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Cox v. Department of Highway Safety and Motor Vehicles8/13/2004
Edward W. Cox ["Cox"] appeals an order dismissing a forfeiture action with prejudice.
On October 31, 2002, Michelle Lee Villanti ["Villanti"], while driving a 2000 Ford F150 truck owned by Cox, was involved in a crash. Villanti failed the roadside sobriety tests. In addition, the officer determined that Villanti's license had been suspended for a prior DUI and had never been reinstated. Villanti was arrested, and Cox's truck was seized.
The Florida Department of Highway Safety and Motor Vehicles ["DHSMV"] filed a complaint seeking forfeiture of Cox's vehicle pursuant to the "Florida Contraband Forfeiture Act," sections 932.701-932.707, Florida Statutes, and section *643 322.34(9), Florida Statutes (2001). [FN1] Attached to the complaint was a verified affidavit from the arresting officer, which included a statement, made by Villanti shortly after the crash, that Cox knew that her license had been suspended for DUI "a long time ago," but Cox still "gives her the keys."
FN1. Section 322.34(9), Florida Statutes (2001), states:
(9)(a) A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s. 316.193 is subject to seizure and forfeiture under ss. 932.701-932.707 and is subject to liens for recovering, towing, or storing vehicles under s. 713.78 if, at the time of the offense, the person's driver's license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence.
Cox exercised his right to an adversarial preliminary hearing, but no transcript of the hearing is contained in the record on appeal. In the order issued on November 18, 2002, the court found, based on the court's review of the complaint and the attached supporting affidavit, that the seizure was supported by probable cause.
Following entry of the order finding probable cause, Cox was granted leave to file an amended answer and counterclaim. As affirmative defenses, he asserted that the DHSMV had failed to act in "good faith" and had engaged in a "gross abuse" of its discretion. He also counterclaimed for damages, alleging that the DHSMV knew or should have known it had no "admissible evidence" to support its forfeiture complaint because an investigation would have revealed that Villanti had taken Cox's truck without his knowledge or permission. It further alleged that Cox had little or no equity in the truck at the time of the seizure due to a lien in favor of Citrus Bank. Based on these allegations, Cox asserted that he was entitled to recover:
damages including, but not limited to the fair rental value of his vehicle since the date of seizure, the diminution in market value caused by the passage of time during the seizure and retention of his vehicle, damages relating to any deterioration or damage to the vehicle while being seized and retained by the FLORIDA DEPARTMENT OF MOTOR VEHICLES & HIGHWAY SAFETY, costs of this action, and attorney's fees, pursuant to Section 57.105 and Section 932.704, Florida Statutes.
The DHSMV filed a motion to dismiss the counterclaim. The court entered an order dismissing Cox's counterclaim, explaining:
1. That any action for damages is premature until the merits of the forfeiture action are decided.
2. On authority of Wheeler v. Corbin, 546 So.2d 723 (Fla.1989), damages are not recoverable for loss of use as a consequence of seizure by a government agency.
3. The Respondent's Counterclaim is not a compulsory Counterclaim.
(Emphasis added).
Nine days later, the DHSMV dismissed the main forfeiture action with prejudice. Cox objected to the dismissal and, at a hearing on Cox's objection, the court seemingly agreed that Florida Rule of Civil Procedure 1.420(b) required the court to approve the dismissal. The DHSMV argued that the
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