Heindel v. Southside Chrysler-Plymouth, Inc.

• Decision Date: 30 September 1985
• Docket Number: CHRYSLER-PLYMOUT,INC,No. AY-365,AY-365
• Citation: 10 Fla. L. Weekly 2260,476 So.2d 266
• Parties: 10 Fla. L. Weekly 2260 Kenneth HEINDEL, Appellant, v. SOUTHSIDE, Universal Underwriters Insurance Co., and Ray Mixon, Appellees.
• Court: Florida District Court of Appeals

Page 266

476 So.2d 266

10 Fla. L. Weekly 2260

Kenneth HEINDEL, Appellant, v. SOUTHSIDE CHRYSLER-PLYMOUTH, INC., Universal Underwriters Insurance Co., and Ray Mixon, Appellees.

No. AY-365.

District Court of Appeal of Florida,

First District.

Sept. 30, 1985.

Harris Brown of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellant.

William T. Stone of Coker, Myers & Schickel, P.A., Jacksonville, for appellees.

ZEHMER, Judge.

Kenneth Heindel, plaintiff below, appeals a final judgment awarding him damages in his civil action against defendants, Southside Chrysler-Plymouth, Inc. (Southside), and its insurer, complaining that the judgment erroneously allowed attorney's fees to appellees under section 501.2105, Florida Statutes (1983). Southside cross appeals, urging that the court erred in awarding lost profits to Heindel. We affirm in part and reverse in part.

For several years prior to 1980, Heindel operated an unincorporated business for the purpose of purchasing "wrecked cars," repairing such cars, and reselling them for a profit. In 1980 Heindel purchased an Oldsmobile for $3,000 through this business, purchased some parts for repairing the vehicle, and in May of that year delivered the vehicle and parts to Southside for repairs. In early 1981 Heindel recovered his car from the repair shop and found that the expected repairs had not been completed. He eventually sold the vehicle for $1,400 salvage value.

Based on this single transaction, Heindel sued Southside for damages on alternative theories of bailment, breach of contract, and deceptive trade practices in violation of chapter 501, part II, Florida Statutes (1983). Appellant also sued Ray Mixon as the alleged owner of Southside. Appellant sought damages for loss of value of the automobile and lost profits on the expected resale. Ray Mixon obtained final summary judgment in his favor on all counts upon a showing that he no longer held an ownership interest in Southside.

A jury trial was held October 3, 1983, and at the conclusion of Heindel's case in chief, Southside moved for a directed verdict as to the deceptive trade practices claim on grounds that no "consumer transaction" was involved within the meaning of section 501.203, Florida Statutes (1983), and that there was insufficient evidence of unfair or deceptive activity. Heindel countered the motion by arguing that this was a "consumer transaction" because he purchased the car for personal use and eventual resale. The court ruled this was not a consumer transaction and granted the motion for directed verdict. The jury then returned a verdict for Heindel on the breach of contract and bailment claims, awarding "difference in value" damages of $1,500 and "lost profit" damages of $3,147.25, for a total of $4,647.25. Final judgment was entered December 16, 1983, and Southside filed a motion for rehearing together with a motion to tax attorney's fees and costs. Ray Mixon also moved for an award of attorney's fees. On March 28, 1984, the court entered an order on the authority of section 501.2105 granting $500 attorney's fees to Ray Mixon and $3,000 to Southside and its insurer. The motion for rehearing was denied and this appeal was filed.

The first issue on appeal is whether the court erred in granting appellees a directed verdict on the deceptive and unfair trade practices count. We affirm the court's ruling that the evidence was insufficient as a matter of law to establish that the partial repair of Heindel's automobile by Southside was a "consumer transaction" within the meaning of section 501.203. This section defines "consumer transaction" as follows:

"Consumer transaction" means a sale, lease, assignment, award by chance, or other disposition of an item of goods, a consumer service, or an intangible to an individual for purposes that are primarily personal, family, or household or that relate to a business opportunity that requires both his expenditure of money or property and his personal services on a continuing basis and in which he has not been previously engaged, or a solicitation by a supplier with respect to any of these dispositions.

