FORT LAUDERDALE LINCOLN MERCURY, INC., D/B/A SOUTH FLORIDA LEASING & RENTALS, APPELLANT/CROSS-APPELLEE,
v.
DAVID FALLARO, APPELLEE/CROSS-APPELLANT
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Fort Lauderdale Lincoln Mercury appealed a trial court judgment that ruled in its favor on a breach of contract claim but against it on an odometer disclosure claim under federal law. The appellate court reversed, finding the trial court applied an incorrect legal standard for intent under 15 U.S.C. § 1989 and erred in denying lost profits as compensatory damages.
The trial court applied an incorrect intent standard by requiring 'willful and wanton conduct' when § 1989 requires only that the transferor reasonably should have known the odometer reading was incorrect. Additionally, lost profits are recoverable as compensatory damages in a breach of contract action when they can be ascertained with reasonable certainty.
[1] A violation of 15 U.S.C. …
[2] A court may infer intent to defraud under 15 U.S.C. …
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Join FLexlaw to unlock all legal intelligence“Section 1989(a) provides that 'any person who, with intent to defraud, violates any requirement imposed under this sub-chapter shall be liable in any amount equal to the sum of: (1) three times the amount of actual damages sustained or $1,500, whichever is greater'”
Establishes the statutory damages available under the odometer disclosure statute
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Join FLexlaw to unlock all legal intelligenceA dispute arose between Fort Lauderdale Lincoln Mercury and David Fallaro regarding the sale or lease of a motor vehicle. The trial court found in fav…
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PER CURIAM.
Fort Lauderdale Lincoln Mercury, Inc. appeals from a final judgment in its favor on a common law breach of contract claim and against it on an odometer disclosure claim predicated on 15 U.S.C. sections 1988 and 1989 (1988).1 Appellant argues that the trial court employed an improper “intent” standard under 15 U.S.C. § 1989.
Additionally, appellant argues that the trial court erred when it failed to award lost profits as damages on the breach of contract claim.
We agree a,nd reverse. Section 1989(a) provides that “any person who, with intent to defraud, violates any requirement imposed under this sub-chapter shall be liable in any amount equal to the sum of: (1) three times the amount of actual damages sustained or $1,500, whichever is greater”, and attorneys fees and costs.
Pursuant to the trial court’s written order, it found that there was an insufficient showing of fact to constitute willful and wanton conduct by appellee to meet section 1989’s burden. Willful and wanton conduct is not the correct intent standard. See, e.g., Bill Terry’s Inc. v. Atlantic Motor Sales, 409 So. 2d 507, 509 (Fla. 1st DCA 1982); Ryan v. Edwards, 592 F. 2d 756 (4th Cir.1979). Nieto v. Pence, 578 F. 2d 640 (5th Cir.1978) (if a transferor reasonably should have known that a vehicle’s odometer reading was incorrect, a court may infer that the transfer-or understood the risk of such an occurrence to have intended to defraud). As the court applied the wrong standard for intent, this matter must be reversed.
We also address appellant’s second point that the trial court erred when denying its request for lost profits as a portion of compensatory damages. The correct measure of damages in a breach of contract action includes the lost profits which would have resulted from the performance of the contract if the lost profits can be ascertained within a reasonable degree of certainty. See, e.g., Ed. L. Nezelek v. Southern Bell Telephone & Telegraph Co., 383 So. 2d 979 (Fla. 4th DCA 1980); Ed Skoda Ford, Inc. v. P & P Paint & Body Shop, Inc., 302 So. 2d 461 (Fla. 3d DCA 1974), cert. denied, 315 So. 2d 179 (Fla.1975). Because appellant’s claim for lost profits was not speculative, appellant is entitled to recover its lost profits as a portion of its compensatory damages.
Reversed and remanded for further proceedings.
GLICKSTEIN, C.J., and LETTS and WARNER, JJ., concur. . Subchapter IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1988(a) requires that when ownership of a motor vehicle is transferred the transferor must provide: (1) Disclosure of the cumulative mileage registered on the odometer; (2) Disclosure that the actual mileage in unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.
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Authorities Cited
- Ryan v. Edwards, 592 F.2d 756 (4th Cir. 1979)
- Nieto v. Pence, 578 F.2d 640 (5th Cir. 1978)
- Bill Terry's Inc. v. Atl. Motor Sales, Inc., 409 So. 2d 507 (Fla. 1st DCA 1982)
- Edward L. Nezelek, Inc. v. S. Bell Tel. & Tel. Co., 383 So. 2d 979 (Fla. 4th DCA 1980)
- ED Skoda Ford, Inc. v. P & P Paint & Body Shop, Inc., 302 So. 2d 461 (Fla. 3d DCA 1974)
- THE Florida BAR v. Mason, 315 So. 2d 179 (Fla. 1975)
- City OF Hallandale v. Sage Corp., 315 So. 2d 179 (Fla. 1975)