Joe Nagy Towing, Inc. v. Lawless, No. 2D10–4972.

CourtCourt of Appeal of Florida (US)
Writing for the CourtKHOUZAM
Citation101 So.3d 868
Decision Date26 November 2012
Docket NumberNo. 2D10–4972.
PartiesJOE NAGY TOWING, INC., a Florida for Profit Corporation, Appellant, v. Kevin LAWLESS, Appellee.

101 So.3d 868

JOE NAGY TOWING, INC., a Florida for Profit Corporation, Appellant,
v.
Kevin LAWLESS, Appellee.

No. 2D10–4972.

District Court of Appeal of Florida,
Second District.

Oct. 12, 2012.
Rehearing Denied Nov. 26, 2012.


[101 So.3d 870]


Michael P. McGovern of The McGovern Law Firm, Knoxville, Tennessee, for Appellant.

No appearance for Appellee.


KHOUZAM, Judge.

Kevin Lawless prevailed in the trial court against Joe Nagy Towing, Inc. (JNT), on a theory of conversion after the towing company towed his truck and sold it at a public auction. JNT appeals from the judgment, raising five issues on appeal. We affirm the judgment in all respects but write to address JNT's argument, raised for the first time on appeal, that the trial court lacked subject matter jurisdiction to hear the case because 49 U.S.C. § 14501(c)(1) (2006) preempts Lawless's conversion claim. As Lawless's common law conversion claim was not “related to” the “price, route, or service” of any motor carrier as those terms have been applied by the United States Supreme Court, we hold that it was not preempted.

FACTS AND PROCEDURE

At trial, Lawless testified that he drove his truck to a convenience store on June 21, 2006. He had recently undergone surgery on both knees, and because he parked the truck on an incline, he experienced difficulty getting back inside it after making his purchases. In what appeared at the time to be a fortunate turn of events, a friend of Lawless's arrived at the store, observed his predicament, and offered him a ride home. Thankful, Lawless accepted the offer. But when he returned early the next morning to retrieve his truck, it was gone.

Lawless was able to determine from an employee of the convenience store that the truck had been towed by JNT. Lawless called the number listed for the towing service and reached Joe Nagy himself. Lawless identified himself and informed Nagy that he would like to retrieve his truck. Nagy described the location of the office and how much was owed on the vehicle. Lawless testified he made it clear

[101 So.3d 871]

that he intended to retrieve his vehicle and was not abandoning it.

Lawless was then arrested for an unrelated incident on June 27 and would remain incarcerated until December. Lawless testified that during the two weeks following his arrest, he made four or five collect calls from prison to JNT, but none of them were accepted. Lawless testified that the phone service he used identified him by name and specified that the call was coming from prison.

Shortly after Lawless's incarceration, a family member contacted a Massachusetts attorney with whom Lawless's family had a longstanding relationship to help retrieve the truck. The attorney testified he called JNT on July 19 and asked to speak with Joe Nagy directly. The person who answered the phone identified himself as Joe Nagy's brother and told the attorney that Joe Nagy was not available. The attorney informed the employee that he was representing Lawless and asked to make arrangements to pay the bill on the truck and have it removed from the tow yard. The attorney further explained that Lawless was incarcerated and that he would be making whatever payment was required on Lawless's behalf. The individual on the other end of the line refused to provide any information about the truck or what steps should be taken to retrieve it without Joe Nagy there in person. The attorney left his name and telephone number for Joe Nagy to call him back when he returned. The attorney testified that he never received a return call from anybody at JNT.

Foreseeing further difficulty in retrieving the truck, that same day the Massachusetts attorney contacted an attorney in Naples, Florida to handle the matter. The Massachusetts attorney told the Naples attorney he would make whatever payments were necessary to obtain the truck, including towing and storage fees. The Naples attorney testified at trial that he called JNT several times, and each time he identified himself as Lawless's attorney, explained that Lawless was incarcerated, and asked what he could do to retrieve the truck. But each time he called, the person who answered explained that Joe Nagy was unavailable and refused to provide any information or answer any questions without Joe Nagy there in person. The only information the Naples attorney could obtain was that he could not go pick up the truck himself. He left his name and number each time he called, but like the first attorney, he never received any return calls from anybody at JNT. Further, during none of these discussions did anyone at JNT ever mention that the truck was to be auctioned.

It was eventually discovered that the Naples attorney had a conflict in representing Lawless, so a third attorney was retained to retrieve the truck. That attorney testified he called JNT at least three times, and his testimony reveals he received the same treatment as the previous two. Each time he called, he identified that he was representing Lawless, explained that Lawless was incarcerated, and offered to pay whatever was owed on the truck and have one of Lawless's relatives pick it up. Each call, however, was fruitless: the employee invariably responded that Joe Nagy was unavailable and refused to answer any questions or provide any information on how to retrieve the truck. Likewise, despite calling numerous times to arrange to recover the truck, nobody ever informed the attorney that the truck was scheduled to be auctioned on August 11. And just as the previous two had, this attorney left his name and number each time and asked that Joe Nagy call him back to resolve the matter.

[101 So.3d 872]

Unlike the first two, however, the third attorney did receive a return call from Joe Nagy. Only the call did not come until August 11, over a month after JNT had begun receiving calls about Lawless's truck, and—more notable—immediately after it had been auctioned. This was the first time since Lawless's incarceration that he or his attorneys spoke with Joe Nagy and the first time anyone at JNT mentioned an auction. Joe Nagy did not inform the attorney during this conversation that he purchased the vehicle himself.

