Opinion
CASE NO. 20-60972-CIV-SINGHAL/VALLE CASE NO. 21-80645-CIV-SINGHAL/VALLE
2022-03-28
Shana DOTY, Plaintiff, v. ADT, LLC d/b/a ADT Security Services, and Telesforo Aviles, Defendants. Randy Doty, v. ADT, LLC d/b/a ADT Security Services and Telesforo Aviles, Defendants.
Amy K. Carter, Pro Hac Vice, Heather V. Davis, Pro Hac Vice, Carter Law Group PC, Matthew Ryan McCarley, Pro Hac Vice, Christopher Michael Brown, John Warren Raggio, Fears Nachawati Law Firm, Dallas, TX, Benjamin H. Richman, Pro Hac Vice, J. Eli Wade-Scott, Pro Hac Vice, Jay Edelson, Pro Hac Vice, Nicholas H. Rosinia, Pro Hac Vice, Edelson PC, Chicago, IL, Natalia Maria Salas, The Ferraro Law Firm, P.A., Miami, FL, Karina de Oliveira Rodrigues, Kelley/Uustal, PLC, Fort Lauderdale, FL, for Plaintiff in 20-60972-CIV. Alfred John Saikali, Jennifer Ann McLoone, Shook, Hardy & Bacon L.L.P., Miami, FL, Charles C. Eblen, Pro Hac Vice, Jason R. Scott, Pro Hac Vice, Kerensa E.B. Cassis, Pro Hac Vice, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendant ADT, LLC in 20-60972-CIV. Amy K. Carter, Pro Hac Vice, Heather V. Davis, Pro Hac Vice, Carter Law Group PC, Matthew Ryan McCarley, Pro Hac Vice, Christopher Michael Brown, Fears Nachawati Law Firm, John Warren Raggio, Dallas, TX, J. Eli Wade-Scott, Pro Hac Vice, Jay Edelson, Pro Hac Vice, Nicholas H. Rosinia, Pro Hac Vice, Edelson PC, Chicago, IL, for Plaintiff in 21-80645. Jennifer Ann McLoone, Shook, Hardy & Bacon L.L.P., Miami, FL, for Defendant ADT, LLC in 21-80645.
Amy K. Carter, Pro Hac Vice, Heather V. Davis, Pro Hac Vice, Carter Law Group PC, Matthew Ryan McCarley, Pro Hac Vice, Christopher Michael Brown, John Warren Raggio, Fears Nachawati Law Firm, Dallas, TX, Benjamin H. Richman, Pro Hac Vice, J. Eli Wade-Scott, Pro Hac Vice, Jay Edelson, Pro Hac Vice, Nicholas H. Rosinia, Pro Hac Vice, Edelson PC, Chicago, IL, Natalia Maria Salas, The Ferraro Law Firm, P.A., Miami, FL, Karina de Oliveira Rodrigues, Kelley/Uustal, PLC, Fort Lauderdale, FL, for Plaintiff in 20-60972-CIV.
Alfred John Saikali, Jennifer Ann McLoone, Shook, Hardy & Bacon L.L.P., Miami, FL, Charles C. Eblen, Pro Hac Vice, Jason R. Scott, Pro Hac Vice, Kerensa E.B. Cassis, Pro Hac Vice, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendant ADT, LLC in 20-60972-CIV.
Amy K. Carter, Pro Hac Vice, Heather V. Davis, Pro Hac Vice, Carter Law Group PC, Matthew Ryan McCarley, Pro Hac Vice, Christopher Michael Brown, Fears Nachawati Law Firm, John Warren Raggio, Dallas, TX, J. Eli Wade-Scott, Pro Hac Vice, Jay Edelson, Pro Hac Vice, Nicholas H. Rosinia, Pro Hac Vice, Edelson PC, Chicago, IL, for Plaintiff in 21-80645.
Jennifer Ann McLoone, Shook, Hardy & Bacon L.L.P., Miami, FL, for Defendant ADT, LLC in 21-80645.
ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon Defendant ADT LLC's Motion for Summary Judgment (DE [151]). The parties have fully briefed the Motion. For the reasons discussed below, the Motion for Summary Judgment is granted in part and denied in part.
I. INTRODUCTION
Plaintiff, Shana Doty ("Doty") contracted with Defendant ADT, LLC ("ADT") for a Pulse home alarm service which provided an internet-connected smart home system including camera surveillance inside and outside her home. The system was installed in March 2015. On December 7, 2019, an ADT technician, Telesforo Aviles ("Aviles") visited Doty's home and added himself to her account as an authorized user. That addition enabled Aviles to access the Pulse system, remotely arm or disarm the system, unlock doors, and access security cameras. (DE [176] ¶ 57). Between December 7 and 18, 2019, Aviles accessed Doty's Pulse system at least 45 times. (Id. ¶ 52). ADT's logs for Doty's account do not show any live camera events by Aviles during this time. (DE [152 ¶ 29). It is unknown, however, whether Aviles accessed stored video on Doty's Pulse account. (Id. ¶ 30).
In addition to Doty's account, Aviles accessed at least 215 other ADT customers’ systems more than 9,600 times over a period of seven years. (DE [176] ¶ 53). ADT learned of Aviles’ conduct in March 2020, when a customer reported an intrusion into his system. (DE [176] ¶ 82). ADT reported the intrusion to Doty in April 2020.
Doty filed suit alleging breach of contract, negligence, violation of Texas’ consumer protection statute (DTPA), negligent hiring, supervision, and retention of Aviles, and intentional infliction of emotional distress. Doty seeks damages and injunctive relief in the form of continued privacy monitoring, as well as exemplary and punitive damages, where applicable, attorney's fees and costs to the extent allowable, and pre- and post-judgment interest.
