Alan Horowitch v. Diamond Aircraft Industries, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 7, 2011
No. 10-12931
JOHN LEY
________________________
CLERK

D. C. Docket No. 6:06-cv-01703-PCF-KRS

ALAN HOROWITCH,

Plaintiff – Appellee,

versus

DIAMOND AIRCRAFT INDUSTRIES, INC., a foreign corporation,

Defendant – Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(July 7, 2011)

Before CARNES, ANDERSON, and FARRIS,* Circuit Judges.

ANDERSON, Circuit Judge:

In this diversity case, we certify four questions to the Florida Supreme Court,

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
seeking guidance as to the application of Florida’s offer of judgment statute, Fla.

Stat. § 768.79, Florida Rule of Civil Procedure 1.442, and the fee-shifting

provision of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”),

Fla. Stat. § 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

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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. “Where there

is doubt in the interpretation of state law, a federal court may certify the question to

the state supreme court to avoid making unnecessary Erie guesses and to offer the

state court the opportunity to interpret or change existing law.” Auto-Owners Ins.

Co. v. Southeast Floating Docks, Inc., 632 F.3d 1195, 1197 (11th Cir. 2011)

(quoting Tobin v. Mich. Mut. Ins. Co., 398 F.3d 1267, 1274 (11th Cir. 2005) (per

curiam)).

I. FACTS AND PROCEDURAL HISTORY

The Plaintiff, Alan Horowitch, sued the Defendant, Diamond Aircraft

Industries (“Diamond”), alleging that he had a contractual right to purchase a D-Jet

aircraft for $850,000 but that Diamond refused to sell the aircraft for less than

$1,380,000. In his amended complaint, Horowitch asserted four specific claims

arising out of this pricing dispute: (1) specific performance; and, in the alternative,

(2) breach of contract; (3) breach of the covenants of good faith and fair dealing;

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and (4) deceptive trade practices.1 Notably, all these claims seek damages; even

the specific performance count includes a demand for not only specific

performance, but also “damages, costs of this action, interest, and such other relief

as this Court deems just and proper.” Amended Complaint at 8, Horowitch v.

Diamond Aircraft Indus., Inc., No. 6:06-cv-01703-PCF-KRS (M.D. Fla. May 27,

2010).

While the deceptive trade practices claim was not captioned as a FDUTPA

claim, it is clear that Horowitch pursued it as a FDUTPA claim for the following

reasons: (1) the count itself invoked, by section number of the Florida Statutes, the

definitions for “consumer” and “consumer transaction” from the FDUTPA; (2) the

count demanded attorney’s fees, as allowed under the FDUTPA but not under

Arizona law, whereas no other count demanded attorney’s fees; and (3) Horowitch

described his own claim as a FDUTPA claim in his response to Diamond’s motion

to dismiss.

Diamond moved to dismiss the FDUTPA claim, arguing that the FDUTPA

1
We construe the amended complaint to have alleged the specific performance
claim as being in the alternative to the three claims for money damages. Even though the
complaint is more explicit in this regard with respect to the breach of contract claim, the same
intent is amply evident in light of the same damage allegations in the other two claims.
Moreover, this reading is confirmed because Diamond asserts it on appeal, and Horowitch does
not contest it. Thus, for purposes of this case, it is established that Plaintiff’s specific
performance claim is only in the alternative to the damages claim, not in addition thereto.

4
did not apply, and that Arizona unfair trade practices law applied instead, because

Horowitch was an Arizona resident, Diamond was a corporation with its principal

place of business in Ontario, Canada, and the transactions in question took place

outside Florida. Horowitch resisted this motion and the court ultimately denied the

motion, stating that it could not make a ruling before receiving evidence to

establish where the events in the complaint had taken place. At the same time,

Horowitch requested that he be allowed to pursue the unfair trade practices claim

under the Arizona Consumer Fraud Act if he could not proceed under the

FDUTPA.

Both parties then filed for summary judgment and the court entered summary

judgment against Horowitch on all claims except on the unfair trade practices

claim. With respect to the unfair trade practices claim, the court held that Arizona

law applied and that Horowitch no longer could pursue the FDUTPA claim. It

allowed him to proceed, instead, with the Arizona Consumer Fraud Act claim as he

had requested. After a bench trial, the court ultimately entered judgment in favor

of Diamond.

Diamond then moved to recover its attorney’s fees and costs on the basis of

either of two Florida statutes. First, it claimed attorney’s fees under the FDUTPA,

arguing that a prevailing party in a FDUTPA suit is entitled to fees regardless of

5
the reason that the FDUTPA is found not to apply. Second, it claimed attorney’s

fees under Florida’s offer of judgment statute after filing with the court an offer of

judgment that Horowitch had refused. Diamond had offered $40,000 “to resolve

all claims that were or could have been asserted by Plaintiff against Diamond

Aircraft in the Amended Complaint.” It is important to note, for purposes of the

requirements of the offer of judgment statute, discussed in greater detail below, that

Diamond had made this offer of judgment while the specific performance claim

was still pending, and that the offer included neither a certificate of service, a

specific statement that attorney’s fees were included, nor a specification of whether

attorney’s fees were part of Horowitch’s legal claim.

