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Kelly v. Duggan

Florida Court of Appeals, First District

October 23, 2019

Edward Michael Kelly, Appellant,
v.
Julie Duggan, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. John C. Cooper, Judge.

          David H. Abrams of the Law Office of David H. Abrams, Tallahassee, for Appellant.

          C. Todd Owen and William T. Jackson of Dennis, Jackson, Martin & Fontela, P.A., Tallahassee, for Appellee.

          M.K. THOMAS, J.

         Edward Michael Kelly ("Kelly") challenges the dismissal of his complaint against Julie Duggan ("Duggan") for alleged violations of the Florida Consumer Collection Practices Act ("FCCPA") in an unpaid condominium assessment dispute. Kelly argues the trial court erred in dismissing the complaint for failure to state a cause of action because condominium assessments qualify as "consumer debts" under the FCCPA. We agree and reverse.

         I. Facts

         A dispute arose between Kelly and Chez Sois Condominium Association[1] regarding disputed past due assessments. Kelly, a condominium owner and resident, contends that Duggan, President of the Association, violated the FCCPA by locking him out of a storage unit, making public derogatory statements about him, and disclosing information about his reputation to a vendor. He further claims he did not receive notice of a board meeting during which his common area privileges were considered and eventually suspended.

         Kelly seeks a declaration that Duggan violated the FCCPA, [2]an injunction against future violations, and statutory damages of $1, 000 and other monetary damages under section 559.77(2), Florida Statutes. Duggan moved to dismiss the complaint citing Bryan v. Clayton, 698 So.2d 1236 (Fla. 5th DCA 1997), rev. denied, 707 So.2d 1123 (Fla. 1998), cert. denied, 524 U.S. 933 (1998), which held that the Fair Debt Collection Practices Act ("FDCPA") and the FCCPA's definition of "debt" excludes maintenance assessments owed to a homeowner's association. Based on Bryan, the trial court dismissed the complaint. This appeal followed.

         II. Legal Analysis

         Because the question of whether condominium assessments fall within the purview of the FCCPA as a consumer debt is one of statutory interpretation, we review the issue de novo. See Kuria v. BMLRW, LLLP, 101 So.3d 425, 426 (Fla. 1st DCA 2012). The question of whether the complaint stated a cause of action is one of law, which is also reviewed de novo. Doe v. Baptist Primary Care, Inc., 177 So.3d 669, 674 (Fla. 1st DCA 2015) (quoting Locker v. United Pharm. Grp., Inc., 46 So.3d 1126, 1128 (Fla. 1st DCA 2010)).

         Both the FCCPA and its federal counterpart, FDCPA, regulate consumer debt collection in Florida. See § 559.552, Fla. Stat. (2016) ("Nothing in [FCCPA] shall be construed to limit or restrict the continued applicability of the federal [FDCPA] to consumer collection practices in this state. This part is in addition to the requirements and regulations of the federal act."). Although both generally apply to the same conduct, the acts are not identical. See Read v. MFP, Inc., 85 So.3d 1151, 1153 (Fla. 2d DCA 2012). A violation of the FDCPA does not automatically constitute a violation of the FCCPA. Id. Because the two acts are not strictly interchangeable, a plaintiff seeking damages under either the FDCPA or the FCCPA must allege and prove a violation of the act actually sued upon. Id. Here, Kelly raises only a violation of the FCCPA, the state law.

         The FCCPA provides that no person shall engage in certain practices while attempting to collect a consumer debt. § 559.72, Fla. Stat. (2016). To recover under the FCCPA, a plaintiff must first show that the money being collected qualifies as a "consumer debt." Agrelo v. Affinity Mgmt. Servs., LLC, 841 F.3d 944, 950 (11th Cir. 2016). The FCCPA defines "debt" or "consumer debt" as:

any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, ...

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