Brinks Home Security Gets Caught Stealing From Its Customers

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
CASE NO. 2D99-4190

TRUDY RUIZ and HENRY RUIZ, DAN and BARBARA GROSSI, and RICHARD P. FIGUEREDO,
on behalf of themselves and all similarly situated plaintiffs,

Appellants,

v.

BRINK'S HOME SECURITY, INC.

Appellee.

__________________________

Opinion filed January 17, 2001.

Appeal from the Circuit Court for Hillsborough County, Dick Greco, Jr., Judge.

W. Christian Hoyer, Christa L. Collins, John A. Yanchunis,
and Kendra C. Mancusi, of James, Hoyer, Newcomer & Smiljanich,
Tampa, for Appellants.

Guy W. Spicola, Steven L. Brannock, and G. Calvin Hayes, of Holland & Knight,
for Appellee.

DAVIS, Judge.

Trudy and Henry Ruiz, Dan and Barbara Grossi, and Richard P. Figueredo appeal
the final judgment dismissing the class action complaint they filed against
Brink's Home Security, Inc. The appellants argue that the trial court erred in
granting Brink's motion to dismiss and entering a final judgment against them
based on Brink's "voluntary payment doctrine" defense. We agree and reverse.

Each of the three appellants' households entered into a contract with Brink's
for a home security system. By the terms of the contracts, Brink's continued to
own the systems and the homeowners paid a lease fee. Each contract included
specific language obligating the homeowner to reimburse Brink's the cost it
incurred for the payment of property tax on the homeowner's security system:

                You will pay any and all applicable sales, use, service,
property, or other taxes in connection with the Service . . . YOU WILL BE BILLED
FOR THE AMOUNT REQUIRED TO REIMBURSE BRINK'S FOR PROPERTY TAX ON THE STANDARD
PROTECTIVE EQUIPMENT INSTALLED IN YOUR LOCATION. THIS AMOUNT WILL BE BILLED ONCE
EACH YEAR, AND GENERALLY RANGES FROM $5.00 TO $15.00 PER YEAR.

(Emphasis in original.)

The appellants filed suit against Brink's alleging that Brink's charged its
customers more than it paid as property tax. In its motion to dismiss, Brink's
argued that the appellants lacked standing and that the voluntary payment
doctrine barred recovery. Although the trial court did not specifically so state
in its order, it appears from our reading of the record that the motion to
dismiss was granted solely on the basis of the voluntary payment doctrine.
Furthermore, Brink's bases its argument before this court on that assumption.
Therefore, the only issue before this court is whether the trial court erred in
dismissing the appellants' complaint based on the voluntary payment doctrine.

The voluntary payment doctrine provides that "where one makes a payment of any
sum under a claim of right with knowledge of the facts, such a payment is
voluntary and cannot be recovered." City of Miami v. Keton, 115 So. 2d 547, 551
(Fla. 1959).

We review the trial court's decision granting a motion to dismiss de novo. See
W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297
(Fla. 1st DCA 1999). In our review, we may look only to the four corners of the
complaint. See Wilson v. News-Press Publ'g Co., 738 So. 2d 1000, 1001 (Fla. 2d
DCA 1999). If the allegations of the complaint demonstrate the existence of an
affirmative defense, such defense may be considered on a motion to dismiss.
Otherwise, an affirmative defense may not be considered on a motion to dismiss.
See Frank v. Campbell Property Management, Inc., 351 So. 2d 364, 365 (Fla. 4th
DCA 1977).

The complaint alleges that the amounts the appellants were billed were in excess
of the actual tax imposed on Brink's. Further, it is alleged that the plaintiffs
did not know and could not have known that the amounts exceeded the tax actually
charged. There is nothing in the complaint that can be read to allege that the
plaintiffs voluntarily paid the sums Brink's charged knowing that they were
excessive. Because the complaint does not show on its face the applicability of
the voluntary payment doctrine, the trial court erred in granting the motion to
dismiss on this ground.

We reverse and remand for further proceedings consistent with this ruling.

PATTERSON, C.J., and NORTHCUTT, J., Concur.


Source:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fl&vol=2D99-4190&invol=1


Re: Brinks Home Security Gets Caught Stealing From Its Customers
Anonymous wrote:

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for a home security system. By the terms of the contracts, Brink's continued to
own the systems and the homeowners paid a lease fee. Each contract included
specific language obligating the homeowner to reimburse Brink's the cost it
incurred for the payment of property tax on the homeowner's security system:

That is messed up!  The whole point of leasing equipment (from the customer's
standpoint) is that they don't have to pay property tax.  

  
--

"Newspaper claims car thief transformed into a goat"
http://news.yahoo.com/s/ap/20090124/ap_on_fe_st/odd_goat_thief_5

Re: Brinks Home Security Gets Caught Stealing From Its Customers
G. Morgan wrote:
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for a home security system. By the terms of the contracts, Brink's continued to
own the systems and the homeowners paid a lease fee. Each contract included
specific language obligating the homeowner to reimburse Brink's the cost it
incurred for the payment of property tax on the homeowner's security system:
Quoted text here. Click to load it


"Old news".  The date of the opinion was in 2001.  That's eight years ago!