The district court awarded no fees under either statute. It awarded no fees

under the FDUTPA because it found that the FDUTPA did not apply and,

moreover, because the applicable Arizona unfair trade practices law provided no

attorney’s fees. It awarded no fees under the offer of judgment statute because it

found that a suit for both damages and non-monetary relief—such as specific

performance—did not fall under the statute. Diamond now appeals both the

FDUTPA and offer of judgment rulings.

II. THE ERIE FRAMEWORK

As a federal court sitting in diversity jurisdiction, we apply the substantive

6
law of the forum state, in this case Florida, alongside federal procedural law. Erie

R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Burger

King Corp. v. E-Z Eating, 41 Corp., 572 F.3d 1306, 1313 n.9 (11th Cir. 2009).

Under this framework, the disputed provisions of Florida law—Florida’s offer of

judgment statute; Rule 1.442(c)(2)(F); Rule 1.442(c)(2)(G); and the FDUTPA and

its fee-shifting provision—apply only if they are substantive for Erie purposes.

Accordingly, we must determine the Erie status of these provisions before applying

them to the case at hand.

We make this determination using two tests. If the Florida law is in conflict

with a Federal Rule of Civil Procedure, then we apply the test set forth by Hanna v.

Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965), under which we

follow the federal rule so long as it is valid under the Constitution and the Rules

Enabling Act. Id., 380 U.S. at 472-74, 85 S. Ct. at 1144-45. If no federal statute or

Federal Rule is on point, then we instead apply the “outcome determinative test”

set forth by Erie and its progeny, under which we apply the Florida law if its

application would be so important to the outcome “that failure to apply it would

unfairly discriminate against citizens of the forum State, or be likely to cause a

plaintiff to choose the federal court.” Esfeld v. Costa Crociere, S.P.A., 289 F.3d

1300, 1307 (11th Cir. 2002) (quoting Gasperini v. Ctr. for Humanities, Inc., 518

7
U.S. 415, 428, 116 S. Ct. 2211, 2220, 135 L. Ed. 2d 659 (1996)).

“This circuit has found [Fla. Stat.] § 768.79”—which is the offer of

judgment statute—“to be substantive law for Erie purposes.” Jones v. United

Space Alliance, L.L.C., 494 F.3d 1306, 1309 (11th Cir. 2007). “Under the prior

panel precedent rule, we are bound by earlier panel holdings . . . unless and until

they are overruled en banc or by the Supreme Court.” United States v. Smith, 122

F.3d 1355, 1359 (11th Cir. 1997). Accordingly, we conclude that the offer of

judgment statute is substantive as a matter of this Court’s precedent.

We also conclude that Florida Rule of Civil Procedure

1.442(c)(2)(F)—which requires an offer of judgment to “state whether the proposal

includes attorneys’ fees and whether attorneys’ fees are part of the legal claim”—is

substantive as a matter of precedent. “[T]he holding of a case is . . . comprised

both of the result of the case and ‘those portions of the opinion necessary to that

result by which we are bound.’ ” United States v. Kaley, 579 F.3d 1246, 1253 n.10

(11th Cir. 2009) (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67, 116 S.

Ct. 1114, 1129, 134 L. Ed. 2d. 252 (1996)). In a prior diversity case, McMahan v.

Toto, 311 F.3d 1077 (11th Cir. 2002), this Court’s application of Rule

1.442(c)(2)(F) was necessary to the result of the case: the Court awarded attorney’s

fees on the basis of the offeror’s compliance with Rule 1.442(c)(2)(F) as well as

8
other requirements of Rule 1.442 and the offer of judgment statute. Id. at 1082-83.

The Court could apply Rule 1.442(c)(2)(F) in this manner only by implicitly

holding that this provision applied in federal court. Accordingly, Rule

1.442(c)(2)(F) applies in federal court as a matter of precedent.

Moreover, we would conclude that Rule 1.442(c)(2)(F) was substantive even

if precedent did not require this result. We would apply the outcome determinative

test, described above, because there is no federal statute or Federal Rule on point.

Rule 1.442(c)(2)(F) prescribes specific, substantive terms that an offer of judgment

must include, and these terms matter to the parties because the inclusion or

exclusion of attorney’s fees is material to an offeree’s ability to evaluate an offer.

The outcome determinative test yields the conclusion that it would be unfair not to

apply the rule in federal court, and that it is therefore substantive for Erie purposes.

