Third District Court of Appeal

State of Florida 

Opinion filed September 20, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-915

Lower Tribunal No. 20-9599

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Scott Walls,

Appellant,

vs.

Roadway, Inc., etc.,

Appellee.

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

Rodriguez, Judge.

Liebler, Gonzalez & Portuondo, and Tricia J. Duthiers and James R. 

Liebler, II, for appellant.

BenitezLaw, and Lizette P. Benitez, for appellee.

Before EMAS, SCALES and GORDO, JJ. 

EMAS, J.
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INTRODUCTION

Appellant, Scott Walls, seeks review of the trial court’s final summary 

judgment in favor of appellee, Roadway, Inc. on Walls’ claims against 

Roadway related to the towing, storage and sale of his vehicle. For the 

reasons that follow, we affirm in part, reverse in part, and remand for further 

proceedings on two counts of the complaint.

FACTS AND PROCEDURAL HISTORY

Scott Walls, the plaintiff below, alleges that in April 2018 he purchased 

a 2011 Audi R8 Spyder Convertible from Cosmo Motors, Inc., a dealer in 

North Carolina, for $95,570.50. He never obtained a certificate of title for the 

vehicle, nor did he register the vehicle in the State of Florida, where he lived. 

Two years later, in March 2020, the City of Miami contacted Roadway, a 

towing company, and directed it to tow the Audi, as it was illegally parked in 

a public parking lot. The vehicle had only a North Carolina temporary tag that 

expired in 2018. Roadway towed the vehicle to its impound lot and began 

the process of foreclosing its lien pursuant to section 713.78, Florida Statutes

(2020). Walls appeared at Roadway several times, attempting to pay for the 

tow charges and recover possession of the vehicle, but because he was 

unable to present a certificate of title, Roadway refused to release the 

vehicle. 
3

In the meantime, Roadway conducted a search of the Florida 

Department of Highway Safety and Motor Vehicles (“DHSMV”) records, 

which revealed that the registered owner of the vehicle was Peter A. Petito,

that it was insured by Privilege Underwriters Reciprocal Exchange and that 

JP Morgan Chase Bank, NA had a lien interest in the vehicle. Roadway sent 

notice to all three. In addition, Roadway searched the National Motor Vehicle 

Title Information System (“NMVTIS”), which also identified Peter A. Petito as 

the registered owner of the vehicle. Roadway also provided public notice of 

the lien sale by publication in the Community Newspapers. 

On April 23, 2020, Roadway held an auction and since no one 

appeared at the lien sale or made a bid, sold the vehicle to itself for the 

amount of accrued towing and storage charges. Thereafter, DHSMV issued 

title to the Audi to Roadway.

Walls sued Roadway and, in his first amended complaint, asserted 

three counts relevant to this appeal: violation of section 713.78, Florida 

Statutes (2020) (relating to the sale of impounded/towed vehicles) (Count II); 

civil theft (Count III); and violation of the Florida Deceptive and Unfair Trade 

Practices Act (“FDUTPA”) (Count IV). 

Both parties moved for summary judgment. Importantly, although 

Walls sought summary judgment on Counts II, III, and IV, Roadway wholly 
4

failed to address Counts III and IV (either in its own summary judgment 

motion or in response to Walls’ cross-motion), except to assert it was 

“entitled to summary judgment on [Walls’] claims as a matter of law.”

Following a hearing on the competing motions, the trial court granted 

Roadway’s motion for summary judgment, finding (1) “Roadway fully 

complied with the requirements of Florida Statute section 713.78;” (2) 

“Roadway is the owner of the Vehicle as evidenced by the Certificate of Title 

duly issued by the Florida DHSMV;” and (3) “There is no genuine dispute as 

to any material fact and Roadway is entitled to judgment as a matter of law.” 

The trial court’s order does not specifically address Count III (civil theft) or 

Count IV (FDUTPA violations). Nevertheless, the trial court entered final 

judgment in favor of Roadway on all three counts1 and stated that Walls 

“shall take nothing by this action and Roadway may go hence without day.” 

STANDARD OF REVIEW

The standard of review for issues of statutory interpretation is de novo.

Lab. Corp. of Am. v. Davis, 339 So. 3d 318 (Fla. 2022). We generally review 

a final order of summary judgment de novo. Volusia Cnty. v. Aberdeen at 

Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000).

