Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SAVE A LOT CAR RENTAL, INC., Appellant, v. TRI J. CO. TOWING AND RECOVERY, INC., Appellee. No. 2D21-129 August 18, 2021 Appeal from the County Court for Pinellas County; Lorraine M. Kelly, Judge. Michael W. Hennen of Hennen Law, PLLC, Orlando, for Appellant. Caitlin C. Szematowicz of Battaglia, Ross, Dicus & McQuaid, P.A., St. Petersburg, for Appellee. CASANUEVA, Judge. This case requires us to examine the steps a towing company must take to give notice to a vehicle's owner before the company may sell the vehicle. Specifically, is the mailing of notice by certified mail sufficient or must a towing company do more when the company knows that the notice was never delivered? We conclude that a towing company must take additional steps to comply with notice requirements where it is clear that the notice was lost in transit. Because the towing company's act of mailing notice by certified mail was insufficient in this case, we reverse. I. PROCEDURAL HISTORY Save A Lot Car Rental initiated this action in county court, alleging that Tri J. Company Towing and Recovery sold a car it owned without providing notice to Save A Lot as required by section 713.78, Florida Statutes (2018). In response, Tri J. Company filed a motion for summary disposition alleging that on November 3, 2018, it sent a "notice of claim of lien and proposed sale of vehicle" via certified mail to Save A Lot. The notice stated that Tri J. Company had possession of the vehicle, Tri J. Company claimed a lien on the vehicle that was subject to enforcement, and a public sale of the vehicle would occur on December 14, 2018. Tri J. Company's motion further alleged that it sent the notice to the 2 address for Save A Lot on the certificate of title and as reflected on filings with the Florida Department of State. Nonetheless, Tri J. Company admitted that Save A Lot did not receive the notice via certified mail. The United States Postal Service (USPS) tracking number on the certified mail receipt indicates that the letter was in transit two days after it was mailed, but there is no further tracking information for the letter after that date. It appears that the letter was lost by USPS. The vehicle was not sold at the public sale, and Tri J. Company submitted a "lost letter affidavit" to the State of Florida to obtain title to the vehicle and thereafter sold the vehicle on May 9, 2019.1 In its motion, Tri J. Company argued that its act of mailing notice by certified mail was sufficient to comply with the notice requirements of the statute and that it was not required to prove that Save A Lot actually received the notice. The county court agreed and granted summary disposition in favor of Tri J. Company. 1 The affidavit incorrectly states that the tracking information for the letter indicates that the letter was returned to sender. 3 Save A Lot has appealed that ruling, arguing that the county court erred in entering judgment in favor of Tri J. Company, because Tri J. Company could determine from the tracking information that the letter was not delivered and that Tri J. Company did not make a good faith effort to provide Save A Lot with the required statutory notice. This case appears to present an issue of first impression. II. STANDARD OF REVIEW Florida Small Claims Rule 7.135 directs that a trial court must enter a summary disposition at a pretrial conference or subsequent hearing if it determines that there is no triable issue. This rule is similar, although not identical, to Florida Rule of Civil Procedure 1.510, which provides that a trial court must enter a summary judgment when there is no genuine dispute as to any material fact and a party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c).2 Because both rules require that a trial court must find 2 Rule 1.510 has been amended and, effective May 1, 2021, states, "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a); see In re Amends. to Fla. Rule of Civ. Pro. 1.510, 309 So. 3d 192 (Fla. 2020). 4 there is no triable issue as a matter of law, we conclude that the standard of review for an order granting summary disposition is the same standard we use to review an order granting summary judgment: de novo. See Dyck-O'Neal, Inc. v. Norton, 267 So. 3d 478, 480 (Fla. 2d DCA 2019) ("We review a circuit court's entry of summary judgment under a de novo standard of review."), review denied, SC19-611, 2020 WL 633810 (Fla. Feb. 11, 2020). In reviewing the trial court's order, we must examine the record to determine if there is "any genuine issue of material fact or the possibility of any issue." Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138, 1140 (Fla. 2d DCA 2000). III. DISCUSSION Section 713.78(4)(a) requires a towing company claiming a lien for towing, storage, or recovery services to "give notice to the registered owner, [and] the insurance company insuring the vehicle . . . as disclosed by the records in the Department of Highway Safety and Motor Vehicles . . . ." Such notice must be sent by certified mail within seven business days after the date of storage of the vehicle. § 713.78(4)(c). Section 713.78(9) states that the "[f]ailure to make good faith best efforts to comply with the 5 notice requirements of this section shall preclude the imposition of any storage charges against such vehicle or vessel." (Emphasis added.) The only language in the statute that outlines good faith effort is found in subsection (4)(d), which discusses efforts to locate the name and address of the owner.3 In the present case, the parties do not dispute that Save A Lot was the owner of the vehicle and that Tri J. Company mailed the notice to Save A Lot's correct address. Thus, the "good faith efforts" described in subsection (4)(d) are not helpful in determining whether Tri J. Company made a good faith effort to comply with the notice requirement. The unique issue presented by this case is whether the language in section 713.78(4)(c) requiring a towing company to send notice by certified mail to the registered owner simply requires the mailing of the notice or whether more is required of the towing company. Save A Lot relies on Ford Motor Credit Co. v. Southwest Transport, Inc., 668 So. 2d 1068, 1070 (Fla. 3d DCA 1996), where 3 Questions of statutory interpretation presented by this case are subject to de novo review. City of Parker v. State, 992 So. 2d 171, 176 (Fla. 2008) (quoting BellSouth Telecomm., Inc. v. Meeks, 863 So. 2d 287, 289 (Fla. 2003)). 