By: Rob Harris
Poor Dr. Sarris.
As recently described by the United States Court of Appeals,
“In 2003, Dr. John G. Sarris, owner of Defendant dental practice John G. Sarris, D.D.S., P.A., hired a marketing manager and gave him ‘free rein’ to market the dental practice. Two years later, this marketing manager was solicited by Business to Business Solutions (‘B2B’), which offered to send out mass fax advertisements. After receiving payment of $420.00 from Sarris, D.D.S., B2B sent 7,085 successful transmissions of an advertisement promoting the dental practice. Among these was the December 13, 2005 transmission to [Palm Beach Golf Center-Boca, Inc.], a golf equipment store. Despite its successful transmission, … no employee of Palm Beach Golf could recall actually seeing or printing the fax advertisement.”
This being America, Palm Beach Golf Center-Boca, Inc. opted to become the named plaintiff in a class action suit brought against Dr. Sarris’s dental practice. The lawsuit was brought under a federal statute that the court characterizes as a “‘bounty’ statute, specifically providing a prevailing plaintiff $500 in statutory damages for each unlawful fax sent, as well as treble damages under certain circumstances for intentional violations of the statute.”
In addition, Palm Beach Golf Center-Boca, Inc. claimed that Dr. Sarris’s dental practice unlawfully converted its fax machine, occupying the telephone line for the duration of the fax transmission and causing it to incur expenses for the paper and ink.
Dr. Sarris asked the lower court to grant summary judgment in his favor on the claims made against him, and the lower court agreed, ruling in his favor “immediately following oral argument.”
According to the lower court, “because there was no evidence that any employee of Plaintiff’s saw or printed the transmitted fax, … Palm Beach Golf was unable to demonstrate that it had suffered a sufficiently concrete injury” to pursue its claims. Moreover, there was no evidence that Dr. Sarris had authorized the fax to be sent to Palm Beach Golf Center-Boca, Inc.
The Court of Appeals, however, viewed things differently. As it explained, “the specific injury targeted by the [statute] is the sending of the fax and resulting occupation of the recipient’s telephone line and fax machine,not that the fax was actually printed or read.” As for Dr. Sarris’s personal involvement, the court ruled that the facts were sufficiently in controversy that a trial would be necessary to determine his personal role.
And let’s not forget the claim by Palm Beach Golf Center-Boca, Inc. that it was harmed by the unauthorized appropriation of its telephone line and fax machine, for the duration of the one minute transmission and the cost of the paper and ink to print one page. While the lower court dismissed this claim “because ‘the paper and ink allegedly converted in the printing of a one-page fax had no underlying, intangible value, and . . . the value of the paper and ink was minimal,’” the Court of Appeals explained that “nothing in Florida law … requires that the property have monetary value in order to be converted. While Palm Beach Golf could not prove that any employee saw the fax in question or that it was printed by its fax machine, the record reflects that its phone line and fax machine were occupied on December 13, 2005 for one minute. Although the value of such an interruption is undoubtedly minimal, that does not warrant the dismissal of the claim.”
So, based on its ruling, the Court of Appeals has sent the case back to the lower court for reconsideration.
As for Dr. Sarris? According to his website, he is the principal of Elite Smile Designs, which appears to be a successful dental practice. Perhaps his fax campaign was worthwhile, after all.
One question perplexes me, however. Why would his marketing vendor ever think it made since to send a promotional advertisement to a golf equipment store?