DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MAROONE CHEVROLET, LLC d/b/a MAROONE CHEVROLET,
Appellant,
v.
GERMAN ALVARADO,
Appellee.
No. 4D21-485
[July 6, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE04-
001947 (18).
Nancy W. Gregoire Stamper of Birnbaum, Lippman & Gregoire, PLLC,
Fort Lauderdale, and Richard A. Ivers of Law Office of Richard A. Ivers,
Coconut Creek, for appellant.
Robert F. Cooke and Arianna M. Mendez of Cooke Carbonell, LLP,
Cutler Bay, for appellee.
PER CURIAM.
Appellant Maroone Chevrolet, Inc., LLC (“Maroone”), appeals the trial
court’s final judgment awarding appellee German Alvarado $36,406.67 in
damages related to his purchase of two vehicles (“First Truck” and “Second
Truck”). Alvarado brought his claims in four separate but related counts:
1) violation of the Florida Unfair and Deceptive Trade
Practices Act (“FDUTPA”) section 501.201 pertaining to
both trucks;
2) violation FDUTPA section 501.976 on the Second Truck;
3) violation of the Florida Motor Vehicle Retail Sales Finance
Act section 520.08 on the First Truck and violation of
section 520.07 on the Second Truck; and
4) fraud in the inducement.
Maroone appeals the damages awarded on Counts 2, 3, and 4, but it does
not appeal Count 1. 1 For the reasons stated below, we reverse the
damages awarded on Counts 2 and 3. We affirm on Count 4.
Maroone purchased what was purported to be a used 2000-model
Chevrolet 3500 pickup truck (“First Truck”) from Ideal Auto Brokers. Ideal
Auto gave Maroone a State of Florida Certificate of Title showing the vehicle
identification number (“VIN”) matched the number on the First Truck’s
dashboard. Maroone performed an inspection, serviced the vehicle, and
then re-sold the First Truck to Alvarado. Alvarado paid $12,000.00 down
and signed a Retail Installment Sales Contract (“RISC”), financing
$22,768.79 at a rate of 15.75% for five years with monthly payments of
$554.23 and a finance charge of $10,485.01.
Alvarado drove the First Truck for approximately eleven months until,
while performing service on the vehicle, Maroone discovered the VIN
associated with the truck’s warranty did not match the registration
number on the driver’s door. This discrepancy was never discovered by
Ideal Auto, Maroone, or any of the other servicers who had previously
worked on the vehicle while Alvarado owned it. Maroone reported the
truck to the police, who confirmed it to be a stolen 1998-model before
confiscating the vehicle.
Maroone provided Alvarado with a loaner vehicle and successfully
worked with the lender to cancel Alvarado’s loan. Maroone then
endeavored to obtain a replacement for the First Truck. When Maroone
found a similar vehicle, Maroone replaced the radio and refurbished the
interior at Alvarado’s request. Alvarado accepted the vehicle and signed a
RISC for its purchase (“Second Truck”). 2
Maroone purportedly applied Alvarado’s $12,000.00 deposit paid on the
First Truck against the cost of the Second Truck, which Alvarado
purchased for a net price of $16,648.91 with a shorter repayment period
and smaller monthly payments. Within a few months, Alvarado traded in
the Second Truck towards the purchase of another vehicle at another
dealership.
1 The jury found Maroone did not violate section 501.201 on the First Truck and,
therefore, awarded no damages on the First Truck under Count 1. The jury
awarded damages for the Second Truck under section 501.976 for Alvarado’s
claim in Count 2 but awarded no damages related to the Second Truck from
Alvarado’s claim under section 501.201 in Count 1.
2 Alvarado claimed that he asked for Maroone to return his $12,000.00 down
payment and other payments on the First Truck.
2
Alvarado sued Maroone in late 2003, amending his complaint twice.
The third amended complaint alleged four counts for violations of FDUTPA
on both trucks, a violation of sections 520.08 and 520.07 on the First and
Second Truck, respectively, and fraud in the inducement.
