In Pari Delicto; Credit Service Organizations Act; FDUPTA; Actual Damages; Unpled Claims; Estoppel; Fraud; Oral Representations Contradicted By Subsequent Written Agreement

Dorestin v. Hollywood Imports, Inc., ___ So. 3d ___, 35 Fla. L. Weekly D1817 (Fla. 4th DCA 8/11/10)

The buyers of a used motor vehicle sued the dealer for fraud in the inducement.  The trial court entered judgment notwithstanding the verdict for the dealer based upon the doctrine of in pari delicto.  The appellate court affirmed because the jury found that the buyers submitted false information on their credit application.

The trial court correctly determined that the Credit Service Organizations Act does not apply to car dealers who assist their customers in finding financing.

The trial court erred by failing to grant judgment notwithstanding the verdict for the dealer on the buyers’ FDUTPA claim.  That claim, as pled, was based upon the dealer’s failure to provide a buyer’s guide, but the buyers did not sustain any damages as a result of this failure, and actual damages are required to sustain a FDUTPA claim.  The jury awarded damages based upon the dealer’s alleged misrepresentation that they buyers were required to buy an extended warranty, but this wrongful act was unpled, and the buyers collected on the extended warranty.  Because the buyers accepted the benefits conferred by the extended warranty, they were estopped from recovering the cost of the warranty by means of their FDUTPA claim.  In addition, the warranty stated it was not required in order to purchase the vehicle or to obtain financing, and fraud may not be based upon oral representations that are contradicted by a subsequent written agreement.  In a concurring opinion, Judge Gross stated that in FDUTPA cases, the Florida courts should employ a broader definition of actual damages and should not apply the common law principle that fraud may not be based upon oral representations contradicted in a subsequent written agreement.