LEGAL FILE

'Lucky' dealership prevails in dispute over 'bullying' charge, attorney fees

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Car buyers who at trial beat a Miami-area dealership's claim that they didn't make a down payment in their spot delivery deal aren't entitled to attorney fees, a Florida Court of Appeal panel has ruled.

The three-judge panel also wouldn't reinstate the buyers' counterclaims of "bullying" against Klein Automotive Inc., which did business as Beach Honda in North Miami Beach. The business was sold after the deal.

The appeals panel noted in its ruling that the dealership was "very lucky." The car buyers' attorney has asked the court to reconsider its decision.

According to the appeals court, Alba Tylinski and her daughter bought a new 2006 Civic in June 2006, receiving a $2,000 trade-in allowance. The dealership's finance manager handled the deal.

Both the retail order contract and the sales contract show a $4,000 cash down payment, but the Tylinskis didn't receive a receipt. The retail order contract had a provision that said the form did not constitute evidence of a cash payment and that only a separate receipt provided evidence of a cash payment.

Beach Honda told the Tylinskis that financing was approved and gave them the car, but American Honda Finance Corp. rejected their application. The Tylinskis then signed a new financing agreement, were again allowed to take the car, and made two payments. But the second lender canceled the assignment when the dealership claimed it couldn't find the down payment.

The Tylinskis claimed Beach Honda employees then harassed them about 20 times with threats of repossession, criminal charges, ruination of their credit and civil litigation.

The Tylinskis signed a third retail order contract and another sales contract with monthly payments about $50 higher after Beach Honda agreed to "eat" the $4,000. The Tylinskis again took the car, and the dealership successfully assigned the contract to a third lender.

The finance manager was later terminated for "performance" and "violation of policies and procedures," the appeals court noted. Dealership lawyer Alex Kurkin, of Aventura, Fla., said the termination was unrelated to the Tylinski transaction.

Beach Honda sued the Tylinskis for breach of contract and recovery of the $4,000, and the Tylinskis counterclaimed for compensatory and punitive damages for deceptive trade practices, slander and violations of the Consumer Collections Practices Act. A lower court judge ruled in the Tylinskis' favor on the contract claim but denied attorney fees and dismissed the counterclaims.

Upholding that decision, the appeals panel said Beach Honda had sued based only on the retail order contract, which had no attorney fee provision, and not on the sales contract, which allowed attorney fees.

The dealership was "very lucky," appellate Judge Richard Suarez said.

But the Tylinskis' lawyer, Richard Hussey of Fort Lauderdale, said: "The transaction would not have occurred without both contracts," and that both contracts were exhibits at trial.

The panel also agreed with the trial judge that the Tylinskis didn't provide enough evidence to support their counterclaims based on the store's allegedly "heavy-handed and bullying tactics."

Hussey, who said attorney fees are now about $71,000, has asked the court to reconsider its decision.

Kurkin, the dealer lawyer, said the case shows that all dealers' buyer agreements should require a separate receipt as proof of a down payment, especially because some transactions occur at night when employees responsible for handling cash have gone home. He added that the provision in the Beach retail order contract and the Tylinskis' lack of a receipt "were the most compelling part of the case."

You can reach Eric Freedman at freedma5@msu.edu.

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