In Harrington v. RoundPoint Mortgage, Judge Chappelle denied a defendant’s summary judgment motion, finding a triable issue of fact whether a third party could and did consent for the called party to be called on their cell phone by an ATDS.

Defendants next argue that they are entitled to summary judgment on Count one because Harrington provided prior express consent to be contacted when he called RoundPoint on November 29, 2010 and provided the 5307 Number. . . .Defendants next argue that summary judgment on Count one is proper because prior express consent was provided when an individual purporting to be Lori Harrington, called RoundPoint on June 2, 2011 and provided the 5307 Number. In response, Harrington argues that two factual disputes preclude the entry of summary judgment. First, Harrington argues that there is a factual dispute regarding whether Lori Harrington actually contacted RoundPoint on June 2, 2011 because the party on the telephone was actually Jamie Harrington. Second, Harrington argues that summary judgment would be improper because he did not authorize Lori Harrington or Jamie Harrington to provide RoundPoint with the 5307 Number.   As an initial matter, the Court finds that there is no genuine issue of material fact as to the identity of the caller on June 2, 2011. Harrington claims, and Defendants do not meaningfully rebut, that the caller was Jamie Harrington. In fact, Lori Harrington has presented both a signed declaration and deposition testimony stating that she was fighting a serious illness at the time of the call, and that she expressly told Jamie Harrington to call RoundPoint to check on insurance matters related to the Property. (Docs. 120-6 at ¶ 9; 120-24 at 9:21-10:19). This story is corroborated by Jamie Harrington, who claims that she acted according to her mother’s wishes, and purported to actually be Lori Harrington on the call. (Docs. 120-7 at ¶ 3; 120-25 at 35:3-25, 37:9-19). In order to execute her ruse, Jamie Harrington answered a number of security questions that were meant to discern the identity of the caller. (Doc. 111-10 at 2:22-3:18). Among those questions was a request for contact information. This prompted her to supply the 5307 Number. (Doc. 111-10 at 3:19-4:1).   Defendants argue that Jamie Harrington was given actual authority to call RoundPoint by Lori Harrington, who they contend had both actual and apparent authority to provide the 5307 Number in connection with the Loan. Questions of agency are normally reserved for a trier of fact, but Florida courts have found that a decision on the matter may be entered as a matter of law where the evidence is so unequivocal “that reasonable persons could reach but one conclusion.” Fernandez v. Florida Nat. Coll., Inc., 925 So. 2d 1096, 1100 (Fla. Dist. Ct. App. 2006); see also Gillet v. Watchtower Bible & Tract Soc’y of Pennsylvania, Inc., 913 So.2d 618, 619 (Fla. 3d DCA 2005). “The essential elements of an actual agency relationship are: (1) acknowledgment by [*21] the principal that the agent will act for him or her, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” Robbins v. Hess, 659 So.2d 424, 427 (Fla. 1st DCA 1995) (citing Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990)) . At least as it pertains to Jamie Harrington, this is exactly what happened: Lori Harrington asked and acknowledged that she would call RoundPoint, she accepted the request for action by calling RoundPoint, and Lori Harrington specifically directed Jamie Harrington to request insurance information once on the call.    Notably, actual agency in Florida does not require the principal to specify the singular acts for which his or her authority exists as long as the acts are incidental to or reasonably necessary to accomplish what is authorized. See Board of Trustees of the City of Delray Beach Police and Firefighters Retirement System v. Citigroup Global Markets, Inc., 622 F.3d 1335, 1342-43 (11th Cir.2010) (finding that the principal’s express authorization for its agent to execute the contract implied “the authority to do acts that are incidental to it, usually accompany it, or are reasonably necessary to accomplish it.”) (citing 2 Fla. Jur.2d Agency & Employment § 47 (2005)). In this regard, Lori Harrington gave Jamie Harrington authority to call RoundPoint to request insurance information. It follows that to fulfill that request, Jamie Harrington could reasonably expect to [*22] be required to answer security questions that were incidental to the call. She did just that when she provided RoundPoint information meant to verify her identity as Lori Harrington, including the last four (4) digits of Harrington’s and Lori Harrington’s social security numbers, the address of the Property, and the 5307 Number.   That said, a question remains as to whether Lori Harrington, and therefore Jamie Harrington, had authority to convey the 5307 Number. As mentioned above, authority to convey a telephone number for debt collection calls can only come from the “called party.” 