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Lowe v. Nissan of Brandon, Inc.

Florida Court of Appeals, Second District

January 5, 2018

MARLINDA LOWE, on behalf of herself and all others similarly situated, Appellant,
v.
NISSAN OF BRANDON, INC., d/b/a AUTONATION NISSAN BRANDON, a Florida corporation, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Hillsborough County; Richard A. Nielsen, Judge.

          Brian W. Warwick of Varnell & Warwick, P.A., Lady Lake; and William C. Bielecky of William C. Bielecky, P.A., Tallahassee, for Appellant.

          Moises Melendez of GrayRobinson, P.A., Fort Lauderdale; and Richard A. Ivers of Law Offices of Richard A. Ivers, Coral Springs, for Appellee.

          BLACK, JUDGE.

         Marlinda Lowe challenges the circuit court's order compelling Ms. Lowe to arbitrate her claims against Nissan of Brandon, Inc., d/b/a Autonation Nissan Brandon. We affirm; we write to explain our reasoning and to certify conflict with existing cases addressing similar issues.

         I. Facts

         As relevant to this appeal, Ms. Lowe executed three separate documents when she purchased her vehicle from Nissan of Brandon: a Retail Purchase Agreement (Purchase Agreement), a Retail Installment Sale Contract (Installment Contract), and an Arbitration Agreement. Her complaint below was filed as a class action; she alleged, in pertinent part, that Nissan's inclusion of $98.75 in the purchase price of the vehicle- itemized on the Purchase Agreement as a "Tag Agency/Electronic Filing Fee" (Fee)- violates Florida's Deceptive and Unfair Trade Practices Act (FDUTPA) and that the Fee constitutes unjust enrichment. The Purchase Agreement included a specific line-item charge for the Fee, and Ms. Lowe alleged that the Installment Contract included the Fee in the line-item "Cash Price" for the vehicle. Ms. Lowe's claims are solely based upon the $98.75 Fee.

         The Purchase Agreement provides that "Agreement" means the Purchase Agreement together with "any documents, incorporated into this Agreement by reference, whether such reference is made in the Agreement or the document itself." It also provides, in paragraph ten, that "[t]he front and back of this Agreement and any documents incorporated herein by reference comprise the entire agreement affecting this sale. You agree to sign any and all documents necessary to complete the terms of this sale." (Emphasis added.) Further, paragraph ten expressly incorporates the Arbitration Agreement: "If you have executed an Arbitration Agreement in conjunction with this Agreement such Arbitration Agreement shall be incorporated herein by reference and made a part of this Agreement."

         Paragraph fifteen of the Purchase Agreement states that the Agreement "shall survive the consummation of your purchase of the vehicle." Paragraph sixteen provides that the Purchase Agreement is not binding on Nissan until "accepted by [Nissan's] authorized manager, and if a credit purchase (1) appropriate financing disclosures are made and (2) a retail installment contract and purchase money security agreement is executed by you and [Nissan]." Paragraph sixteen further provides: "If this Agreement is part of a credit purchase, this offer is only an offer to purchase the vehicle . . . . A credit purchase is subject to credit approval of a third party financing institution and acceptance of the retail installment contract by a financing institution."

         Notwithstanding paragraph ten and its incorporation of the Arbitration Agreement, paragraph eighteen of the Purchase Agreement provides:

The sole and exclusive venue for any dispute or litigation arising under or concerning this Agreement shall be the courts located in and for the county in which [Nissan] is located, and the parties irrevocably consent to the jurisdiction of said courts. Any and all arbitration proceedings shall also take place in the county where [Nissan] is located, unless agreed otherwise by the parties. . . . In the event of any dispute or litigation arising under or concerning this Agreement, the prevailing party shall be entitled to recover its costs and expenses including court costs and reasonable attorney's fees.

         Finally, paragraph nineteen of the Purchase Agreement provides that if the "sale of the vehicle described in this Agreement is conditioned upon an agreement by a third party financing institution ('finance institution') to purchase the retail installment contract entered into between you and [Nissan] ('contract') and if [Nissan] cannot sell the contract to a finance institution within a reasonable time period . . . [Nissan] may . . . cancel the contract."

         The pertinent terms of the Installment Contract include that the "Seller-Creditor" is Nissan and the merger clause: "This contract contains the entire agreement between you and [Nissan] relating to this contract. Any change to this contract must be in writing and [Nissan] must sign it." (Emphasis added.) The Installment Contract also provides that "if [Nissan] is unable to assign this contract within [the time period stated to assign the contract] to any one of the financial institutions with whom ...


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