Humane Soc. of Broward v. Fl Humane Soc.Humane Soc. of Broward v. Fl Humane Soc.
George H. Aslanian, Jr. of Aslanian & Aslanian, Fort Lauderdale, for appellee.
GROSS, J.
The Humane Society of Broward County, Inc. (“Broward Humane“) appeals the circuit court‘s award of prevailing party attorney‘s fees to The Florida Humane Society (“Florida Humane“), under
Broward Humane filed a five-count complaint against Florida Humane alleging common law servicemark infringement, common law trademark infringement, unfair competition, violation of Florida‘s Deceptive and Unfair Trade Practices Act, and dilution. Broward Humane alleged that Florida Humane deliberately and willfully deceived the public to blur the identity of the parties. Broward Humane sought to enjoin Florida Humane from using the term “humane society” in Broward County.
After a bench trial, the circuit court entered a final judgment in favor of Florida Humane on all claims. Florida Humane timely filed a motion to tax costs and attorney‘s fees under
The trial court found that Florida Humane‘s attorney expended 453.80 hours at a reasonable rate of $200.00, for a total attorney fee award of $90,760; the court also awarded $5,846 for costs and $3,750 for expert witness fees, resulting in a total judgment for $100,356. Broward Humane appealed the award and Florida Humane cross-appealed the amount of the award.
An award of attorney‘s fees to the prevailing party under
Broward Humane contends that under the FDUTPA a losing plaintiff should be shielded from liability for fees and costs unless the plaintiff‘s lawsuit is “frivolous, unreasonable, or without foundation.” See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Broward Humane argues that requiring the unsuccessful plaintiff to pay the prevailing defendant‘s fees constitutes a penalty against the plaintiff and does not foster the goals of FDUTPA.
Broward Humane points to Florida‘s Anti-Trust Act
We reject this argument because the Anti-Trust Act contains a specific standard for the award of fees to a prevailing defendant, while FDUTPA does not.
Any person who shall be injured in her or his business or property by reason of any violation of
s. 542.18 ors. 542.19 may sue therefor in the circuit courts of this state and shall recover threefold the damages by her or him sustained, and the cost of suit, including a reasonable attorney‘s fee. The court shall award a reasonable attorney‘s fee to a defendant prevailing in any action under this chapter for damages or equitable relief in which the court finds there was a complete absence of a justiciable issue of either law or fact raised by the plaintiff.
(Emphasis added).
No Florida court has directly addressed the question of whether different standards should apply to a prevailing plaintiff as opposed to a prevailing defendant under
(1) In any civil litigation resulting from an act or practice involving a violation of this part, except as provided in subsection (5), 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.
Although the statute does not distinguish between prevailing plaintiffs and defendants, Broward Humane urges a reading that would generally award fees to a prevailing plaintiff, but would entitle a prevailing defendant to fees only if the plaintiff‘s “statutory claim is frivolous or groundless.”
Broward Humane relies on Christiansburg to support its argument that Florida courts should curtail awards of fees and costs under
In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney‘s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.
78 Stat. 261,
In so holding, the Court concluded that there were “two strong equitable considerations counseling an attorney‘s fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant.” First, “the plaintiff is the chosen instrument of Congress to vindicate ‘a policy that Congress considered of the highest priority.‘” Id. at 418, 98 S.Ct. 694 (quoting Newman v. Piggie Park Enter., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)). Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them “against a violator of federal law.” Christiansburg Garment Co., 434 U.S. at 412, 98 S.Ct. 694. The Court went on to say “assessing attorney‘s fees against plaintiffs simply because they do not finally prevail would substantially add to the risk inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII.” Id. at 422, 98 S.Ct. 694.