1 Count I of the complaint was for a pre-judgment petition for an order 

directing and administrative hold of title pending adjudication, which was 

granted by the court and is not at issue in this appeal.
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ANALYSIS AND DISCUSSION

Count II- Section 713.78, Florida Statutes

Section 713.78 provides, in pertinent part:

(2) Whenever a person regularly engaged in the business of 

transporting vehicles or vessels by wrecker, tow truck, or car 

carrier recovers, removes, or stores a vehicle or vessel upon 

instructions from 

. . .

(b) the owner or lessor, or a person authorized by the owner or 

lessor, of property on which such vehicle or vessel is wrongfully 

parked. . . [which, in this case, includes the City of Miami] she or 

he shall have a lien on the vehicle or vessel for a reasonable 

towing fee, for a reasonable administrative fee or charge 

imposed by a county or municipality, and for a reasonable 

storage fee . . . .

. . . 

(4)(a) A person regularly engaged in the business of recovering, 

towing, or storing vehicles or vessels who comes into possession 

of a vehicle or vessel pursuant to subsection (2), and who claims 

a lien for recovery, towing, or storage services, shall give 

notice, by certified mail, to the registered owner, the 

insurance company insuring the vehicle notwithstanding s. 

627.736, and all persons claiming a lien thereon, as 

disclosed by the records in the Department of Highway 

Safety and Motor Vehicles or as disclosed by the records of 

any corresponding agency in any other state in which the 

vehicle is identified through a records check of the National 

Motor Vehicle Title Information System or an equivalent 

commercially available system as being titled or registered.

. . .

(c)The notice of lien must be sent by certified mail to the 

registered owner, the insurance company insuring the vehicle . . 
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. and all other person claiming a lien thereon within 7 business 

days. . . .

. . .

(e) If attempts to locate the name and address of the owner 

or lienholder prove unsuccessful, the towing-storage operator 

shall, after 7 business days, excluding Saturday and Sunday, 

after the initial tow or storage, notify the public agency of 

jurisdiction where the vehicle or vessel is stored in writing by 

certified mail or acknowledged hand delivery that the towingstorage company has been unable to locate the name and 

address of the owner or lienholder and a physical search of the 

vehicle or vessel has disclosed no ownership information and a 

good faith effort has been made, including records checks of the 

Department of Highway Safety and Motor Vehicles database and 

the National Motor Vehicle Title Information System or an 

equivalent commercially available system. For purposes of this 

paragraph and subsection (9), the term “good faith effort” means 

that the following checks have been performed by the company 

to establish the prior state of registration and for title:

1. A check of the department's database for the owner and any 

lienholder.

2. A check of the electronic National Motor Vehicle Title 

Information System or an equivalent commercially available 

system to determine the state of registration when there is not a 

current registration record for the vehicle or vessel on file with 

the department.

3. A check of the vehicle or vessel for any type of tag, tag record, 

temporary tag, or regular tag.

4. A check of the law enforcement report for a tag number or 

other information identifying the vehicle or vessel, if the vehicle 

or vessel was towed at the request of a law enforcement officer.

5. A check of the trip sheet or tow ticket of the tow truck operator 

to determine whether a tag was on the vehicle or vessel at the 

beginning of the tow, if a private tow.

6. If there is no address of the owner on the impound report, a 

check of the law enforcement report to determine whether an outof-state address is indicated from driver license information.
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7. A check of the vehicle or vessel for an inspection sticker or 

other stickers and decals that may indicate a state of possible 

registration.

8. A check of the interior of the vehicle or vessel for any papers 

that may be in the glove box, trunk, or other areas for a state of 

registration.

9. A check of the vehicle for a vehicle identification number.

. . .

(6) A vehicle or vessel that is stored pursuant to subsection (2) 

and remains unclaimed, or for which reasonable charges for 

recovery, towing, or storing remain unpaid, and any contents not 

released pursuant to subsection (10), may be sold by the 

owner or operator of the storage space for such towing or 

storage charge 35 days after the vehicle or vessel is stored by 

the lienor if the vehicle or vessel is more than 3 years of age or 

50 days after the vehicle or vessel is stored by the lienor if the 

vehicle or vessel is 3 years of age or less. The sale shall be at 

public sale for cash. If the date of the sale was not included in 

the notice required in subsection (4), notice of the sale shall be 

given to the person in whose name the vehicle or vessel is 

registered and to all persons claiming a lien on the vehicle or 

vessel as shown on the records of the Department of Highway 

Safety and Motor Vehicles or of any corresponding agency in any 

other state in which the vehicle is identified through a records 

check of the National Motor Vehicle Title Information System or 

an equivalent commercially available system as being titled. 