47 U.S.C. § 227(b)(1)(A)(iii). In this regard, though Harrington has testified under oath that “we had four phones, but anybody was allowed to use them[,]” no other members Harrington’s family has claimed to be a customary user of the 5307 Number. (Doc. 129-2 at 15:11-14). Moreover, Harrington has presented both deposition testimony and a sworn statement showing that he is the owner of the 5307 Number. (Docs. 120-2 at ¶ 22; 129-2 at 28:18). Finally, Harrington testified that he uses the 5307 Number as the primary contact for Aced Interiors Drywall, a company that he owns and operates. (Doc. 129-2 at 35:25-36:22-25). With these facts in mind, it is clear that Harrington was the called party within the meaning of the law. As such, he alone possessed the authority to consent to calls on that number. True enough, he could authorize others to do so, but to the extent that they would, any person — including Lori Harrington, and thereby Jamie Harrington — would be acting as his agent.  Thus, although Jamie Harrington was acting with actual authority on behalf of Lori Harrington, the relevant question is whether Lori Harrington possessed the authority to provide RoundPoint with the 5307 Number in the first place. Defendants argue that she had both actual and apparent authority. The underpinnings of Defendants’ actual authority argument centers on the fact that Lori Harrington was married to Harrington, and that she entered into the Loan as a co-signer, and therefore, a co-principal. They argue that these factors show that both individuals had equal and actual authority to act in connection with the loan.  Harrington attempts to rebut a finding of agency by averring that neither Lori Harrington nor Jamie Harrington had actual authority to supply RoundPoint with the 5307 Number. (Doc. 120-2 at ¶ 12). Additionally, both Lori Harrington and Jamie Harrington have provided signed declarations and deposition testimony explicitly stating that Jamie Harrington did not receive permission to provide the 5307 Number. (Docs. 120-6 at ¶ 9; 120-24 at 15:5-7; 120-7 at ¶¶ 3-4; 120-25 at 60:24-61:1). That being said, in deposition Harrington testified that he had provided Lori Harrington with his personal information so that she could speak with joint creditors, and denied any memory of telling her that she could not use that information. (Doc. 129-2 at 40:16-21). . . . In Florida, actual agency may occur where it is either expressly or implied granted. Taco Bell of Cal. v. Zappone, 324 So. 2d 121, 123 (Fla. 2d DCA 1975). Moreover, actual agency can even exist even where both the principal and the agent deny the relationship. See Cleveland Compania Maritima, S.A. Panama v. Logothetis, 378 So. 2d 1336, 1338 (Fla. 2d DCA 1980). In this regard, “[t]he existence of an agency may be shown by any substantial evidence, either direct or circumstantial and the fact of an agency is a jury question.” McCabe v. Howard, 281 So. 2d 362, 363 (Fla. 2d DCA 1973). Consequently, though Harrington states that he did not expressly authorize Lori Harrington to provide the 5307 Number to RoundPoint, this does not end the inquiry. To the contrary, the existence of an actual agency is called into question by Harrington’s conflicting statements that Lori Harrington either possessed or did not possess authority to use his personal information when dealing with creditors, the existence of their marital relationship and that they were cosigners on the Loan. As a result of these circumstances, a genuine issue of material fact exists as to whether Jamie Harrington, through Lori Harrington, had implied actual authority to provide RoundPoint with the 5307 Number.  Defendants next contend that even if summary judgment cannot be entered on the basis that actual authority existed to convey the 5307 Number, it is appropriate because Jamie Harrington, through Lori Harrington, possessed apparent authority to do so. Unlike actual authority, the doctrine of apparent authority “rests on appearances created by the principal and not by agents who often ingeniously create an appearance of authority by their own acts.” Taco Bell of Cal., 324 So. 2d at 124.  Apparent authority exists “only if each of three elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.” Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995). Like actual authority, apparent authority can arise from express or implied consent. Thomkin Corp. v. Miller, 156 Fla. 388, 24 So. 2d 48, 49 (1945). That said, an agent’s actions, on their own, are insufficient to establish authority to act on the principal’s behalf. See Owen Indus., Inc. v. Taylor, 354 So.2d 1259, 1262 (Fla. 2d DCA 1978); Taco Bell of Cal., 324 So.2d at 124; Smith, 498 So.2d at 449. Moreover, even where authority is granted, the scope of the agency is limited to that which the principal has authorized the agent to do. See Poe & Assoc., Inc. v. Estate of Vogler, 559 So.2d 1235, 1236 (Fla. 3d DCA 1990); see also Taco Bell of Cal., 324 So. 2d at 124. Using these elements, Defendants contend that the Harringtons’ marital relationship and their status as co-signers on the Loan constitutes a representation upon which RoundPoint can rely that Lori Harrington (or those posing as her with her consent) had authority to convey the 5307 Number. But like the Court found in the context of actual authority, the existence [*27] and scope of any apparent authority is properly left for the trier of fact. Notably, the focal point of this inquiry is not the authority possessed by Jamie Harrington, but instead whether RoundPoint could reasonably rely on the Harrington’s relationship and related dealings to infer that Lori Harrington — in actuality, Jamie Harrington — had the authority to convey the 5307 Number.  