However, we conclude that Rule 1.442(c)(2)(G)—which requires an offer to

“include a certificate of service in the form required by rule 1.080(f)”—is

procedural for Erie purposes and therefore does not apply in federal court. At the

outset, we note that Federal Rule of Civil Procedure 5(d)(1) specifies that “[a]ny

paper after the complaint that is required to be served—together with a certificate

of service—must be filed within a reasonable time after service.” Under the

Federal Rule, a party need not certify service until the time of filing, which occurs

9
after service to the other parties. By contrast, Florida courts have required strict,

technical compliance with Rule 1.442(c)(2)(G), invalidating an offer unless it

includes a certificate of service at the time it is served on an offeree. See Milton v.

Reyes, 22 So. 3d 624 (Fla. 3d DCA 2009). Accordingly, the Florida rules require

certification at the time the offer is tendered even though Florida Rule 1.442(d)

specifies that the offer “shall not be filed” at that time. In light of the foregoing, we

apply the Hanna test because a conflict is apparent between the Federal Rules and

the Florida rule: an offer would be valid under the Federal Rules even if it did not

include a certificate of service at the time of service on the opposing party, while

the same offer would be invalid under Rule 1.442(c)(2)(G).2 Cf. Hanna, 380 U.S.

at 470, 85 S. Ct. at 1143 (“Here, of course, the clash is unavoidable; Rule 4(d) (1)

says—implicitly, but with unmistakable clarity—that in-hand service is not

required in federal courts.”).

Under Hanna, because Federal Rule 5(d)(1) conflicts with Florida Rule

1.442(c)(2)(G), the Florida Rule does not apply in federal court so long as the

Federal Rule is valid. We readily conclude that Rule 5(d)(1) is valid under the

2
Rule 68, which sets forth a federal mechanism for tendering an offer of judgment,
further illustrates the conflict between the two sets of procedures. Like Rule 1.442, Rule 68
instructs the parties not to file an offer of judgment with the court at the time of service. Because
Rule 68 does not require filing of the offer at the time of service, however, neither Rule 5(d)(1)
nor Rule 68 requires the offering party to complete a certificate of service at that time.

10
Rules Enabling Act and the Constitution, and we therefore hold that Diamond need

not comply with Rule 1.442(c)(2)(G). Moreover, Horowitch asserts no lack of

compliance with the Federal Rules, and none is apparent to us. Accordingly, Rule

1.442(c)(2)(G) is not applicable in this case and we certify no questions relating to

this provision to the Florida Supreme Court.

Finally, we conclude that the FDUTPA and its fee-shifting provision are

substantive for Erie purposes. It is plain that the FDUTPA itself applies in federal

court, as substantive law, because it creates a cause of action. Furthermore, a

statute allowing for the recovery of attorney’s fees, like the FDUTPA fee-shifting

provision at issue in this case, generally applies in federal court so long as it does

not conflict with a valid federal statute or rule. See Alyeska Pipeline Serv. Co. v.

Wilderness Soc’y, 421 U.S. 240, 259 n.31, 95 S. Ct. 1612, 1622 n.31, 44 L. Ed. 2d

141 (1975) (“[I]n an ordinary diversity case where the state law does not run

counter to a valid federal statute or rule of court, and usually it will not, state law

denying the right to attorney’s fees or giving a right thereto, which reflects a

substantial policy of the state, should be followed.”) (alteration in original);

Schilling v. Belcher, 582 F.2d 995, 1003 (5th Cir. 1978) (“Because this is a

diversity case, the validity of the fee award must be tested under Florida law.”).

We find no conflict between this fee-shifting provision and any federal law.

11
Accordingly, we conclude that both the FDUTPA and its fee-shifting provision are

substantive for Erie purposes.

III. QUESTIONS FOR CERTIFICATION

A. Was Diamond’s offer of judgment rendered non-viable by Rule

1.442(c)(2)(F)’s requirement that an offer of judgment specify whether attorney’s

fees are included and whether attorney’s fees are part of the legal claim?

The issue here is whether Diamond’s offer of judgment, which was intended

to “resolve all claims” but made no mention of attorney’s fees, was nonetheless

viable. Rule 1.442(c)(2)(F) requires an offer of judgment to

state whether the proposal includes attorneys’ fees and whether
attorney’s fees are part of the legal claim.

Fla. R. Civ. P. 1.442(c)(2)(F).