Doty, who is a citizen of Texas, originally sued on behalf of a class of ADT customers whose home security systems were accessed by Aviles. She established jurisdiction pursuant to 28 U.S.C. § 1332(d)(2) because at least one member of the class was a citizen of a different state than ADT and the amount in controversy exceeded $5 million and none of the statutory exceptions apply. ADT LLC is a limited liability company, the citizenship of which is determined by the citizenship of its members. ADT's sole member is The ADT Security Corporation, a Delaware corporation with its principal place of business located in Boca Raton, Florida. ADT Security Corporation is a citizen of Delaware and Florida. ADT LLC is therefore a citizen of Delaware and Florida. (DE [184]). Doty withdrew her class action allegations and is proceeding as an individual. (DE [189]).
The Court dismissed Doty's claims for intrusion upon seclusion and for violation of the Computer Fraud and Abuse Act, 18, U.S.C. § 1030, for failure to state a claim upon which relief could be granted. (DE [85]).
The parties have conducted extensive discovery and trial is scheduled to commence in March 2022. ADT moves for summary judgment (DE [151]) and asks for judgment in its favor on every claim.
II. LEGAL STANDARDS
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment "is appropriate only if ‘the movant shows that there is no genuine [dispute] as to any material fact and the movant is entitled to judgment as a matter of law.’ " Tolan v. Cotton , 572 U.S. 650, 656–57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a) );see alsoAlabama v. North Carolina , 560 U.S. 330, 344, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (2010). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" if a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver , 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is "material" if, "under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1259–60 (11th Cir. 2004). "[W]here the material facts are undisputed and do not support a reasonable inference in favor of the non-movant, summary judgment may properly be granted as a matter of law." DA Realty Holdings, LLC v. Tenn. Land Consultants , 631 Fed. Appx. 817, 820 (11th Cir. 2015).
The 2010 Amendment to Rule 56(a) substituted the phrase "genuine dispute" for the former " ‘genuine issue’ of any material fact."
The Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. SEC v. Monterosso , 756 F.3d 1326, 1333 (11th Cir. 2014). However, to prevail on a motion for summary judgment, "the nonmoving party must offer more than a mere scintilla of evidence for its position; indeed, the nonmoving party must make a showing sufficient to permit the jury to reasonably find on its behalf." Urquilla-Diaz v. Kaplan Univ. , 780 F.3d 1039, 1050 (11th Cir. 2015). "[T]his, however, does not mean that we are constrained to accept all the nonmovant's factual characterizations and legal arguments." Beal v. Paramount Pictures Corp. , 20 F.3d 454, 459 (11th Cir. 1994).
III. DISCUSSION
A. Breach of Contract
To establish a breach of contract action under Texas law, a plaintiff must show "(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the defendant; and (4) damages suffered by the plaintiff as a result of the breach." Mullins v. TestAmerica, Inc., 564 F.3d 386, 419 (5th Cir. 2009). ADT argues that Doty cannot recover damages for breach of contract because she only claims emotional damages. Alternatively, ADT argues that the parties’ contract limits contractual damages to $500. ADT also argues that Doty is not entitled to attorney's fees under Texas law.
1. Emotional damages
According to ADT, Texas law does not support a claim for mental anguish damages arising from a breach of a contract. SeeCity of Tyler v. Likes, 962 S.W.2d 489, 498 (Tex. 1997) ("we have consistently and recently held that without proof of heightened culpability, mental anguish is not recoverable under other causes of action for injuries to economic rights such as breach of contract"); Hallmark v. Hand , 885 S.W.2d 471, 481 (Tex. App. 1994) ("mental anguish damages are not recoverable in a cause of action for breach of contract nor in a tort action arising from a contractual breach"). Doty, however, correctly notes that the exception to "the general rule that mental anguish damages may not be recovered in an action for breach of contract ... has been recognized in a limited number of situations...." Dean v. Dean, 821 F.2d 279, 281 (5th Cir. 1987) (applying Texas law).
One Texas court described the exception this way:
Where the contract is personal in nature and the contractual duty or obligation is so coupled with matters of mental concern or solicitude, with the sensibilities of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, and it should be known to the parties from the nature of the contract that such suffering will result from its breach, compensatory damages therefor may be recovered.
Pat H. Foley & Co. v. Wyatt , 442 S.W.2d 904, 906 (Tex. Civ. App. 1969) (quoting Lamm v. Shingleton , 231 N.C. 10, 55 S.E.2d 810 (1949) ). Such recovery is only available "in certain types of contracts" where mental anguish can be reasonably contemplated to be caused by a breach. Dean, 821 F.2d at 282. These include contracts for services relating to the handling of dead bodies, failure to deliver an important telegram, a promise to marry, and "a common carrier's refusal to honor a passenger's ticket for travel." Id. (collecting cases). Damages for mental distress can, therefore, be recovered for breach of contract if it is shown that the mental anguish is "more than ordinary regret or annoyance" and that "the mental anguish was such a necessary and natural result of the breach of contract as to have been made within the contemplation of the defendant at the time the contract was made." Delgado v. Methodist Hosp., 936 S.W.2d 479, 485 (Tex. App. 1996). Doty argues that her claim meets both conditions. a. Contemplated damages
Doty has raised a genuine dispute of fact as to whether her mental damages were within the contemplation of the parties at the time the contract was made. She contracted with ADT for ADT to provide a security system that included a bookshelf camera in her home. (DE [55]). The Amended Complaint (DE [47]) alleges a breach of an implied covenant "to provide a security system that was suitable for its advertised purpose and not to contain design flaws that render it and/or access to it vulnerable to unauthorized intrusion resulting in the compromise of user safety and security." (DE [47], ¶ 61). This Court previously held that the parties’ contract implied a secure monitoring system that would be secure from intrusion by ADT's employees. (DE [85], p. 6).
