# Third District Court of Appeal

State of Florida

Opinion filed August 22, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D17-2 336

Lower Tribunal No. 14- 11996

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### Safari Tours, Inc.,

Appellant,

vs.



### Juan E. Pasco, et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Rodney Smith,

Judge.

Lorenzen Law, P.A., and Dirk Lorenzen, for appellant.

Richard Lorenzo, for appellees.

Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.

SCALES, J.

Appellant, plaintiff and counter-defendant below, Safari Tours, Inc.

(“Safari”), appeals the trial court’s denial of Safari’s post-trial motions directedtoward a jury verdict and the resulting final judgment that awarded appellees,

defendants and counter-plaintiffs below, Juan E. Pasco, Louis Pasco, Phoenix

Automotive, Inc. and Phoenix Automotive Services, Inc. (collectively, “Phoenix”)

the amount of $50,375 in damages on Phoenix’s counterclaim. We reverse only the

portion of the final judgment that awarded Phoenix $27,375 in storage fees

because Phoenix’s repair estimate failed to substantially comply with section

559.905(1)(n) of Florida’s Motor Vehicle Repair Act. We otherwise affirm the

final judgment.

I. Relevant Facts and Procedural Background

After Safari’s tour bus was damaged in a collision, Safari took the bus to

Phoenix’s repair shop to have the bus repaired. Phoenix provided Safari with a

written repair estimate, which estimated the cost to repair the damage at

$25,173.47. Phoenix’s written repair estimate, however, did not inform Safari that

there would be any daily charge for storing the bus after Phoenix had notified

Safari that the repairs had been completed.

A dispute between the parties arose as to payment for the repairs Phoenix

had performed, and Safari ultimately sued Phoenix for the return of the bus. In its

three-count counterclaim against Safari, Phoenix sought $18,000 in

uncompensated repair costs, an unspecified amount for storage fees, and noneconomic damages for a tort claim. The jury returned a verdict for Phoenix on

2Safari’s claims and, on Phoenix’s counterclaims against Safari, awarded Phoenix

the $18,000 Phoenix had sought for repair costs, $5,000 on its tort claim, and

$27,375 for storage fees. The jury’s verdict form contains a handwritten notation

that the storage fees were calculated by awarding Phoenix twenty-five dollars per

day for three years of storage. 1

Safari did not (and does not) challenge the $18,000 awarded by the jury for

repair costs, but challenged the verdict on the tort claim and storage fees by filing

post-trial motions seeking a judgment notwithstanding the verdict, a rehearing, a

new trial and a remittitur. In unelaborated orders, the trial court denied all of

Safari’s post-trial motions, and entered the final judgment on appeal. 2

II. Analysis

We affirm the trial court’s rulings on all of Safari’s post-trial motions,

except for its denial of Safari’s motions directed toward the storage fees. A motor

vehicle repair shop, such as Phoenix, may not collect fees due from a customer

1 While there is no transcript of the trial, the record reflects that the jury did ask a

question during the trial as to how to calculate the storage fees sought by Phoenix.

The trial judge responded to the jury’s note by telling the jury to rely on the

evidence presented.

2 The final judgment authorizes Phoenix to retain possession of the bus until

judgment is paid. While Safari also challenges this portion of the judgment, we do

not reach this issue as it is moot because Phoenix auctioned off the bus. Antar v.

Seamiles LLC

, 960 So. 2d 802, 803 (Fla. 3d DCA 2017) (“A case is ‘moot’ when

it presents no actual controversy or when the issues have ceased to exist.” (quoting

Godwin v. State

, 593 So. 2d 211, 212 (Fla. 1992))).

3if the repair shop does not substantially comply with the written repair estimate

provisions of section 559.905(1). See Osteen v. Morris

, 481 So. 2d 1287, 1289-90

(Fla. 5th DCA 1986). Section 559.905(1)(n) plainly and unambiguously provides

that all written repair estimates must contain “[a] statement indicating the daily

charge for storing the customer’s motor vehicle after the customer has been

notified that the repair work has been completed.” It is undisputed that Phoenix’s

repair estimate reads, in relevant part: “A storage fee of $______ per day may be

applied to vehicles which are not claimed within 3 working days of notification of

completion.”

By leaving the form’s line blank, Phoenix failed to comply with section

559.905(1)(n), and therefore, may not collect from Safari the storage fees

associated with the bus repair. See Osteen

, 481 So. 2d at 1289-90. The trial court

erred by denying Safari’s post-trial motions in this regard, and by including the

storage fees in the final judgment.

While not entirely clear, Phoenix seems to argue that, notwithstanding the

repair estimate’s failure to inform Safari of storage fees, Phoenix should

nevertheless prevail on this issue because Safari failed to provide this Court with a

copy of the trial transcript which, presumably, could establish that Phoenix

otherwise substantially complied with section 559.905(1)(n). The record before

this Court, however, contains all written exhibits introduced at trial, none of which

4evidence compliance, substantial or otherwise, with the requirement. Indeed, those

cases relied upon by Phoenix allowing a repair shop to recover based on

“substantial compliance” with the statute’s requisites all involve written repair

estimates of which the vehicle owner had knowledge. See, e.g.

, Siam Motors, Inc.

v. Spivey

, 136 So. 3d 692, 694 (Fla. 2d DCA 2014) (holding that when repair shop

provides proper written estimate, oral authorization for additional repair work does

not violate statute); KT’s Kar Kare, Inc. v. Laing

, 617 So. 2d 325, 326 (Fla. 4th

DCA 1993) (holding that handwritten estimate substantially complied with

requirements of section 559.905 where both parties agreed to it); Lieberman v.

Collision Specialists, Inc.

, 526 So. 2d 102, 103 (Fla. 4th DCA 1987) (holding that

repair shop was entitled to payment where substantially conforming written

estimate was prepared by the vehicle owner’s insurance company). Phoenix has

not cited to us any authority that purely oral communications

– possibly reflected

in a trial transcript

– may constitute “substantial compliance” with the statute’s

requirement that the repair estimate notify the customer in writing of a repair

shop’s storage fees. Indeed, Phoenix does not argue, or even suggest, that it

otherwise complied with the statute’s requirement. 3

3 That we have a record containing all evidence and exhibits proffered by the

parties and considered by the jury (albeit with no trial transcript) distinguishes this

case from Perez-Priego v. Bayside Carburetor and Ignition Corp.

, 633 So. 2d 1190

(Fla. 5th DCA 1994). In Perez-Priego

, the petitioner sought second-tier certiorari

review from the district court after the circuit court appellate division affirmed a

county court verdict in favor of a repair shop alleged to have performed repairs

5III. Conclusion

We reverse the portion of the final judgment that included $27,375 in

storage fees and remand to the trial court to enter a revised judgment for

Phoenix consistent with this opinion.

Affirmed in part; reversed in part and remanded.

without submitting a written estimate to the customer. Id. at 1191. Because there

was no record of the trial, our sister court was unable to conclude that the appellate

division had departed from the essential requirements of law. Id.

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