       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 21, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-2757
                         Lower Tribunal No. 16-12427
                             ________________


                                 Sean White,
                                      Appellant,

                                         vs.

                            Ferco Motors Corp.,
                                      Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Eric William
Hendon, Judge.

     Roger D. Mason, II, Joseph V. Nemeh and Elizabeth A. Buchwalter
(Tampa), for appellant.

     Karen B. Parker, for appellee.

Before ROTHENBERG, C.J., and FERNANDEZ, and SCALES, JJ.

     FERNANDEZ, J.

     Sean White appeals an order granting final summary judgment in favor of

Ferco Motors Corporation, on his claims of negligence, fraud, and violation of
Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), alleging

disputed issues of material fact exist as to all claims. Upon review of the record,

we find that genuine issues of material fact do exist and reverse on this basis.

      In October 2015, White came across an internet advertisement for the sale of

a used 2008 Series 3 BMW vehicle posted by Ferco Motors, a used car dealer.

White contacted Ferco Motors and placed a $100.00 deposit on the vehicle to

allow him to travel from Tampa to Miami to purchase the vehicle. On October 15,

2015, White test drove the BMW but declined the opportunity to have the vehicle

inspected by a third party prior to purchase. Instead, White relied upon his review

of the CARFAX summary that revealed 1.) no reported accidents or structural

damage to the BMW and 2.) the BMW had been inspected by “Braman Miami” in

May 2014, prior to its sale to Ferco Motors, at auction, on September 23, 2015.

White alleges that, prior to purchasing the BMW, two Ferco Motors’ sales

representatives informed him that Ferco Motors had inspected the vehicle to ensure

that it was “mechanically sound.”

      The sales representatives’ statements regarding Ferco Motors’ inspection of

the vehicle appear consistent with the affidavit of Ferco Motors’ president, Juan

Carlos Fernandez. In his affidavit, Fernandez attests that he personally inspected

the BMW prior to purchasing it at auction, finding the vehicle “to be in good

condition [with] . . . no leaks or indication that the vehicle had any problems with



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the engine or oil leaking.” Moreover, upon transporting the BMW to Ferco

Motors’ lot after the auction, Fernandez attests that the vehicle was “again

inspected for functioning, leaks, engine problems, warning lights, etc.”, which

“revealed no abnormalities . . . .” White further alleges that the sales

representatives told him that, in ensuring the BMW was “mechanically sound,”

Ferco Motors had performed an oil change on the vehicle. However, Ferco Motors

denies performing such an oil change.

      In his purchase of the vehicle from Ferco Motors, White executed four

separate documents that are relevant here. The first is a Retail Purchase

Agreement, containing a “warranty statement” providing that, “We are selling this

Vehicle to you As-Is.” The second document is a Buyer’s Guide, providing, in

bold type, “AS-IS NO WARRANTY . . . YOU WILL PAY ALL COSTS FOR

ANY REPAIRS,” and further states that “[t]he dealer assumes no responsibility for

any repairs regardless of any oral statements about this vehicle.” Third is a Spot

Delivery Agreement, containing an addendum providing “Ferco Motors Corp. does

not assume any responsibilities for the history of this vehicle,” and “[t]his affidavit

releases Ferco Motors corp. [sic] from any claims or lawsuits now or in the future.”

Lastly, the fourth document is the waiver of service contract on the vehicle.

      After purchasing the BMW, White drove it 300 miles back to Tampa

without issue. Two days later, on October 17, 2015, the BMW broke down, mid-



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day, while White was driving it on the highway. The check engine light failed to

come on. While waiting for the tow truck to arrive, White opened the glove box

and allegedly saw that many of the fuses were missing from the fuse box.

       When White had the vehicle inspected by an auto repair shop, the mechanic,

John Tosar, concluded that the vehicle had an irreparably blown engine block from

a lack of oil in the engine. According to the mechanic’s affidavit, the vehicle had

“sustained no damage or punctures which would have caused a sudden or

significant oil leak,” and the vehicle “was either filled with an insufficient amount

of oil, filled with the wrong type of oil, or was slowly leaking oil over time.” The

mechanic further asserted that he “personally observed the check engine light to be

disabled” and that “[h]ad the check engine light been operational, it would have

alerted Mr. White at the time of a potential issue, possibly avoiding the engine

failure all together.”