Notice of the sale must be sent by certified mail. The notice must 

have clearly identified and printed, if the claim of lien is for a 

motor vehicle, the last 8 digits of the vehicle identification number 

of the motor vehicle subject to the lien, or, if the claim of lien is 

for a vessel, the hull identification number of the vessel subject 

to the lien, in the delivery address box and on the outside of the 

envelope sent to the registered owner and all other persons 

claiming an interest therein or lien thereon. The notice must be 

sent to the owner of the vehicle or vessel and the person having 

the recorded lien on the vehicle or vessel at the address shown 

on the records of the registering agency at least 30 days before 

the sale of the vehicle or vessel. The notice must state the name, 

physical address, and telephone number of the lienor, and the 
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vehicle identification number if the claim of lien is for a vehicle or 

the hull identification number if the claim of lien is for a vessel, all 

of which must also appear in the return address section on the 

outside of the envelope containing the notice of sale. After 

diligent search and inquiry, if the name and address of the 

registered owner or the owner of the recorded lien cannot be 

ascertained, the requirements of notice by mail may be 

dispensed with. In addition to the notice by mail, public notice of 

the time and place of sale shall be made by publishing a notice 

thereof one time, at least 10 days before the date of the sale, in 

a newspaper of general circulation in the county in which the sale 

is to be held. The proceeds of the sale, after payment of 

reasonable towing and storage charges, and costs of the 

sale, in that order of priority, shall be deposited with the 

clerk of the circuit court for the county if the owner or 

lienholder is absent, and the clerk shall hold such proceeds 

subject to the claim of the owner or lienholder legally entitled 

thereto. The clerk shall be entitled to receive 5 percent of such 

proceeds for the care and disbursement thereof. The certificate 

of title issued under this law shall be discharged of all liens 

unless otherwise provided by court order. The owner or 

lienholder may file a complaint after the vehicle or vessel has 

been sold in the county court of the county in which it is stored. 

Upon determining the respective rights of the parties, the court 

may award damages, attorney fees, and costs in favor of the 

prevailing party. (Emphasis added).

A plain reading of the statute establishes that Roadway was obligated 

to send notice only to the “registered owner, the insurance company insuring 

the vehicle. . . and all persons claiming a lien” on the vehicle, “as disclosed 

by the records in the Department of Highway Safety and Motor Vehicles or 

as disclosed by the records of any corresponding agency in any other state 

in which the vehicle is identified through a records check of the National 
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Motor Vehicle Title Information System or an equivalent commercially 

available system as being titled or registered.” § 713.78(4)(a). It is 

undisputed that the only registered owner disclosed by DHSMV and NMVTIS 

was Peter A. Petito, and nothing in those searches revealed the identity of 

Walls as an owner or potential owner. There is also no genuine issue of 

disputed fact that Roadway timely notified those parties prior to the sale. 

In the trial court below, and in this appeal, however, Walls asserts that 

because he appeared at Roadway with documentation to establish he was 

the owner, Roadway had a duty to make good faith efforts to comply with the 

statute’s notice requirements and that its failure to investigate why the 

vehicle had a temporary tag from North Carolina was not a good faith effort. 

We do not agree. The statute plainly and unambiguously sets forth the 

duties imposed upon the tow company, and there is no dispute that Roadway 

complied with those statutory obligations. The statute simply did not require 

Roadway to conduct further research or investigation regarding the expired 

temporary tag or to accept Walls’ documents, none of which included an 

actual certificate of title.2 “It is a basic principle of statutory construction that 

2 We note, parenthetically, that Walls failed to avail himself of the statutory 

remedy provided by section 713.78(5)(a): 

The owner of a vehicle or vessel removed pursuant to subsection 

(2). . . within 10 days after the time she or he has knowledge of 
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courts ‘are not at liberty to add words to statutes that were not placed there 

by the Legislature.’” Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001) 

(quoting Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999)). If the legislature “did 

not intend the results mandated by the statute's plain language, then the 

appropriate remedy is for it to amend the statute.” Whitney Bank v. Grant, 

223 So. 3d 476, 479 (Fla. 1st DCA 2017). See also Overstreet v. State, 629 

So. 2d 125, 126 (Fla. 1993) (“We decline to add words to a statute where, 

as in this case, the language is clear and unambiguous. ‘It is a settled rule of 

statutory construction that unambiguous language is not subject to judicial 

construction, however wise it may seem to alter the plain language.’”) 

(quoting State v. Jett, 626 So. 2d 691, 693 (Fla. 1993)).