We faced the same issue when we decided McMahan v. Toto, 311 F.3d 1077

(11th Cir. 2002). In McMahan, we held that, when an offer was made to resolve

“all claims,” it encompassed the plaintiffs’ demand for attorney’s fees, despite the

fact that the offer did not explicitly state whether the proposal included attorney’s

fees. Id. at 1082. We therefore rejected the plaintiffs’ claim that Rule

1.442(c)(2)(F) barred the application of the offer of judgment statute. Id. We

found support for this conclusion in two earlier Florida Rule 1.442 cases. First,

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Unicare Health Facilities Inc. v. Mort, 553 So. 2d 159, 161 (Fla. 1989), held that a

plaintiff’s acceptance of an offer of judgment made pursuant to Rule 1.442 that

made no specific mention of attorney’s fees nonetheless precluded that plaintiff

from moving for postjudgment attorney’s fees because those claims were

terminated. Second, George v. Northcraft, 476 So. 2d 758, 759 (Fla. 5th DCA

1985), held that attorney’s fees are “encompassed in an offer of judgment made

pursuant to Rule 1.442 which fails to mention them specifically or reserve the right

to seek them later.”3

We also found support in an earlier Florida opinion issued outside the

context of Rule 1.442. Liberty Mutual Fire Insurance Co. v. Ramos, 565 So. 2d

798 (Fla. 4th DCA 1990), held that where an offer does not specifically mention

attorney’s fees, it will be read to include attorney’s fees because to hold otherwise

would thwart the policy purposes behind a settlement statute by not terminating the

litigation.

Our conclusion in McMahan also finds some confirmation in a Florida case

3
It is important to note, however, that Rule 1.442(c)(2)(F) was not introduced until
the Florida Supreme Court’s order in In re Amendments to Florida Rules of Civil Procedure, 682
So. 2d 105, 124-26 (Fla. 1996), meaning that Unicare and George were decided under a different
version of Rule 1.442 with no explicit requirement that a party state whether attorney’s fees were
included.

13
decided after McMahan, Bennett v. American Learning Systems of Boca Delray,

Inc., 857 So. 2d 986 (Fla. 4th DCA 2003), which specifically held that a settlement

offer need not mention attorney’s fees under Rule 1.442(c)(2)(F) if no attorney’s

fees are claimed in the complaint. However, Bennett is distinguishable because the

plaintiffs in both McMahan and the instant case explicitly demanded attorney’s

fees.

We seek guidance from the Florida Supreme Court on this issue because it

may be that, despite our McMahan decision, a different result is indicated by

Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007), which strictly construed the

offer of judgment statute and Rule 1.442 even with respect to purely technical

error. The Campbell court was presented with the argument that an offer of

judgment was invalid for failure to specify that the offer was being made under the

offer of judgment statute. The Florida Supreme Court noted that the offer of

judgment statute itself requires that a settlement offer “state that it is being made

pursuant to this section,” Fla. Stat. § 768.79(2)(c), and that Rule 1.442(c)(1) also

requires that a settlement offer “shall identify the applicable Florida law under

which it is being made.” Campbell, 959 So. 2d at 226. Significantly, the failure to

identify § 768.79 was a purely technical error: at the time of Campbell, § 768.79

14
was the only applicable offer of judgment statute implemented by Rule 1.442,

Campbell, 959 So. 2d at 227 (Pariente, J., concurring); the offer of judgment

clearly stated that it was being made pursuant to Rule 1.442, id. at 224 (maj.

opinion); and the omission created no ambiguities, see id. at 227 (Pariente, J.,

concurring). It was clear that a technical error of this type would not prejudice the

other party with respect to its ability to evaluate the terms of the offer. The Florida

Supreme Court nonetheless held that fee-shifting was in derogation of the common

law, that both the rule and statute must be strictly construed, and that the failure of

the offer to identify § 768.79 therefore invalidated the offer. Id. at 227.

Campbell dealt with a requirement that was present in both the statute and

the rule. Accordingly, it does not directly control a situation like the one in the

instant case, in which the requirement is present only in the rule. However,

Campbell relied upon two cases that required strict construction of a requirement

present only in the rule; these cases were also decided subsequent to our McMahan

decision. See Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005); Willis Shaw

Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003). Both Lamb and

Willis Shaw held that an offer of judgment was invalid for failure to strictly comply

with Rule 1.442’s requirement that a joint proposal “state the amount and terms

15
attributable to each party.” There is no comparable requirement in the statute.

These cases appear to be distinguishable from Campbell and the instant appeal

because the omission in these cases was not a purely technical failing—the

attribution of the settlement funds may be material to the parties’ evaluation of the

settlement offer. See Lamb, 906 So. 2d at 1040 (“Each defendant should be able to

settle the suit knowing the extent of his or her financial responsibility.”). However,

it is possible to read Lamb and Willis Shaw as establishing strict construction even

for requirements present only in the rule, and to read Campbell as clarifying that

the strict construction principal extends even to purely technical matters. This

reading casts some doubt on our earlier McMahan decision.

The foregoing discussion has focused principally on Rule 1.442(c)(2)(F)’s

first requirement, that a party “state whether the proposal includes attorneys’ fees.”

We now turn briefly to Rule 1.442(c)(2)(F)’s second requirement, that a party state

“whether attorneys’ fees are part of the legal claim.” As Horowitch points out in

his brief—albeit with minimal discussion—Diamond’s failure to comply with the

second requirement may be an additional reason to refuse an award under the offer

of judgment statute. We have found no cases discussing this point, and the parties

make no relevant arguments. Furthermore, the function of this requirement is not

16
clear to us.

