Alan Horowitch v. Diamond Aircraft Industries, Inc.

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                Case: 10-12931       Date Filed: 03/08/2013      Page: 1 of 3

                                                                     [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 10-12931
                              ________________________

                       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
                           _________________________

                                      (March 8, 2013)



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

_____________
* Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
               Case: 10-12931     Date Filed: 03/08/2013    Page: 2 of 3

PER CURIAM:

      This case returns to us after we certified four questions to the Florida

Supreme Court, two of which related to Florida’s offer of judgment statute, Fla.

Stat. §768.79, and two of which related to the Florida Deceptive and Unfair Trade

Practices Act (“FDUTPA”), Fla. Stat. § 501.2105. The reader is referred to our

previous certification opinion, Horowitch v. Diamond Aircraft Indus, Inc., 645

F.3d 1254 (11th Cir. 2011).

      The Florida Supreme Court, in an opinion dated January 10, 2013, answered

the certified questions. See Diamond Aircraft Indus., Inc. v. Horowitch, __ So.3d

__ (Fla. Jan. 10, 2013). Although the Florida Supreme Court held that Diamond

Aircraft was not entitled to any attorneys’ fees pursuant to Florida’s offer of

judgment statute, the Court held that the attorneys’ fee provision under FDUTPA

does apply to the instant litigation for fees incurred up until the time that the

federal district court held that FDUTPA was inapplicable.

      Accordingly, this case is remanded to the district court for a determination of

attorneys’ fees to which Diamond Aircraft is entitled pursuant to the opinion of the

Florida Supreme Court.




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                Case: 10-12931        Date Filed: 03/08/2013       Page: 3 of 3

       SO ORDERED.1




       1
                We TRANSFER to the district court Diamond Aircraft’s motion for attorneys’
fees because under the FDUPTA, the trial court is the proper venue for bringing that motion. See
Fla. Stat. §501.1205(2) (“The attorney for the prevailing party shall submit a sworn affidavit of
his or her time spent on the case and his or her costs incurred for all the motions, hearings, and
appeals to the trial judge who presided over the civil case.”); M.G.B. Homes, Inc. v. Ameron
Homes, Inc., 30 F.3d 113, 115 (11th Cir. 1994).

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