Re: Brinks Home Security Gets Caught Stealing From Its Customers
property tax?




--
**Crash Gordon**







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Re: Brinks Home Security Gets Caught Stealing From Its Customers
Crash Gordon wrote:
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Weird huh??

Re: Brinks Home Security Gets Caught Stealing From Its Customers
Yah, never heard of that.
I think they have to leased systems as inventory or something like that (?).



--
**Crash Gordon**







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Re: Brinks Home Security Gets Caught Stealing From Its Customers
Crash Gordon wrote:
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If you consider an account base that probably numbers over 150,000 at a
modest "tax rate" of $15.00 per...  that's a lot of bux...  Probably
covers Mr. Sableman's legal fees and then some!

Re: Brinks Home Security Gets Caught Stealing From Its Customers
I don't get the "property" tax issue at all.

If I were the client I'd charge them a 15.00 a year rental for the space
THEIR equipment were taking up in MY house.


--
**Crash Gordon**







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Re: Brinks Home Security Gets Caught Stealing From Its Customers
Brinks acts like they are a monopolistic utility company. Utility
companies charge a minimum service charge whether you use a dime worth
of electricity or not.

When a company like Brinks has to resort to threatening and using scare
tactics on national TV to dupe new customers, its time for them to find
a better source of RMR.

Brinks armored car division doesn't advertise, but yet they make tons of
money...Brinks Home Security advertises way too much and look what it
gets them. High pressure sales tactics means big trouble for any
business. Brow beating your customers that can no longer afford to pay
$30+ a month for obsolete equipment is insanity.


Jim Rojas




Crash Gordon wrote:
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Re: Brinks Home Security Gets Caught Stealing From Its Customers
Crash Gordon wrote:

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http://www.poconnor.com/article.asp?id=30

"What is Business Personal Property?
The Texas Property Tax Code 1.04 (5) defines tangible personal property as
property that can be seen, weighed, measured, felt, or otherwise perceived by
the senses, but does not include a document or other perceptible object that
constitutes evidence of a valuable interest, claim, or right and has no
negligible or intrinsic value. Examples of tangible personal property, or
business personal property, include equipment, furniture, computers, and
inventory. Business personal property would not include accounts receivable,
stocks, bonds, notes, franchise agreements, licenses, permits, certificates of
deposit, insurance policies, pensions, contracts and goodwill."

It's my guess that Binky wants it both ways.  They want to retain ownership of
the equipment (therby leasing the equipment to the end user) -- but -- they
want the end user to pay the BPP (Business Personal Property) tax too (the
owner pays the tax).



--

"Newspaper claims car thief transformed into a goat"
http://news.yahoo.com/s/ap/20090124/ap_on_fe_st/odd_goat_thief_5

Re: Brinks Home Security Gets Caught Stealing From Its Customers
Don't they have to inventory all that leased equipment and pay a
inventory tax on it? Afterall it has to count as inventory if the
customer never retains ownership. $15+ million a year is a nice chunk of
change...I wonder if the Texas Attorney General would consider RICO
charges against Brinks. Maybe the IRS can go after them as well for tax
evasion or fraud.

Jim Rojas



G. Morgan wrote:
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Re: Brinks Home Security Gets Caught Stealing From Its Customers
Jim Rojas wrote:

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Yeah, that's what I've been thinking.

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Well the customers should get their money back for sure, if they paid taxes on
Binky's inventory.  Then sure, someone should look into if that constituted
fraud in an attempt to evade taxes.  

--

"Newspaper claims car thief transformed into a goat"
http://news.yahoo.com/s/ap/20090124/ap_on_fe_st/odd_goat_thief_5

Re: Brinks Home Security Gets Caught Stealing From Its Customers
That was my understanding and one reason I never got into leasing stuff.

Wasn't that one of the issues few years back with ADT/Tyco stuff?



--
**Crash Gordon**







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Re: Brinks Home Security Gets Caught Stealing From Its Customers
G. Morgan wrote:
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I always thought that the point was not having to make a large capital
investment up front.

--
js

Democracy is two wolves and a sheep deciding what to eat for lunch.
Liberty is a well-armed sheep contesting the vote.



Re: Brinks Home Security Gets Caught Stealing From Its Customers
alarman wrote:

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That's a good one too. ;-)

--

"Newspaper claims car thief transformed into a goat"
http://news.yahoo.com/s/ap/20090124/ap_on_fe_st/odd_goat_thief_5

Re: Brinks Home Security Gets Caught Stealing From Its Customers
Brinks boasted 1.2 million customers before the financial meltdown. I
guess we can safely say they are down to 800K customers about now. But
that is my opinion.

Brinks can huff and puff all they like. They can threaten people's
credit to no end, but in this economy it really doesn't matter that much
anyway. I have heard people with squeeky clean credit all their lives
all of the sudden drop to marginal credit through no fault of their own.
  So you can imagine those individuals that were about 650-700 are now
having a tough time getting credit when they need it most.

Brink's collection department is probably doing some major overtime
trying to keep the attrition rate from getting out of control.


Jim Rojas




G. Morgan wrote:
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