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Cox v. Dep't of Highway Safety and Motor Vehicles8/13/2004
ess." § 932.704(9)(b), Fla. Stat.
The DHSMV contends that Cox has waived his right to recover damages and fees under Chapter 932 by taking inconsistent positions regarding his right to maintain an independent action for wrongful seizure. This argument is based on a statement made by the trial court at the hearing on Cox's objections to dismissal that Cox had previously stated that the counterclaim was permissive. We do not have this statement in the record, but assuming this was said, confusion on this issue is understandable because of uncertain case law concerning the availability of an independent action. In any event, our Pondella Hall for Hire case clarified the status of a section 932.704 claim.
The DHSMV also argues that Cox's claim for fees and damages is moot because Cox's truck has been repossessed by the lender. The fact may limit damages but does not necessarily eliminate them.
Here, the court gave approval for the DHSMV to voluntarily dismiss the forfeiture action, but it was error to dismiss the entire action with prejudice. Cox should have an opportunity to replead to try to state a cause of action under section 932.704, Florida Statutes (2001).
REVERSED and REMANDED.
PETERSON and ORFINGER, JJ., concur.
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