Small Claims Court: CONSUMER LAW
– Florida Consumer Collection Practices Act – trial court erred in going outside
four corners of complaint in considering defendant’s motion to dismiss – plaintiff
sufficiently pled FCCPA cause of action to withstand motion to dismiss – plaintiff
is “debtor” or “consumer” and defendant is “person” or “debt collector” within
meaning of FCCPA – plaintiff alleged injuries or damages and knowledge or
intent by debt collector – plaintiff cannot maintain claim for emotional
distress damages – proposal for settlement pursuant to § 768.79 is not applicable
to claims filed under the FCCPA – plaintiff can plead attorney’s fees from
previous case as damages - Order Granting Dismissal reversed. Townsend v. Asset Acceptance Corp., No.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
KAREN JOYCE TOWNSEND,
vs. Appeal No. 03-1921CI-88A
ASSET ACCEPTANCE CORP.,
Opinion filed _______________________
Appeal from Order Granting Dismissal
Judge Walt Fullerton
Mark T. Tischhauser, Esquire
Attorney for Appellant
Barbara Sinsley, Esquire
Attorney for Appellee
THIS CAUSE came before the Court on appeal, filed by Kimberly Joyce Townsend (Townsend), from the Order Granting Dismissal, entered February 19, 2003, in favor of Asset Acceptance Corp. (Asset). Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the Order.
The record shows that on August 19, 2002, Townsend filed suit against Asset alleging that Asset attempted to collect a debt in violation of the Florida Consumer Collection Practices Act (FCCPA), Florida Statutes, § 559.72. The Statement of Claim alleged that Asset unlawfully pursued collection efforts against Townsend, including contacting Townsend at the place of her employment and instituting litigation against Townsend.  The Statement of Claim further alleged that Asset’s actions violated state law by: willfully engaging in conduct which can reasonably be expected to abuse or harass the debtor or their family; threatening to enforce a debt when such person knows that the debt is not legitimate; and, asserting the existence of some legal right when such person knows that the right does not exist. Townsend sought damages from Asset and demanded a jury trial.
In response to Townsend’s Statement of Claim, Asset filed a Motion to Compel Settlement and/or Dismiss and Memorandum of Law, which came before the trial court to be heard on February 19, 2003. Upon receiving evidence and considering argument of counsel, the trial court granted Asset’s Motion to Dismiss finding that the “Plaintiff simply can show no actual damages and therefore I must grant the motion.”
Townsend raises several issues on appeal, primarily whether the trial court erred in granting Asset’s motion to dismiss when the Florida Rules of Civil Procedure were not properly invoked, by considering matters outside the four corners of the complaint, including an invalid offer of judgment, and in finding Townsend’s claim was moot. Asset responds by arguing that the trial court correctly dismissed Townsend’s claim as moot, that Townsend had no claim for punitive damages, that offers of judgment are valid under the FCCPA, that emotional distress damages are not allowed under the FCCPA, and that Townsend’s claims for fees from an earlier case cannot be included as damages in the present case.
The trial court erred in granting the
Motion to Dismiss as the record shows that the trial court considered several
documents tendered by Asset at the motion hearing, including a “Proposal for
Settlement,” in reaching its decision. The well-settled law in
In reviewing Florida Statutes, §§ 559.72,
559.77, and the cases referenced therein, and in accepting as true all well-pleaded
allegations of the Statement of Claim, the Court finds that Townsend sufficiently
pled a FCCPA cause of action to withstand a motion to dismiss.
See Fox v. Professional Wrecker Operators of Florida, Inc.,
801 So.2d 175, 178 (
In addressing the issues involving damages, the Court finds that Section 559.77(2) specifically provides for three types of damages, in addition to court costs and reasonable attorney’s fees. Those are actual damages, statutory damages up to $1,000, and punitive damages, which may be awarded in the trial court’s discretion. In the Statement of Claim Townsend pled “damages as defined by Florida State Statute Section 559.77 including but not limited to emotional distress and fear, embarrassment, damage to his reputation and credit worthiness, economic damages and other damages.” The Court finds that Townsend sufficiently pled all damages that were statutorily available, including actual and punitive damages. Indeed, as pointed out by Townsend, punitive damages can be award by the trial court “in its discretion” so that such a request for relief need not be express in the complaint.
However, as set forth in Heard,
“where a particular remedy is conferred by statute, it can be invoked only
to the extent and in the manner prescribed.”
See Heard, 344 So.2d at 655. Therefore, Townsend cannot maintain a claim
for emotional distress damages, as such are not prescribed by statute. Further, the Court finds that the two cases
cited by Townsend in support of emotional distress damages are distinguishable
from the present case as both involve causes of action premised on negligence.
See Rowell v. Holt, 850 So.2d 474 (
Additionally, assuming arguendo that the Florida Rules of Civil Procedure, specifically Rule 1.442, were properly invoked,  a proposal of settlement made pursuant to Florida Statute, § 768.79, is not applicable to claims filed under the Florida Consumer Collection Practices Act. See Clayton v. Bryan, 753 So.2d 632 (Fla. 5th DCA 2000)(holding that state offer of judgment statute was preempted by the FDCPA); see also Peeples v. Ugly Duckling Credit Corp., Case No. 02-01528 (Fla. Hillsborough Cty. Ct. 2003)(striking defendant’s proposal for settlement pursuant to Clayton v. Bryan); aff’d, Drivetime Credit Corp., f/k/a Ugly Ducking Credit Corp. v. Peeples, Case No. 2D03-2063 (Fla. 2d DCA 2003); Zdobinsky v. Time Warner Inc. v. Credit Protection Association L.P., Case No. 01-10499 (Fla. Hillsborough Cty. Ct. 2003)(same). Therefore, Asset’s argument that the case was properly dismissed as moot since Townsend was offered all she could ever recover, $1,000, plus court costs and attorney’s fees, must fail.
Lastly, in remanding this matter, the Court notes that the preceding small claims case filed by Asset, Asset Acceptance Corp. v. Townsend, Case No. 02-002946-SC (Fla. Pinellas Cty. Ct. 2002), which apparently involved the same parties and subject matter, was voluntarily dismissed by Asset prior to the pre-trial hearing.  Therefore, Small Claims Rule 7.110(a), Compulsory Counterclaim, which may have precluded Townsend from bringing the present case, is inapplicable. Asset’s argument that Townsend cannot plead attorney’s fees as damages in the present case must fail as there is no provision for attorney’s fees following a voluntarily dismissal in small claims court, as compared with the Florida Rules of Civil Procedure, Rule 1.525.
Therefore, it is,
ORDERED AND ADJUDGED that the Order Granting Dismissal is reversed and this cause is remanded for action consistent with this Order and Opinion. It is further
ORDERED AND ADJUDGED that the Appellant’s Motion for Award of Attorney’s Fees is granted contingent upon the Appellant ultimately prevailing in the proceedings below.
DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of August 2004.
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Judge Walt Fullerton
Mark T. Tischhauser, Esquire
3134 North Boulevard
Tampa, FL 33603
Barbara A. Sinsley, Esquire
559 Lake Kathy Drive
Brandon, FL 33510
 Asset voluntarily dismissed this case as further explained below.
 Rule 1.442 would necessarily have to be invoked pursuant to Small Claims Rule 7.020(c), as the Small Claims Rules do not recognize a proposal for settlement.
 The Court can take judicial notice of this case. See e.g. Allstate Ins. Co. v. Greyhound Rent-A-Car, Inc., 586 So.2d 482 (Fla. 4th DCA 1991).