King v. King Motor Co. of Fort Lauderdale, 4D03-906.

• Decision Date: 09 March 2005
• Docket Number: No. 4D03-906.,4D03-906.
• Citation: 900 So.2d 619
• Parties: Martin Luther KING, Appellant, v. KING MOTOR COMPANY OF FORT LAUDERDALE, INC., a Florida corporation, Primus Automotive Financial Services, Inc., a foreign corporation, and Kia Motors of America, Inc., a foreign corporation, Appellees.
• Court: Florida District Court of Appeals

900 So.2d 619

Martin Luther KING, Appellant, v. KING MOTOR COMPANY OF FORT LAUDERDALE, INC., a Florida corporation, Primus Automotive Financial Services, Inc., a foreign corporation, and Kia Motors of America, Inc., a foreign corporation, Appellees.

No. 4D03-906.

District Court of Appeal of Florida, Fourth District.

March 9, 2005.

Diane H. Tutt of Diane H. Tutt, P.A., Davie, Rebecca J. Covey of Rebecca J. Covey, P.A., Fort Lauderdale, and Raymond G. Ingalsbe of Raymond G. Ingalsbe, P.A., Palm Beach Gardens, for appellant.

Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, and Ricardo A. Reyes of Tobin & Reyes, P.A., Boca Raton, for appellee King Motor Company of Fort Lauderdale, Inc.

Kimberly A. Ashby of Akerman Senterfitt, Orlando, and W. Scott Powell of Roth, Powell & Pearson, P.A., Winter Park, for appellee Kia Motors of America, Inc.

Kenneth L. Paretti of Adams, Quinton & Paretti, P.A., Miami, for Amicus Curiae

Florida Automobile Dealers Association, Inc.

PER CURIAM.

Martin Luther King filed suit against King Motor Company of Fort Lauderdale, Inc. and Kia Motors of America, Inc. for various claims arising from his purchase of a Kia from King Motor. King appeals the summary judgments granted to King Motor and Kia on five grounds. We affirm in all respects, but write to address the issue involving the execution of two Florida Simple Interest Vehicle Retail Installment Contracts (RISC).

On February 27, 1998, King purchased a new 1997 Kia Sephia from King Motor. During negotiations for the vehicle, King agreed to a monthly payment of $270-280 which is reflected on a buyer's order. In his deposition, King indicated that he wished to purchase a vehicle in the $10,000-12,000 price range, but the purchase price totaled in excess of $14,500. King's expert testified that this price was in excess of the fair market value of the vehicle.

King then signed two RISCs, one including an unrequested extended warranty, and one not including the warranty. In his deposition, King testified that he was assured he would get a good deal as far as the interest rate. Both RISCs reflected an interest rate of 16.5%, and King Motor did not sign either RISC pending the assignment of the loan to a third party. King's expert testified that the high interest rate resulted from the overpricing of the vehicle.

Finally, King signed a bailment agreement making the sale contingent on the assignment of the loan to a third party, an industry practice often referred to as "spot delivery" or "conditional sale." King admitted that he had copies of all the documents he executed when he left the dealership and that King Motor ultimately executed the RISC not including the warranty, which it then assigned to Primus Automotive Financial Services, Inc.

In August 1998, King began experiencing mechanical problems with the vehicle. On August 10, the vehicle was towed to King Motor and a loose connection in the fuse box was repaired under warranty. King's vehicle was again towed to King Motor on August 31 and the entire fuse box compartment was replaced under warranty. King testified that the vehicle continued experiencing problems after these repairs.

In December 1998, King's vehicle was once more towed to King Motor after it stalled and could not be restarted. A King Motor service technician concluded that the vehicle's problem on this occasion stemmed from the installation of two O-rings between the oil filter and engine by Pep Boys in September 1998. The technician noted that oil covered the engine and that no oil remained in the engine, and that the engine failure occurred because the timing belt had slipped due to cam shaft damage from the lack of oil. King claims that he was not informed of the double O-ring condition but was told that oil spilled on the engine causing a timing problem. King's expert testified that the double O-ring condition would have surfaced earlier than December, that the vehicle underwent additional electrical repairs after repossession, and that the December problem was likely electrical in nature. However, the expert could not explain how the oil spillage would result from an electrical problem. Because the resulting damage from the double O-ring was not covered by the warranty, King Motor requested King to authorize an engine tear down, at his expense, to diagnose the extent of engine damage. King refused to authorize the testing and left the vehicle at King Motor. A King Motor manager testified that no repair estimate was generated due to King's refusal to authorize testing.

In March 1999, as the vehicle remained at King Motor, King Motor contacted Primus, which repossessed the vehicle despite King having made all monthly payments. King was given ten days to redeem the vehicle, but did not do so. Primus then sold the vehicle to a third party and sought a deficiency judgment against King.

King filed suit against King Motor and Primus, which is not a party to this appeal, and later Kia, in an amended complaint. King filed a second amended complaint and Kia filed a motion to dismiss three counts of that complaint, which was granted and the case was dismissed with prejudice. King appealed, and this Court reversed and remanded the case for further proceedings. See King v. King Motor Co. of Fort Lauderdale, 780 So.2d 937 (Fla. 4th DCA 2001)

. King then filed a third amended complaint, which is the operative pleading for purposes of this appeal.

Count I of the complaint alleges a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) violation against King Motor. To support this claim, King makes the following allegations which are relevant to this appeal: that King Motor forged his signature on a repair estimate and attempted to obtain his signature on incomplete contracts, charged King $1,285 for an unrequested extended warranty, misrepresented the sale price of the vehicle, failed to credit King with $100 of his down payment, charged an excessive 16.5% interest rate, failed to sign the retail installment sales contracts involved in the transaction, told plaintiff that he was being provided "with the best possible interest rate," told plaintiff that the December defects were not covered by the warranty because they were caused by Pep Boys, and destroyed the oil filter evidence.

Count II of the complaint is a claim for fraud and deceit against King Motor. The count alleges the following misrepresentations and omissions by King Motor which are relevant to this appeal: King Motor induced King to purchase a service...