6 the towing company sent the required notice to the lender's address as shown on the motor vehicle title, but the certified letter was returned as undelivered and included a notation that the lender's forwarding order had expired. The towing company took no other steps to notify the lender even though the company had towed other vehicles where the same lender was the lienholder of record and the towing company sent the statutory notice for those vehicles to the lender's correct current address. Id. Similar to the present case, the towing company in Ford Motor Credit Co. made no attempt to resend the notice even though it was aware that the owner did not receive the original notice. The Third District held that "the towing company did not use any effort, much less best efforts, to give actual notice to the lender once the original mailing had been returned undelivered" as required by section 713.78(8), Florida Statutes (1993). Id. The court concluded that the towing company was required to forfeit its storage charges because "it did not use good faith best efforts to comply with the statute." Id; see also RSC Corp. v. Hertz Vehicles, LLC, 90 So. 3d 358, 362-63 (Fla. 5th DCA 2012) (holding that towing company did not comply with section 713.78(4) where, 7 although it "knew that the vehicle's owner was located in Virginia, it did not contact any agencies in Virginia to determine whether there was an insurer or a lienholder having an interest in the vehicle"). Similar language requiring notice by certified mail is found in section 197.522(1)(a), Florida Statutes (2018), which states that [t]he clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed in the tax collector's statement pursuant to s. 197.502(4) that an application for a tax deed has been made. In Thompson v. Markham, 164 So. 3d 1289, 1291 (Fla. 1st DCA 2015), the clerk of court complied with section 197.522(1) by mailing a certified letter containing the notice to the appellant's listed address. But the First District held that "when the certified letter was returned unopened and unclaimed, due process required the clerk to take additional reasonable steps to notify appellant, if practicable to do so." Id. (first citing Jones v. Flowers, 547 U.S. 220, 226 (2006); then citing Delta Prop. Mgmt. v. Profile Invs., Inc., 87 So. 3d 765, 771 (Fla. 2012); and then citing Vosilla v. Rosado, 944 So. 2d 289, 299 (Fla. 2006)). 8 In Jones, the Supreme Court addressed a similar issue and held that "[d]ue process does not require that a property owner receive actual notice before the government may take his property," 547 U.S. at 226, but due process requires the government to take additional actions to notify the owner when it was aware that the first notice was not received, id. at 234. We recognize that Tri J. Company is not held to the same due process considerations imposed on the government as discussed in Jones. But Tri J. Company was required to make a good faith effort to provide notice to Save A Lot. See § 713.78(9). We conclude that this required Tri J. Company to take further steps after it discovered that the original notice appeared to be lost in the mail. As noted by the Court in Jones, If the Commissioner prepared a stack of letters to mail to delinquent taxpayers, handed them to the postman, and then watched as the departing postman accidentally dropped the letters down a storm drain, one would certainly expect the Commissioner's office to prepare a new stack of letters and send them again. No one "desirous of actually informing" the owners would simply shrug his shoulders as the letters disappeared and say "I tried." Failure to follow up would be unreasonable, despite the fact that the letters were reasonably calculated to reach their intended recipients when delivered to the postman. 9 Id. at 229. Further, as noted by the First District in Dowell v. State Farm Mutual Automobile Insurance Co., 269 So. 3d 662, 664 (Fla. 1st DCA 2019), regardless of whether a towing company forfeits the storage charges for the vehicle but still has a lien on the vehicle for the towing fee, the towing company cannot proceed "with enforcement of the lien by public sale when the required notice of the lien and public sale" did not comply with the statute. In Dowell, which involved the timeliness of the notice, the court held: The notice requirements of paragraph (4)(c) are not discretionary; nor are they a technicality. Based on the plain language of the statute, timely notice is mandatory and serves several essential purposes, including making the vehicle owner aware that (1) towing and storage charges have been incurred, (2) a lien exists to secure payment of those charges, and (3) the towing-storage operator can enforce the lien—and in this case, will enforce the lien—by selling the vehicle if the charges remain unpaid after 35 days. Id. Finally, we note that our Florida Legislature has afforded the owner of the vehicle certain enumerated procedural entitlements; two such entitlements are codified in section 713.78(5). First, subsection (5)(a) authorizes the vehicle owner to "file a complaint in 10 the county court of the county in which the vehicle" is stored for the purpose of determining whether the "property was wrongfully taken or withheld." Next, the legislature in subsection (5)(b) has afforded the owner of the vehicle the ability to have the vehicle "released upon posting with the court a cash or surety bond or other adequate security" to ensure payment of the charges should the vehicle owner fail to prevail. In order to exercise either or both of the entitlements provided by the legislature, the vehicle owner must receive notice as provided for in section 713.78(4)(c). When mailing notice by certified mail, the sender has proof that notice was mailed, and it has the ability to verify that the letter was delivered, or alternatively, that an attempt at delivery was made. By requiring that notice be sent by certified mail, the legislature sought to ensure that not only was notice sent but also that it was received or that delivery was attempted. It is easy to conclude that the legislature insisted upon the two components of certified mail, proof of mailing and either delivery or attempted delivery, to ensure that the owner of the vehicle was not deprived of his or her property without notice and the opportunity to exercise the statutory entitlements afforded by 11 section 713.78. Here, the evidence before the county court was that notice was mailed by certified mail and that the vehicle's owner did not receive it. Therefore, it was clear that Save A Lot was deprived of its procedural options in section 713.78. Because Tri J. Company did not comply with the notice requirements of section 713.78, it was improper for it to sell Save A Lot's vehicle. Accordingly, we reverse the final summary disposition entered in favor of Tri J. Company and remand for further proceedings consistent with this opinion. Reversed and remanded. NORTHCUTT and KELLY, JJ., Concur. Opinion subject to revision prior to official publication. 12