Urling v. Helms Exterminators, Inc.

• Decision Date: 07 May 1985
• Docket Number: No. AX-117,AX-117
• Citation: 10 Fla. L. Weekly 1126,468 So.2d 451
• Parties: 10 Fla. L. Weekly 1126 Randolph S. URLING and Deborah E. Urling, Appellants, v. HELMS EXTERMINATORS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 451

468 So.2d 451

10 Fla. L. Weekly 1126

Randolph S. URLING and Deborah E. Urling, Appellants, v. HELMS EXTERMINATORS, INC., Appellee.

No. AX-117.

District Court of Appeal of Florida First District.

May 7, 1985.

Terry P. Lewis of Oven, Gwynn & Lewis, Tallahassee, for appellants.

Paula L. Walborsky of Booth & Walborsky, P.A., Tallahassee, for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

Appellee has filed a lengthy motion for rehearing and motion for rehearing en banc, including a suggestion for certification to the Florida Supreme Court. Appellants have filed a lengthy response contending the motions should be denied but urging clarification of the court's original opinion. Upon consideration of their respective contentions, we have determined to withdraw our original opinion and substitute the following corrected opinion. To the extent that matters raised in the motions for rehearing are not disposed of in the corrected opinion, those motions are denied.

CORRECTED OPINION

Appellants, Randolph and Deborah Urling, obtained a judgment awarding them money damages based on a jury verdict finding appellee, Helms Exterminators, Inc., guilty of negligence in issuing a termite inspection report certifying no termite damage to a house purchased by them when no inspection was made. Being unsatisfied with the amount of damages obtained, they contend on appeal that the trial court erred in directing a verdict for Helms on their claim that Helms violated the Florida Deceptive and Unfair Trade Practices Act, chapter 501, part II, Florida Statutes (1981), erred in directing a verdict for Helms on their claim for punitive damages, and erred in making several rulings on evidentiary matters. We affirm in part and reverse in part.

Helms, the corporate defendant, certified that its inspector had inspected the house to be purchased by the Urlings and found no existing termite damage. Later, however, the Urlings found extensive termite damage. Baker, the Helms inspector whose name appeared on the inspection report, denied that he made the inspection and denied that he authorized anyone to sign his name to the report. A secretary employed by Helms established that it was a customary practice for Baker to call in his inspection reports to her and that she would type them and often sign Baker's name on them, but only after he had reviewed them. She did not recall ever signing his name to a report he had not reviewed.

Sections 501.201 through 501.213, Florida Statutes (1981), constitute the Florida Deceptive and Unfair Trade Practices Act. Section 501.204 provides that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." An exact definition of the "unfair or deceptive acts or practices" is provided nowhere in the statute. Section 501.204(2), however, states that "[i]t is the intent of the Legislature that in construing subsection (1) of this section, due consideration and great weight shall be given to the interpretations of the ... federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act (15 USC 45(a)(1))." That provision reads: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful."

There are only two Florida cases construing "unfair or deceptive acts or practices," but the factual contexts of those cases are so limited that they are not helpful in arriving at a general definition. See Deltona Corp. v. Jannotti, 392 So.2d 976 (Fla. 1st DCA 1981), and Bert Smith Oldsmobile v. Franklin, 400 So.2d 1235 (Fla. 2d DCA 1981). The Urlings cite a number of federal cases that also give specific instances of such practices, but neither are these cases helpful.

Although the cases, both state and federal, seem to have most often classified exaggerated advertising claims as "unfair and deceptive" in violation of the act, the language of the statute does not limit its application to these types of cases, but makes it applicable to all "unfair or deceptive acts or practices in the conduct of any trade." § 501.204(1), Fla.Stat. (1981) (emphasis supplied). In Spiegel, Inc. v. Federal Trade Comm., 540 F.2d 287, 293 (7th Cir.1976) (footnote omitted), the court found that a practice was "unfair" under the federal statute when it "offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers."

In this case the trial court evidently based its directed verdict on the absence of fraud and deceit in Helms' conduct. A finding of fraud, however, is not necessary to sustain a violation under the act. Rollins, Inc. v. Heller, 454 So.2d 580 (Fla. 3d DCA 1984). As the Rollins court pointed out, the legislature has specifically provided that great weight is to be given the federal courts' interpretations of the Federal Trade Commission Act. § 501.204(2), Fla.Stat. (1981). In D.D.D. Corp. v. Federal Trade Comm., 125 F.2d 679, 682 (7th Cir.1942), the court held that the "false, unfair or deceptive acts defined in the Federal Trade Commission Act need not be such as would constitute fraud." Bearing these legal concepts in mind, we next consider whether the evidence was sufficient to survive a motion for directed verdict.

The standard for directing a verdict is stated in Townsend v. Ward, 429 So.2d 404, 407 (Fla. 1st DCA 1983): (1) "[T]he court ... must view the evidence in the light most favorable to the non-moving party," and (2) "If there is any evidence to support a possible verdict for the non-moving party, a directed verdict is improper." Viewing the evidence in the light most favorable to the Urlings shows that it was a standard practice for termite inspection reports to be phoned in and typed by the secretary and for the secretary to place the inspector's signature on the report. The secretary would not have performed either act without instructions from the inspector. The inspector acknowledged that the inspection certified by the report never took place. This evidence is sufficient to support an inference that the inspector, to avoid making an inspection, phoned in a false report and instructed the secretary to sign his name thereto and that this report was subsequently delivered to and relied on by the Urlings to their detriment. While the inspector denies any knowledge of the report, as does Helms, the accumulation of the other evidence creates a jury question as to the nature of the act under chapter 501. Applying the cited standards for directing a verdict, we reverse the directed verdict for Helms on this issue and, as a result, must also reverse the attorney's fees and costs awarded Helms under the act.

Although the damages sought by the Urlings under the act were not challenged by Helms at the pleading, trial, or appellate level, we would be remiss if we did not discuss this issue because of the necessity to remand this case. The 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. Section 501.211, Florida Statutes (1981), authorizes a consumer to recover actual damages, attorney's fees, and court costs for a violation of the statute. The measure of "actual damages" recoverable under the statute is defined in Rollins, Inc. v. Heller, 454 So.2d at 585, quoting from Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex.App.1983), as follows:

'Generally, the measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties. [citations omitted] A notable exception to the rule may exist when the product is rendered valueless as a result of the defect--then the purchase price is the appropriate measure of actual damages. [citations omitted]'

In the Rollins case, the plaintiffs sought to recover the value of items stolen during a burglary because the security system and services provided by Rollins were deficient and did not properly perform as represented. The court concluded that "[t]he actual damages in the present case should be computed based upon the alarm system and the services Rollins agreed to provide, and not with regard to the value of the items stolen during the burglary." Id. at 586. It seems, therefore, that the statute...