       In May 2016, White filed the instant action against Ferco Motors alleging

claims for: fraud (count I), fraudulent concealment (count II), negligent

misrepresentation (count III), and violations of FDUTPA (count IV). All claims

stem from the common allegations surrounding White’s purchase of the BMW. In

October 2016, Ferco Motors moved for summary judgment on all claims, arguing

that 1.) the claims of fraud and negligent misrepresentation were barred by the

economic loss rule; and 2.) all claims failed because White had purchased the



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BMW “As-Is,” and there was no evidence that Ferco Motors had concealed the

condition of the vehicle prior to selling it to White. In opposing the summary

judgment motion, relying upon his own deposition and the mechanic’s affidavit,

White argued that: 1.) the Ferco Motors sales representatives misrepresented that

Ferco Motors had performed a proper inspection of the vehicle and had lied about

performing an oil change prior to selling it to White, and 2.) Ferco Motors had

disabled the BMW’s check engine light so that White would not be alerted to

potential issues with the vehicle’s engine.

      On November 9, 2017, the trial court held a hearing on Ferco Motors’

motion for summary judgment. On November 14, 2017, the trial court entered an

order granting final summary judgment in favor of Ferco Motors on all claims. The

order provides, in relevant part:

      1. The Court finds that Plaintiff purchased a used automobile from
      Defendant Ferco Motors Corp.
      2. The Court finds that the Plaintiff executed several documents
      acknowledging that he was purchasing a used vehicle in As-Is
      Condition and that he acknowledged that he could not rely on any oral
      representations as to the condition of the vehicle.
      3. The Court finds that the Plaintiff chose not to have the vehicle
      inspected by anyone other than himself and he chose not to purchase a
      service contract.
      4. The Court finds that as a matter of record, there is no admissible
      competent substantial evidence that there was any fraud or
      misrepresentations or deceptive trade practices committed by
      Defendant Ferco Motors.
      5. The Court finds that there are no genuine issues of material fact.

This appeal ensued.


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      Our standard of review of an order granting summary judgment is de novo.

We review the record to determine whether there are genuine issues of material

fact that preclude summary judgment. Collections, USA, Inc. v. City of

Homestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA 2002). Our review of the record

discloses genuine issues of material fact regarding the condition of the vehicle at

the time that it was delivered to White. Specifically, whether Ferco Motors

negligently performed an oil change or disconnected the fuses that would have

alerted White to an engine problem.

      Though White signed an agreement that he was accepting purchase of the

vehicle “As-Is” and agreed that he could not rely on oral promises, the facts of this

case, considered in light of the mechanic’s affidavit, the charge made by the

dealership for inspection, and the condition of the vehicle, i.e., disconnected fuses,

present the existence of a genuine issue of material fact. “If the record reflects

even the possibility of a material issue of fact, or if different inferences can be

drawn reasonably from the facts, that doubt must be resolved against the moving

party and summary judgment must be denied.” Cox v. CSX Intermodal, Inc., 732

So. 2d 1092, 1095 (Fla. 1st DCA 1999).

      White was charged a “pre-delivery service charge” that he was told included

an oil change and ensured the vehicle was mechanically sound. Ferco Motors’



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argues that White signed a document that states that he could not rely on oral

promises. But the pre-delivery document itself states, “This charge represents costs

and profits to the Dealer for items such as inspecting, cleaning, and adjusting

vehicles, and preparing documents related to the sale.” White had to pay an

additional fee for “inspecting” and “adjusting.” Even though the document does

not include an oil change, upon inspection, a lack of oil in the vehicle should

reasonably have been discovered. This aspect lends additional support to White’s

contention that a genuine issue of material fact exists in this case.

      FDUTPA and fraud statutes, in general, exist to protect a purchaser against

the seller, even in the instance of signed agreements. “[A]n individual cannot

waive the protection of a statute that is designed to protect both the public and the

individual. . . . A contractual provision that defeats the remedial and deterrent

provisions of a statute is contrary to public policy and is unenforceable.” Holt v.

O’Brien Imports of Fort Myers, Inc., 862 So. 2d 87, 89 (Fla. 2d DCA 2003).

      Concluding that genuine issues of material fact exist, we reverse and remand

for further proceedings.

      Reversed and remanded.




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