OMER BECHOR, ET AL.

v.

SIMCENTER, INC., ET AL.

Third District Court of Appeal State of Florida

Opinion filed June 12, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-0230 Lower Tribunal No. 11-36773 ________________

Omer Bechor, et al., Appellants,

vs.

Simcenter, Inc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge.

Law Offices of Tony B. Jobe, and Tony B. Jobe (Covington, LA); Bruce David Green, P.A., and Bruce D. Green (Fort Lauderdale), for appellants.

The Savage Law Group, P.A., and George S. Savage, for appellee Henry George.

Before LOGUE, C.J., and GORDO and BOKOR, JJ.

BOKOR, J.

2

Appellants, former students at a flight school, appeal a grant of summary judgment in favor of Appellee (and defendant below), Henry George, on a claim brought under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). The former students contend that the trial court erred by finding that their complaint failed to allege sufficient facts to support a cognizable FDUTPA claim against George in his individual capacity, as opposed to his company, Simcenter, Inc. Because the evidence indicates a genuine issue of material fact, we reverse.

FACTS

The former students attended a flight training school called Jet University, Inc. (JetU), which was owned and operated by codefendant Heath Cohen. JetU’s promotional materials advertised having an affiliate relationship and job placement services with Pinnacle Airlines, Inc., as well as various permutations of an express “job guarantee” promising free remedial training if students were not hired into a first officer position within six months of completing the program. JetU also represented having “exclusive financing programs” that would allow students to cover tuition and living expenses with financial aid. Because JetU was not accredited by the Department of Education, its students were not eligible to receive student loans. Consequently, Cohen

ANALYSIS

“The standard of review on orders granting final summary judgment is de novo.” Ibarra v. Ross Dress for Less, Inc., 350 So. 3d 465, 467 (Fla. 3d DCA 2022) (quoting Orozco v. McCormick 105, LLC, 276 So. 3d 932, 935 (Fla. 3d DCA 2019)). On review of a motion for summary judgment, we take all facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. See, e.g., Cascar, LLC v. City of Coral Gables, 274 So. 3d 1231, 1234 (Fla. 3d DCA 2019).

To be entitled to summary judgment, the movant must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). A dispute of fact is

6

FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. Accordingly, “a consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006). “[U]nlike fraud, a party asserting a deceptive trade practice claim need not show actual reliance on the representation or omission at issue.” State, Office of Att’y Gen., Dep’t of Legal Affs. v. Wyndham Int’l, Inc., 869 So. 2d 592, 598 (Fla. 1st DCA 2004). An “unfair practice” has been defined as “one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (quotations omitted). Additionally, with respect to FDUTPA claims against a corporate officer, In order to prove individual liability it is necessary to show that an individual defendant actively participated in or had some measure of control over the corporation’s deceptive practices. In addition, to hold a corporate officer liable for monetary restitution, a plaintiff is also required to establish that the defendant had or should have had knowledge or awareness of the misrepresentations. Similarly, it has long been the law in Florida that in order to proceed against an individual using a FDUTPA violation theory an aggrieved party must allege that the individual was a direct participant in the improper dealings.

7 KC Leisure, Inc. v. Haber, 972 So. 2d 1069, 1073–74 (Fla. 5th DCA 2008) (citations omitted); see also Wyndham, 869 So. 2d at 598.

Here, the facts of the complaint, supported by affidavit, sufficiently allege that Mr. George directed, controlled, and participated in the deceptive representations that formed the basis of the claim, and that these representations caused the former students’ damages. The students claim that George, who was the sole officer and shareholder of Simcenter, misrepresented JetU’s student loan eligibility and financing programs, exaggerated its placement services, failed to provide the full flight training upon full payment of tuition, and failed to provide a “guaranteed job” or remedial training upon termination of the program, resulting in the former students being enticed to incur extensive costs for unprovided training. The students claim that George was a direct and intentional participant in making these representations, and the record further indicates that George acknowledged being the only person authorized to execute documents on Simcenter’s behalf, knew that JetU was not authorized to receive student loans, and personally negotiated the subcontractor agreement with JetU and Cohen. Cohen also attested that George personally directed the distribution of the student loan payments from Simcenter to JetU and never informed the bank that the funds were going to

9

“If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985). Thus, because George has failed to show that the students lacked sufficient evidence to support Count XVI of their complaint, summary judgment should not have been granted. Reversed and remanded.