Doty has presented evidence that ADT marketed itself as a leader in the home security industry who used professional installers and that its system provided "peace of mind" and "protection." (DE [176] ¶¶ 40-43). The Pulse system was marketed to parents as a way to keep an eye on their children. (Id. ¶ 42). Additionally, Doty presented testimony that when selling the Pulse system, ADT knew that security and privacy were paramount concerns to customers. (Id., ¶ 44). Doty testified that she felt comfortable installing an indoor ADT security camera based upon ADT's reputation and prominence in the industry. (Id., ¶ 49). There is, therefore, at least a genuine dispute of material fact as to whether it was within the parties’ contemplation at the time of contract formation that Doty would suffer mental anguish from the alleged breach of the contract.
b. Mental anguish
Doty filed an affidavit (DE [175-1]) in response to ADT's Motion for Summary Judgment in which she describes the emotional toll she claims to have experienced after hearing about Aviles’ access to her Pulse account. She constantly worries that Aviles saw her, her husband, or their son in states of undress and in private intimate moments. She fears that Aviles has or may in the future upload pictures or videos onto the internet. Her home no longer feels safe, she feels "on edge" in public spaces, and has a hard time trusting people. She struggles to sleep at night and often gets up to make sure the doors are locked and whether the blinds are closed. She often keeps the blinds closed during the day because she worries that somebody is watching her. Doty reports that as time has gone on, her emotional pain, stress, and anxiety have gotten increasingly more severe. This level of mental anguish rises above the level of normal regret or annoyance and would be recoverable. Delgado, 936 S.W.2d at 485.
ADT claims, however, that Doty's affidavit should be stricken as a sham affidavit because it contains new factual allegations that contradict her prior deposition testimony. SeeRollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987) ("a party cannot give ‘clear answers to unambiguous questions’ in a deposition and thereafter raise an issue of material fact in a contradictory affidavit that fails to explain the contradiction").
Under the sham affidavit rule, "[a]n affidavit may be stricken as a sham when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." The court making this determination must be careful to distinguish "between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence."
Rodriguez v. Jones Boat Yard, Inc., 435 Fed. Appx. 885, 887–88 (11th Cir. 2011) (citing Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986) (citations omitted)).
The Court has read Doty's deposition testimony and affidavit and finds that there are no material contradictions that would render the affidavit a "sham." She was asked in deposition if she claims any emotional injuries as a result of Mr. Aviles’ conduct and responded as follows:
The emotional side is you – the invasion of privacy and how your mind can just wander and go all over the place to what this man saw, whether it was me or – you know, you're some crazy little person. Maybe you're into little boys. I just don't know; and that is creepy ... I mean, it's something that's been on my mind pretty much every day you know.... then you get this that happens and then now you're questioning everything. You're questioning your security. You're questioning am I safe in my own home. So the emotional drainage of that, of the not knowing the "what ifs." The FBI can tell you so much. They tell you enough of what he did to know that there was sexual gratification in there somewhere. I don't need to drill down from that to kind of figure out what he was doing. (DE [152-8], pp. 81-82).
I feel exposed. That'll be the best way of saying it. I feel exposed on all different avenues whenever anybody is doing a peep show-type thing ... I mean, I'm walking around. If I'm not dressed or my son's not dressed, my husband – it's an uncomfortable feeling to be in this position, to even be talking about it. I'm very uncomfortable right now trying to talk about it. I don't know what was seen, but again, I'm married. Me and my husband do have grown-folk situations. And my son will walk around, has walked around in his little drawers and – or nothing and will not close bathroom doors, like boys do. So those are the things that bother me a lot. It's one thing for me. But when I think about my son and the fact that this is a grown man looking in the camera and he could see my son, that's probably the most – thing right now that bothers me the most. (Id., pp. 90-91).
But as much as I can say, invasion of privacy, that can be a big, big deal. And I don't know how else of explaining it than somebody looking at your every move when you're at home with your family, your child, and you feeling safe in that environment and then you find out that you're not. That's emotional. That will drain you. Then you have to worry about, oh, okay, did this crazy man upload any pictures of my son and it could be out there on the worldwide web. (Id. , pp. 91-92).
These descriptions of her emotional state are consistent with the testimony in the affidavit. Although the affidavit refers to resulting behaviors that were not detailed in the deposition, the Court finds these descriptions are fair amplification of Doty's deposition testimony. Further, the Court notes that Doty was never asked in deposition to explain how her anxiety and stress affect her day-to-day activities or behavior.
ADT notes that Doty testified in deposition that she is not claiming physical injury in this case but her affidavit, specifically paragraph 11, details exhaustion, stress headaches, and general worsening of health because of the anxiety. (DE [175-1]). If Doty were to attempt to introduce this testimony as proof of physical damages, the Court would agree with ADT that the affidavit improperly contradicts her deposition testimony. But the physical symptoms are submitted as evidence of the depth of Doty's alleged stress and anxiety. This is allowable. ADT is free to cross examine the issues of anxiety and the reported behaviors at trial. But Doty's deposition testimony and affidavit establish a genuine dispute of material fact that preclude summary judgment on Plaintiff's breach of contract claim.
