Motorsports, Inc. v. Steven Goldberg and Christina L. Christo , 155 So. 3d 449 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
I-95 MOTORSPORTS, INC.,
Appellant,
v.
STEVEN GOLDBERG and CHRISTINA L. CHRISTO,
Appellees.
No. 4D13-3225
[January 7, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case No. 11-32689
(21).
Robert P. Bissonnette of Robert P. Bissonnette, P.A., Fort Lauderdale,
for appellant.
Charles M-P George of the Law Offices of Charles M-P George, Coral
Gables, and Douglas P. Johnson of Douglas P. Johnson, P.A., Davie, for
appellees.
CIKLIN, J.
The plaintiff appeals an order which effectively determined that it was
not entitled to attorneys’ fees following the non-jury trial conducted in
this matter. Because the record does not reflect an abuse of discretion
by the trial court, we affirm.
The plaintiff’s suit against the defendants related to an unpaid
balance on repairs and restoration the plaintiff performed on the
defendants’ vehicle. The plaintiff filed multiple counts and attorneys’
fees were sought pursuant to section 559.917(1)(b), Florida Statutes
(2011), upon which one of the counts was expressly based. The
defendants filed an answer and brought counterclaims. Count II of their
counterclaim sounded in fraud in the inducement and alleged that the
plaintiff was required to register with the Florida Department of
Agriculture and Consumer Services before engaging in the business of
motor vehicle repair.
After a bench trial, the court found in favor of the plaintiff on three of
the four claims. The court found no liability as to the defendants’
counterclaims. Thereupon, the plaintiff filed a motion seeking prevailing
party attorneys’ fees. The defendants opposed the award of fees and
argued that the plaintiff could not avail itself of a fee-authorizing statute
when it was not licensed under the chapter through which the plaintiff
sought fees.
After a non-evidentiary hearing, the trial court declined to award fees
to the plaintiff.1
On appeal, the plaintiff argues the trial court erred because it was the
prevailing party. The defendants argue the fee entitlement statute is
permissive, not mandatory, and that the plaintiff cannot recover under
the statute because it was not registered with the Department of
Agriculture and Consumer Services. We find the statute is permissive
and that on this record, we cannot determine whether the court abused
its discretion by denying the plaintiff’s motion.
A prevailing party provision of a statute may contain permissive
rather than mandatory language. See Saltzman v. Hadlock, 112 So. 3d
772, 774-75 (Fla. 5th DCA 2013) (affirming denial of prevailing party
attorneys’ fees to prevailing party and finding the term “may” in statute
gave court discretion to grant or deny fees to prevailing party).
Section 559.917(1)(b) provides in pertinent part, “The prevailing party
in that action may be entitled to damages plus court costs and
reasonable attorney’s fees.” Like the language of the statute in Saltzman,
the use of the word “may” renders the statute permissive. We are not
able to address whether the court abused its discretion in denying
permissive fees as the record is insufficient to find an abuse of discretion.
Typically, a transcript of a non-evidentiary hearing is not necessary for
meaningful review. See SPCA Wildlife Care Ctr. v. Abraham, 75 So. 3d
1271, 1275 (Fla. 4th DCA 2011). However, here, the transcript may have
shed light on the court’s reasons for choosing not to award fees to the
plaintiff. Maybe not. In any case, we will not speculate on the trial
court’s rationale used when it exercised its discretion.
Affirmed.
CONNER and FORST, JJ., concur.
1 A transcript of the fee entitlement hearing was not provided by either party.
2
* * *
Not final until disposition of timely filed motion for rehearing.
3