Joe Nagy testified that he personally towed Lawless's truck. He claimed he only received two calls regarding the truck: the one Lawless testified to making shortly after the tow and one from an out-of-town attorney shortly before the auction. Nagy's trial and deposition testimony offered two different accounts of the phone call from the attorney. Nagy testified that although he spoke with Lawless's attorney four days before the auction, he did not notify the attorney of his intention to auction the truck, much less of the date of the auction. Instead, he merely asserted that the attorney still had “plenty of time to get the vehicle.”

Nagy testified that JNT followed the lien notice requirements of section 713.585, Florida Statutes (2006), by timely sending a letter to Lawless's last-known address and posting an ad in the newspaper. Nagy also testified that he did not know Lawless was incarcerated until after the truck had been auctioned. But he testified that even if he had known that Lawless was incarcerated, he would not have taken any further actions beyond those listed in the statute. According to Nagy, this was all the law required, even though three different attorneys had been making numerous attempts to arrange to pay for and retrieve the truck and he conceded to speaking to one of them four days before the auction.

The public auction took place as scheduled. Nagy testified at trial that he has held many such auctions in the past because they are statutorily required before he can obtain title to the vehicles his company tows without the owner's consent. He testified that although on rare occasions members of the public have attended the auctions, “[u]sually nobody ever shows up.” Indeed, he testified that in ten years of public auctions, people not associated with JNT have appeared “maybe two” times. This auction was no different, and at its conclusion Nagy obtained title to Lawless's vehicle for $1,636, the cost of the towing and storage. Nagy subsequently sold the truck to a third party for a value of approximately $18,000.

At the conclusion of the bench trial, the judge found that although Lawless's fraud and civil theft claims had not been proven, he had carried his burden on the conversion count. Importantly, Lawless did not claim that JNT wrongfully towed his truck; rather, he alleged that JNT's subsequent actions constituted conversion. The trial judge found that, in light of the numerous reasonable attempts by various attorneys and Lawless himself to retrieve the truck, JNT's complete failure to cooperate and to even address the upcoming auction constituted interference with the dominion of the true owner.1

[101 So.3d 873]

JNT timely appealed, raising five issues. As applied to the facts of this case, we conclude the trial court's ruling was correct. But we write to address an argument the trial court did not have an opportunity to consider because it was not raised below.

APPLICABLE LAW

On appeal, JNT argues that the trial court lacked subject matter jurisdiction to hear Lawless's claim because conversion claims against towing companies have been preempted by The Interstate Commerce Act, as amended by the Federal Aviation Administration Authorization Act of 1994 and the Interstate Commerce Commission Termination Act of 1995. Specifically, JNT argues that Lawless's claim was “related to” a “price, route, or service” of JNT, a motor carrier, and therefore 49 U.S.C. § 14501(c)(1) (2006) preempts its enforcement. Although the issue of federal preemption was never raised below, it “is a question of subject matter jurisdiction,” Boca Burger, Inc. v. Forum, 912 So.2d 561, 568 (Fla.2005), and therefore can be raised at any time, even for the first time on appeal, 84 Lumber Co. v. Cooper, 656 So.2d 1297, 1298 (Fla. 2d DCA 1994).

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3 practice notes
  • People v. Fuentes-Espinoza, No. 08CA1231.
    • United States
    • Colorado Court of Appeals of Colorado
    • 17 Enero 2013
    ...561, 568 (Fla.2005) (noting that federal preemption is a question of subject matter jurisdiction); Joe Nagy Towing, Inc. v. Lawless, 101 So.3d 868, 872–73 (Fla.Dist.Ct.App.2012) (stating that even though the issue was not raised in trial court, federal preemption is a question of subject ma......
  • SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, No. 13–10563.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 4 Septiembre 2014
    ...have generally defined conversion as a wrongful act which deprives an owner of property of its use.” Joe Nagy Towing, Inc. v. Lawless, 101 So.3d 868, 876–77 (Fla.Dist.Ct.App.2012) (citing cases); see alsoRestatement (Second) of Torts § 222A (1965) (“Conversion is an intentional exercise of ......
  • Hirsch v. Hirsch, No. 2D12–360.
    • United States
    • Court of Appeal of Florida (US)
    • 25 Octubre 2013
    ...is a question of subject matter jurisdiction that may be raised for the first time on appeal. See Joe Nagy Towing, Inc. v. Lawless, 101 So.3d 868, 873 (Fla. 2d DCA 2012). Our review is de novo. See Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005). Here, it is undisputed that the......
3 cases
  • People v. Fuentes-Espinoza, No. 08CA1231.
    • United States
    • Colorado Court of Appeals of Colorado
    • 17 Enero 2013
    ...561, 568 (Fla.2005) (noting that federal preemption is a question of subject matter jurisdiction); Joe Nagy Towing, Inc. v. Lawless, 101 So.3d 868, 872–73 (Fla.Dist.Ct.App.2012) (stating that even though the issue was not raised in trial court, federal preemption is a question of subject ma......
  • SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, No. 13–10563.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 4 Septiembre 2014
    ...have generally defined conversion as a wrongful act which deprives an owner of property of its use.” Joe Nagy Towing, Inc. v. Lawless, 101 So.3d 868, 876–77 (Fla.Dist.Ct.App.2012) (citing cases); see alsoRestatement (Second) of Torts § 222A (1965) (“Conversion is an intentional exercise of ......
  • Hirsch v. Hirsch, No. 2D12–360.
    • United States
    • Court of Appeal of Florida (US)
    • 25 Octubre 2013
    ...is a question of subject matter jurisdiction that may be raised for the first time on appeal. See Joe Nagy Towing, Inc. v. Lawless, 101 So.3d 868, 873 (Fla. 2d DCA 2012). Our review is de novo. See Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005). Here, it is undisputed that the......

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