Counts III and IV: Civil Theft/FDUTPA Claims

Although we find the trial court properly entered final summary 

judgment in favor of Roadway on Count II (section 713.78), we hold it was 

error for the trial court to enter final summary judgment in favor of Roadway 

on all counts of the operative complaint without even addressing Count III 

(Civil Theft) and Count IV (FDUTPA). The four-page final summary judgment 

the location of the vehicle or vessel, may file a complaint in the 

county court of the county in which the vehicle or vessel is stored 

to determine whether her or his property was wrongfully taken or 

withheld.
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relates only to section 713.78, and makes no reference to Walls’ additional 

claims of civil theft and FDUTPA violations. Indeed, a person reading the 

order would have no way of discerning that Walls made any claim in his 

complaint other than one for a violation of section 713.78. 

Florida Rule of Civil Procedure 1.510 was substantially amended in 

2021, and applies to the order on appeal, which was rendered in 2022. 

Although the amended rule borrowed heavily from its federal counterpart 

(Rule 56) it differs in at least one relevant respect: rule 1.510(a) mandates 

that the trial court “shall state on the record the reasons for granting or 

denying the motion.” (Emphasis added.)

In its opinion amending rule 1.510, the Florida Supreme Court 

emphasized this requirement:

Where federal rule 56(a) says that the court should state on the 

record its reasons for granting or denying a summary judgment 

motion, new rule 1.510(a) says that the court shall do so. The 

wording of the new rule makes clear that the court's obligation in 

this regard is mandatory.

To comply with this requirement, it will not be enough for the 

court to make a conclusory statement that there is or is not a 

genuine dispute as to a material fact. The court must state the 

reasons for its decision with enough specificity to provide useful 

guidance to the parties and, if necessary, to allow for appellate 

review. On a systemic level, we agree with the commenters who 

said that this requirement is critical to ensuring that Florida courts 

embrace the federal summary judgment standard in practice and 

not just on paper.
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In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 77 (Fla. 2021).

3

On appeal, Roadway urges us to affirm on an alternative basis, 

asserting that, as a matter of law, Walls cannot prevail on these claims 

because he never obtained a certificate of title for the vehicle and thus, under 

section 319.22, Florida Statutes, he has no standing to pursue those claims. 

We do not reach the merits of this argument, and reject Roadway’s attempt 

to raise it on appeal, as it was not raised in its summary judgment motion in 

the trial court. As we observed in Sousa v. Zuni Transp., Inc., 286 So. 3d 

820, 822-23 (Fla. 3d DCA 2019): 

Even if the record on appeal were to support an affirmance on 

these alternative grounds—an issue about which we express no 

opinion—it is well-settled that “[t]he [t]ipsy [c]oachman doctrine 

does not apply to grounds not raised in a motion for summary 

judgment ....” Mitchell v. Higgs, 61 So. 3d 1152, 1155 n.3 (Fla. 

3d DCA 2011); see also Agudo, Pineiro & Kates, P.A. v. Harbert 

Const. Co., 476 So. 2d 1311, 1315 n.3 (Fla. 3d DCA 1985) 

(finding the rule inapplicable “in summary judgment proceedings 

where the issue was never raised in the motion for summary 

3We note that subsequent to the filing of this appeal, the Florida Supreme 

Court amended Florida Rule of Civil Procedure 1.530 to require an appellant 

to raise the issue of a trial court’s failure to make required findings below in 

order to preserve the issue for appeal. See In re: Amendments to Fla. Rule 

of Civil Procedure 1.530 and Fla. Family Law Rule of Procedure 12.530, 346 

So. 3d 1161 (Fla. 2022) and In re: Amendments to Fla. Rule of Civil 

Procedure 1.530 and Fla. Family Law Rule of Procedure 12.530, 48 Fla. L. 

Weekly S69 (Fla. 2023). These amendments are not retroactive, and thus, 

do not apply to this appeal. See Cerniglia v. Cerniglia, 679 So. 2d 1160 (Fla. 

1996) (holding amendments to rules of procedure do not apply retroactively 

unless specifically provided). Nevertheless, litigants should be mindful of this 

preservation requirement for future appeals. 
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judgment” (citations omitted)). The legal issues proposed as 

alternative grounds for affirmance were raised for the first time 

on appeal. They were not briefed in the motion for summary 

judgment before the trial court, were not argued at the summary 

judgment hearing and did not form the basis for the trial court's 

ruling.

CONCLUSION

For the reasons expressed, we affirm that portion of the trial court’s 

order of final summary judgment in favor of Roadway as to Count II of the 

operative complaint, but reverse that portion of the trial court’s order of final 

summary judgment in favor of Roadway as to Counts III and IV. We remand 

for further proceedings consistent with this opinion.