[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 19, 2008
No. 07-13817
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-81255-CV-WJZ
SAUL FOX,
Plaintiff-Appellant,
versus
PORSCHE CARS NORTH AMERICA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 19, 2008)
Before ANDERSON, HULL and SILER,* Circuit Judges.
PER CURIAM:
*
Honorable Eugene Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
In this diversity action, plaintiff-appellant Saul Fox seeks to recover
attorney’s fees and litigation costs under Florida Statute § 681.112 incurred in his
successful Florida lemon law arbitration proceeding against defendant-appellee
Porsche Cars North America, Inc. (“PCNA”). PCNA argues that the plain
language of § 681.112 allows a court to award a consumer, who prevails in a
§ 681.112 action, “reasonable attorney’s fees” incurred in that § 681.112 action,
but not attorney’s fees incurred in that lemon law arbitration proceeding as sought
by Fox. PCNA further argues that attorney’s fees are not “damages” under the
first sentence of § 681.112 and thus damages (other than attorney’s fees) must be
sought in the § 681.112 action before a consumer can recover attorney’s fees
under the second sentence of § 681.112. All parties agree that Florida law
controls this appeal.
The Florida Fourth District Court of Appeal, however, already has
addressed this question and reached the opposite conclusion, stating that:
Gelinas’s claim for attorney’s fees and costs is also cognizable under
section 681.112, because where a consumer’s vehicle has been deemed
a “lemon” by the arbitration board, a violation of [Florida] Chapter 681
has been found, and that consumer can seek attorney’s fees and costs
under section 681.112 because such cannot be sought from the
arbitration board . . . .
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Gelinas v. Forest River, Inc., 931 So. 2d 970, 975-76 (Fla. Dist. Ct. App. 2006),
review denied, 954 So. 2d 27 (Fla. 2007). Although the plaintiff in Gelinas did
seek to recover other pecuniary losses, the Florida appellate court in Gelinas did
not tie or condition the recovery of attorney’s fees from Gelinas’s successful
separate arbitration to Gelinas’s seeking additional losses in the § 681.112 action,
but concluded that a claim for attorney’s fees and costs from the separate
arbitration proceeding is “also cognizable under section 681.112.” Id. at 975.
Whether we disagree with the Florida District Court of Appeal’s reading of this
Florida statute is not the issue. Rather, PCNA has failed to meet its burden of
showing there is “some persuasive indication” that the Florida Supreme Court
would decide this issue differently than the Florida Fourth District Court of
Appeal did in Gelinas. See Silverberg v. Paine, Webber, Jackson & Curtis, Inc.,
710 F.2d 678, 690 (11th Cir. 1983); Flintkote Co. v. Dravo Corp., 678 F.2d 942,
945 (11th Cir. 1982). Thus, after review and oral argument, we reverse the district
court’s order granting summary judgment in favor of PCNA, and remand to the
district court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
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