Tesla of Florida had contacted Fryer’s Towing in Daytona Beach to retrieve its Model X, an electric SUV valued at about $ 70,000, which had been stolen from its dealership near Orlando and found abandoned in Port Orange. Police called Fryer’s to tow the vehicle.
But after phone calls of more than a month to retrieve the vehicle, Tesla was in shock.
Fryer told Tesla he sold the Model X. The sale price: $ 2,048 to cover towing and storage. The buyer: a Fryer employee, according to a complaint filed by Tesla against Fryer’s Towing Service.
Now Tesla and Fryer go head-to-head in Volusia County Circuit Court.
Read more:Florida Tesla sues Fryer’s over Model X
Read more:The operator of a towing company acquitted
In a Zoom hearing on Wednesday, circuit judge Mary Jolley dismissed Fryer’s towing company motion to dismiss the lawsuit. No trial date has yet been set.
“I find that there is a real important question of fact: specifically as to the sale and whether it was really public and as to whether the defendants acted in good faith,” Jolley said.
Charges in the Fryer’s lawsuit include unjust enrichment, deceptive and unfair business practices, and fraudulent cover-up.
Tesla’s attorney, Justin Niznik, told the Zoom hearing that Fryer’s goal had been to get the car back from the start.
“It’s obvious what’s going on here,” Niznik said. “They distort and lie about what’s going on. They are not open and honest about this process. They did everything they could to run out of time so that they could get a $ 70,000 vehicle for supposedly a few thousand dollars. But it is undisputed: no money has changed hands. This is the very definition of a straw transaction that never took place.
Lawyer: Tesla guilty of losing his own car
Brian Toung, an attorney for Fryer’s Towing, said Tesla was to blame for losing his car since the Eatonville dealership failed to pick up the vehicle from the tow yard at 722 N. Segrave St. in Daytona Beach.
Toung said Fryer’s has complied with all requirements of Florida Law 713.78 regarding privileges for vehicle recovery, towing and storage.
“Tesla from Florida is less than an hour away,” Toung said. “They had 34 days to do it and they couldn’t come and pick up the vehicle. And it was sold legally and according to the law.
Toung said there was nothing illegal about an employee of a towing company purchasing one of the vehicles the company had towed.
“There is no prohibition in law for towing agency employees purchasing the vehicle – only that they are purchased for cash at a public sale,” Toung said.
Toung said Fryer’s was a family business in conflict with a large auto company.
And while it was not raised during Wednesday’s hearing, this isn’t the first time Glenn Landau, who is listed as secretary and treasurer of Landau Enterprises, owner of Fryer’s, has come into conflict with an automotive company.
Landau was charged with robbery and violation of towing salvage laws in 2015 after being charged with attempting to take the title of a Ford Mustang, worth around $ 35,000, he knew that it belonged to Gary Yeoman’s Ford Lincoln at the Daytona International Auto Mall, according to reports. In this case, Landau was defended by lawyer Mike Lambert.
Circuit judge Matt Foxman acquitted Landau of the charges in a trial without a jury, ruling that Landau had obeyed the law and demonstrated “good faith”.
The 2017 Tesla Model, the subject of the ongoing controversy in civil court, was used as a loan and for shopping before being stolen from the Tesla dealership in Eatonville and found on June 5, 2019, with a dead battery in Port Orange.
Toung said Fryer’s conducted a computer search and sent letters to Tesla stating that the towing company had the car. These notices were received on June 17, 2019 by Tesla and Fryer received a call from Tesla on June 27, 2019, he said.
Toung said Tesla knew Fryer had the car but didn’t get it back.
He said Fryer’s could have sold the car by law on July 25, 2019. He published a notice in the Hometown News on July 19, 2019, stating that he would sell the Tesla Model X and then hold the sale on July 31, 2019. .
As for Tesla’s claim that no money changed hands on the sale, Toung said it was because a lawsuit was pending regarding the car.
But Niznik said Tesla did not file a complaint for 50 days. And Niznik disputed that there was even a public sale, citing inconsistent statements about the presence of a mysterious male buyer when Fryer’s employee Darcie Podgorski allegedly bought the car.
“Ms. Podgorski’s testimony is that this gentleman offered $ 300 and then she outbid him,” Niznik said. “She was leading the sale as an auctioneer, but she can also bid personally, but she can also act as a bidder for Fryer’s and make an alternate bid.”
Niznik also referred to a first hearing in 2019 when Tesla tried unsuccessfully to stop the transfer of the title. Landau had testified at this hearing before circuit judge Michael Orfinger, who is now handling a different case.
At that hearing on Wednesday, Niznik told Judge Jolley that Landau told Orfinger someone from the public bought the vehicle.
“Then (Landau) had to back up after the judge swore him in and said ‘Hey, who really bought this vehicle?’ and it was only then that I learned for the first time that the employee, the authorized agent on these documents, was the one who allegedly bought the vehicle, ”Niznik said.
Tesla’s attorney says towing company said the car was gone
Niznik also said that when Fryer told Tesla in 2019 that the car had been sold, the towing company also claimed the car was gone and was no longer in its yard.
But when Tesla checked the car’s GPS, it showed the vehicle was still on Fryer’s lot.
Niznik also said Tesla was never told of the multiple times he called Fryer’s that the towing company set a date to sell the car.
This information was not provided although later Fryer charged Tesla $ 50 on the towing bill for the time a Fryer employee took to explain to Tesla of Florida how to recover the car, Niznik said. .
And Niznik said Fryer added a requirement for Tesla to provide a disclaimer to recover the car even though it was not required by law, which Niznik said placed another hurdle ahead of Tesla in the recovery of the car before it is sold.
Toung pointed out that no one from Tesla showed up at Fryer with the money and necessary documents during the weeks the car was at the job site.
“Tesla is not telling you that they came to Fryer and that they were refused their vehicle,” Toung said.
But Niznik said Fryer was acting in bad faith.
Niznik said: “This statute is not meant to be used as a sword for towing companies to take vehicles from people.”