2. Limitation of Liability
ADT argues that if the breach of contract claim is permitted to go to the jury, Doty's damages are limited by the terms of the parties’ contract. Paragraph 5 of contract is labeled LIMITATION OF LIABILITY (DE [152-9]) states, in part, as follows:
C. EXCLUSIVE REMEDY. IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE BY ADT TO PERFORM ANY OF ITS OBLIGATIONS. UNDER NO CIRCUMSTANCES WILL I ATTEMPT TO HOLD ADT LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY OR DAMAGES TO PROPERTY. IF, NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH 5, ADT IS FOUND LIABLE FOR LOSS, DAMAGE OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SERVICES AND/OR EQUIPMENT PROVIDED BY ADT, ADT'S LIABILITY TO ME SHALL BE LIMITED TO A SUM EQUAL TO 10% OF THE ANNUAL SERVICE CHARGE OR $500 WHICHEVER IS GREATER. THIS AGREED-UPON AMOUNT IS NOT A PENALTY. RATHER, IT IS MY SOLE REMEDY.
D. APPLICATION. THE PROVISIONS OF THIS PARAGRAPH 5 APPLY NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO THE PERFORMANCE OR NONPERFORMANCE BY ADT OF ITS OBLIGATIONS UNDER THIS CONTRACT OR FROM NEGLIGENCE (ACTIVE OR OTHERWISE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF ADT, ITS AGENTS, OR ITS EMPLOYEES.
In Texas, limitation of liability clauses are generally valid and enforceable. Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 231 (Texas 2019) (quoting Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 577 (Texas 1991) ). "Contractual provisions in burglar alarm service contracts purporting to limit or fix the amount of liability have consistently been upheld by the courts." Vallance & Co. v. DeAnda, 595 S.W.2d 587, 589 (Tex. Civ. App. 1980) ; Fox Elec. Co., Inc. v. Tone Guard Sec., Inc., 861 S.W.2d 79, 82 (Tex. Civ. App. 1993) ; Moon Soo Kim v. Stanley Convergent Sec. Solutions, Inc., 2013 WL 1715789, at *2-3 (N.D. Tex. Apr. 19, 2013).
Doty argues that the limitation of liability clause should not be enforced because (1) it was not conspicuous, (2) it is unconscionable, and (3) it does not apply to claims of her nature. None of these arguments is compelling.
The issue of whether a contractual release or limitation of liability is conspicuous is a question of law. Littlefield v. Schaefer, 955 S.W.2d 272, 274 (Tex. 1997). "The test for the court is ‘whether attention can reasonably be expected to be called to [the provision].’ " Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875, 879 (Tex. App. 2008) (quoting Littlefield, 955 S.W.2d at 275 ). The term "conspicuous" is defined in the Texas Business and Commercial Code:
(10) "Conspicuous," with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
Tex. Bus. & Com. Code Ann. § 1.201.
The Limitation of Liability section is on the fourth page of the six-page contract. (DE [152-9]). The page is entitled "IMPORTANT TERMS AND CONDITIONS" and contains a text box that includes the titles of the numbered paragraphs, including "5. Limitation of Liability." In the body of the text, the heading "LIMITATION OF LIABILITY" is in capital letters and bold face type. The language of the body, which contains seven separate paragraphs, is likewise in capital letters and bold face font. The requirements for conspicuousness are met by the section, as drafted. Furthermore, the first page of the contract, directly above Doty's signature, contains a text box that includes the following language:
I acknowledge and agree to each of the following: (A) This Contract consists of six (6) pages. Before signing this Contract, I have read, understand and agree to each and every term of this Contract, including but not limited to Paragraphs 5 and 18 of the Terms and Conditions."
Directly under Doty's signature, the contract contains – in bold face type and capital letters – a NOTICE OF CANCELLATION that states:
I, THE CUSTOMER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT. I ACKNOWLEDGE BEING VERBALLY INFORMED OF MY RIGHT TO CANCEL AT THE TIME OF EXECUTION OF THIS CONTRACT AND RECEIPT OF THIS NOTICE.
The contract presents the limitation of liability clause in a conspicuous manner that is sufficiently marked so that attention can reasonably be expected to be called to it. Indeed, the customer must, before signing, acknowledge reading, understanding, and agreeing to the limitation of liability clause. And, if the customer somehow did not direct her attention to the limitation of liability at the time of signing, the customer had three business days to review and cancel the contract. This contractual provision cannot be discarded for lack of conspicuousness. SeeFrost v. ADT LLC, 947 F.3d 1261, 1269 (10th Cir. 2020) (upholding limitation of liability provisions that were "contained in clear, conspicuous language and are referenced on the first page of the Contract").
Next, Doty argues that the limitation of liability provision is unconscionable. Texas courts, however, have held that limitation of liability clauses in home security systems are not unconscionable. "When a burglar alarm company undertakes to provide protective services under terms limiting its liability for the ineffectiveness of the performance of those services, no public policy is violated." Vallance & Co. v. DeAnda , 595 S.W.2d 587, 590 (Tex. App. 1980) ("In the absence of a controlling public policy to the contrary, contracting parties can limit their liability in damages to a specific amount). See alsoArthur's Garage, Inc. v. Racal-Chubb Sec. Systems, Inc., 997 S.W.2d 803 (Tex. App. 1999) ("Generally, an agreement to limit liability will not violate public policy if there is no disparity of bargaining power between the parties.").
