Office of the Attorney General vs. McMurphy's Fencing, LLC

8/16/2019 Office of the Attorney General vs. McMurphy's Fencing, LLC

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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND

FOR ORANGE COUNTY, FLORIDA

OFFICE OF THE ATTORNEY

GENERAL, STATE OF FLORIDA,

DEPARTMENT OF LEGAL

AFFAIRS

Plaintiff,

v.

MCMURPHY’S FENCING, LLC,and

JACOB DANIEL MCMURPHY, an

individual

Defendants.

Case No.: _______________________

COMPLAINT

Plaintiff, State of Florida, Office of the Attorney General, Department of

Legal Affairs, (“OAG”), sues Defendants McMurphy’s Fencing, LLC and Jacob

Daniel McMurphy, and alleges that:

JURISDICTION AND VENUE

1.

This is an action pursuant to Florida's Deceptive and Unfair Trade

Practices Act, Chapter 50l, Part II, Florida Statutes (“FDUTPA”). The action

seeks statutory relief, including injunctive relief, consumer restitution, civil

penalties, and attorneys’ fees and costs, pursuant to FDUTPA.

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Filing # 39101881 E-Filed 03/16/2016 03:32:44 PM


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2. This Court has jurisdiction over the subject matter pursuant to the

provisions of FDUTPA. The granting of civil penalties, including injunctive relief,

consumer restitution, and attorneys’ fees and costs is within the jurisdiction of the

Circuit Court.

3. Defendants are located in and acts alleged herein occurred in Orange

County, Florida. Accordingly, venue is proper in Orange County in the Ninth

Judicial Circuit pursuant to the provisions of the Act and Sections 47.011, Florida

Statutes (2015).

4. All conditions precedent to this action have been performed or have

occurred.

PLAINTIFF

5. Plaintiff is an “enforcing authority” of FDUTPA under Section

501.203(2), and is authorized to bring this action and to seek injunctive and other

statutory and civil relief pursuant to that chapter under Section 501.207.

6. Plaintiff conducted an investigation of the matters alleged herein and

has determined that this enforcement action serves the public interest, as required

by Section 501.207(2).

DEFENDANTS

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7. Defendant McMurphy’s Fencing, LLC is a Florida limited liability

corporation with a principal place of business at 1548 West Spring Ridge Circle,

Winter Garden, Florida 34787.

8. Defendant Jacob Daniel McMurphy is the registered agent and sole

member of McMurphy’s Fencing, LLC, and participated directly or indirectly in

the business acts and practices of the Defendants described herein.

9. At all times material to this action, Defendants were engaged in trade

or commerce as defined in Section 501.203(8), Florida Statutes (2015).

FACTUAL ALLEGATIONS

10. Since at least 2014, Defendants have operated a residential fence

building and installation company. Defendants advertise, market, solicit and offer

for sale residential fence building and installation.

11.

In 2015, at least seven (7) Florida consumers contracted with

Defendants to build residential fences at their homes. As part of the fencing

contracts, the consumers paid deposits to the Defendants.

12. The Defendants promised to begin and complete the work on certain

dates. But after signing the contracts, and taking the consumers’ down payments,

the Defendants never began much less completed the fence installation.

Consumers lost over $10,000.

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13. Rodney Talbot. On September 8, 2015, Defendants provided an

estimate to Rodney G. Talbot for a new aluminum fence to be installed at Mr.

Talbot’s home in Winter Garden, Florida.

14. On September 8, 2015, Defendants and Mr. Talbot signed a contract

for the installation of fence for a total of $3,250.

15. Mr. Talbot paid a down payment of $1,625 per the contract.

16. After entering the contract, Defendants never began work on the

project.

17. For the next several months, Mr. Talbot emailed and called

Defendants inquiring about the status

18. Defendants promised the job would be done soon saying, for example,

“there’s no excuses that I’m gonna tell you to justify the situation… We will be

there soon… and yes… a discount is in order… We will see you next week.”

19. But Defendants were not there the next week. In fact, Defendants

never showed up to start the job. As of the date of this filing, the fence has not

been completed, and Mr. Talbot has not received a refund.

20. Bissoondai Naraine. On October 1, 2015, Defendants agreed to

build and install a fence for Bissoondai Naraine in Clermont, Florida.

21. Ms. Naraine paid Defendants $1875 to build and install the fence.

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22. For the next 5 months, Defendants promised to complete the job in

various communications to Ms. Naraine.

23. The Defendants, however, never began the job. As of the date of this

filing, the fence has not been installed, and Ms. Naraine has not been refunded.

24. Aishea Davis. On October 15, 2015, Aishea Davis entered into a

contract with Defendants to build a fence at her home in Winter Garden, Florida.

25. Ms. Davis paid Defendants a down payment of $2,235 per the

contract.

26. Over the next two months Ms. Davis had difficulty obtaining answers

from the Defendants about when they would start building her fence. After

December 15, Defendants stopped responding to Ms. Davis’ inquiries.

27. On December 27, 2015, Ms. Davis requested a refund because

Defendants were unable to finish the job when they said they would. The

Defendants never responded.

28. As of the date of this filing, Defendants have not begun or completed

the fence for Ms. Davis, nor have they refunded her money.

