Appellant/Cross-Appellee, Marc Baker, represents a class of individuals who had hospital liens asserted against them in Escambia County by Appellee/Cross-Appellant, Baptist Hospital, Inc. (Baptist), pursuant to chapter 30733, Laws of Florida (1955), on or after October 21, 2006, for medical care which they received at certain hospitals located in Santa Rosa County, and such liens had not been satisfied through payment from any source.
Baker argued below that Baptist's practice of filing hospital liens in Escambia County for care rendered in Santa Rosa County was not authorized by chapter 30733 (a special law specific to Escambia County). Further, Baker argued, the practice was an "unfair and deceptive" practice in the conduct of "trade or commerce" and, as such, unlawful pursuant to the Florida Deceptive and Unfair Trade Practices Act, Part II, chapter 501, Florida Statutes (FDUTPA).
On a motion for summary judgment, the trial court determined that Baptist's practice of filing liens in Escambia County for care rendered in Santa Rosa County was not authorized by chapter 30733, directed Baptist to lift any such liens and enjoined Baptist from filing such liens in the future. The trial court did not, however, agree that the act of filing a hospital lien met the definition of "trade or commerce" such that the practice was subject to FDUTPA.
The Legislature enacted FDUTPA "[t]o protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." § 501.202(2), Fla. Stat. (2010). The act declares unlawful "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce." § 501.204(1), Fla. Stat. (2010). "Trade or commerce" is defined as:
§ 501.203(8), Fla. Stat. (2010). Baker urges this court to find that the filing of the hospital lien is within the definition of "trade or commerce" because the lien involves a debt that arose from a direct
At least one district court seems to suggest that debt collection by the party that extends credit may be subject to FDUTPA. In Schauer v. General Motors Acceptance Corp., 819 So.2d 809 (Fla. 4th DCA 2002), a plaintiff had properly stated a cause of action against GMAC under FDUTPA sufficient to survive a motion to dismiss apparently because GMAC extended the credit which enabled the plaintiff to purchase the car and then allegedly violated the act by willfully harassing the plaintiff with respect to the collection of its debt. The plaintiff also connected the seller with GMAC through agency allegations. In other words, there appeared to be a "trade or commerce" relationship between GMAC and the plaintiff before GMAC attempted to collect the debt through means unconnected to the legal process.
We decline to join the trial court and do not classify the filing of a statutory hospital lien as "debt collection."
We agree with the Fourth District Court of Appeal that the pursuit of legal remedies does not fall within the definition of "trade or commerce." State, Office of Atty. Gen. v. Shapiro & Fishman, LLP, 59 So.3d 353 (Fla. 4th DCA 2011) (finding law firm allegedly fabricating false documents for use in foreclosure cases was not engaged in trade or commerce for purposes of FDUTPA). See also, Kelly v. Palmer, Reifler, & Assocs., P.A., 681 F.Supp.2d 1356, 1375 (S.D.Fla.2010) (holding that law firm's issuance of pre-suit demand letters did not constitute "trade or commerce" and noting that law firm's "acts — conduct ostensibly occurring during the exercise of a legal remedy — had zero connection whatsoever to any `trade or commerce'"), and Trent v. Mortgage Elec. Registration Sys., Inc., 618 F.Supp.2d 1356 (M.D.Fla.2007) (finding mortgage lender's successor was not engaged in trade or commerce for purposes of FDUTPA when it sent pre-suit demand letters and foreclosed on mortgages). In this case, we find that the
Baker would also have this court classify the filing of a hospital lien as a "billing practice" because billing practices are considered part of "trade or commerce." See James D. Hinson Elec. Contracting Co., Inc. v. BellSouth Telecomm., Inc., 642 F.Supp.2d 1318 (M.D.Fla.2009) (finding "bill" sent by utility to excavator for repair of underground cable, that did not disclose corporate overhead and claims processing charges, was in "trade and commerce," as required for claim under FDUTPA). Baker's argument fails to consider the meaning of the verb "to bill," which is "to present a statement of costs or charges to." American Heritage Dictionary 131 (New Collage Ed. 1979). A "bill" is essentially one means by which a party communicates its determination of the amount of money to be paid in return for goods or services tendered. This communication is integral to the bargained-for exchange in a trade or commercial relationship.
In contrast, a lien is a "legal right or interest that a creditor has in another's property, lasting usu[ally] until a debt or duty that it secures is satisfied." Black's Law Dictionary 941 (8th ed. 2004). In other words, a bill is a mere claim of a right to be paid and a lien is a securing of the right to be paid. A securing of the legal right to be paid is not essential to the trade or commercial relationship — as evidenced by the myriad of daily commercial transactions the bills for which are paid in the absence of a lien.
We find that the filing of a hospital lien does not meet the definition of "trade or commerce" for purposes of chapter 501, Part II, Florida Statutes, and AFFIRM the trial court's order in this case.
OSTERHAUS, J., and SHEFFIELD, FRANK E., Associate Judge, concur.