If I drop my FDUTPA claim because I realize I can’t prove actual damages, am I still liable for the defendant’s attorney’s fees?

attorney's feesFlorida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) prohibits unfair, deceptive, and unconscionable actors or practices in the conduct of any trade or commerce—including the purchase and sale of real estate. A consumer’s claim for damages under FDUTPA has three elements:  (1) a deceptive act or unfair practice;  (2) causation;  and (3) actual damages.”   Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006), review denied, 962 So.2d 335 (Fla.2007).  An individual must prove actual damages not just consequential damages.  “FDUTPA does not provide for the recovery of nominal damages, speculative losses, or compensation for subjective feelings of disappointment.”  City First Mortgage Corp. v. Barton, 988 So. 2d (Fla. 4th DCA 2008).  In City First Mortgage Corp. v. Barton, the 4th DCA reversed a $312,000 judgment against a mortgage lender that was based on an alleged FDUTPA violation because the borrower failed to prove “actual damages sustained as a consequence of violation of the statute.”  Consequential damages, such as the damages stemming from a borrowers inability to refinance due to the mortgage lender’s misrepresentations, are not recoverable under FDUTPA.

Parties strategically allege FDUTPA claims in litigation because FDUTPA allows for the recovery attorney’s fees by “the prevailing party, after judgment in the trial court and exhaustion of all appeals . . from the non-prevailing party[]”.   § 501.2105, Fla. Stat.   If after asserting a claim for FDUTPA a party later decides not to pursue a FDUTPA claim and dismisses the FDUTPA claim prior to a judgment, it will not result in the recovery of attorney’s fees by the prevailing party.  In Black Diamond Properties, Inc. v. Haines, 36 So. 3d 819 (Fla. 5th DCA 2010), the Court held that while generally a defendant is a prevailing party and entitled to recover its attorney’s fees when a plaintiff voluntarily dismisses an action before any judgment is entered, under FDUTPA, denial of fees was proper because “section 501.2105(1) also requires that there be an entry of judgment before attorney’s fees can be awarded.” Accordingly, because no judgment was entered in Black Diamond Properties, Inc. following a voluntary dismissal, the Court could not award fees under § 501.2105(1), Fla. Stat. Black Diamond Properties, 36 So. 3d at 821 (citing Nolan v. Altman, 449 So. 2d 898, 900-01 (Fla. 1st DCA 1984)).

  • Matthew S. Sackel

    Matthew Sackel is a partner in the West Palm Beach office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group.

    A Martindale-Hubbell AV® Preeminent™ Rated attorney, Matthew has extensive trial and ...

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