29. Pau Barrett. On October 26, 2015, Pau Barrett paid $900 to the

Defendants to build a fence at his property in Ocoee, Florida

30. Defendants promised to install the fence within seven days.

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31. As of the date of this filing, however, the Defendants have not begun

or completed the fence, nor has Mr. Barrett been refunded.

32. Jason Familia. On October 16, 2015, Defendants went to the home of

Jason Familia in Winter Garden, Florida to provide a fence installation estimate.

33. On December 2, 2015, Mr. Familia paid Defendants a down payment

of $2,100. The total contract price was $4,200.

34. Defendants told Mr. Familia that his fence would be completed by

December 16, 2015.

35. On December 28th, Mr. Familia contacted the Defendants ask about

the status.

36. Defendants replied “I’m in a meeting.”

37. Mr. Familia never heard from Defendants again. As of the date of this

filing, Defendants have not completed Mr. Familia’s fence, nor have they refunded

his money.

38. Bradley Markle. On December 2, 2015, Bradley Markle paid a

deposit of $673 to Defendants to install a fence at his home in Davenport, Florida.

39. The contract state that the construction would begin December 9,

2015.

40. After signing the contract on December 2nd , Mr. Markle has not seen

the Defendants.

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41. Mr. Markle tried numerous times to contact the Defendants regarding

the status of his fence installation.

42. Defendants promised to start December 16th, but no-showed.

43. Defendants promised to start December 17th, but again no-showed.

44. Defendants promised to begin construction December 28 th, but again

Defendants no-showed.

45. On December 29th, Mr. Markle’s wife requested a refund of their

down payment.

46. The Markles filed a complaint against with the BBB. The Defendants

responded that they were “going to wait the legally allowed maximum amount of

time to respond to your complaint and you can enjoy not having a fence.”

47. As of the date of this filing, Defendants have not installed the fence

for Mr. Markle, nor have they refunded Mr. Markle’s down payment.

48. Karen Cook. On December 14, 2015, Karen Cook contacted

Defendants to obtain a bid for a wood stockade privacy fence at her home in

Clermont, Florida.

49. On December 15, 2015, Defendants came to Ms. Cook’s residence

and provided an estimate.

50. On December 15, 2015, Ms. Cook signed a contract with Defendants

to build a fence.

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51. Defendants confirmed they would begin the work on December 23,

2015.

52. Ms. Cook paid a down payment of $785 to Defendants.

53. As of the Date of this filing, the Defendants have not begun or

completed the fence, nor have they provided refunds to Ms. Cook.

VIOLATIONS OF THE FLORIDA DECEPTIVE AND UNFAIR TRADE

PRACTICES ACT, CHAPTER 501, PART II, FLORIDA STATUTES

54. Section 501.204(1) provides that “unfair or deceptive acts or practices

in the conduct of any trade or commerce are hereby declared unlawful.” The

provisions of FDUTPA shall be “construed liberally to promote the protection” of

the “consuming public and legitimate business enterprises from those who engage

in… deceptive[] or unfair acts or practices in the conduct of any trade or

commerce.” Fla. Stat § 501.202 (2015).

55. An entity that willfully engaged in a deceptive or unfair act or practice

is liable for a civil penalty of up to $10,000 for each violation; willful violations

occur when the entity knew or should have known that the conduct in question was

deceptive or unfair or prohibited by rule. Section 501.2075.

56.

Defendants, at all times material hereto, provided goods or services

and were engaged in trade or commerce as defined by Section 501.203(8).

57. Defendants’ misrepresentations and / or omissions were deceptive and

unfair and caused consumer harm, including at least $10,193 in financial loss.

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58. Plaintiffs adopt, incorporate herein and re-allege paragraphs 1 through

53 as if fully set forth hereinafter.

59. Defendants contracted with consumers for residential construction and

renovation but failed to complete the construction as promised after being paid.

60. The Defendants’ failure to begin and complete the fence installation

as contracted for is unfair and deceptive. Consumers paid Defendants at least

$10,193 for fence installation, but Defendants failed to begin or complete the work.

The consumers suffered harm, including financial harm, as a result of Defendants’

unfair and deceptive acts and practices.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for relief as follows:

61. That the Court adjudge and decree that the conduct complained of in

paragraphs 10 through 53 constitute deceptive and unfair trade practices in

violation of the Florida Deceptive and Unfair Trade Practices Act, Chapter 501,

Part II, Florida Statutes (2015).

62. That the Court order defendant McMurphy’s Fencing, LLC to cease

operations and close permanently.

63. That the Court permanently enjoin Defendants from fence

construction.

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64. That the Court order Defendants to pay restitution in the amount of

$10,193 to affected consumers.

65. That the Court award damages, civil penalties, attorney’s fees,

prejudgment interest and costs to the Plaintiff for the prosecution of this violation

pursuant to Section 501.2105, Florida Statutes (2015).

66. Award any such equitable or other relief pursuant to Section

501.207(3), Florida Statutes; and

67.

Award such other and further relief as the Court deems just and

proper.

Dated: March 16, 2016

PAMELA JO BONDIAttorney General

/s/ William B. Armistead

WILLIAM B. ARMISTEADFla. Bar No. 88535Assistant Attorney GeneralConsumer Protection DivisionDepartment of Legal AffairsFlorida Office of the Attorney GeneralPhone: 850-414-3805Fax: 850-488-1259

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Office of the Attorney General vs. McMurphy's Fencing, LLC