VINTAGE MOTORS OF SARASOTA, INC.

v.

MAC ENTERPRISE OF NORTH CAROLINA, LLC

LUCAS, Judge. Vintage Motors of Sarasota, Inc., appeals a final judgment entered against it after a nonjury trial.

The circuit court deemed that the plaintiff below, MAC Enterprises of North Carolina, LLC's attorney's fees were "actual damages" under the Florida Deceptive and Unfair Trade Practices Act. That was error, and it necessitates reversal of the judgment. MAC Enterprises is in the business of restoring used and vintage cars; Vintage Motors is in the business of selling them on consignment. The two companies had worked together on a number of transactions in the past, but the present controversy revolves solely around a restored 1965 Porsche. MAC Enterprises contacted Vintage Motors to assist it in selling MAC Enterprises' Porsche. The car was delivered on consignment to Vintage Motors, who then identified a potential New Jersey buyer. After some back-and-forth, Vintage Motors sold the Porsche to the buyer in April of 2017 for the agreed upon price of $48,000. Initially, the buyer had expressed dissatisfaction to Vintage Motors regarding some of the restoration work.

Nevertheless, the sale closed, the buyer received the car and its title, and Vintage Motors was fully paid the price that MAC Enterprises, Vintage Motors, and the buyer had all agreed on. But Vintage Motors failed to inform MAC Enterprises that the sale had been completed.

Indeed, Vintage Motors' principal, Martin Godbey, represented to MAC Enterprises that the buyer had refused to close on the sale and that Vintage Motors still had possession of the Porsche. Mr. Godbey later admitted he had stonewalled the owner of MAC Enterprises for forty-five days about the status of the sale: "I led Mr. [Mac]Donald to believe that the closing of the car was going on longer than it did." Vintage Motors also ignored MAC Enterprises' request to return the Porsche. By June 2017, MAC Enterprises had retained an attorney who drafted and sent a demand letter to Vintage Motors. The day after the attorney's demand letter was e-mailed, Vintage Motors communicated with MAC Enterprises that it would wire the funds from the sale, less its commission, to MAC Enterprises. MAC Enterprises accepted the funds, and then it filed a lawsuit against Vintage Motors. MAC Enterprises' second amended complaint included one count against Vintage Motors for violation of sections 501.201-.213, Florida Statutes (2017), the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), a second FDUTPA count against Mr. Godbey, one count against Vintage Motors for breach of fiduciary duty, one count against Vintage Motors for fraud, and one count against Mr. Godbey for fraud.

The circuit court held a bench trial on November 5, 2020, and entered a final judgment on December 16, 2020.

With respect to the two FDUTPA counts, the court weighed the evidence and testimony presented and concluded that MAC Enterprises had prevailed as to part of its claims. The court determined that Mr. Godbey, on behalf of Vintage Motors, had lied to MAC Enterprises and that Vintage Motors' conduct constituted a violation of FDUTPA.1 The court concluded that MAC Enterprises had sustained actual damages in that it "had to hire counsel and paid the attorney $3,500 to recover the $42,300 [for] Mac Enterprises." The final judgment awarded MAC Enterprises the $3,500 attorney's fee as the sole component of damages.

The court concluded that Vintage Motors had also breached a fiduciary duty to MAC Enterprises but that the damages MAC Enterprises sustained on that count were "duplicative" of the damages awarded 1 The court only found in favor of MAC Enterprises as to the first FDUTPA count (against Vintage Motors), not the second FDUTPA count (against Mr. Godbey, individually).

in the FDUTPA count. The court found in favor of Vintage Motors and Mr. Godbey as to both fraud claims. The discrete issue Vintage Motors presents in this appeal is whether fees spent on an attorney can comprise an element of "actual damages" under FDUTPA or "damages" in a common law breach of fiduciary duty claim. That is an issue of law that we review de novo. Alachua County v. Watson, No. SC19-2016, 2022 WL 247086, at *6 (Fla. Jan. 27, 2022) ("Since the merits of this case only concern statutory interpretation, our review is de novo." (citing GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007))); Blackboard Specialty Ins. Co. v. YTech-1428 Brickell, LLC, 314 So. 3d 536, 538 (Fla. 3d DCA 2020) ("[A] trial court's legal conclusions in final judgments are reviewed de novo." (citing Palm Garden of Healthcare Holdings, LLC v. Haydu, 209 So. 3d 636, 638 (Fla. 5th DCA 2017))).

We conclude that attorney's fees, although awardable as ancillary to a successful FDUTPA claim, are not a substantive component of FDUTPA's "actual damages," nor are they "damages" under a common law breach of fiduciary duty claim.

Section 501.204(1) of FDUTPA states that "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." Section 501.211(1) of the act provides a private civil cause of action to anyone aggrieved by a statutory violation.2 Subsection (2) of section 501.211 defines the scope of relief under this cause of action: "In any action brought by a person who has suffered a loss as a result of a violation of this part, such person may recover actual damages, plus attorney's fees and court costs as provided in s. 501.2105." When construing statutes, we have followed the Florida Supreme Court's instruction that "legislative intent is the polestar that guides us," and that "[t]he primary source for determining legislative intent is the language chosen by the [l]egislature to express its intent." See Money v. Home Performance All., Inc., 313 So. 3d 783, 786 (Fla. 2d DCA 2021) (quoting Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1150 (Fla. 2000)).

