Sunday, July 10, 2011
FDUTPA, attorney's fees, with pecan, wasabi and cranberry encrusted tuna
In Horowitch v. Diamond Aircraft Industries, Inc., Slip Op. July 7, 2011, the 11th Circuit certified four questions to the Florida Supreme Court regarding Florida's Sec. 768.79 offer of judgment statute, regarding Florida Rule Civil Procedure 1.442 and the the fee-shifting provision of the Florida Deceptive and Unfair Trade Practices Act [FDUTPA] Sec. 501.2105.
"First, we ask whether an offer of judgment may be viable when it purports to settle “all claims,” even though it does not explicitly “state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim” as required by Rule 1.442(c)(2)(F). Second, we ask whether the offer of judgment statute, which applies in “any civil action for damages” but generally does not apply to a case seeking both damages and non-monetary relief, applies to a lawsuit seeking damages or, in the alternative, specific performance. Third, we ask whether the FDUTPA’s fee-shifting provision applies to an action with the following procedural history: the plaintiff filed an action alleging a FDUTPA claim and prosecuted that claim for seven months; the district court ruled at summary judgment that he could not pursue the FDUTPA claim because Florida law did not apply, but allowed him to prosecute the action under Arizona’s unfair trade practices law instead; then he lost on the Arizona unfair trade practices claim at trial. Finally, if the FDUTPA’s fee-shifting provision does apply, we ask whether it applies only to fees incurred during the seven months before the plaintiff’s FDUTPA claim was defeated at summary judgment, or also to fees incurred during the subsequent litigation. We certify these questions because we are unable to find definitive answers in clearly established Florida law as set forth in case law or statutes." The appellate briefs and record on appeal are also being transmitted to the Florida Supreme Court to adjudge these questions. More.