       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

    OFFICE OF THE ATTORNEY GENERAL, STATE OF FLORIDA,
               DEPARTMENT OF LEGAL AFFAIRS,
                        Appellant,

                                    v.

            JOSEPH JAMES BILOTTI, JR., LAURA LYNN HESS,
              RALPH JOSEPH CONSIGLIO, GARY ROBILLARD
              RAHIM JAMAL WEST, TIMOTHY JOHN HEALY,
             STAY HOME, INC., WILLIAM BERGER & ASSOC.’S,
               P.A., HOME DEFENSE LAW FIRM, P.A., HOME
            DEFENSE TEAM, P.A., NATIONWIDE FORECLOSURE
             DEFENSE, P.A. SOUTHEAST BILLING, INC., d/b/a
              HOME DEFENSE TEAM, ZOHAR BILLINGS, INC,
                        TAX RESCUE FIRM, INC.,
                               Appellees.

                             No. 4D18-1645

                          [February 20, 2019]

   Appeal of nonfinal order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Jeffrey Dana Gillen, Judge; L.T. Case
No. 502015CA005112XXXXMB.

   Ashley B. Moody, Attorney General, Amit Agarwal, Solicitor General,
and Jordan Pratt, Deputy Solicitor General, Tallahassee, and Sarah
Shullman, Chief Assistant Attorney General, and Howard Dargan, Senior
Assistant Attorney General, West Palm Beach, for appellant.

   Robyn L. Sztyndor of RLS Law, P.A., and Crane A. Johnstone of
Johnstone Law PA, Fort Lauderdale, for appellees.

FORST, J.

    The Office of the Attorney General, Department of Legal Affairs (AG),
appeals the trial court’s nonfinal order granting appellees’, Joseph James
Bilotti, et al., motion to dissolve a temporary injunction. We reverse and
remand to reinstate the temporary injunction and asset freeze and clarify
that Outreach Housing, LLC v. Office of the Attorney General, Department
of Legal Affairs, 221 So. 3d 691 (Fla. 4th DCA 2017), does not require the
AG to plead “actual damages” to get injunctive relief under section
501.207(1)(b), Florida Statutes (2018).

                                Background

   The AG filed a complaint against appellees pursuant to the Florida
Deceptive and Unfair Trade Practices Act (FDUTPA), section 501.207(1)(b),
Florida Statutes, seeking injunctive relief, restitution, civil penalties, and
other equitable relief. The AG alleged fraudulent and deceptive acts by
appellees in collecting millions of dollars in up-front legal fees from
delinquent home-loan borrowers for loan modifications and foreclosure
rescue services. This was allegedly accomplished through appellees
teaming up with disbarred lawyers to form a fake law firm and deceiving
customers into paying legal fees for services performed by non-lawyers.
This entity allegedly failed to accomplish the results promised to
consumers and instead dug them into even deeper financial holes.

    The AG moved for temporary injunctive relief and an order freezing
assets pursuant to FDUTPA, which the trial court granted. The trial court
found that the affidavits and accompanying exhibits submitted in support
of the AG’s motion established that the AG “has a substantial likelihood of
success on the merits of its allegations that the acts and practices [of
appellees] were likely to deceive a consumer acting reasonably, and did in
fact deceive consumers acting reasonably, in direct violation of FDUTPA.”

   Appellees filed a motion to dissolve the temporary injunction, arguing
that the AG was required, but failed, to plead “actual damages.” The trial
court granted the motion and dissolved the temporary injunction, stating
that the AG could not bring an action solely for an injunction under section
501.207(1)(b) without pleading “actual damages.” The trial court relied
solely on the statement, made by this Court in Outreach Housing, LLC, 221
So. 3d at 697, that “[a]ctual damages are an essential element of a FDUTPA
claim.”

                                  Analysis

   “A trial court’s ruling on a motion for temporary injunction is presumed
correct and will be reversed only upon a showing of a clear abuse of
discretion or clearly improper ruling.” E-Racer Tech, LLC v. Office of
Attorney Gen., Dep’t of Legal Affairs, 198 So. 3d 1107, 1109 (Fla. 4th DCA
2016) (citation and internal quotation marks omitted).

  We accept the AG’s argument that subparagraph (1)(b) of section
501.207 does not require an enforcing authority to plead “actual damages”

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in an action seeking injunctive and other equitable relief. Section
501.207(1)(b) allows an enforcing authority to bring an action to “enjoin
any person who has violated, is violating, or otherwise likely to violate”
FDUTPA. The enforcing authority’s sole burden in establishing its right to
a temporary injunction under the statute, is to establish that it has a clear
legal right to a temporary injunction by demonstrating a substantial
likelihood of success on the merits. E-Racer Tech, LLC, 198 So. 3d at 1110
(“The AG does not have to establish irreparable harm, lack of an adequate
legal remedy, or public interest as ordinarily required for a temporary
injunction,” but instead need only “demonstrate a substantial likelihood
of success on the merits.”); Millennium Commc’ns & Fulfillment, Inc. v.
Office of the Attorney Gen., 761 So. 2d 1256, 1260 (Fla. 3d DCA 2000)
(“[B]ecause section 501.207(1)(b) expressly authorizes the Department to
seek injunctive relief on behalf of the state, . . . [t]he Department’s sole
burden at a temporary injunction hearing under FDUTPA is to establish
that it has a clear legal right to a temporary injunction.”).

   To establish a substantial likelihood of success on the merits, the AG
must show that “the practice was likely to deceive a consumer acting
reasonably in the same circumstances.” Office of Attorney Gen., Dep’t of
Legal Affairs v. Wyndham Intern., Inc., 869 So. 2d 592, 598 (Fla. 1st DCA
2004). Therefore, regardless of whether actual harm has materialized, the
AG can seek an injunction to stop an unfair and deceptive trade practice
that violates FDUTPA.

   The AG correctly points out that Outreach Housing is distinguishable
and inapplicable here. In that case, the AG filed a complaint for violations
of FDUTPA seeking to recover the actual damages suffered by consumers
pursuant to section 501.207(1)(c), Florida Statutes (2008). See Outreach
Housing, 221 So. 3d at 693. Only when an enforcing authority is seeking
recovery of actual damages under subparagraph (1)(c), or a private
individual is seeking recovery of consumers’ actual damages—as opposed
to injunctive relief—is that party required to plead and prove “actual
damages.” Id.; Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 4th DCA
2017) (holding that a private individual seeking a consumer claim for
damages under FDUTPA has to prove actual damages); Chicken Unlimited,
Inc. v. Bockover, 374 So. 2d 96, 97 (Fla. 2d DCA 1979) (holding that a
plaintiff seeking actual damages under FDUTPA must show that a
defendant engaged in unfair or deceptive trade practices and that those
practices caused injury to the plaintiff). Here, the AG was seeking relief
under subparagraph (1)(b), not (1)(c), of section 501.207; thus, Outreach
Housing is not applicable to the instant case.



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                               Conclusion

   Because the trial court found that the AG met its burden entitling it to
injunctive relief by showing a substantial likelihood of success on the
merits of its underlying claim, the temporary injunction and asset freeze
were improperly dissolved. We reinstate the temporary injunction and
asset freeze.

   Reversed and remanded.

DAMOORGIAN and CIKLIN, JJ., concur.

                           *          *       *

   Not final until disposition of timely filed motion for rehearing.




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