More recently, the 2 In construing the statute, courts have concluded that the elements of a private FDUTPA claim are (1) a deceptive or unfair practice; (2) causation; and (3) actual damages. See TLO S. Farms, Inc. v. Heartland Farms, Inc., 282 So. 3d 145, 148 (Fla. 2d DCA 2019) (citing Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006)).

Florida Supreme Court invoked the U.S. Supreme Court's explanation of our role in interpreting statutes: [W]hen called on to resolve a dispute over a statute's meaning, [we] normally seek[] to afford the law's terms their ordinary meaning at the time [the legislature] adopted them. The people who came before us are entitled, as well, to have independent judges exhaust "all the textual and structural clues" bearing on that meaning. When exhausting those clues enables us to resolve the interpretive question put to us, our "sole function" is to apply the law as we find it. Alachua County, 2022 WL 247086, at *6 (second, third, and fourth alterations in original) (quoting Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021)).

Reading the statute at issue here, we have a rather obvious textual and structural clue that FDUTPA's definition of "actual damages" does not encompass attorney's fees. FDUTPA's text sets apart "attorney's fees" from "actual damages" with an intervening comma and the word "plus"—a word that, in this context, connotes "having, receiving, or being in addition to what is anticipated."3 Standing alone, that would be a decisive indication that the 3 See Plus, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/plus (last visited Feb. 24, 2022).

legislature meant to distinguish these two terms from one another.⁴ Bodden, 877 So. 2d 680, 685 (Fla. 2004) ("As we have explained, '[t]he legislature is presumed to know the meaning of words and the rules of grammar, and the only way the court is advised of what the legislature intends is by giving the generally accepted construction, not only to the phraseology of an act, but to the manner in which it is punctuated.' " (alteration in original) (quoting Fla. State Racing Comm'n v. Bourquardez, 42 So. 2d 87, 88 (Fla. 1949))).

Apart from phrasing and grammatical conventions, the common law distinguishes damages, as an element of a civil claim, from attorney's fees, which are usually ancillary to recovery on a civil claim. See CCM Condo. Ass'n v. Petri Positive Pest Control, Inc., 330 So. 3d 1, 6 (Fla. 2021) (construing offer of judgment statute and observing that "[a]ttorney's fees and costs are not damages"⁴ To be sure, in some contexts, "plus" might hold a somewhat more holistic or inclusive meaning—for example, when a commercial advertises a product for $29.99 "plus shipping and handling," one would understand that the total price to be paid will have to include the cost of shipping and handling. But note, even in this scenario, the separate cost of shipping and handling is distinguished as something unique from the product's underlying sale price.

(citing First Specialty Ins. Co. v. Caliber One Indem. Co., 988 So. 2d 708, 714 (Fla. 2d DCA 2008); Golub v. Golub, 336 So. 2d 693, 694 (Fla. 2d DCA 1976) (noting that costs are not part of damages and are "recoverable by the successful party as an incident to the main adjudication"))); Cheek v. McGowan Elec. Supply Co., 511 So. 2d 977, 979 (Fla. 1987) ("[T]he recovery of attorney's fees is ancillary to the claim for damages."); Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 263 (Fla. 2d DCA 2004) ("Attorney's fees are not damages." (citing Scottsdale Ins. Co. v. Haynes, 793 So. 2d 1006, 1009 (Fla. 5th DCA 2001))).

And "it is ordinarily assumed that the legislature is aware of the state of the common law when it enacts or amends a statute." Parsons v. Culp, 328 So. 3d 341, 349 (Fla. 2d DCA 2021); cf. Baskerville-Donovan Eng'rs, Inc. v. Pensacola Exec. House Condo. Ass'n, 581 So. 2d 1301, 1303 (Fla. 1991) ("[S]tatutes should be construed with reference to the common law, and we must presume that the legislature would specify any innovation upon the common law." (alteration in original) (citing Ellis v. Brown, 77 So. 2d 845, 847 (Fla. 1955), overruled in part on other grounds by Garner v. Ward, 251 So. 2d 252 (Fla. 1971))).

Finally, Florida courts construing FDUTPA have consistently defined the statute's provision of "actual damages" to mean "the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties." See Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006) (quoting Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984)); Rodriguez v. Recovery Performance & Marine, LLC, 38 So. 3d 178, 180 (Fla. 3d DCA 2010) (same); Fort Lauderdale Lincoln Mercury, Inc. v. Corgnati, 715 So. 2d 311, 314 (Fla. 4th DCA 1998) (same).

In sum, the plain meaning of section 501.211's text, the common law's treatment of damages as being distinct from attorney's fees, and the district courts' consistent interpretation of section 501.211(2) leads us to conclude that actual damages under FDUTPA cannot include attorney's fees incurred in bringing the FDUTPA action.

The circuit court erred when it concluded otherwise. We are unpersuaded by the alternative basis for affirmance MAC Enterprises suggests—that its $3,500 attorney's fees could be deemed a component of damages under its fiduciary duty claim (which the circuit court declined to award as "duplicative" of the damages it had incorrectly awarded under the FDUTPA claims).

As we have already observed, the element of damages in common law claims, such as breach of fiduciary duty, does not ordinarily include attorney's fees. See, e.g., Cheek, 511 So. 2d at 979. And from our review of the record, MAC Enterprises provided no other basis to substantiate its damages under any of its claims. We, therefore, reverse the final judgment and remand for the circuit court to enter a judgment in favor of Vintage Motors.

Reversed and remanded.

KHOUZAM and BLACK, JJ., Concur. Opinion subject to revision prior to official publication.