### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

ESTHER BABANI

, App ell ant,

v.

BROWARD AUTOMOTIVE, INC., d/b/a AUDI FORT LAUDERDALE, a for

- profit corporation

, Appellee

.

No. 4D 21

- 2694

[ September 30 , 2022 ]

Appeal from the C ounty Court for the Seventeenth Judicial Circuit, Broward County ; Giuseppina Miranda , Judge; L.T. Case No.

COCE21006831

.

Morgan L. Weinstein of Twig, Trade, & Tribunal, PLLC, Fort Lauderdale, Joshua Feygin of Joshua Feygin, PLLC, Hallandale Beach, and Darren

N ewhart of Newhart Legal, P.A., Loxahatchee, for appellant.

Kenneth L. Paretti of Quinton & Paretti, P.A., Miami, for appellee.

W ARNER
, J

.

Appellant, a leased vehicle customer

, appeals from the county court’s summary disposition of her complaint against the appellee dealer for damages under section 559.72, Florida Statutes (2019)

, known as the

Florida Consumer Collection Practices Act (“ FCCPA ”) . The court held that

C ustomer coul d not prove that Dealer had actual knowledge that it was violating a provision of the FCCPA . Because discovery was still outstanding as to D ealer’s practices, we reverse.

C ustomer leased a vehicle and signed two documents. One document

was a Retail Lease O rder, and the other document was the actual lease.

T he Retail Lease O rder contained a pre

- delivery service charge of $798

. Immediately underneath t he charge appeared the language required by section 501.976(18), Florida Statutes ( 2019 ), known as the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) : “This charge represents costs and profit to the dealer for items such as inspecting, cleaning, and adjusting vehicles, and preparing documents related to the2 sale.” However, on t he lease document , the $798 was identifi ed as a

“ Documentation Fee ” and the “ Pre

- delivery ” service charge was marked as “N/A

. ” Th e demar c ation for the pre

- delivery service charge was followed by the FDU T PA statutory language.

Customer filed suit alleging that Dealer violated the FCCPA , by collecting an unlawful charge, i.e.

, the $798, which s he claimed was a per

se violation of the FCCPA. The FCCPA provides:

In collecting consumer debts, no person shall:

. . . .

(9) Claim, attemp t, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.

§ 559.72(9), Fla. Stat. (2019). Customer claimed that b ecause FDUTPA required the statutory language to appear on all documents where the charge was imposed, and the $798 was improperly designated as a document fee on the lease, FDUTPA was violated, and D ealer had no right to collect the charge.

Customer filed sui t in county court under summary rules . No answer

was required of D ealer pursuant to those rules

, and none was filed

. See Fla. Sm. Cl. R. 7.090(c). At the court’s direction, the parties moved for summary disposition. In its motion, D ealer claim ed that it had substantially complied with the FDUTPA and thereby did not violate the

F CCPA

. Dealer asserted that it had made a bona fide error as a result of
comput er misalignment in the printing of documents and filed an affidavit of a corporate representative attesting to the computer error.

At the hearing on the motion, D ealer argued that C ustomer failed to offer any proof that Dealer had actual knowledge of the mistake in the lease, an element required under the FCCPA

. C ustomer responded by advising the court that D ealer could only rely on a bona fide error defense

if it maintained procedures adapted to try to prevent such an error. See § 559.77(3), F l a. Stat. (20 19 ). C ustomer also contend ed that she still had outstanding discovery regarding D ealer ’s policies and practices which directly related to the bona fide error defense.

A ppl ying Fl orida Small Claims Rule 7.135

, which allows the court to

determine whether a triable issue is set forth , t he court agreed with D ealer3 that C ustomer had failed to offer any proof that D ealer had actual knowledge of the mistake in the presentation of the pre

- delivery service charge on the lease document

. T he court then summarily disposed of the case prompting this appeal.

We reverse because the court should not have entered summary judgment while discover y was outstanding. “ Where the information contained in outstanding discovery could create genuine issues of material fact, summary judgment would not be proper.” Osorto v. Deutsche Bank

Nat’l Tr. Co. , 88 So. 3d 261, 263 (Fla. 4th DCA 2012). A trial court should not consider a motion for summary judgment until discovery is concluded.

Id. at 262. “An order granting summary judgment while there is an outstanding request for production of documents is premature and the appellate court should r everse and remand for discovery to be completed.”

Id. at 262

– 63 (citing Henderson v. Reyes , 702 So. 2d 616, 616 (Fla. 3d DCA 1997)).

Through her discover y requests

, C ustomer sought information as to

D ealer ’s policies and procedures for complying with th e FCCPA and how such policies were implemented. A s C ustomer pointed out to the court at the hearing, section 559.77(3) provides that no person can be held liable

under the FCCPA “ if the person shows by a preponderance of evidence that

the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to

avoid such error. ” § 559.77(3), Fla. Stat. (20 19 ) (emphasis added). In order

for D ealer to rely on the bona fide error defense, it must show that it had policies and procedures to avoid the error.

The court concluded that the discovery was irrelevant to the issue of knowledge. We disagree. The corporate representative’s affidavit and the gist of D ealer ’s claim in the trial court was that an error occurred in the printing. The lease documents were all prepared by D ealer , thus supporting an inference that it knew the content of the documents and the alleged misalignment

. The discovery was thus relevant to the issue of a

bona fide error defense.

Because outstanding discovery remained as to a disputable issue of knowledg e and error by D ealer , the court’s grant of summary judgment was premature, and the case should be reversed and remanded for discovery to be completed. See Osorto , 88 So. 3d at 263

.

Reversed and remanded for further proceedings.

K LINGENSMITH , C.J., and C ONNER , J., concur.4 * * *

Not final until disposition of timely filed motion for rehearing.