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Tesla of Florida had been communicating with Fryer’s Towing in Daytona Beach to pick up its Model X, an electric SUV worth about $70,000, which had been stolen from its dealership near Orlando and found abandoned in Port Orange. Police had called Fryer’s to tow away the vehicle.
But after phone calls spanning more than a month to get the vehicle returned, Tesla was in for a shock.
Fryer’s told Tesla it had sold the Model X. The sale price: $2,048 to cover towing and storage. The buyer: a Fryer’s employee, according to a lawsuit filed by Tesla against Fryer’s Towing Service.
Now Tesla and Fryer’s are squaring off in Volusia County Circuit Court.
Read More: Tesla of Florida sues Fryer’s over Model X
Read More: Towing company operator acquitted of charges
During a Zoom hearing on Wednesday, Circuit Judge Mary Jolley denied Fryer’s Towing company’s motion to dismiss the lawsuit filed. No trial date has been set yet.
“I do find that there is a genuine issue of material fact: Specifically as to the sale and whether it truly was public and as to whether the defendants acted in good faith,” Jolley said.
The accusations in the lawsuit against Fryer’s include unjust enrichment, deceptive and unfair trade practices, and fraudulent concealment.
Tesla’s attorney, Justin Niznik, said during the Zoom hearing that Fryer’s goal had been to get the car from the start.
“It’s obvious what’s going on here,” Niznik said. “They are misrepresenting and lying about what is going on. They are not open and honest about this process. They did everything they could to run out the clock, so they could obtain a $70,000 vehicle for allegedly a couple of thousand dollars. But it’s undisputed: No money has changed hands at all. This is the very definition of a straw transaction that never happened.”
Attorney: Tesla to blame for losing its own car
Brian Toung, an attorney for Fryer’s Towing, said that Tesla was to blame for losing its car since the Eatonville dealership failed to come get the vehicle at the towing yard at 722 N. Segrave St. in Daytona Beach.
Toung said Fryer’s followed all the requirements in Florida Statute 713.78 having to do with liens for recovering, towing and storing vehicles.
“Tesla of Florida is less than an hour away,” Toung said. “They had 34 days to do so and they failed to come pick up the vehicle. And it was sold legally and pursuant to the statute.”
Toung said there was nothing illegal about a tow company employee buying one of the vehicles the company had towed.
“There is no prohibition in the statute for employees of the towing agency buying the vehicle — only that they be purchased for cash at public sale,” Toung said.
Toung said that Fryer’s was a family business in a fight with a large automobile company.
And while it didn’t come up during the hearing on Wednesday, it’s not the first time Glenn Landau, who is listed as the secretary and treasurer of Landau Enterprises which owns Fryer’s, has found himself in a fight with an automobile business.
Landau was charged with grand theft and violation of towing recovery laws in 2015 after he was accused of trying to take title to a Ford Mustang, worth about $35,000, he knew belonged to Gary Yeoman’s Ford Lincoln at the Daytona International Auto Mall, according to reports. In that case Landau was defended by attorney Mike Lambert.
Circuit Judge Matt Foxman acquitted Landau of the charges during a non-jury trial, ruling that Landau had followed the law and shown “good faith.”
The 2017 model Tesla in the current controversy in civil court was used as a loaner and to run errands before it was stolen from the Tesla dealership in Eatonville and found on June 5, 2019, with a dead battery in Port Orange.
Toung said that Fryer’s did a computer search and sent letters to Tesla that the tow company had the car. Those notices were received on June 17, 2019, by Tesla and Fryer’s received a call from Tesla on June 27, 2019, he said.
Toung said Tesla knew that Fryer’s had the car but didn’t pick it up.
He said Fryer’s could have sold the car by law on July 25, 2019. It published a notice in the Hometown News on July 19, 2019, that it would sell the Tesla Model X and then held the sale on July 31, 2019.
As for Tesla’s contention that no money changed hands over the sale, Toung said that was because a lawsuit was pending over the car.
But Niznik said Tesla didn’t file the lawsuit for 50 days. And Niznik disputed that there was even a public sale, citing inconsistent statements about whether there was a mystery male buyer present when the Fryer’s employee, Darcie Podgorski, allegedly bought the car.
“The testimony from Ms. Podgorski is this gentleman bid $300 and then she outbid him,” Niznik said. “She was conducting the sale as an auctioneer, but then 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 an initial hearing in 2019 when Tesla unsuccessfully sought to stop the transfer of the title. Landau had testified at that hearing before Circuit Judge Michael Orfinger, who is now handling a different docket.
At that hearing on Wednesday, Niznik told Judge Jolley that Landau had represented to Orfinger that someone from the public had bought the vehicle.
“Then (Landau) had to reverse himself once the judge placed him under oath and said ‘Hey, who really bought this vehicle?’ and then and only then was the first time that I learned that the employee, the authorized agent on these documents, was the one that allegedly bought the vehicle,” Niznik said.
Tesla attorney says towing company said car was gone
Niznik also said that when Fryer’s told Tesla in 2019 that the car had been sold, the tow company also claimed the car was gone and no longer in its yard.
But when Tesla checked the car’s GPS it showed the vehicle was still at Fryer’s lot.
Niznik also said that Tesla was never told the multiple times it called Fryer’s that the towing company had set a date to sell the car.
That information was not provided even though Fryer’s later charged Tesla $50 on the tow bill for the time a Fryer’s employee took explaining to Tesla of Florida how to recover the car, Niznik said.
And Niznik said Fryer’s added a requirement for Tesla to provide a hold harmless agreement to recover the car even though that was not required by law, which Niznik said placed another hurdle before Tesla in recovering the car before it was sold.
Toung emphasized that no one from Tesla showed up at Fryer’s with the money and necessary documentation over the weeks the car was at the yard.
“Tesla is not telling you that they came to Fryer’s and were refused their vehicle,” Toung said.
But Niznik said Fryer’s was acting in bad faith.
Niznik said: “This statute is not supposed to be used for a sword for towing companies to take vehicles from people.”