The jury returned a verdict, finding Maroone:
(1) did not violate section 501.201 on the First Truck but had
violated section 501.976 on the Second Truck, awarding
Alvarado $6,768.76;
(2) willfully violated section 520.08 by charging above the
finance charge limit on the First Truck, awarding Alvarado
$1,858.85;
(3) willfully violated section 520.07 by failing to provide an
itemization of the finance charges on the Second Truck,
awarding Alvarado $297.17; and
(4) did not fraudulently induce Alvarado to purchase the First
Truck but did fraudulently induce him to buy the Second
Truck, awarding Alvarado $7,000.00.
Those damages totaled $15,924.78. With prejudgment interest added, the
trial court set the final judgment award at $31,976.43. This appeal
followed.
The Section 501.976 Claim
Maroone first argued Alvarado was not entitled to damages for his claim
in Count 2 under section 501.976 on the Second Truck because the
$6,768.76 awarded by the jury was for “consequential damages” and not
“actual damages” recoverable under the statute. We agree.
“While the trial court’s findings must be affirmed if supported by
competent, substantial evidence, we review de novo the court’s application
of the law to those facts.” State v. Hinman,
100 So. 3d 220, 220 n.1 (Fla.
3d DCA 2012) (citing Jackson v. State,
18 So. 3d 1016, 1027 (Fla. 2009)).
“To bring a FDUTPA claim for damages, a plaintiff must establish three
elements: 1) a deceptive act or unfair practice; 2) causation; and 3) actual
damages.” Stewart Agency, Inc. v. Arrigo Enters., Inc.,
266 So. 3d 207, 212
(Fla. 4th DCA 2019); Dorestin v. Hollywood Imports, Inc.,
45 So. 3d 819,
824–25 (Fla. 4th DCA 2010) (“Proof of actual damages is necessary to
sustain a FDUTPA claim.”). Pursuant to the plain wording of section
501.211(2), Florida Statutes (2000), which provides remedies for FDUTPA
violations: “In any action brought by a person who has suffered a loss as
3
a result of a violation of this part, such person may recover actual
damages, plus attorney’s fees and court costs . . . .” (emphasis added).
This is because “[t]he act is intended to protect a consumer from unfair or
deceptive acts or practices which diminish the value or worth of the goods
or services purchased by the consumer.” Urling v. Helms Exterminators,
Inc.,
468 So. 2d 451, 454 (Fla. 1st DCA 1985).
In any action brought by a person who has suffered a loss as a result
of a violation of this part, section 501.211 “entitles a consumer to recover
damages attributable to the diminished value of the goods or services
received, but does not authorize recovery of consequential damages to
other property attributable to the consumer’s use of such goods or
services.” Fort Lauderdale Lincoln Mercury, Inc. v. Corgnati,
715 So. 2d
311, 314 (Fla. 4th DCA 1998) (quoting Urling,
468 So. 2d at 454). Because
the statute provides for “actual damages” only, recovery of other damages,
such as consequential damages, is unauthorized. See Corgnati,
715 So.
2d at 314.
“Competent substantial evidence is evidence as will establish a
substantial basis of fact from which the fact at issue can be reasonably
inferred . . . . [S]uch relevant evidence as a reasonable mind would accept
as adequate to support a conclusion.” Sch. Dist. of Indian River Cnty. v.
Fla. Pub. Emps. Relations Comm’n,
64 So. 3d 723, 727 (Fla. 4th DCA 2011)
(quoting J.S. v. Fla. Dep’t of Child. & Fams.,
18 So. 3d 1170, 1175 (Fla. 1st
DCA 2009)) (internal quotation marks omitted).
Alvarado argues that the loss of his $12,000.00 down payment, as well
as various loan, warranty, and other payments, were part of his actual
damages. However, down payments and loan payments typically are not
included in actual damages because they are considered consequential
damages. Rodriguez v. Recovery Performance & Marine, LLC,
38 So. 3d
178, 181 (Fla. 3d DCA 2010). “[A]n appellate court should reverse a jury
verdict when there is no rational basis in the evidence to support the
verdict of the jury.” Izquierdo v. Gyroscope, Inc.,
946 So. 2d 115, 118 (Fla.
4th DCA 2007).