Hence, an automotive repair service obtained in connection with a business activity in which plaintiff has previously engaged is excluded from this definition. Darrell Swanson Consolidated Services v. Davis, 433 So.2d 651 (Fla. 1st DCA 1983). The record reveals that appellant purchased the vehicle in question through his automobile resale business, paid for it by check on his business account, and contemplated resale of the car once it was repaired. That this transaction was primarily related to plaintiff's business endeavors, rather than a vehicle required for personal use, is clearly demonstrated by Heindel's claim for lost profits from the sale of the car. The fact that Heindel might have put the car to temporary personal use before reselling it did not change the nature and purpose of the transaction into a consumer transaction.

The second issue raised by appellant is whether the court erred in awarding attorney's fees under section 501.2105 prior to exhaustion of this appeal. Appellees have conceded error on this point. Section 501.2105 provides that any attorney's fees shall be awarded "after judgment in the trial court and exhaustion of all appeals, if any," so we must vacate the award of fees to both Southside and Ray Mixon as premature. Nolan v. Altman, 449 So.2d 898 (Fla. 1st DCA 1984).

The third issue is whether defendants were the "prevailing party" within the meaning of section 501.2105. The pertinent portions of section 501.2105 read as follows:

(1) In any civil litigation resulting from a consumer transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhausation of all appeals, if any, shall receive his reasonable attorney's fees and costs from the nonprevailing party.

(2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.

(3) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit. [Emphasis added.]

We begin our analysis with the reminder that awards of attorney's fees are in derogation of the common law, and statutes allowing for such fees shall be strictly construed. B & L Motors, Inc. v. Bignotti, 427 So.2d 1070 (Fla. 2d DCA 1983); Nolan v. Altman, 449 So.2d 898. Section 501.2105 specifically provides that the prevailing party shall receive reasonable attorney's fees "after judgment in the trial court and exhaustion of all appeals." It is manifest, therefore, that to recover attorney's fees a party must obtain a "judgment" from the trial court. In Rustic Village, Inc. v. Friedman, 417 So.2d 305 (Fla.3d DCA 1982), the plaintiff brought an action pursuant to chapter 501, part II, in which the trial court entered a "judgment on the pleadings" in favor of the defendant because the transactions described in the complaint were not covered by the provisions of chapter 501. The Third District Court of Appeal held that even though the act was inapplicable because no consumer transaction was involved, the defendant was nevertheless entitled to an attorney's fee under section 501.2105 because it received the judgment. ¹ Likewise, in Nolan v. Altman, 449 So.2d 898, we stressed the necessity for both the entry of judgment and the exhaustion of appeals before attorney's fees could be awarded under chapter 501. Id. at 900, note 2. See also Marchion Terrazzo, Inc. v. Altman, 372 So.2d 512 (Fla. 3d DCA 1979); Johnny Crews Ford, Inc. v. Llewellyn, 353 So.2d 606 (Fla. 2d DCA 1978).

In the present case Southside was ruled not liable under chapter 501, but no judgment was entered thereon because Southside did not allege and establish any affirmative claim for relief. Only the damage judgment pursuant to the jury verdict for Heindel was entered against Southside. Since Southside did not obtain a judgment in its favor, it is not entitled to recover attorney's fees under section 501.2105.

This construction of section 501.2105, requiring that a judgment be entered favorable to the party claiming attorney's fees, is supported by the Supreme Court's recent decision in Hendry Tractor Co. v. Fernandez, 432 So.2d 1315 (Fla.1983), construing section 57.041(1), Florida Statutes (1979). In that case plaintiffs sued Hendry Tractor Company in alternative counts for negligence and breach of warranty/strict liability. By special verdict, the jury found Hendry liable on the negligence count but not liable on the breach of warranty/strict liability count and awarded damages to plaintiffs. Final judgment was entered on this verdict. The trial court taxed costs in favor of plaintiffs in the amount of $3,650.54, but also taxed costs for Hendry in the amount of $10,623.06, reasoning that because Hendry had prevailed on the warranty/strict liability count it should be awarded costs for that particular portion of the litigation. Section 57.041(1) provided that "the party recovering judgment shall recover all his legal costs and charges which shall be included in the judgment." Noting that plaintiffs had properly pled alternative theories of recovery based on a single transaction, as authorized by the rules of civil procedure, and that Hendry established no claims against plaintiffs, and placing emphasis on the statutory phrase "the party recovering judgment" shall recover costs, the Supreme Court held that "[n]et judgment was, without doubt, rendered in favor of the plaintiffs/Fernandezes" and that they were "clearly the parties recovering judgment and should be awarded costs." Id. at 1316. The Court summarized its holding in these words:

[W]e find that a...