County 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. 03-1921CI-88A (Fla. 6th Cir. App. Ct. August 6, 2004). 










vs.                                                                                            Appeal No. 03-1921CI-88A






Opinion filed _______________________


Appeal from Order Granting Dismissal

Pinellas County Court, Small Claims Division

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. [1]   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 Florida is that a trial court may not go beyond the four corners of the complaint in testing the legal sufficiency of the allegations set forth therein.  See Hewett-Kier Construction, Inc. v. Lemuel Ramos and Associates, Inc., 775 So.2d 373 (Fla. 4th DCA 2000)(reversing trial court’s dismissal of complaint when it considered document attached to defendant’s motion to dismiss); Baycon Industries Inc. v. Shea, 714 So.2d 1094 (Fla. 2d DCA 1998) (concluding that the trial court improperly treated attorney’s motion to dismiss as one for summary judgment by going outside the four corners of the complaint and considering documents attached to the motion); Holland v. Anheuser Busch, Inc., 643 So.2d 621 (Fla. 2d DCA 1994)(finding the trial court committed reversible error by considering extrinsic evidence in granting the defendant’s motion to dismiss).                   

            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 (Fla. 5th DCA 2001)(stating that an appellate court applies the same principles as the trial court in determining whether the complaint properly states a cause of action).  The Statement of Claim pled the essential elements of Townsend’s claim, i.e. “the existence of a legal right in the plaintiff, with a corresponding duty in the defendant, coupled with a violation of that duty which results in injury or damages to the plaintiff.”  See Heard v. Mathis, 344 So.2d 651, 655 (Fla. 1st DCA 1977).  There is no dispute that Townsend is a “debtor” or “consumer” and that Asset is a “person” or “debt collector” within the meaning of the FCCPA.  See Fla. Stat. § 559.55(2),(6).  Additionally, as further explained below, the Court finds that Townsend alleged a violation of the FCCPA resulting in injury or damages.  The only additional pleading requirement, as established by case law, is that the FCCPA requires an allegation of knowledge or intent by the debt collector in order to state a cause of action, which Townsend does in her Statement of Claim.  See Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1363 (S.D. Fla. 2000).

            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 (Fla. 2003); Gracey v. Eaker, 837 So.2d 348 (Fla. 2002).  Townsend can only receive emotional distress damages if she pleads an independent cause of action for intentional infliction of emotional distress.  See e.g. Ford Motor Credit Company v. Sheehan, 373 So.2d 956, 959 (Fla. 1st DCA 1979)(assessing a claim filed pursuant to the FCCPA and finding that an independent action for intentional infliction of severe emotional distress will be permitted if facts are properly alleged and proved).

            Additionally, assuming arguendo that the Florida Rules of Civil Procedure, specifically Rule 1.442, were properly invoked, [2] 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. [3]   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


[1] Asset voluntarily dismissed this case as further explained below.

[2] 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. 

[3] 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).