Doty does not offer any evidence that there was a disparity of bargaining power between the parties. Indeed, the ADT contract permitted Doty to raise the contractual limit of liability with an addendum (and, presumably, a higher monthly rate). (DE [152-9]). Further, although Doty "felt and continues to feel that she does not have other options for her security system," (DE [176] ¶ 107), she has not introduced any evidence that ADT is the only security system available or even that she was compelled to purchase a security system. SeeMireles v. Tejas Appraisal and Inspection Co., 2007 WL 1826074, at *1 (Tex. App. June 27, 2007) (no disparity in bargaining power where consumer was free to select another company if she were dissatisfied with terms of contract). Thus, there is no evidence of disparity in bargaining power in this case.
Doty also argues that the limit of liability clause is unconscionable because there is no legitimate commercial reason to justify the limitation as applied to her case and, therefore, the clause violates Texas public policy. She argues that Texas courts uphold limitation of liability clauses in security system cases because consumers can purchase burglary insurance to protect their interests should an intruder evade the monitoring system. She asserts that no insurance is available that would have compensated her for the type of intrusion committed by Aviles and, therefore, it would be against public policy to uphold the limitation of liability clause, especially where ADT installed equipment that enabled Aviles to intrude into the system for his own purposes. But Texas courts have already recognized that limitation of liability clauses in security monitoring contracts do not violate the state's public policy. SeeArthur's Garage, 997 S.W.2d at 810-11 ; Vallance & Co., 595 S.W.2d 587. Although the Texas courts have not addressed the factual scenario presented by this case, this Florida court should not be opining on Texas public policy beyond what the Texas courts have already said.
Doty also argues that the limitation of liability clause cannot be applied to her negligence claims. The problem Doty faces is the contract she signed limited damages for "loss, damage or injury under any legal theory relating in any way to the services and/or equipment provided by ADT." The limitation applies "no matter how the loss, damage, injury or other consequence occurs, even if due to the performance or nonperformance by ADT of its obligations under this contract or from negligence (active or otherwise) ...." (DE [152-9], ¶ 5.D) (emphasis added). Doty did not release ADT from liability; she agreed that damages would be limited to $500 for any cause of loss, damage, or injury. This clause encompasses her claim that ADT installed a monitoring system that lacked adequate security measures arising under either breach of contract or negligence theories. SeeFox Elec. Co., Inc. v. Tone Guard Sec., Inc., 861 S.W.2d 79, 82-83 (Tex. App. 1993) (enforcing limitation of liability clause on a negligence claim because the clause specifically included negligence). 3. Attorney's fees.
The contract's limitation of liability clause does not limit Doty's DTPA, gross negligence, or intentional tort claims because those claims are not specifically listed. SeeArthur's Garage, 997 S.W.2d at 811 (limitation clause not applicable to DTPA claim); Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App. 2013) (release for negligence did not include release for gross negligence).
ADT argues that it is entitled to judgment on Doty's claim for attorney's fees in her breach of contract claim. Doty has not responded to this argument. In Texas, attorney's fees are recoverable in a breach of contract claim by statute. Texas Civil Practice and Remedies Code § 38.001(8). But as of the date Doty filed her suit, attorney's fees were recoverable only against individuals and corporations.SeeCypress Engine Accessories, LLC v. HDMS Ltd. Co. , 283 F. Supp. 3d 580, 591 (S.D. Tex. 2017) (courts have "overwhelmingly concluded" that § 38.001 does not support recovery of attorney's fees from an LLC). Summary judgment will, therefore, be granted on Doty's claim for attorney's fees for her breach of contract claim.
The statute in effect on the date Doty filed this action provided that "[a] person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for ... an oral or written contract." Tex. Civ. Prac. and Rem. Code § 38.001. The statute was amended to change "corporation" to "organization", but that amendment is effective in actions commenced on or after the statute's September 2, 2021, effective date.
B. Negligence
ADT next argues that it is entitled to summary judgment on Doty's negligence-based claims (Count II – negligence and Count VI – negligent hiring and supervision) as a matter of law. ADT raises several grounds for summary judgment and each are addressed below.
1. Damages for emotional harm
ADT argues that Doty cannot recover under a negligence theory because she did not suffer physical injury. The Court addressed this argument in its Order (DE [85]) on ADT's Motion to Dismiss and concluded that Texas law imposes on ADT a duty to reasonably protect customers from invasion of privacy through unauthorized access of the installed system and that Doty may recover damages for mental anguish caused by breach of that duty, even in the absence of physical damages. (Id., p. 11). SeeBoyles v. Kerr, 855 S.W.2d 593, 596 (Tex. 1993) ("Our decision [that there is no general claim for negligent infliction of emotional distress] does not affect a claimant's right to recover mental anguish damages caused by Defendant's breach of some other duty."). There is no genuine dispute that Doty did not suffer physical or economic harm; but her claims of emotional harm are compensable under a negligence theory.
2. Sufficiency of mental anguish damages
ADT argues that Doty has not presented evidence of a high enough level of mental anguish to support an award of damages. The Court addressed Doty's evidence of mental anguish in Section III.A.1, supra. Under Texas law "an award of mental anguish damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine." Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). This evidence can be presented through the plaintiff's own testimony. Id. The Court concludes that Doty has presented sufficient evidence of mental anguish to survive summary judgment. 3. Liability in tort
ADT argues that Doty's negligence claims fail because (1) they are based on a contractual duty that lies in contract, not tort and (2) only an intentional invasion of privacy is actionable under Texas law. ADT's argument mis-states the nature of Doty's negligence claims.
Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract.
Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991) (quotingMontgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 510 (1947) ). "In determining whether the plaintiff may recover on a tort theory, it is also instructive to examine the nature of the plaintiff's loss. When the only loss or damage is to the subject matter of the contract, the plaintiff's action is ordinarily on the contract." Id. (citations omitted) (defendant's failure to publish plaintiff's advertisement was a breach of contract, not a tort). If Doty were suing for loss to her personal property due to a burglary, her claim would be limited to breach of contract. But Doty claims that ADT installed a monitoring system that permitted its employee to have unauthorized access to her account and invade her privacy. This Court has held that ADT owed a duty under Texas law to reasonably protect Doty from invasions of privacy through unauthorized access of the monitoring system. (DE [85]). This is a tort that, although arising from the parties’ contract, is separate from a claim for breach of the contract. SeeJim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986) ("The contractual relationship of the parties may create duties under both contract and tort law."); Chapman Custom Homes, Inc., v. Dallas Plumbing Co., 445 S.W.3d 716, 718 (Tex. 2014) ("[A] party states a tort claim when the duty allegedly breached is independent of the contractual undertaking and the harm suffered is not merely the economic loss of a contractual benefit."). Doty's tort claims are, therefore, viable notwithstanding the contract that gave rise to their relationship.
Next, ADT argues that a cause of action for invasion of privacy requires intentional conduct under Texas law and that Doty lacks any evidence of intentional conduct by ADT. This Court previously concluded that the question of whether a cause of action exists for negligent invasion of privacy is not resolved in Texas. (DE [85]); seeWheeler v. Yettie Mem. Hosp., 866 S.W.2d 32, 54 (Tex. App. 1993) ("As a result, the supreme court did not reach the issue of whether a cause of action exists for negligent invasion of privacy. Thus, the question remains open."). But calling Doty's claim a claim for invasion of privacy is not entirely accurate. As this Court stated, "[i]n that ADT endeavored to provide Plaintiff with a security system to prevent intrusion, the Court concludes that ADT has a duty under Texas law to reasonably protect Plaintiff from invasions of privacy caused by a breach of that duty...." (DE [85]). The negligence alleged in this case is not a straightforward invasion of privacy; it is negligence in installing a monitoring system susceptible to intrusion and monitoring by unauthorized persons. Doty need not establish intentional conduct by ADT to maintain this claim.
4. Gross negligence
ADT moves for summary judgment on Doty's claim for gross negligence on the ground that Doty has not presented evidence to establish the required elements. Gross negligence is defined as:
an act or omission:
(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11). The Texas Supreme Court has explained that "[u]nder the first, objective element, an extreme risk is not a remote possibility of injury or even a high probability of harm, but rather the likelihood of serious injury to the plaintiff." Boerjan v. Rodriguez , 436 S.W.3d 307, 311 (Tex. 2014) (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998) ). Under the second, subjective element, "actual awareness means the defendant knew about the peril, but its acts or omissions demonstrated that it did not care." Id. at 311.
Summary judgment on Doty's gross negligence claim is warranted because Doty has produced no evidence that would establish the first required element; there is no evidence that ADT's conduct posed "an extreme risk creating the likelihood of serious injury." Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex. 1993). Although the alleged flaws in ADT's system presented a risk of unauthorized access, there is no evidence in the record that there was an extreme risk and a likelihood of harm. Doty has presented evidence that one ADT technician accessed customer's accounts and that such access could have been prevented; it would, however, be mere conjecture to assume that there was an extreme likelihood that this conduct would be commonplace among ADT employees. "Some evidence of simple negligence is not evidence of gross negligence." Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 786 (Tex. 2001) (citations omitted).
The Texas Supreme Court has rejected the argument that "any hazard that could potentially cause serious injury must be considered extreme." Wal-Mart Stores, Inc., 868 S.W.2d at 327. In Lee Lewis Const., Inc., a construction worker fell to his death while installing windows on the 10th floor of a construction project. He was not provided with an independent lifeline. 70 S.W.3d at 786. The Texas court noted that "the dangerous nature of multi-story construction projects alone is not enough to satisfy the objective component of gross negligence." Id. But the record contained evidence that falls are among the top reasons for serious injuries or deaths on construction projects and that the project presented a fall hazard because workers would be working on high floors. Thus, the evidence established the extreme risk of serious injury required to find gross negligence. Id. Likewise, in Mobil Oil Corp., 968 S.W.2d 917, contractors were regularly exposed to high levels of benzene, a chemical with known toxicity, but the defendant failed to post warnings, provide protective equipment, or conduct monitoring. Evidence in the record showed the toxicity levels of benzene and the risks of exposure. The Texas Supreme Court held that there was legally sufficient evidence that the defendant was grossly negligent by ignoring the known toxic effects of benzene and failing to provide equipment. Id. at 926.
By contrast, in the present case, there is no evidence that there was an extreme risk creating a likelihood of serious harm. Doty presents evidence that ADT's installation/service mode allowed its thousands of technicians to access customers’ accounts and add authorized users to those accounts. Once a user is added to the account, that user can access the system and disarm it, open doors, and peer through security cameras. Although the potential injuries that could arise from unauthorized access to the accounts are substantial, there is no evidence in this record that there was an extreme risk that the harm was likely to occur. Therefore, summary judgment will be granted for ADT on the issue of gross negligence.
