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Court: Dentist's office violated TCPA with one-page fax to Palm Beach Golf Center

By Kyla Asbury | Nov 13, 2014

ATLANTA (Legal Newsline) - A federal appeals court has ruled that a local dentist's office wrongfully sent Palm Beach Golf Center-Boca Inc. an unsolicited fax advertisement, which violated the Telephone Consumer Protection Act.

A class action lawsuit against John G. Sarris D.D.S., PA, was remanded back to federal court after a three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled that Palm Beach Golf Center properly pled a claim of conversion against Sarris.

"Based on the foregoing, we reverse the summary judgment entered against Palm Beach Golf for its statutory claim brought under the TCPA, and its common law conversion claim, and remand to the District Court for reconsideration in light of this opinion," the Oct. 30 opinion filed in the U.S. Court of Appeals for the 11th Circuit states.

Circuit Judge Beverly B. Martin and U.S. Court of International Trade Judge Richard K. Eaton voted in the majority, with Eaton authoring the opinion.

U.S. District Judge Robert L. Hinkle concurred in part and dissented in part.

The U.S. District Court for the Southern District of Florida's dismissal of Palm Beach Golf’s conversion claim on the basis that it failed to satisfy Florida’s heightened pleading standard was error, according to the majority opinion.

"Under the federal rules, all that was required of Palm Beach Golf to withstand a dismissal of its claim on this ground, was to plead in its complaint 'a short and plain statement of the claim showing that [it was] entitled to relief," the opinion states. "Palm Beach Golf met its burden. In its complaint, Palm Beach Golf alleged that Sarris, D.D.S.'s sending of 'unsolicited faxes...permanently misappropriated [plaintiff’s] fax machine, toner, paper and employee time to defendant['s] own use.'"

This statement was sufficient to satisfy Rule 8(a)(2)'s liberal pleading standard and give fair notice to Sarris D.D.S. of what Palm Beach Golf’s claim was and the grounds upon which it rested, according to the opinion.

On Dec. 13, 2005, Palm Beach Golf received an unsolicited one-page fax advertisement, promoting dental services provided by Sarris.

Palm Beach Golf brought a class action suit against Sarris, claiming that the fax advertisement violated the Telephone Consumer Protection Act and gave rise to common law claims for conversion.

A class action lawsuit against Sarris was filed in state court in 2009 and removed to federal court on Feb. 16, 2012.

The district court granted summary judgment in favor of Sarris by minute entry on Aug. 2, 2013, immediately following oral argument.

In his concurring in part and dissenting in part opinion, Hinkle said he concurs in all respects by one.

"I dissent from the holding that the plaintiff has stated a common-law conversion claim on which relief can be granted," his opinion states. "An unsolicited fax, like an unsolicited telephone call, ties up the recipient’s telephone line or analogous facility. Unsolicited telephone calls have been with us for as long as telephones themselves. Without more, an unsolicited telephone call has never been thought to be a conversion of the recipient’s telephone line. Neither is an unsolicited fax."

Similarly, an unsolicited email does not convert the recipient’s internet connection. Unsolicited snail mail does not convert the recipient’s mail box, according to his opinion.

"To be sure, a fax may use the recipient’s paper and toner, but that is so less and less often; surely the days when messages are received this way are near an end," his opinion states. "Here the recipient had a machine that indeed used paper and toner. Whether there was paper in the machine and this message was printed is uncertain, but I assume a jury could infer that it was."

Palm Beach Golf chose to have a fax line and to print faxes, his opinion states.

"In my view, a person does not suffer a common-law conversion when the person chooses to connect a fax machine to a network, chooses to use paper and toner to print faxes, and then receives an unsolicited fax."

The plaintiffs are represented by Phillip A. Bock and Daniel J. Cohen of Bock & Hatch LLC; Ryan Michael Kelly and Brian J. Wanca of Anderson & Wanca; Leslie Mitchell Kroeger of Cohen Milstein Sellers & Toll PLLC; and Gregory Scott Weiss of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss.

Sarris is represented by Molly A. Arranz and Eric L. Samore of Smith Amundsen LLC; and Kevin David Franz and William Stuart Reese of Lane Reese Summers Ennis & Perdomo PA.

U.S. Court of Appeals for the 11th Circuit case number: 13-14013

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.

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