Johnson et al v. Westlake Portfolio Management, LLC

Filing 23

ORDER denying 17 Motion to Compel arbitration; denying 22 Motion to file a reply. Signed by Judge Susan C. Bucklew on 9/15/20. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TAMMY L. JOHNSON and GARY A.
JOHNSON,
Plaintiffs,
v.

Case No. 8:20-cv-749-T-24 AEP

WESTLAKE PORTFOLIO
MANAGEMENT, LLC,
Defendant.
______________________________/
ORDER
This cause comes before the Court on Defendant’s Motion to Compel Arbitration and
Stay Action. (Doc. No. 17). Plaintiffs oppose the motion. (Doc. No. 20). As explained below,
the motion is denied.1
I. Background
In 2013, Plaintiff Gary Johnson purchased a 2009 Jeep Wrangler. (Doc. No. 1, ¶10). The
purchase was memorialized in a Retail Installment Sale Contract (“RISC”) between Mr. Johnson
and Crystal Motor Car Company of Hernando (“Seller”). (Doc. No. 17-1). The RISC states that
“Seller assigns its interest in this contract to Summit Financial,” as Mr. Johnson financed the
Jeep through Summit Financial Corporation (“Summit”). (Doc. No. 1, ¶10).

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Defendant also filed a motion to file a reply brief. (Doc. No. 22). The Court finds that a reply
is unnecessary and denies the motion, because Defendant’s proposed reply is not directed at the
issue that is the basis for the Court’s ruling—whether Plaintiff Tammy Johnson is bound by the
arbitration provision.

In April of 2019, the RISC “was transferred to, or purchased by, Defendant” Westlake
Portfolio Management, LLC. (Doc. No. 1, ¶ 13; Doc. No. 17-1, ¶ 5). Once Defendant took over
the financing of the Jeep, problems arose.
Specifically, in April of 2019, Plaintiff Tammy Johnson (Gary Johnson’s wife) attempted
to make a payment for the Jeep to Defendant over the phone. (Doc. No. 1, ¶14). Defendant
would not accept the payment, because the financing agreement was signed by Mr. Johnson, not
Mrs. Johnson. (Doc. No. 1, ¶15). Later, Defendant called Mrs. Johnson’s cell phone number in
an attempt to speak with Mr. Johnson and again denied Mrs. Johnson’s attempt to make the
payment. (Doc. No. 1, ¶ 19, 21). Eventually, Mrs. Johnson was able to speak to a representative
of Defendant that allowed her to make the April payment. (Doc. No. 1, ¶ 23). This payment
problem occurred again in May of 2019, but it is unclear whether Mrs. Johnson was ultimately
able to make the May payment. (Doc. No. 1, ¶ 24, 25).
In June of 2019, Defendant wrongfully repossessed the Jeep, despite Plaintiffs’ continued
payments. (Doc. No. 1, ¶ 26-28). Additionally, Defendant continued to call Mrs. Johnson’s cell
phone asking for Mr. Johnson despite Mrs. Johnson repeatedly informing Defendant that it was
not his cell phone number and to stop calling her cell phone number. (Doc. No. 1, ¶ 31-36).
Defendant made calls to Mrs. Johnson’s cell phone more than 125 times and during inconvenient
hours. (Doc. No. 1, ¶ 35-36).
As a result, Plaintiffs filed suit against Defendant and assert six claims. First, Mrs.
Johnson asserts a claim against Defendant for violating the Telephone Consumer Protection Act
(“TCPA”). Second, Plaintiffs assert a claim for violations of the Florida Consumer Collection
Practices Act (“FCCPA”). Third, Plaintiffs assert a conversion claim due to Defendant’s
repossession of the Jeep. Fourth, Plaintiffs assert an intentional infliction of emotional distress

