DANIEL L. MARSHALL, AND BESSIE M. MARSHALL, HIS WIFE, APPELLANT,
v.
W & L ENTERPRISES CORPORATION D/B/A ALADDIN MOBILE HOMES, RESERVE INSURANCE COMPANY AND DINK WALSH, APPELLEE

Fla. 1st DCA | 1978-07-25
No. II-305
McCORD, C. J., and MILLS and ERVIN, JJ., concur.
360 So. 2d 1147 Florida District Court of Appeal, First District (1978) Negative Treatment
Cited by 30 cases

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Synopsis

The court reversed a trial court ruling that a mobile home dealer's surety was not liable for attorney's fees incurred by consumers in a successful action against the dealer for violating Florida's "Little FTC Act." The court held that attorney's fees, being a statutory component of damages under the Act, constitute "loss" covered by the dealer's required bond.


Holding

The surety is liable for attorney's fees as part of the "loss or damage" covered by the bond. Attorney's fees, being specifically defined as part of damages under Section 501.210(4) of the "Little FTC Act" and incorporated into the bond by Section 320.77(11), must be recoverable from the surety to effectuate the protective purposes of both the Act and the bonding requirements.


Headnotes

[1] A surety for a bonded mobile home dealer is liable for attorney's fees incurred by consumers in recovering a judgment against the dealer for a violation of the "Little FT…

[2] The purpose of bonding and licensing requirements for mobile home dealers is consumer protection, which is undermined if attorney's fees are not included in the protected…

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Key Quotes

“The obvious purpose of the "Little FTC Act" is to make consumers whole for losses caused by fraudulent consumer practices. Similarly, the purpose of the bonding and licensing requirements in Chapter 320 is protection of consumers who deal with mobile home dealers. These aims are not served if attorney's fees are not included in the protection.”

Establishes the foundational policy rationale for including attorney's fees within the surety's liability.

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Facts & Procedural History

Aladdin Mobile Homes, a bonded mobile home dealer, violated the "Little FTC Act" in its dealings with the Marshalls. The Marshalls recovered a judgmen…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The issue on this appeal is whether the trial court erred in holding that a bonded mobile home dealer’s surety was not liable for attorney’s fees incurred by appellants in recovering a judgment against the dealer for a violation of the “Little FTC Act,” Chapter 501, Part II. We think there was error and reverse.

It is undisputed that the mobile home dealer, Aladdin Mobile Homes, was found to have violated the Act in its dealings with appellants. Reserve Insurance, the surety, contended below however that it could not be liable for appellants’ attorney’s fees because Section 501.212(5) of the Act provides that the Act does not apply to “any person or activity regulated under laws administered by the department of insurance . ”, and the act of writing bonds was clearly an activity regulated by the Department of Insurance. The trial court apparently accepted this reasoning in excluding Reserve from liability for the appellants’ attorney’s fees.

Appellants’ argument proceeds as follows: (1) Section 320.77, Fla.Stat. (1975) requires mobile home dealers to be licensed and bonded; (2) The bond provisions in Section 320.77(11) protect any retail customer “who shall suffer any loss” as a result of any violation of Chapter 319 or 320; (3) Section 320.77(10) prohibits a mobile home dealer from “violation of any provision of this section or of any other law of this state having to do with dealing in mobile homes . . .”; (4) Chapter 501, Part II and the rules promulgated under it are laws of this state “having to do with dealing in mobile homes”; (5) Aladdin Mobile Homes was found to have violated Chapter 501, Part II; (6) Section 501.210(1) allows the prevailing party in any civil litigation resulting from a violation of the “Little FTC Act” to receive his reasonable attorney’s fees and costs from the nonpre-vailing party; (7) Section 501.210(4) provides that any award of attorney’s fees or costs “shall become a part of the judgment and subject to execution as the law allows”. Therefore, appellants claim, the attorney’s fees which they incurred in prosecuting the action against appellees were part of the “loss” against which they were protected by Reserve’s bond.

Reserve, citing Bankers Fire Casualty Insurance Co. v. Newman, 330 So. 2d 760 (Fla. 3d D.C.A.1976) and previous cases, maintains that a surety is not obligated to pay attorney’s fees expended in prosecution of an action on the bond. It contends that even though the “Little FTC Act” grants the appellants the right to recover their attorney’s fees against the principal on the bond, it does not in any way enlarge upon the obligation of the surety under the bond.

We accept appellants’ position on the point. The obvious purpose of the “Little FTC Act” is to make consumers whole for losses caused by fraudulent consumer practices. Similarly, the purpose of the bonding and licensing requirements in Chapter 320 is protection of consumers who deal with mobile home dealers. These aims are not served if attorney’s fees are not included in the protection.

Reserve obligated itself herd to pay “any loss or damage” caused to consumers by Aladdin Mobile Homes. Unlike the losses in Bankers Fire and Casualty and other cases cited by Reserve, appellants’ losses, specifically defined by statute in Section 501.210(4) and incorporated in the bond by virtue of Section 320.77(11), included attorney’s fees. Appellants must be allowed to recover those fees from Reserve.

The portion of the judgment excluding Reserve from liability for the appellants’ attorney’s fees is reversed and the case remanded for the entry of a judgment consistent with this opinion.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (14 total)

  • Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)
    …in full their attorney fees, they will quickly determine it is too costly and too great a [*834] hassle to file suit, and individual enforcement of this act will fail. The First District Court of Appeal said in Marshall v. W. & L. Enterprises Corp., 360 So. 2d 1147, 1148 (Fla. 1st DCA 1978): “The obvious purpose of the ‘little FTC Act’ is to make consumers whole for losses caused by fraudulent consumer practices.... These aims are not served if attorney fees are not included in the protection.” Id. at 536 (fo…
  • Delgado v. J.W. Courtesy Pontiac Gmc-Truck, Inc., 693 So. 2d 602 (Fla. 2d DCA 1997)
    …t applied federal law in concluding that a practice is unfair under the FDUTPA if it offends established public policy, is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. In Marshall v. W & L Enterprises Corp., 360 So. 2d 1147, 1148 (Fla. 1st DCA 1978), the court observed that the obvious purpose of the FDUTPA “is to make consumers whole for losses caused by fraudulent consumer practices.” Finally, in Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984), review…
  • LaFERNEY v. Scott Smith Oldsmobile, Inc., 410 So. 2d 534 (Fla. 5th DCA 1982)
    …cover in full their attorney fees, they will quickly determine it is too costly and too great a hassle to file suit, and individual enforcement of this act will fail.5 The First District Court of Appeal said in Marshall v. W. & L. Enterprises Corp., 360 So. 2d 1147, 1148 (Fla. 1st DCA 1978): The obvious purpose of the ‘little FTC Act’ is to make consumers whole for losses caused by fraudulent consumer practices .... These aims are not served if attorney fees are not included in the protection. We remand this…

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