We believe it was clear to Horowitch that acceptance of Diamond’s offer

would extinguish any claim to attorney’s fees, and that Diamond’s failure to

discuss attorney’s fees in the offer was therefore not prejudicial. However, there

appears to be a conflict between earlier Florida cases, which hold that an offer of

judgment that does not explicitly reference attorney’s fees is viable, and more

recent cases, which hold that the statute and the rule must be strictly construed even

in the face of purely technical requirements. Even though we have found no

Florida cases that conclusively state how the offer of judgment statute and Rule

1.442 should be applied in this situation, the recent Campbell decision has cast

doubt on our earlier McMahan decision. Accordingly, we respectfully certify to

the Florida Supreme Court the following question:

UNDER FLA. STAT. § 768.79 AND RULE 1.442, IS A DEFENDANT’S OFFER

OF JUDGMENT VALID IF, IN A CASE IN WHICH THE PLAINTIFF

DEMANDS ATTORNEY’S FEES, THE OFFER PURPORTS TO SATISFY ALL

CLAIMS BUT FAILS TO SPECIFY WHETHER ATTORNEY’S FEES ARE

INCLUDED AND FAILS TO SPECIFY WHETHER ATTORNEY’S FEES ARE

PART OF THE LEGAL CLAIM?

17
B. Was Diamond’s offer of judgment rendered non-viable because Horowitch

claimed specific performance—a non-monetary remedy—in the alternative to

damages?

The offer of judgment statute applies only “[i]n any civil action for

damages.” Fla. Stat. § 769.79(1). Applying this requirement, Florida intermediate

courts have refused to apply the statute in cases in which both money damages and

non-monetary relief were sought. In Palm Beach Polo Holdings, Inc. v. Equestrian

Club Estates Property Owners Association, Inc., 22 So. 3d 140 (Fla. 4th DCA

2009), a landlocked plaintiff sued for both non-monetary relief, in the form of

declaratory and injunctive relief to gain use of a private road by “way of necessity,”

and monetary relief, in the form of tortious interference damages due to the prior

denial of access to the road. The court characterized this case as one that

“contained two independent, significant claims, such that it could be characterized

only as an action for both damages and non-monetary, declaratory relief.” Id. at

143.

The defendant in Palm Beach Polo made an offer of judgment in the amount

of $1001 “as complete and final resolution and settlement of all claims.” However,

the court held that the offer of judgment statute did not apply to this offer. As a

18
principle of law, it stated that strict construction, as required by Campbell, “should

not allow application of a general offer of settlement, sought to be applied to claims

seeking non-monetary relief as well as actions for damages.” Id. at 144. Applying

this principle to the facts of the case, the court found that:

In this case, each offer of settlement filed was general, such that it
applied to all claims contained within the complaint which, of course,
included both a claim for damages and non-economic claims. Strict
construction of the statute leads to the conclusion that when an action
seeks non-monetary relief, such as a pure declaration of rights or
injunctive relief, then the fact that it also seeks damages does not bring
it within the offer of judgment statute.

Id.

Palm Beach Polo further explains its rationale through its discussion of a

second relevant case, Di Paola Beach Terrace Association, Inc., 718 So. 2d 1275

(Fla. 2d DCA 1998). Di Paola rejected an offer of judgment in a case in which

both injunctive relief and damages were sought because “the offer was ambiguous

in that it failed to state whether the defendant . . . was agreeing to the entry of

injunctions in addition to the settlement of the plaintiffs’ damages claim.” Palm

Beach Polo, 22 So. 3d at 144 (discussing Di Paola); see Di Paola, 718 So. 2d at

1277. The Palm Beach Polo court found the settlement before it similarly lacking

because “the proposals for settlement did not state whether the association was

19
agreeing to entry of any injunctions.” Palm Beach Polo, 22 So. 3d at 145. It went

further to say that:

If the statute were read to permit a proposal for settlement to apply to a
case in which there were claims for non-economic relief as well as for
damages, the offeree would be forced either to accept the proposal and
continue to litigate the request for injunctive and non-economic relief
or to give up their non-damage claims. The purposes of section
768.79 include the early termination of litigation. A proposal for
settlement in a case such as this one does not satisfy that purpose, as
its acceptance would not terminate the litigation nor resolve those
claims not seeking damages.

Id.

Horowitch argues that Palm Beach Polo and Di Paola stand for the

proposition that, under the strict construction required by Campbell, the offer of

judgment statute cannot apply when a complaint seeks both damages and equitable

relief. By this logic, Horowitch urges, his claim for specific performance, or

alternatively damages, would be beyond the scope of the offer of judgment statute.

To justify this outcome, Horowitch further reasons that it would be impossible to

calculate the monetary value of an equitable remedy won at judgment for purposes

of determining whether the award was 25% less than the judgment offered, as

required to trigger the offer of judgment statute’s fee-shifting provision.

