Case review assignment

Third District Court of Appeal State of Florida

Opinion filed September 2, 2020. Not final until disposition of timely filed motion for rehearing.

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No. 3D16-2085

Lower Tribunal No. 14-2954 ________________

Island Travel & Tours Ltd. Co., a Florida Corporation, William J. Hauf, an individual, Ismael O. Sene, an individual,

and Danny Looney, an individual, Appellants,

vs.

MYR Independent, Inc., etc.,

Appellee. An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge. Law Offices of Roberto Villasante, and Roberto Villasante, for appellants. Arnold R. Ginsberg, P.A. and Arnold R. Ginsberg, for appellee. Before LOGUE, SCALES, and LINDSEY, JJ. LINDSEY, J.

Appellants/Defendants below Island Travel & Tours Ltd., Co.; William Hauf;

Ismael Sene; and Danny Looney appeal (1) an order granting Appellee/Plaintiff

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below MYR Independent, Inc.’s motion for fees based on individual proposals for

settlement and (2) an order denying Appellants’ motion for fees pursuant to section

772.11, Florida Statutes (2019), which entitles a defendant “to recover reasonable

attorney’s fees and court costs in the trial and appellate courts upon a finding that

the claimant raised a claim that was without substantial fact or legal support.” For

the reasons set forth below, we reverse both orders.

The underlying merits dispute in this case stemmed from a disagreement over

the distribution of money collected during a brief joint venture between Island and

MYR. When the parties were unable to agree how to distribute the money, MYR

sued Island along with Looney, Sene, and Hauf (individuals associated with Island)

for breach of contract, unjust enrichment, fraud in the inducement, negligent

misrepresentation, civil conspiracy, and civil theft.

Following a five-day jury trial, the court entered a directed verdict in favor of

Looney, Sene, and Hauf on MYR’s civil theft claim, finding no evidence of criminal

intent. After the jury returned a verdict against Island on the civil theft claim, the

trial court granted Island’s motion for judgment notwithstanding the verdict, finding

that the civil theft count against Island could not stand because none of Island’s

agents possessed the requisite intent.

Ultimately, final judgment was entered in favor of MYR on its claims for

breach of contract, negligent misrepresentation, and fraudulent inducement. The

parties appealed, and this Court affirmed the judgment in favor of MYR only as to

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its breach of contract claims. See Island Travel & Tours, Ltd., Co. v. MYR Indep.,

Inc., 45 Fla. L. Weekly D704 (Fla. 3d DCA Mar. 25, 2020). This Court also affirmed

the trial court’s entry of judgment as a matter of law on MYR’s civil theft claim

because the evidence below “merely established the existence of a contractual

dispute, nothing more” and there was “no evidence of criminal intent prior to the

alleged breach.” Id.

We now turn to the two orders on attorney’s fees before us in this appeal,

which we review for an abuse of discretion. Glob. Xtreme, Inc. v. Advanced Aircraft

Ctr., Inc., 122 So. 3d 487, 490 (Fla. 3d DCA 2013). However, when entitlement to

fees is based on the interpretation of a statute, the standard of review is de novo. Id.

The first order under review concerns MYR’s individual proposals for

settlement. Following a hearing, the trial court found that the individual proposals

for settlement served on Looney and Sene were not valid due to numerous

typographical errors and inconsistencies. With respect to Hauf and Island, the court

found that the proposals for settlement were valid and therefore granted MYR’s

motion for entitlement to fees as to Hauf and Island. We find no error in the trial

court’s granting of MYR’s motion as to Hauf and Island; however, because MYR

ultimately prevailed only on its breach of contract claim, we reverse and remand for

a determination of the amount of fees directly related to the breach of contract claim.

The second order under review concerns Appellants’ entitlement to fees under

the civil theft statute, section 772.11, Florida Statutes (2019), which allows a

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defendant “to recover reasonable attorney’s fees and court costs in the trial and

appellate courts upon a finding that the claimant raised a claim that was without

substantial fact or legal support.” Here, MYR did not prevail on its civil theft claims,

but this does not necessarily entitle the defendants to fees and costs under section

772.11. See Standafer v. Schaller, 726 So. 2d 352, 353 (Fla. 2d DCA 1999) (“[T]he

failure of a plaintiff to prevail on a civil theft claim by clear and convincing evidence

does not necessarily mean that the claim was without substantial fact or legal

support.”); see also Opus Group, LLC. v. Int’l Gourmet Corp., 11-23803-CIV, 2013

WL 12383485 (S.D. Fla. July 26, 2013); Soltero v. Swire Dev. Sales, Inc., 08-20260-

CIV, 2013 WL 12340902 (S.D. Fla. Mar. 8, 2013); Ramjeawan v. Bank of Am.

Corp., 09-20963-CIV, 2010 WL 11602097 (S.D. Fla. Oct. 13, 2010), report and

recommendation adopted sub nom. Ramjeawan v. Bank of Am., N.A., 09-20963-

CIV, 2011 WL 13273129 (S.D. Fla. Feb. 25, 2011).

The clear language in the statute permits recovery of fees and costs only when

a claim is raised “without substantial fact or legal support.” § 772.11, Fla. Stat.

(2019). Based on the record before us, we conclude that Appellants were entitled to

recover fees under section 772.11 because MYR’s civil theft claims were without

substantial fact or legal support.

Here, the trial court directed a verdict in favor of the Appellants, finding that

there was no evidence of criminal intent, a necessary element of the civil theft claim.

See Island Travel, 45 Fla. L. Weekly D704 (affirming the trial court’s entry of a

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directed verdict). “By the grant of a directed verdict on the grounds that there was

no showing of criminal intent, the trial court determined that no evidence was

presented to support an essential element of the civil theft claim. Therefore, the claim

of civil theft was by definition without any factual evidentiary support, let alone

substantial fact, because it was missing an essential element of the claim.” Friedman

v. Lauderdale Med. Equip. Serv., Inc., 591 So. 2d 328, 329 (Fla. 4th DCA 1992);

see also Moore Business Forms, Inc. v. Iberoamerican Elecs., S.R.L., 698 So. 2d

611, 613 (Fla. 3d DCA 1997); Hartford Ins. Co. of the Midwest v. Miller, 681 So.

2d 301, 302 (Fla. 3d DCA 1996).

We therefore reverse the trial court’s order denying Appellants’ motion for

fees pursuant to section 772.11 and remand for a determination of the attorney’s fees

expended on the civil theft counts.

Reversed and remanded.