Here, Alvarado requested the return of his down payment and monthly
payments. His arguments blurred the lines between properly awardable
actual damages and the consequential damages which he requested. In
fact, the trial testimony reveals a variety of monetary figures provided to
the jury, none of which proved the diminished value of the Second Truck.
See Urling,
468 So. 2d at 454. There simply was no competent, substantial
evidence to support the proper measure of damages, and the jury’s
ultimate damage awards pertaining to Count 2 must be reversed.
4
The Section 520.07 and Section 520.08 Claims
As to Count 3, Alvarado claimed a violation of sections 520.07 and
520.08 based on the preparation of the RISC on the Second Truck and the
preparation of the first RISC on the First Truck, respectively. Maroone
argued that because Alvarado used his own, incorrect calculation—rather
than the proper formula used to determine finance charges as found in
Nolden v. Summit Financial Corp.,
244 So. 3d 322, 327 n.3 (Fla. 4th DCA
2018)—to prove his claims under that statute, Alvarado was not entitled
to damages. We agree.
Alvarado’s claims under these sections fail for two reasons. First, there
was no delinquency. Second, and more importantly, section 520.08 limits
finance charges on new and used motor vehicles depending on the age of
the vehicle. Subsection (1)(b) limits the maximum finance charge to
$11.00 per $100.00 per year on any used vehicle “designated by the
manufacturer by a year model of the same or not more than 2 years prior
to the year in which the sale is made.” Subsection (1)(c) limits the
maximum finance charge to $15.00 per $100.00 per year on year-models
“not more than 4 years prior to the year in which the sale is made.”
Because the First Truck was ultimately determined to be a 1998 vehicle,
the maximum finance charge under section 520.08(1)(c) was $15.00 per
$100.00 per year.
In Nolden, we explained the “formula for calculating the finance charge
in terms of dollars per $100.00 per year.” Nolden, 244 So. 3d at 327 n.3.
Under that formula, the finance charge divided by the length of the finance
period is divided by the amount financed divided by one hundred. 3 Id.
Alvarado did not use the formula provided in Nolden but instead used his
own calculation, resulting in a purported finance charge of 27.95% on the
First Truck—well over the 11% limit provided by section 520.08(1)(b) or
the 15% limit provided by section 520.08(1)(c). The use of the incorrect
calculation resulted in a penalty of $1,858.85 on the First Truck. However,
when the proper formula from Nolden is applied, the resulting finance
charge is $9.21 per $100.00 and well within both allowable ranges.4
3 The formula for calculating the finance charge in terms of dollars per $100.00
per year is
Finance Charge ÷ Amount Financed = Finance Charge
Length of time $100.00 per $100.00 per year
Financed
4 Alvarado signed an RISC for the First Truck, financing $22,768.79 at a rate of
15.75% for five years with a finance charge of $10,485.01.
5
Furthermore, applying the undisputed numbers for those values on the
Second Truck to the proper formula produces a finance charge of 9.21%,
which is also below the 11% statutory limit.
Regarding the Second Truck, Alvarado claimed that Maroone violated
section 520.07 by failing to disclose the $12,000.00 discount on the
Second Truck on the second RISC when it reduced the cost of the truck
by the original $12,000.00 down payment on the First Truck. Alvarado’s
counsel asked for $297.17. Even if this penalty was wrongly derived from
section 520.08, as was done with the First Truck, the wrong formula was
used to derive the figure.
Under the penalties section found in section 520.12(2) applicable to
violations of section 520.08:
In the case of a willful violation of this part with respect to any
retail installment sale, the buyer may recover from the person
committing such violation, or may set off or counterclaim in
any action against the buyer by such person, an amount equal
to any finance charge and any fees charged to the buyer by
reason of delinquency, plus attorney’s fees and costs incurred
by the buyer to assert rights under this part.
§ 520.12(2), Fla. Stat. (2014) (emphasis added).
The jury’s verdict on Count 3 was based on incorrect calculations and
therefore not based on competent, substantial evidence. See Atkins N.
