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Morgan v. Wilkins

Florida Court of Appeal, First District

November 16, 2011

Robin MORGAN, and her attorney Bruce Committe, Appellants,
v.
John L. WILKINS, Arnold and Wilkins, P.A., and Jane Doe, Appellees.

Page 180

Bruce Committe, Pensacola, for Appellants.

John L. Wilkins of Arnold and Wilkins, P.A., Pensacola, for Appellees.

VAN NORTWICK, J.

Robin Morgan appeals a final judgment dismissing her counterclaim for damages under section 559.72, Florida Statutes (2009), a part of the Florida Consumer Collection Protection Act (FCCPA), for allegedly abusive conduct in collecting a debt. Morgan and her attorney, Bruce Committe, also challenge that part of the final judgment which incorporates a final order awarding attorney's fees to appellees pursuant to section 57.105, Florida Statutes (2009), to be paid in equal measure by Morgan and Committe. Because Morgan's debt to the firm is an " obligation of a consumer to pay money arising out of a transaction in which the ... services which are the subject of the transaction are primarily for personal ... purposes ...," section 559.55(1), Florida Statutes (2009), her debt constitutes a " consumer debt" under the FCCPA. Accordingly, we reverse and remand for further proceedings.

In May 2006, Morgan retained the law firm of Arnold & Wilkins to represent her in a personal legal matter. The agreement for representation provided that Morgan was to pay $2,500 in advance of any representation. Morgan did not pay in full when a demand for payment was made. Arnold & Wilkins filed a small claims action against her in county court after John Wilkins' personal attempts to secure payment failed. Through counsel Bruce Committe, Morgan filed a counterclaim against the law firm, John Wilkes personally, and his assistant, seeking in excess of $15,000 in damages for a violation of the FCCPA, chapter 559, Florida Statutes.

The counterclaim was removed to circuit court. Wilkins moved to dismiss the counterclaim on the ground that the counter defendants are not debt collectors. Morgan responded to the motion to dismiss by arguing that the FCCPA applies not only to a collection agency, but to any party seeking to collect a consumer debt.

Following a hearing, the circuit court entered an order granting the motion to dismiss. In pertinent part, the order provides:

THE COURT FINDS that the consumer debt collections prohibitions of Fla. Stat. 559.72, the alleged violations of which are the basis of Morgan's allegations in her counter claims against (1) Wilkins, (2) Arnold & Wilkins, P.A., and (3) Jane Doe Debbie, only apply to debt collectors, and the statute defines " debt collectors" as entities collecting the consumer accounts of others and not creditors collecting their own accounts as Morgan has alleged counter-defendants were doing in this case.

Wilkins also moved for sanctions under section 57.105 arguing that Morgan's counterclaim was not authorized under the FCCPA. Morgan opposed the motion, arguing that the FCCPA applies to any party seeking to collect a debt. The trial court entered an order granting attorney's fees, and in the final judgment which followed, the trial court explained that an award of fees was warranted on the authority of section 57.105. The trial court explained:

this Court found as a matter of law that the position of Robin Morgan and more importantly, her attorney Bruce Committe's reliance upon prior case authority was contrary to the relevant statute and was not well placed. Robin Morgan and her attorney were given an opportunity to dismiss the Counter-Claim upon which the request for attorney's fees

Page 181

was based. More specifically, Robin Morgan and her attorney Bruce Committe knew or should have known, based upon current Florida law that the claim was not supported by Florida case law or Florida statutory law, in violation of Florida Statute 57.105(1)(b).

The final judgment also incorporated the order which dismissed Morgan's counterclaim. Morgan was ordered to pay appellees the amount of $2,480, plus interest, pursuant to the judgment entered on appellee's claim of breach of contract, and Morgan and Committe were ordered to pay, in equal parts, the amount of $7,500 in attorney's fees.

On appeal, Morgan and Committe argue that the trial court erred in concluding that the FCCPA did not apply to the appellees because they are not debt collectors. Appellees concede that the trial court was in error when it ruled that FCCPA pertains only to debt collectors, as that term is defined in the Act. Appellees argue, however, that the trial court reached the right result for the wrong reason because Morgan's debt was not a ...


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