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claim due to Defendant’s harassing phone calls, Defendant’s refusal to accept payments in an
attempt to force a default, and Defendant’s repossession of the Jeep. Fifth, Plaintiffs assert a
claim for invasion of privacy due to the repeated phone calls to Mrs. Johnson’s cell phone, which
were highly intrusive and disrupted Plaintiffs’ privacy. Sixth, Plaintiffs assert a claim of trespass
to chattels based on Defendant’s interference with Mrs. Johnson’s use of her cell phone (due to
Defendant’s repeated phone calls) and interference with Plaintiffs’ use of the Jeep (due to
Defendant’s repossession of it).
II. Motion to Compel Arbitration
Defendant moves the Court to compel arbitration of both Plaintiffs’ claims and to stay
this case. In support, Defendant relies on the Arbitration Clause in the RISC that provides the
following:
Any claim or dispute, whether in contract, tort, statute or otherwise
(including the interpretation and scope of this Arbitration Clause,
and the arbitrability of the claim or dispute), between you and us or
our . . . assigns, which arises out of or relates to your credit
application, purchase or condition of this vehicle, this contract, or
any resulting transaction or relationship (including any such
relationship with third parties who do not sign this contract) shall, at
your or our election, be resolved by neutral, binding arbitration and
not by court action. . . . This Arbitration Clause shall survive any
termination, payoff or transfer of this contract.
(Doc. No. 17-1).
In evaluating the motion, several issues arise: (1) whether Defendant was assigned the
RISC such that Defendant is a proper party that can enforce the Arbitration Clause; (2) whether
Mr. Johnson’s claims fall within the scope of the Arbitration Clause; and (3) whether Mrs.
Johnson—a non-signatory to the RISC—is bound by the RISC’s Arbitration Clause, and if so,
whether her claims fall within the scope of the Arbitration Clause. Defendant has stated in its
motion that if the Court finds that Mrs. Johnson’s claims are not arbitrable, Defendant wants
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both Plaintiffs’ claims to remain before this Court. (Doc. No. 17, p. 8). As explained below, the
Court finds that Mrs. Johnson is not bound by the RISC’s Arbitration Clause, and as such, her
claims are not arbitrable. Further, based on Defendant’s desire to try all of the claims in one
forum, the Court denies the motion to compel arbitration.
In determining whether Mrs. Johnson is bound by the RISC’s Arbitration Clause, the
Court will assume that Defendant is a proper party that can enforce the Arbitration Clause.
Defendant acknowledges that Mrs. Johnson did not sign the RISC that contained the Arbitration
Clause. However, Defendant argues that she is bound by the Arbitration Clause, despite being a
non-signatory, under the doctrine of equitable estoppel.
Specifically, Defendant argues that arbitration may be compelled against a non-signatory
to an arbitration agreement if state law would allow the agreement to be enforced against the
non-signatory. Defendant further argues that Florida’s doctrine of equitable estoppel allows it to
enforce the Arbitration Clause against Mrs. Johnson. The Court rejects this argument as to
several of Mrs. Johnson’s claims.
Florida’s doctrine of equitable estoppel, in the context of a motion to compel arbitration,
precludes a party from claiming the benefits of a contract (i.e., suing to enforce a contractual
provision) while simultaneously attempting to avoid the arbitration provision within the contract.
See Guy Roofing, Inc. v. Angel Enterprises, LLC, 2018 WL 1863764, at *4 (S.D. Fla. Mar. 1,
2018), adopted by 2018 WL 1863602 (S.D. Fla. Mar. 20, 2018). Thus, when a party must rely
on the terms of the contract containing an arbitration provision in order to assert their claims, that
party can be equitably estopped from avoiding the contract’s arbitration provision. See Schreiber
v. Ally Financial Inc., 634 Fed. Appx. 263, 264-65 (11th Cir. 2015); Bailey v. ERG Enterprises,
LP, 705 F.3d 1311, 1320 (11th Cir. 2013); Allscripts Healthcare Solutions, Inc. v. Pain Clinic of

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Northwest Florida, Inc., 158 So. 3d 644, 646-47 (Fla. 3d DCA 2014); Marcus v. Florida Bagels,
LLC, 112 So. 3d 631, 634 (Fla 4th DCA 2013).
In the instant case, Mrs. Johnson is asserting the following six claims: violation of the
TCPA, violation of the FCCPA, conversion, intentional infliction of emotional distress, invasion
of privacy, and trespass to chattels. At a minimum,2 Mrs. Johnson’s TCPA, FCCPA, and
invasion of privacy claims are not based on the RISC containing the Arbitration Clause; she
could assert these claims regardless of whether Mr. Johnson entered into the RISC to buy the
Jeep. See Mims v. Global Credit & Collection Corp., 803 F. Supp.2d 1349, 1358 (S.D. Fla.
2011)(denying motion to compel arbitration, because the plaintiff’s TCPA and FDCPA claims
were not based on the underlying agreement that created the debt and contained an arbitration
provision); Ray v. NPRTO Florida, LLC, 322 F. Supp.3d 1261, 1263 (M.D. Fla. 2017)(denying
motion to compel arbitration, because the plaintiff’s TCPA and FDCPA claims were not based
on the underlying lease agreement, which created the debt and contained an arbitration provision,
and which the plaintiff did not sign), aff’d 743 Fed. Appx. 955 (11th Cir. 2018). Thus, because
these claims are independent of the RISC, Mrs. Johnson cannot be compelled to arbitrate these
claims. See Rolls-Royce, PLC v. Royal Caribbean Cruises Ltd., 960 So. 2d 768, 770 (Fla. 3d
DCA 2007). Further, based on Defendant’s desire to try all of the claims in one forum, the Court
denies the motion to compel arbitration.
The Court notes that there is another basis upon which to find that Defendant cannot
compel Mrs. Johnson to arbitrate her claims. The Arbitration Clause, by its own terms, only
applies to claims and disputes “between you and us or our . . . assigns.” (Doc. No. 17-1). The

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To the extent that Mrs. Johnson’s intentional infliction of emotional distress and trespass to
chattels claims are based on Defendant’s allegedly harassing phone calls, those claims are also
independent of the RISC.
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RISC defines “you” as the Buyer, which is identified therein as Gary Johnson. (Doc. No. 17-1).
Thus, even if the Court assumes that Defendant is an assignee that is able to enforce the
Arbitration Clause, the Arbitration Clause only covers claims and disputes by or against Mr.
Johnson. See Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351,
1355 (11th Cir. 2017)(affirming the denial of the Kardashians’ motion to compel Kroma EU to
arbitrate its claims against them, because the arbitration agreement only covered claims between
the Parties thereto, and “the Parties” to the agreement were Tillet and Kroma EU; the arbitration
agreement did not cover claims between Kroma EU and the Kardashians).
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)

Defendant’s Motion to File a Reply (Doc. No. 22) is DENIED.

(2)

Defendant’s Motion to Compel Arbitration and Stay Action (Doc. No. 17) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 15th day of September, 2020.

Copies to:
Counsel of Record

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