Am., Inc. v. Tallahassee MH Parks, LLC,
277 So. 3d 1156, 1160 (Fla. 1st
DCA 2019). Alvarado’s use of the incorrect formula prevents him from
receiving any award under section 520.12(2). We reverse the damages
awarded under Count 3 and direct the trial court to enter a judgment in
Maroone’s favor on that count.
The Fraud in the Inducement Claim
In Count 4, Alvarado alleged fraud in Maroone’s representations
regarding the “stolen pickup truck”—the First Truck—and its refusal to
undo the transaction on the First Truck after it was confiscated. Alvarado
demanded as damages any difference in the First Truck’s value, charges
he paid under the “illegal finance agreement,” loss of use, the allegedly
excessive sales tax, and the “loss of benefit of the bargain.” Yet, Maroone
$10,485.01 ÷ $22,758.79 = 9.21% per $100 per year
5 years $100.00
6
argues that Count 4 contained no mention of the Second Truck or
damages incurred as the result of any purported fraud regarding the
Second Truck. Alvarado’s counsel requested $812.19 in damages for the
Second Truck, equaling the two monthly payments Alvarado made. 5
“Fraud in the inducement presents a special situation where parties to
a contract appear to negotiate freely . . . but where in fact the ability of one
party to negotiate fair terms and make an informed decision is undermined
by the other party’s fraudulent behavior.” HTP, Ltd. v. Lineas Aereas
Costarricenses, S.A.,
685 So. 2d 1238, 1240 (Fla. 1996) (quoting Huron
Tool & Eng’g Co. v. Precision Consulting Servs., Inc.,
532 N.W.2d 541, 545
(Mich. 1995)). The elements to establish a claim for fraudulent
inducement are:
(1) a false statement of material fact; (2) the maker of the false
statement knew or should have known of the falsity of the
statement; (3) the maker intended that the false statement
induce another’s reliance; and (4) the other party justifiably
relied on the false statement to its detriment.
Prieto v. Smook, Inc.,
97 So. 3d 916, 917 (Fla. 4th DCA 2012) (quoting
Shakespeare Found., Inc. v. Jackson,
61 So. 3d 1194, 1199 n.1 (Fla. 1st
DCA 2011)). “[T]o prove fraud, a plaintiff must establish that the
defendant made a deliberate and knowing misrepresentation designed to
cause, and actually causing detrimental reliance by the plaintiff.” First
Interstate Dev. Corp. v. Ablanedo,
511 So. 2d 536, 539 (Fla. 1987).
The jury heard from both parties regarding their interactions
surrounding the sale of the Second Truck. Although Maroone argues that
all of Alvarado’s claims revolve around the sale of the First Truck and
Maroone’s refusal to give Alvarado his money back, that refusal is
connected to Maroone’s ability to sell Alvarado the Second Truck. The jury
was free to decide whether Maroone behaved in such a way that Alvarado
was not able to make an informed decision about whether to purchase the
Second Truck. See HTP,
685 So. 2d at 1240. Because the jury decided
that Maroone deliberately made statements to Alvarado regarding the First
Truck and the Second Truck, and regarding his ability to get his money
back, the jury’s decision on the claim is supported by competent,
substantial evidence.
5Throughout the trial proceedings Maroone’s counsel objected to any testimony
and evidence regarding the Second Truck as an unpled claim, and the trial court
agreed to a standing objection.
7
Conclusion
Because Alvarado failed to introduce evidence of any diminution in the
value of the Second Truck, we reverse the FDUTPA liability and damages
awarded in Count 2 and remand for the court to vacate that award.
Because Alvarado used the incorrect formula for the violation of sections
520.07 and 520.08 in Count 3, we also reverse the finding of liability and
damages on that count. We affirm, however, the finding of liability and
damages on Count 4. We remand for such other proceedings as are
deemed necessary resulting from this opinion, including any necessary
modifications to the court’s award of prejudgment interest.
Affirmed in part, reversed in part, and remanded with instructions.
KLINGENSMITH, C.J., MAY and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
8