Diamond argues that Palm Beach Polo and Di Paola are distinguishable

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because they involved claims for both equitable relief and money damages. For

example, in Palm Beach Polo, the plaintiff sought an injunction to permit future

access to the private road, and also sought damages for the past denial of access.

By contrast, in the instant case, Horowitch claims equitable relief only in the

alternative to money damages. This argument is persuasive to us because, in any

case in which the two types of relief are set in the alternative, it is clear that the

satisfaction of the claim for money damages would preclude any further litigation

on the matter of equitable relief. Addressing the concern underlying Palm Beach

Polo and Di Paola, there is no possibility in this case that the litigation would not

be terminated by the offer of judgment.

Diamond also argues that the continued workability of the offer of judgment

statute counsels in favor of applying the statute to these facts. If a plaintiff could

simply “tack on” an equitable claim in the alternative to his claims for damages and

thereby preclude the application of the statute, then he could avoid the application

of the statute through artful pleading. This risk is particularly acute in a case like

this one, in which the equitable claim is so lacking in merit: the jet in question is

not a unique good and Horowitch therefore cannot obtain specific performance to

force its sale. See Fla. Stat. § 672.716(1) (adopting the Uniform Commercial Code

21
position that “[s]pecific performance may be decreed where the goods are unique

or in other proper circumstances”); George Vining & Sons, Inc. v. Jones, 498 So.

2d 695, 697 (Fla. 5th DCA 1986) (“[S]pecific performance of a contract is limited

to those involving a unique subject matter such as an agreement to convey land.”);

see also Klein v. PepsiCo, Inc., 845 F.2d 76, 80 (4th Cir. 1988) (refusing to award

specific performance for the delivery of a jet because, among other reasons, the

aircraft was not unique within the meaning of the Virginia Commercial Code).

In light of the lack of controlling Florida law, and because we are in any

event certifying the offer of judgment issue discussed above, in Section III.A, we

certify the following question:

DOES FLA. STAT. § 768.79 APPLY TO CASES THAT SEEK EQUITABLE

RELIEF IN THE ALTERNATIVE TO MONEY DAMAGES; AND, EVEN IF IT

DOES NOT GENERALLY APPLY TO SUCH CASES, IS THERE ANY

EXCEPTION FOR CIRCUMSTANCES IN WHICH THE CLAIM FOR

EQUITABLE RELIEF IS SERIOUSLY LACKING IN MERIT?

C. Does the FDUTPA fee-shifting provision apply in a case in which a plaintiff’s

FDUTPA claim fails because the law of another jurisdiction governs the issue?

Unless Diamond is entitled to recover its full attorney’s fees pursuant to the

22
offer of judgment statute, it will be necessary to address its claim for attorney’s fees

under the FDUTPA.

The FDUTPA states, in relevant part, that:

In any civil litigation resulting from an act or practice involving a
violation of this part, . . . the prevailing party, after judgment in the
trial court and exhaustion of all appeals, if any, may receive his or her
reasonable attorney’s fees and costs from the nonprevailing party.

Fla. Stat. § 501.2105(1). Florida’s courts have interpreted this fee-shifting

provision to apply under circumstances in which a plaintiff has sued under the

FDUTPA and lost, even when the plaintiff has lost because the court concluded

that the alleged violation was not one that actually fell under the statute,

notwithstanding the fact that such an act is by definition not “a violation of this

part” in the most literal sense. See Rustic Village v. Friedman, 417 So. 2d 305, 305

(Fla. 3d DCA 1982) (“[W]here a plaintiff brings a claim under the Act, an

attorney’s fee is to be allowed a prevailing defendant even though the trial judge

holds that the action is not one contemplated by the Act.”); see also M.G.B. Homes,

Inc. v. Ameron Homes, Inc., 30 F.3d 113, 115 (11th Cir. 1994) (awarding

attorney’s fees to a prevailing defendant in a suit between competitors after finding

that the FDUTPA does not apply to suits between competitors, stating that if it

were Florida law to deny attorney’s fees under these circumstances then “no

23
prevailing defendant would ever be entitled to attorney’s fees under the DTPA, for

by definition defendants prevail by demonstrating the inapplicability of the DTPA

to their actions”); Brown v. Gardens by the Sea South Condominium Assoc., 424

So. 2d 181, 184 (Fla. 4th DCA 1983) (awarding attorney’s fees to a prevailing

defendant even though the transaction did not qualify as a “consumer transaction”

and the FDUTPA therefore did not apply).4

However, the instant case is distinguishable—in none of these cases was the

FDUTPA found not to apply because the law of a foreign jurisdiction governed the

unfair trade practices claim. Moreover, Rustic Village recognized, in dicta, that

there might be a distinction if the FDUTPA did not actually “apply”:

The plaintiff [argues] that once the trial court had found the Act
“inapplicable,” it could not then utilize the Act for the purpose of
granting the prevailing defendant an attorney’s fee. It is apparent that

