       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 24, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-532
                         Lower Tribunal No. 14-15780
                             ________________


                            Off Lease Only, Inc.,
                                    Appellant,

                                        vs.

                   LeJeune Auto Wholesale, Inc., etc.,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Jose M.
Rodriguez, Judge.

     Peter Ticktin, Kendrick Almaguer, Ejola Cook and Simon Lassel (Deerfield
Beach), for appellant.

     Gary T. Stiphany, for appellee.


Before WELLS, ROTHENBERG and EMAS, JJ.

     EMAS, J.
      Appellant, Off Lease Only, Inc. (“Off Lease”), appeals from an order

denying its motion for leave to file an amended complaint and a final summary

judgment entered in favor of Appellee, LeJeune Auto Wholesale, Inc. d/b/a Car

Factory Outlet (“Car Factory”). For the reasons that follow, we affirm in part and

reverse in part the order granting summary judgment, reverse the order denying

Off Lease’s motion for leave to file an amended complaint, and remand for further

proceedings consistent with this opinion.

      In June 2014, Off Lease filed suit against Car Factory alleging, inter alia,

violations of the Florida Deceptive and Unfair Trade Practices Act, sections

501.201 et seq., Florida Statutes (2014) (“FDUTPA”), and seeking damages and

injunctive relief. Car Factory filed a motion for summary judgment arguing, in

relevant part, that: 1) Off Lease was not entitled to seek injunctive relief or

damages under FDUTPA because Off Lease was not a consumer; 2) Off Lease was

not entitled to seek injunctive relief because the alleged conduct by Car Factory

had already ceased; and 3) even if Off Lease could seek damages under FDUTPA,

it was seeking only special or consequential damages, which are not recoverable

under FDUTPA. Off Lease filed a response to Car Factory’s motion for summary

judgment, and also filed a motion for leave to amend its complaint.

      At the hearing on Car Factory’s summary judgment motion, Car Factory

contended, and the trial court agreed, that our decision in Bio-Med Plus, Inc. v.



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Health Coalition, Inc., 793 So. 2d 1092 (Fla. 3d DCA 2001) was dispositive of the

issue and required entry of summary judgment because Off Lease was not a

“consumer” and therefore could not maintain an action for either injunctive relief

or damages under FDUTPA.1

      The court entered final judgment in Car Factory’s favor and denied Off

Lease’s motion for leave to amend its complaint. This appeal followed. The issues

for our consideration have since been substantially narrowed. On appeal, Off

Lease conceded that the trial court properly granted summary judgment on its

claim for damages under FDUTPA, as Off Lease’s claim in that regard sought only

consequential damages, which are not recoverable under FDUTPA.2 See §

1 Significantly for our purposes, while the Bio-Med opinion was issued six weeks
after the 2001 amendments to FDUTPA, that decision construed the pre-2001
language of section 501.211.
2Section 501.211, Florida Statutes, provides remedies for a violation of FDUTPA.
Relevant for our purposes, prior to 2001, that section provided:

      (1) Without regard to any other remedy or relief to which a person is
      entitled, anyone aggrieved by a violation of this part may bring an
      action to obtain a declaratory judgment that an act or practice violates
      this part and to enjoin a person who has violated, is violating, or is
      otherwise likely to violate this part.

      (2) In any individual action brought by a consumer who has suffered a
      loss as a result of a violation of this part, such consumer may recover
      actual damages, plus attorney's fees and court costs as provided in s.
      501.2105; however, no damages, fees, or costs shall be recoverable
      under this section against a retailer who has, in good faith, engaged in
      the dissemination of claims of a manufacturer or wholesaler without
      actual knowledge that it violated this part.

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501.211(2), Fla. Stat. (2014) (providing for recovery of “actual damages” suffered

as a result of a FDUTPA violation); Rodriguez v. Recovery Performance &

Marine, LLC, 38 So. 3d 178, 180 (Fla. 3d DCA 2010)(affirming judgment in favor



      In 2001, the Florida Legislature amended section 501.211(2), pertaining to
individual remedies. See Ch. 2001-39, Laws of Florida (2001). That statute, with
the 2001 amendment, currently provides:

      (2) In any action brought by a person who has suffered a loss as a
      result of a violation of this part, such person may recover actual
      damages, plus attorney's fees and court costs as provided in s.
      501.2105. However, damages, fees, or costs are not recoverable under
      this section against a retailer who has, in good faith, engaged in the
      dissemination of claims of a manufacturer or wholesaler without
      actual knowledge that it violated this part.