This issue has previously been confronted in Osorio, where a roommate of credit card debtor sued a creditor, alleging that it had violated the TCPA by using autodialed debt collection calls made by creditor’s agent to roommate’s wireless number. Osorio, 746 F.3d at 1247-48. The Court there found that although the roommate and the debtor shared an adult child, lived in the same residence, and shared a cell-phone plan, because they had never given each other authority to consent to calls from third parties, a genuine issue of material fact existed if she had implied apparent authority to convey the roommate’s cell phone number. Id. at 1253-54.    Like Osorio, this case involves an individual that was not the called party, but who still provided contact information to a creditor. See id. at 1247. Moreover, as in Osorio, the called party has testified that he never [*28] gave anyone authority to consent to phone calls from third parties. See id. at 1253-54. Even so, Defendants attempt to distinguish this case by arguing that the Harringtons are married whereas Osorio involved individuals who were not. Defendants also argue that, unlike in Osorio, both Harrington and Lori Harrington were co-signers on the Note and Mortgage, and thus joint obligors. These are distinctions without a difference. First, Osorio specifically contemplated the existence of an intra-family relationship and equated it with that of cohabitation, stating “[p]arents and cohabitants everywhere would be shocked to learn that every adult in their household is legally entitled to consent to having autodialing debt collectors call any of their cell phones.” Id. at 1254. The court continued by noting that “[t]his is not to say that in some cases one adult might authorize another adult to do so, but we cannot say that all cohabitants possess such authority as a matter of law.” Id. at 1254. In so holding, the Eleventh Circuit clearly indicated that an individual cannot simply gain the ability to grant prior express consent on behalf of another adult by virtue of a relationship, but rather that such a finding was fact-specific.  Second, to the extent that Defendants argue this case is different than Osorio because both Harrington and Lori Harrington are co-signers on the Note and Mortgage, they miss the entire basis upon which Osorio was decided. Osorio did not turn on the creditor’s relationship to the parties, but rather on a party’s ability to consent to calls to a number for which she was not the called party. Here, like in Osorio, there is a question issue of material fact as to whether Lori Harrington had the apparent authority to consent to a creditor’s calls to a number for which she was not the called party. That is the relevant focus. Though Lori Harrington’s status as a co-signor is relevant to discerning the existence of actual or apparent authority, it is not dispositive. Consequently, summary judgment is precluded by a genuine issue of material fact as to agency.  Ratification.  Defendants argue that even if the Court does not find that Jamie Harrington, through Lori Harrington, had actual or apparent authority to convey the 5307 Number, that Harrington ratified the consent by failing to tell RoundPoint either to stop calling, or that Jamie Harrington and/or Lori Harrington were not authorized to act for him on the June 2, 2011 phone call. Florida courts have defined ratification as “the express or implied adoption by a person of an act or contract entered into in his behalf by another without authority.” Port Largo Club, Inc. v. Warren, 476 So. 2d 1330, 1333 (Fla. 3d DCA 1985). It “requires an affirmative showing of an intention on the part of the principal to ratify the act in question.” Carolina-Georgia Carpet & Textiles, Inc. v. Pelloni, 370 So. 2d 450, 452 (Fla. 4th DCA 1979); see also G & M Restaurants Corp. v. Tropical Music Serv., Inc., 161 So. 2d 556, 557 (Fla. 2d DCA 1964) (“it is ordinarily required that for a ratification of an unauthorized act or transaction of an agent to be valid and binding, the principal shall have full knowledge, at the time of the ratification, of all material facts and circumstances relating to the unauthorized act or transaction.”). “Moreover, the required intention must be manifested in some way.” G & M Restaurants Corp., 161 So. 2d at 558.  In deposition, Harrington testified that he talked with Lori Harrington about Jamie Harrington’s phone call after it was made. (Doc. 129-2 at 42:3-22). That being said, Harrington did not testify that he had any knowledge of the substantive content of the call other than the fact that it concerned insurance. (Doc. 129-2 at 42:20-21). This plainly creates a genuine question of material fact, because absent knowledge of the substantive content of the call, he could not know of the provision of the 5307 Number. And absent knowledge or the provision of the 5307 Number, it was not possible for Harrington to exhibit an intent to ratify the act.