certiorari review, held that the circuit court applied the correct law in concluding that a vehicle owner has no private civil cause of action against a tow company for a violation of section 715.07(2)(a)9.3 3 Thereafter, Haberkorn, in this same proceeding and without seeking leave of court or Larsens' consent, filed a postjudgment "First Amended Complaint," which was actually a new, three-count complaint alleging violation of the Florida Deceptive and Unfair Trade Practices Act; misleading advertising in violation of section 817.41, Florida Statutes; and violation of the Civil Remedies for Criminal Practices Act. Whether Haberkorn properly filed the amended complaint has never been adjudicated below and is not before us, but we ordered supplemental briefing to determine whether the fact of its filing affected our jurisdiction to consider the judgment that is being appealed. Having reviewed the parties' responses and the pertinent law, we are convinced that the answer is no: as noted above, the judgment completely disposed of the sole claim in Haberkorn's original complaint, and the filing of an amended complaint is not an action that tolls rendition. See Fla. R. App. P. 9.020(h)(1). 5 A few days after that, Larsens timely filed its notice of appeal of the judgment. Analysis The trial court entered judgment pursuant to Florida Small Claims Rule 7.135, which provides that "if there is no triable issue, the court shall summarily enter an appropriate order or judgment." Fla. Sm. Cl. R. 7.135.4 Because the rule appears analogous to Florida Rule of Civil Procedure 1.510 governing summary judgment, we will review the trial court's grant of summary disposition de novo. See Abu-Khadier v. City of Fort Myers, 312 So. 3d 975, 976 (Fla. 2d DCA 2020) (citing Sawyerr v. Se. Univ., Inc., 993 So. 2d 141, 142 (Fla. 2d DCA 2008)). Section 715.07(2)(a)9 provides, in pertinent part: When a vehicle . . . has been towed or removed pursuant to this section, it must be released to its owner or custodian within one hour after requested. Any vehicle . . . owner or agent shall have the right to inspect the vehicle . . . before accepting its return, and no release or waiver of any kind which would release the person or firm towing the vehicle . . . from liability for damages noted by the owner or other legally authorized person at 4 After Haberkorn moved for summary disposition, Larsens moved pursuant to Florida Small Claims Rule 7.020(c) for an order that the proceedings would be governed by the Florida Rules of Civil Procedure. It does not appear that the trial court ever ruled on Larsens' motion. 6 the time of the redemption may be required from any vehicle . . . owner, custodian, or agent as a condition of release of the vehicle . . . . In Mallery, 301 So. 3d at 362, this court addressed whether a vehicle owner has a private civil cause of action against a tow company for a violation of 715.07(2)(a)9.5 In that case, Mallery alleged that the towing company had violated section 715.07(2)(a)9 by failing to release her car within one hour of her request and was therefore liable for damages. Id. at 363. The towing company moved to dismiss, arguing that although section 715.07(5)(b) prescribes a criminal sanction—a third-degree felony—for violating section 715.07(2)(a)9, there is no attendant private civil cause of action. Id. The trial court agreed, expressly concluding that "section 715.07, Florida Statutes does not provide the basis for a 5 Although Mallery was decided on the same day that the trial court in this case entered judgment, "disposition of a case on appeal should be made in accord with the law in effect at the time of the appellate court's decision rather than the law in effect at the time the judgment appealed was rendered." Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467, 468 (Fla. 1978) (citing Fla. E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1967)); see City of Miami v. Harris, 490 So. 2d 69, 73 (Fla. 3d DCA 1985) ("[I]t is apodictic that where there is a change of law between the trial of a case and the final disposition of the appeal, the appellate court must apply the law as it exists at the time of final disposition . . . ." (citations omitted)). 7 statutory civil action by the [p]laintiff against the [d]efendant." Id. On appeal, the circuit court affirmed. See id. On second-tier certiorari review, this court analyzed the statutory text and the legislative intent of the statute, stating that "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)." Id. at 364-65. This court stated further that it is "clear" that a violation of section 715.07(2)(a)9 is "enforced by the criminal law, not by a civil cause of action," thus holding that the circuit court applied the correct law in concluding that a towing company's violation of section 715.07(2)(a)9 does not create a private civil cause of action. Id. at 366. Consistent with our reasoning and holding in that case, we conclude that reversal is warranted here, on direct appeal.6 See 6 Because Larsens never argued below that there is no private civil cause of action under section 715.07(2)(a)9, its argument on appeal is unpreserved, and, as a general rule, it would be entitled to no relief based on Mallery. See, e.g., Baker v. R.J. Reynolds Tobacco Co., 158 So. 3d 732, 737 (Fla. 4th DCA 2015) ("The Douglas opinion was issued after the trial in this cause, and there is uncertainty whether its holding represents a change in the law, or is a mere clarification of existing law. Even assuming arguendo that Douglas is a change in the governing law, Plaintiff was still obliged to preserve her argument by stating an objection at trial in order to benefit from that change."); Wendell v. United Servs. Auto., 881 So. 8 also Am. Towing of Miami, LLC v. Espinal, 318 So. 3d 598, 601 (Fla. 3d DCA 2021) ("[W]e agree with Mallery and discern no legislative intent to create a private cause of action from the actual language used in the statute, which imposes a criminal penalty as opposed to civil liability for noncompliance with section 715.07(2)(a)(9) . . . ."). Because there is no private civil cause of action for a violation of section 715.07(2)(a)9, we reverse the judgment in favor of Haberkorn and remand for vacatur.7 Reversed and remanded. BLACK and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 2d 1178, 1179 n.1 (Fla. 5th DCA 2004) ("Of course, to benefit from a change in the law, the appellant must have preserved the issue for appellate review . . . ."). However, in those rare instances when a trial court has awarded relief that is not authorized by law or under a cause of action that does not exist (or would not be available to the plaintiff), we may consider whether the error was fundamental. See O'Brien v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 710 So. 2d 51, 52 (Fla. 4th DCA 1998) (collecting cases and observing that civil fundamental error is generally restricted to "situations in which the trial court granted relief when the party obtaining the relief was, as a matter of law, not entitled to it" and the "legal error[] . . . went to a party's right to recover"). 7 As noted above, the propriety of Haberkorn's postjudgment filing of an amended complaint is not before us. If the trial court concludes that the filing is unauthorized, however, it should dismiss Haberkorn's suit with prejudice. 9