C. NEGLIGENT HIRING, SUPERVISION, AND RETENTION
Count VI of the First Amended Complaint alleges negligence by ADT in the hiring, supervision, and retention of Telesforo Aviles. Under Texas law, "[a]n employer can be liable for negligence if its failure to use due care in hiring, supervising, or retaining an employee creates an unreasonable risk of harm to others." Arevalo v. City of Farmers Branch, Texas, 2017 WL 1153230, at *12 (N.D. Tex. Mar. 28, 2017) (quoting Clark v. PFPP Ltd. P'ship, 455 S.W.3d 283, 287 (Tex. App. 2015) ). "The focus of such negligence claims is on the actions, or in some cases lack thereof, of the employer – not the employee." King v. Cardinal Services, LLC, 2021 WL 1379160, at *2 (E.D. Tex. Apr. 11, 2021). "Texas law allows recovery for negligent hiring, training, and supervision where an employer knew or should have known through the exercise of reasonable care that an employee was incompetent or unfit and that his hiring or retention would thereby create an unreasonable risk of harm to others." Verhelst v. Michael D's Restaurant San Antonio, Inc., 154 F. Supp. 2d 959, 967 (W.D. Tex. 2001) (citations omitted). To prevail, the plaintiff must show that she suffered damages from "the foreseeable misconduct of an employee who was hired, supervised or retained pursuant to the defendant's negligent practices." Id. (citations omitted).
There are no facts in this record that would establish that ADT was negligent in hiring or retaining Aviles as an employee. ADT conducted a pre-hiring investigation. Doty argues that ADT did not follow its own procedures by (1) accepting letters of recommendations from family members and (2) not maintaining copies of the pre-hire investigation, but there is no dispute that Aviles did not have a criminal record at the time he was hired. There is no evidence that Aviles has a propensity for voyeurism that ADT should have identified. Doty cites several disciplinary issues and write ups of Aviles over the years but those matters involved missing equipment and undocumented time; no customers ever complained about Aviles. ADT required and Aviles attended multiple trainings. The record contains no evidence that ADT knew or should have known that Aviles would violate customers’ privacy. There is, therefore, no evidence of negligent failure to hire or retain Aviles. The Court will grant summary judgment on the negligent hiring and retention claims.
The issue that remains is whether ADT can be held liable in tort for failure to supervise Aviles. According to Doty, ADT is guilty of negligent supervision because ADT did not monitor or audit technicians’ actions while working on systems or adding new users to customers’ accounts; ADT failed to look for suspicious activities across customers’ Pulse accounts; and ADT failed to notify customers of an addition of an authorized user or to allow customers to see their authorized users through the Pulse mobile app (that information was available on the Pulse account website, however). (See DE [175] pp. 30-31). ADT's negligent supervision claim mirrors ADT's negligence claim:
Defendant ADT, by and through its agents, employees, and independent contractors, was negligent in its acts and/or
omissions by, amongst other things, allowing technicians to create authorized user accounts, and by failing to discover that its employees could make and did make themselves authorized users gaining unauthorized access to Plaintiff's ADT Pulse account, thereby allowing surreptitious videos and images to be viewed and taken of Plaintiff in her home. (DE [47], ¶ 70).
But in the context of a negligent supervision claim, "sufficient evidence must exist indicating that the defendant knew or should have known of the employee's incompetence or potential for causing harm." Zarzana v. Ashley , 218 S.W.3d 152, 158 (Tex. App. 2007). The record contains no evidence that ADT knew or should have known of any potential for harm presented by Aviles. Summary judgment is, therefore, granted as to Count VI.
D. DECEPTIVE TRADE PRACTICES ACT
Count III alleges violations of the Texas Deceptive Trade Practices Act ("DTPA"), Tex. Bus. & Com. Code Ann. § 17.46(b)(24). Doty alleges that ADT advertised its system as providing security and peace of mind but failed to disclose the fact the system had material vulnerabilities or that ADT had not taken reasonable measures to secure those services. Doty further alleges that she would not have purchased the ADT system if she had known of the vulnerabilities (DE [47] ¶ 84). Doty contends that ADT's conduct was unconscionable in violation of Tex. Bus. Com. Code Ann. § 17.50. Nevertheless, Doty has continued her ADT monitoring services and remains a customer.
The DTPA "grants consumers a cause of action for false, misleading, or deceptive acts or practices." Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996). The elements of a DPTA claim are: "(1) the plaintiff is a consumer; (2) the defendant committed acts ‘in connection with the purchase or lease of any goods or services’; (3) the defendant's acts were false, misleading or deceptive; and (4) the acts were a producing cause of plaintiff's injuries." Cushman v. GC Serv., LP, 657 F. Supp. 2d 834, 842 (S.D. Tex. 2009) aff'd 397 Fed. Appx. 24 (5th Cir. 2010) (citing Amstadt, 919 S.W.2d at 649 ). A DTPA plaintiff may recover actual damages; mental anguish damages may only be recovered where there is "proof of a willful tort, gross negligence, or willful disregard." State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 435 (Tex. 1995).
ADT argues it is entitled to summary judgment on Doty's DPTA claim because (1) Doty is not entitled to recover mental anguish damages because ADT's conduct was not committed knowingly; (2) the duties allegedly breached arose under the contract and, therefore, cannot support a claim under the DPTA; and (3) Doty remains a customer of ADT and, therefore, cannot prove that she would not have purchased an ADT Pulse system if she had known of the undisclosed information.
1. Willful or knowing conduct
" ‘Knowingly’ ... means actual awareness of the falsity, deception, or unfairness of the conduct in question. "[A]ctual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.’ " St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co. , 974 S.W.2d 51, 53 (Tex. 1998) (quoting Tex. Bus. & Com. Code § 17.45(9) ). And "actual awareness is more than conscious indifference to another's rights or welfare." Id. It "does not mean merely that a person knows what he is doing; rather, it means that a person knows what he is doing is false, deceptive, or unfair. In other words, a person must think to himself at some point, ‘Yes, I know this is false, deceptive, or unfair to him, but I'm going to do it anyway.’ " Id.
