Opinion
Nos. 2D21-2785, 2D22-485.
02-03-2023
HOME PERFORMANCE ALLIANCE, INC., a Florida for profit corporation, Appellant, v. BETTER BUSINESS BUREAU OF WEST FLORIDA, INC., a Florida not-for-profit corporation; and International Association of Better Business Bureaus, Inc., a not-for-profit foreign corporation, Appellees.
Diane J. Zelmer of Berenson LLP, Jupiter, for Appellant. Elaine D. Walter , Yvette R. Lavelle , W. Todd Boyd , and Adam Schultz , of Boyd Richards Parker & Colonnelli, P.L., Miami, for Appellees.
Diane J. Zelmer of Berenson LLP, Jupiter, for Appellant.
Elaine D. Walter , Yvette R. Lavelle , W. Todd Boyd , and Adam Schultz , of Boyd Richards Parker & Colonnelli, P.L., Miami, for Appellees.
ROTHSTEIN-YOUAKIM, Judge.
Home Performance Alliance, Inc., appeals the trial court's dismissal with prejudice of its first amended complaint against Better Business Bureau of West Florida, Inc., and International Association of Better Business Bureaus, Inc. (collectively, the BBB).
We affirm the court's dismissal of Home Performance's claims of tortious interference, trade libel, libel per se, and defamation and for injunctive and declaratory relief. All of these claims are based on the BBB's "D+" rating of Home Performance, which is a nonactionable opinion of the BBB. See, e.g., Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, Inc., 354 S.W.3d 234, 242-43 (Mo. Ct. App. 2011) (affirming dismissal of complaint and holding that the BBB's "C" rating of the plaintiff was a constitutionally protected opinion because it was "based on `an evaluating process' and `subjective opinion'" and was "not sufficiently factual to be susceptible of being proved true or false"); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 357 (Tex. Ct. App. 2013) (reversing the denial of a motion to dismiss and holding that the BBB's "F" rating of a company could not be defamatory "because it [was] the Bureau's self-described `opinion' of the quality of John Moore's services, which lacks a high degree of verifiability"); U.S. Structural Plywood Integrity Coal. v. PFS Corp., 524 F.Supp.3d 1320, 1334 (S.D. Fla. 2021) (explaining that business ratings are generally nonactionable "subjective assessments by third-party entities").
The trial court, however, should have given Home Performance leave to allege a claim under the Florida Deceptive and Unfair Trade Practices Act, section 501.204, Florida Statutes (2020). See Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach Cnty., Inc., 169 So.3d 164, 167 (Fla. 4th DCA 2015) (reversing the trial court's dismissal of a FDUTPA claim because the plaintiff had alleged, among other things, that the BBB had made false statements about how it rated companies because such allegations were not "disputes with opinions issued by [the] BBB"). In addition to disputing its rating, Home Performance also alleges that the BBB makes false statements about its ratings process.
In its written response to the motion to dismiss, Home Performance expressed its belief that it could state a FDUTPA claim and asked for leave to amend if the court was inclined to dismiss the complaint. Home Performance renewed that request at the hearing on the motion. There is no indication in this record that Home Performance has abused its privilege to amend or that the BBB would be prejudiced by such an amendment. We therefore reverse in part to permit Home Performance to amend its complaint to pursue a FDUTPA claim if it wishes. We otherwise affirm without further comment.
Affirmed in part; reversed in part; remanded with instructions.
CASANUEVA and KELLY, JJ., Concur.