Miami Lincoln Mercury, Inc. v. Kramer, s. 80-1507
| Decision Date | 19 May 1981 |
| Docket Number | 80-2088,Nos. 80-1507,s. 80-1507 |
| Parties | MIAMI LINCOLN MERCURY, INC., Appellant, v. Daniel W. KRAMER, Appellee. |
| Court | Florida District Court of Appeals |
Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Robert K. Tucker and R. Owen Ricker, Jr., Miami, for appellant.
David H. Zoberg and Michael D. Felton, Miami, for appellee.
Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
The final order denying attorney's fees which is under review by this appeal is reversed and the cause is remanded to the trial court with directions to award the defendant Miami Lincoln Mercury, Inc. reasonable attorney's fees under Section 817.41(6), Florida Statutes (1979), upon a holding that: (a) the defendant herein was the prevailing person in a civil action brought against it inter alia for misleading or deceptive advertising under Section 817.41(1), Florida Statutes (1979), and accordingly, was entitled to an award of reasonable attorney's fees under Section 817.41(6), Florida Statutes (1979), see e. g., Johnny Crews Ford, Inc. v. Llewellyn, 353 So.2d 606 (Fla.2d DCA 1977); and (b) the defendant's entitlement to said attorney's fees was not defeated by its failure to plead for same in its answer as it properly presented the issue before the trial court by timely motion although admittedly it would have been better practice for the defendant to have pled for said attorney's fees in its answer. See e. g., Ocala Music & Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980), and cases collected.
Reversed and remanded.
Kramer filed this suit against Miami Lincoln Mercury pursuant to Sections 817.40 and 817.41, Florida Statutes (1977), for damages arising from an alleged misleading advertisement that the auto he purchased had been driven less than 7,000 miles. He joined in the suit as defendants prior dealers and a prior owner of the vehicle contending that one of the defendants unlawfully turned back the odometer on the vehicle and that the other defendants, including Miami Lincoln Mercury, knew or reasonably should have known that the odometer had been tampered with. After a jury trial, a verdict was returned for Miami Lincoln Mercury. Miami Lincoln Mercury then sought attorney's fees from Kramer as the prevailing party pursuant to the statute. § 817.41(6).
The parties are unable to provide the court with a case construing the statutory provision in question. Section 817.41(6) provides for attorney's fees to be awarded "to any person prevailing in an action for violation of this action." Similar statutes relied upon by appellant provide for an award of fees to the prevailing party and have been construed to apply as well to a prevailing defendant. 1 This same section provides for "punitive damages in addition to actual damages proven." Under no realistic hypothesis could the defendant-retailer ever be the party proving actual and punitive damages based on plaintiff-consumer's "action for violation of this section."
As an aid to interpreting this statutory provision, I find it unnecessary to look further than the entire chapter on fraudulent practices. Chapter 817, unlike the statutes relied upon by appellant, is a criminal statute. Unquestionably, it was enacted to grant to consumers a stronger remedy for redress against fraudulent commercial practices than already existing legal remedies. 2
There are sixty-five sections under Chapter 817 identifying and prohibiting certain frauds. Nearly all of the frauds are made criminal acts and are punishable as such. Section 817.416, supra, prohibits misrepresentations in the sale of franchises and distributorships. A violation of the section is a crime. § 817.416(2)(b). Activities in violation of the section may be enjoined by the Department of Legal Affairs or the Department of Agriculture and Consumers Services in behalf of the people of the state. Most persuasive to an interpretation of the provision in question is the language found in subsection (3) of Section 817.416 which provides for a civil remedy in addition to criminal penalties and injunctive relief:
Any person, who shows in a civil court of law a violation of this section may receive a judgment for all moneys invested in such a franchise or...
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Stockman v. Downs
...district courts of appeal have held that it is unnecessary to plead for attorney's fees authorized by statute, Miami Lincoln Mercury, Inc. v. Kramer, 399 So.2d 1003 (Fla. 3d DCA), review dismissed, 408 So.2d 1094 (Fla.1981); Ocala Music & Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th D......
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Millard v. Brannan
...(entitlement to attorney's fee based upon contract not defeated as long as timely motion made after judgment); Miami Lincoln Mercury, Inc. v. Kramer, 399 So.2d 1003 (Fla. 3d DCA), review dismissed, 408 So.2d 1094 (Fla.1981) (failure to plead for statutory attorney's fees in answer will not ......
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Whiteside v. Joseph Harris Co., Inc.
...As the prevailing party in this action, defendant was entitled to an award of fees under section 817.41(6). Miami Lincoln Mercury, Inc. v. Kramer, 399 So.2d 1003 (Fla. 3d DCA), petition for review dismissed, 408 So.2d 1094 Affirmed. FRANK, J., and PATTERSON, DAVID F., Associate Judge, concur. ...
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Brown v. Gardens by the Sea South Condominium Ass'n
...relied upon by the Court in Marrero v. Cavero, supra, involve claims for attorneys fees under a statute. Miami Lincoln Mercury, Inc. v. Kramer, 399 So.2d 1003 (Fla. 3d DCA 1981) upheld appellant's entitlement to attorneys fees in an action brought under Section 817.41(6), Florida Statutes (......