Doty argues that the evidence establishes that ADT was aware that its technicians could obtain or retain unauthorized access to a customer's account following installation or service but failed to disclose that fact to customers. In fact, ADT acknowledged that its technicians would sometimes add personal emails to customer accounts when "moonlighting" or installing cameras with their cell phones. (DE [176] ¶ 61). ADT argues, in response, that it had policies that prohibited collection or use of customer's personal, non-public information and that technicians were only allowed to access customer's systems while working onsite on an assigned job. (DE [152] ¶¶ 9-10). And ADT asserts it had no knowledge that Aviles or any of its technicians were accessing customers’ systems in violation of those policies. (Id. , ¶¶12-17).
At the summary judgment stage, the Court is required to construe the evidence in the light most favorable to Doty and draw reasonable inferences in her favor. Monterosso , 756 F.3d at 1333. With that in mind, the Court concludes that there exists a genuine dispute of material fact as to whether ADT's non-disclosure of possible security breaches was willful and knowing.
2. Contractual vs. tort duties
Next, ADT argues it is entitled to summary judgment because the duties allegedly breached by ADT arose from the contract and "a mere breach of contract, without more, is not a DTPA violation." Rocky Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex. 1998). But Doty's Amended Complaint, and her DTPA claim, alleges that ADT engaged in misleading and false advertising that offered security and peace of mind (DE [47] ¶¶ 15-19) while withholding information that the system had material vulnerabilities (id. , ¶ 84). This is a viable DTPA claim that is separate from a breach of contract claim. "[A] plaintiff may plausibly maintain separate causes of action for violation of the DTPA and breach of contract at the same time." Mazandarani v. American Express Travel Related Services, Co., Inc., 1996 WL 608483, at *4 (N.D. Tex. Aug. 9, 1996). ADT does not contest the sufficiency of Doty's evidence of false and misleading advertising and, therefore, neither will the Court.
3. Doty's Continued ADT Subscription
Finally, ADT argues that Doty's DTPA claim fails because she cannot prove that she would not have purchased the Pulse system had she known about the system's security vulnerability. To this day, Doty remains a subscriber and continues to pay for – and use – the Pulse system. Doty responds that she no longer uses the camera to monitor the inside of her home; the camera is now pointed outside. She argues that the way in which she uses the system has changed and that she has demonstrated that she never would have purchased a security system with an indoor camera had she known of the vulnerabilities. Although ADT's argument is compelling – and may indeed prevail before a jury – it does not establish that ADT is entitled to judgment as a matter of law on the DTPA claim. The Motion for Summary Judgment as to Count III is denied.
E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
ADT moves for summary judgment on Count VII, intentional infliction of emotional distress. "To recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe." Hoffmann-La Roche Inc. v. Zeltwanger , 144 S.W.3d 438, 445 (Tex. 2004). ADT argues that there is no evidence in the record to establish a claim for intentional infliction of emotional distress.
ADT argues that there are no facts that would establish that ADT engaged in extreme and outrageous conduct. "Extreme and outrageous conduct is conduct ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ " Id. (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting Restatement (Second) of Torts § 46 cmt 46 cmt. d (1965))). "It is for the court to determine, in the first instance, whether a defendant's conduct was extreme and outrageous." Id. If reasonable minds can differ, the matter is reserved to the jury. Id.
"To support liability for intentional infliction of emotional distress, it is not enough that the defendant has acted with an intent that is tortious, malicious, or even criminal, or that he has intended to inflict emotional distress.... Although the defendant's intent is relevant, the conduct itself must be extreme and outrageous to support liability." GTE Sw., Inc. v. Bruce , 998 S.W.2d 605, 616 (Tex. 1999). "The threshold for what constitutes extreme and outrageous conduct ... is therefore a difficult one to meet." Clayton v. Wisener, 190 S.W.3d 685, 693 (Tex. App. 2005).
The facts in the record do not establish that ADT engaged in outrageous and extreme conduct of the type that would be "utterly intolerable in a civilized community." Although it knew that the technicians had access to customer's accounts, that access was limited to vetted employees, who were instructed on the limitations of that access. While Doty may be able to establish that ADT was careless or unreasonable or negligent, the evidence of outrageous, extreme, indecent, or intolerable conduct is not present. Cf.Washington v. Knight, 887 S.W.2d 211, 217 (Tex. App. 1994) (medical providers’ cruel treatment of patient could be considered intentional, reckless, extreme, and outrageous); Clayton, 190 S.W.3d at 693 (doctor's repeated sexual advances to patient supported finding of extreme and outrageous behavior). Accordingly, summary judgment is granted as to Count VII.
IV. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that ADT's Motion for Summary Judgment (DE [151]) is GRANTED IN PART AND DENIED IN PART as follows:
1. Summary Judgment on Count I, Breach of Contract, is GRANTED IN PART AND DENIED IN PART. Doty is not entitled to attorney's fees for this claim. Further, Doty's damages for breach of contract are limited to $500.00. The Motion for Summary Judgment on Count I is in all other respects DENIED.
2. Summary Judgment on Count II, Negligence, is GRANTED IN PART AND DENIED IN PART. Summary judgment is granted on the claim for gross negligence. Further, Doty's damages for negligence are limited to $500.00. The Motion for Summary Judgment on Count II is in all other respects DENIED.
3. Summary Judgment on Count VI, Negligent Hiring, Retention, and Supervision and Count VII, Intentional Infliction of Emotional Distress is GRANTED.
4. Summary Judgment on Count III, Deceptive Trade Practices Act, is DENIED.DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 28th day of March 2022.