FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Charlotte County; Lisa S. Porter,
Zachary A. Harrington, Roger D. Mason, II, and Ashley V.
Goodman of Roger D. Mason, II, P.A., Tampa, for Appellant.
Castro and David A. Holmes of Farr, Farr, Emerich, Hackett,
Carr & Holmes, P.A., Punta Gorda, for Appellees.
Landry appeals the trial court's order that dismissed her
action for alleged odometer fraud against Charlotte Motor
Cars, LLC, and American States Insurance Company
(collectively, "the Dealership"), as a sanction for
the asserted spoliation of the vehicle in question after it
was repossessed. Because the Dealership failed to establish
that the vehicle was lost, misplaced, or destroyed, we
THE FACTUAL AND PROCEDURAL BACKGROUND
October 2013, Ms. Landry purchased a 2004 Dodge Durango from
Charlotte Motor Cars. About six months later, Ms. Landry went
to another car dealer to trade in the vehicle, and the other
car dealer told Ms. Landry that there were odometer rollback
issues with the vehicle. In late 2014, United Auto Credit
repossessed the vehicle.
January 12, 2015, Ms. Landry filed her initial complaint
against the Dealership. Over a year later, on or about May
17, 2016, the Dealership's attorneys sent a preservation
letter and request to inspect the vehicle to Ms. Landry's
attorneys, demanding that Ms. Landry preserve the vehicle and
make it available for inspection. Ms. Landry responded
through her attorneys, "[Ms. Landry] no longer has the
vehicle and you know that she no longer has the vehicle, so
I'm not sure what the purpose of this letter is."
The Dealership's attorneys replied, "That has been
our understanding on this end . . . . If she did still have
possession, custody, or control, we would want to inspect the
vehicle. Now that we have confirmation she does not, we can
proceed accordingly." A few days later, the Dealership
filed its motion for sanctions, alleging that Ms. Landry had
spoliated the vehicle.
24, 2016, Ms. Landry filed an amended complaint, alleging
various common law and statutory claims based on the alleged
odometer fraud regarding the vehicle that Ms. Landry had
purchased from Charlotte Motor Cars. The Dealership timely
filed its response to the amended complaint and affirmative
defenses. The trial court established August 29, 2016, as the
deadline for the parties to complete discovery and set a
three-day jury trial for the trial period beginning September
12, 2016, Ms. Landry filed a response and memorandum of law
in opposition to the Dealership's motion for sanctions.
In Ms. Landry's response to the motion for sanctions, Ms.
Landry alleged that after another dealership told her about
the odometer issues, she contacted Charlotte Motor Cars.
According to Ms. Landry, Charlotte Motor Cars "told her
that the odometer situation was her problem and refused to
assist her in any way." Ms. Landry also stated that she
submitted discovery to United Auto Credit in an attempt to
locate the vehicle.
hearing on the motion for sanctions was set for Monday, July
18, 2016. The hearing was not noticed as an evidentiary
hearing. On the Friday before the Monday hearing, the
Dealership filed a memorandum of law in support of its motion
for sanctions, an affidavit from an "expert
witness" in support of its motion, and a supplemental
witness list in which it added the name of the "expert
witness" who completed the affidavit. At the hearing,
Ms. Landry's attorney objected to the late filing of the
Dealership's memorandum of law. The parties did not
introduce the Dealership's expert affidavit or any other
exhibits into evidence or call any witnesses to testify. Ms.
Landry's attorney informed the trial court that his
client was still in the process of trying to locate the
trial court entered an order on July 21, 2016, granting the
Dealership's motion for sanctions and dismissing the
case. In its written order, the trial court found (1) that
Ms. Landry does not have possession of the vehicle; (2) that
she did not willfully dispose of the vehicle; (3) that she
"had a duty to preserve the direct evidence in this
case"; and (4) that the Dealership lacked the ability to
defend itself without inspecting the vehicle. Ms. Landry
filed a timely motion for rehearing, alleging that the
vehicle still exists, has an active Florida title, and was
then for sale at a car lot in Sanford, Florida. The trial
court denied the motion, and this appeal followed.
THE PARTIES' ...