4
Diamond cites to specific language in Rustic Village, 417 So. 2d at 306 (“The
plaintiff, having invoked the Act, is liable for an attorney’s fee because he did not prevail.”), and
Leitman v. Boone, 439 So. 2d 318, 322 (Fla. 3d DCA 1983) (“[B]y invoking an existing and
valid statute which calls for an award of attorneys’ fees, one may subject himself to having
attorneys’ fees asserted against him if he does not prevail.”), to argue that a plaintiff is liable for
attorney’s fees whenever he “invokes” the FDUTPA and then loses the case. However, this
language does not dispose of the instant case because neither of those cases presents a situation
in which the FDUTPA does not apply because another state’s substantive law governs.
Moreover, Leitman carries little weight: it spoke on the issue only in dicta, see id. (finding that
attorney fees were improper as “a consequence of the non-existence of a contract,”
notwithstanding the plaintiff’s invocation of the FDUTPA), and the Florida Supreme Court
subsequently disagreed with Leitman on other grounds in Gibson v. Courtois, 539 So. 2d 459
(Fla. 1989). Accordingly, we conclude that no Florida court has held that the mere invocation of
the FDUTPA is sufficient to trigger its fee-shifting provision.

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 this is not the case since the Act was applied in the action. It is simply
that after being applied, it did not produce a remedy for this plaintiff.

Because the instant case is distinguishable, no Florida cases provide clear guidance

on whether the FDUTPA should apply on the facts of this case.

We nonetheless find some guidance on how to proceed in this situation by

examining how the offer of judgment statute has been applied in disputes governed

by the substantive law of other states. In BDO Seidman v. British Car Auctions,

802 So. 2d 366 (Fla. 4th DCA 2001), a Florida court was presented with the

question of whether it was obliged to apply a choice of law analysis to determine

whether the offer of judgment statute would apply in a case brought in Florida but

governed by Tennessee law. It ultimately held that the legislature was clear in

stating that the statute applies to “any” civil action for damages filed in a Florida

court, that it was unnecessary to conduct a choice of law analysis in the face of

such a clear legislative statement, and that the offer of judgment statute therefore

applied. Id. at 368-69. In a concurrence, Judge Gross asserted that the statute

would have applied even under choice of law analysis, because the statute is a

procedural mechanism for choice of law purposes and Florida procedural law still

applies even when another state’s substantive law governs. Id. at 370 (Gross., J.,

concurring). On the basis of BDO Seidman, this Court has also explicitly held that

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the offer of judgment statute “is applicable to cases . . . that are tried in the State of

Florida even though the substantive law that governs that case is that of another

state.” McMahan v. Toto, 311 F.3d 1077, 1081 (11th Cir. 2002). The application

of the offer of judgment statute to these cases provides support for the argument

that Florida courts might likewise apply the fee-shifting provisions of the FDUTPA

under circumstances in which the substantive law of another state applied so long

as a plaintiff nonetheless triggered the procedural provisions of the FDUTPA by

suing under it.5

Applying the fee-shifting provision in these circumstances also advances

Florida’s interest in preventing unfair trade practices claims from being brought

needlessly. As one Florida court has recognized:

[I]t is not uncommon for litigants to inject claims of fraud and
deceptive trade practices into a contractual dispute. This tactic
complicates a lawsuit, raises the stakes, and increases the litigation
expenses. We have encountered few cases where such claims were
successful.

Mandel v. Decorator’s Mart, Inc. of Deerfield Beach, 965 So. 2d 311, 313 n.1 (Fla.

5
A law may be substantive for Erie purposes (meaning it applies in federal court)
yet procedural for other purposes, such as a choice of law analysis. Sun Oil Co. v. Wortman, 486
U.S. 716, 726-28, 108 S. Ct. 2117, 2124-25, 100 L. Ed. 2d 743 (1988); BDO Seidman, 802 So.
2d at 370-71 (Gross, J., concurring). Accordingly, the prospect that the FDUTPA’s fee-shifting
provision might be thought of as procedural for choice of law purposes does not place at risk its
status as substantive for Erie purposes.

26
4th DCA 2007). A plaintiff introduces the same complications, and the same strain

on the Florida court system, whenever he raises a FDUTPA claim, regardless of

which state’s substantive law is ultimately found to govern. Accordingly, it is

plausible that the Florida courts would wish to curb this behavior by holding such a

plaintiff accountable under the fee-shifting provision.