The Court ruled that a prevailing defendant should not be awarded prevailing party attorney‘s fees “routinely, . . . simply because he succeeds.” The Court held that a successful defendant‘s award of fees need not be limited to situations where plaintiffs acted in bad faith, but instead applied in cases where the “claim was frivolous, unreasonable, [ ] groundless, or that the plaintiff continued to litigate after it clearly became so.” Id. The Court indicated that
no statutory provision would have been necessary had an award of fees to a prevailing defendant been based only on the plaintiff‘s bad faith in bringing the action, for even under the American common-law rule (which ordinarily does not allow attorney‘s fees to the prevailing party) such fees can be awarded against a party who has proceeded in bad faith. . . . Needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney‘s fees incurred by the defense.
The Court found support for its conclusion in the “sparse legislative history” of section 706(k). Looking to the legislative history of section 706 the court determined that “while Congress wanted to clear the way for suits to be brought under the Act, it also wanted to protect defendants from burdensome litigation having no legal or factual basis.” Id. at 420, 98 S.Ct. 694. The Court then determined that awarding fees to a defendant only upon a finding that the plaintiff‘s actions were “frivolous, unreasonable, or without foundation” would accomplish both of these goals. Id. at 421, 98 S.Ct. 694.
We reject the invitation to read Christiansburg into the statute. Florida law requires us to apply the plain meaning of
[i]n making a judicial effort to ascertain the legislative intent implicit in the statute, courts are bound by the plain and definite language of the statute and are not authorized to engage in semantic niceties or speculations. If the language of the statute is clear and unequivocal, then the legislative intent must be derived from the words used without involving incidental rules of construction or engaging in speculation as to what the judges might think that the legislators intended or should have intended.
Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960).
Prior to a 1994 amendment, FDUTPA provided for the mandatory award of reasonable attorney‘s fees to any prevailing party. See Target Trailer, Inc. v. Feingold, 632 So.2d 198 (Fla. 3d DCA 1994); Smith v. Bilgin, 534 So.2d 852, 852 (Fla. 1st DCA 1988); Rustic Village, Inc. v. Friedman, 417 So.2d 305, 306 (Fla. 3d DCA 1982); see also Gen. Motors Acceptance Corp., 791 So.2d at 517. The 1994 amendment to
We interpret this amendment as a legislative recognition that mandatory fee awards had a chilling effect on consumer plaintiffs bringing suit under FDUTPA. Consistent with the primary policy of the statute “[t]o protect the consuming public . . . from those who engage in unfair methods of competition, deceptive, or unfair acts or practices in the conduct of any trade or commerce,” the legislature removed the mandatory award of fees to the prevailing party from the statute and placed the award of fees in the trial court‘s discretion.2 The plain language of the statute does not suggest that the Legislature intended to treat prevailing defendants differently than prevailing plaintiffs.
To apply Christiansburg to
(1) the scope and history of the litigation;
(2) the ability of the opposing party to satisfy an award of fees;
(3) whether an award of fees against the opposing party would deter others from acting in similar circumstances;
(4) the merits of the respective positions — including the degree of the opposing party‘s culpability or bad faith;
(5) whether the claim brought was not in subjective bad faith but frivolous, unreasonable, groundless;
(6) whether the defense raised a defense mainly to frustrate or stall;
(7) whether the claim brought was to resolve a significant legal question under FDUTPA law.
See Rosen v. Rosen, 696 So.2d 697, 700-01 (Fla.1997); Carpenters S. Cal. Admin. Corp. v. Russell, 726 F.2d 1410, 1415 (9th Cir.1983) (citing Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 453 (9th Cir.1980) (involving award of attorney‘s fees under
The trial court‘s award of fees was within its discretion. As the trial court observed, Broward Humane was a larger organization than Florida Humane, with deeper pockets. Without funds to secure a defense attorney, Florida Humane was able to hire an attorney on the hope that a successful defense would allow it to recover fees from the plaintiff. This was not a test case with broad application; it was a business dispute involving two litigants under narrow circumstances.
Rejecting Florida Humane‘s arguments on the cross appeal, we also hold that the trial court‘s determination of the amount of the fees was not an abuse of its discretion.
WARNER and POLEN, JJ., concur.