(Emphasis added).

       Though not directly dispositive of the issues before us, we nevertheless note
that the trial court, relying on our 2001 decision in Bio-Med, held that Off Lease
could not maintain a FDUTPA damages claim because it was not a “consumer.”
However, Bio-Med involved application of the pre-2001 FDUTPA statute that
restricted a claim for damages to a “consumer.” In 2001, and as detailed above,
the Legislature broadened the potential class of claimants, amending section
501.211(2) to provide that a FDUTPA claim for damages could be brought by “a
person who has suffered a loss as a result of a violation of this part.” (Emphasis
added.)

      Off Lease is therefore correct that section 501.211(2) no longer requires one
to be a “consumer” to maintain an action for damages under FDUTPA.
Nevertheless, Off Lease has candidly conceded that summary judgment was proper
because Off Lease’s FDUTPA damages claim was limited to consequential
damages, rather than “actual” damages as contemplated by section 501.211(2).
We therefore need not further address the trial court’s reliance on Bio-Med, and
affirm this portion of the trial court’s order based on Off Lease’s concession.


                                         4
of defendant and holding that “under FDUTPA, the term ‘actual damages’ does not

include special or consequential damages”).3

      Therefore, the issue remaining for our consideration is whether the trial

court erred in entering summary judgment in favor of Car Factory on Off Lease’s

claim for injunctive relief under FDUTPA.

      Addressing this issue, the subsection providing for a remedy of injunctive

relief (§501.211(1)), has, since 1993, provided a right to declaratory and injunctive

relief to “anyone aggrieved by a violation of this part. . . .” Further, that subsection

provides that an aggrieved party may seek such relief “to enjoin a person who has

violated, is violating, or is otherwise likely to violate this part.” By its express

terms the statute contemplates, under the appropriate circumstances and proof, that

one may seek injunctive relief for future violations.         Under Florida law “an

injunction will not be granted where it appears that the acts complained of have

already been committed and there is no showing by the pleadings and proof that

there is a reasonably well grounded probability that such course of conduct will

continue in the future.” City of Jacksonville v. Wilson, 27 So. 2d 108, 111

(1946)(emphasis added). See also Daniels v. Bryson, 548 So. 2d 679, 681 (Fla. 3d

DCA 1989). The mere voluntary cessation of conduct alleged to be in violation of

FDUTPA does not necessarily foreclose Off Lease from pursuing an action for

3 In addition, the trial court granted summary judgment on the misuse of trademark
claim. Off Lease did not raise this as an issue on appeal and it is therefore waived.

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injunctive relief. See Sarasota Beverage Co. v. Johnson, 551 So. 2d 503 (Fla. 2d

DCA 1989).      The trial court erred in determining, as a matter of law, that the

cessation of allegedly violative conduct precluded Off Lease from seeking relief

under FDUTPA for future violations. As a result, the trial court did not reach the

question of whether any genuine issue of material fact is in dispute. We therefore

reverse that portion of the final summary judgment and express no opinion on the

merits of the claim or whether there exists any genuine issue of disputed fact.

      Because we are reversing in part the final summary judgment and remanding

for proceedings consistent with this opinion, we also reverse the trial court’s order

denying Off Lease’s motion for leave to amend its complaint. Consistent with this

opinion, the trial court on remand should consider anew whether to grant Off

Lease’s motion insofar as it sought to amend its cause of action for injunctive relief

under FDUTPA.4

      Affirmed in part, reversed in part and remanded with instructions.



4 Of course, such consideration should be undertaken in light of Florida’s liberal
policy which favors allowing parties to amend pleadings, generally resolving all
doubts in favor of granting leave to amend. See Fla. R. Civ. P. 1.190(a) (providing
that leave of court to amend pleadings “shall be given freely when justice so
requires.”). See also Kay’s Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171
(Fla. 3d DCA 2006) (holding that “refusal to allow an amendment is an abuse of
the trial court’s discretion ‘unless it clearly appears that allowing the amendment
would prejudice the opposing party, the privilege to amend has been abused, or
amendment would be futile’”) (quoting Kimball v. Publix Super Markets, Inc., 901
So. 2d 293, 296 (Fla. 2d DCA 2005)).

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