It appears to us that Florida law would likely treat the FDUTPA’s fee-

shifting provision much like it would the offer of judgment statute, applying it even

in actions in which the law of another state was ultimately found to govern the

substantive claims. However, because we are in any event certifying questions

related to the offer of judgment statute, because there is room to distinguish the

FDUTPA’s fee-shifting provision and the offer of judgment statute, and because

we have found no Florida cases directly addressing whether the FDUTPA would

apply to circumstances like these, we certify the following question:

DOES FLA. STAT. § 501.2105 ENTITLE A PREVAILING DEFENDANT TO

AN ATTORNEY’S FEE AWARD IN A CASE IN WHICH A PLAINTIFF

BRINGS AN UNFAIR TRADE PRACTICES CLAIM UNDER THE FDUTPA,

BUT THE DISTRICT COURT DECIDES THAT THE SUBSTANTIVE LAW OF

A DIFFERENT STATE GOVERNS THE UNFAIR TRADE PRACTICES

27
CLAIM, AND THE DEFENDANT ULTIMATELY PREVAILS ON THAT

CLAIM?

D. Would the FDUTPA fee-shifting provision support an award of fees for the

entire litigation, or only for the seven-month period before the court held that

Arizona law, rather than Florida law, applied?

If the FDUTPA fee-shifting provision applies to this case, we are left with

the question of whether it applies to the entire case or only to the seven months

between the time Horowitch raised his FDUTPA claim and the time the district

court found that he could not proceed under the FDUTPA.

One plausible reading of the statute’s requirement, that the “civil litigation

result[] from an act or practice involving a violation of [the FDUTPA],” is that the

statute applies only to litigation in which a plaintiff at least alleges a violation of

the FDUTPA. At the point that Horowitch ceased litigating his FDUTPA claim to

pursue an Arizona Consumer Fraud Act claim, he was no longer asserting a

violation of the FDUTPA, so perhaps the fee-shifting provision should not apply

from that point onward. On the other hand, the FDUTPA does not award fees until

after “exhaustion of all appeals.” Because Horowitch could have appealed the

district court’s decision that the FDUTPA did not apply, and because any such

28
appeal would have taken place after the seven month period under discussion, it is

also possible that the fee-shifting provision would cover the entire case.

Florida’s cases addressing the applicability of the FDUTPA fee-shifting

provision do not reach this issue. In Rustic Village, Brown, and MGB, discussed

above, no claims were left unresolved after the disposal of the FDUTPA claim.

Accordingly, there was no period of litigation during which only non-FDUTPA

claims were at issue.

Another set of Florida cases establishes that an attorney may recover for time

spent defending claims related to a FDUTPA claim, but these cases are also of little

help because none of them reaches this problem. These cases tell us that:

[I]n actions containing a deceptive trade practices count and one or
more alternative theories of recovery, all based on the same
transaction, no allocation of attorney’s services need be made except
to the extent counsel admits that a portion of the services was totally
unrelated to the 501 claim or it is shown that the service related to
issues, such as punitive damages, which were clearly beyond the scope
of a 501 proceeding.

Heindel v. Southside Chrysler-Plymouth, Inc., 476 So. 2d 266, 272 (Fla. 1st DCA

1985); see also LaFerney v. Scott Smith Oldsmobile, Inc., 410 So. 2d 534, 536

(Fla. 5th DCA 1982) (“[T]here was really only one transaction or set of facts which

gave rise to all five ‘theories’ in the complaint . . . . As appellant points out, proof

29
of a deceptive trade practice under Chapter 501 may well, and frequently does,

involve proof of breach of contract and fraud or misrepresentation.”). However,

these cases are distinguishable because none of these cases involve circumstances

in which the case was still live after the FDUTPA claim was disposed of. The

immediate question is not whether Horowitch’s other claims were cognizable as

alternative claims arising out of the same consumer transaction as the FDUTPA

claim, but whether the FDUTPA fee-shifting provisions applied after the FDUTPA

claim had been extinguished.

Because there is little guidance in Florida law on the question of whether the

FDUTPA fee-shifting provision extends to the period after which the FDUTPA

claim was eliminated, and because we are already certifying the question of

whether the FDUTPA applies to this case at all, we certify the following question:

IF FLA. STAT. § 501.2105 APPLIES UNDER THE CIRCUMSTANCES

DESCRIBED IN THE PREVIOUS QUESTION, DOES IT APPLY ONLY TO

THE PERIOD OF LITIGATION UP TO THE POINT THAT THE DISTRICT

COURT HELD THAT THE PLAINTIFF COULD NOT PURSUE THE FDUTPA

CLAIM BECAUSE FLORIDA LAW DID NOT APPLY TO HIS UNFAIR

TRADE PRACTICES CLAIM, OR DOES IT APPLY TO THE ENTIRETY OF

30
THE LITIGATION?

IV. CONCLUSION

“The phrasing of these [four] questions is not intended to limit the Florida

Supreme Court’s consideration of the issues involved or the manner in which it

gives its answers.” MCI WorldCom Network Servs. v. Mastec, Inc., 370 F.3d

1074, 1079 (11th Cir. 2004). In order to assist in the resolution of these questions,

the record in this case and the briefs of the parties shall be transmitted to the

Florida Supreme Court.

QUESTIONS CERTIFIED.

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