Case: 16-10925   Date Filed: 10/04/2016   Page: 1 of 8


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                                _____________

                              No. 16-10925
                          Non-Argument Calendar
                             _____________

                 D. C. Docket No. 3:14-cv-00537-HLA-PDB


DAVID DAVENPORT,
ROBIN DAVENPORT,


                                                      Plaintiffs – Appellees,

                                     versus

THOR MOTOR COACH, INC.,
a Foreign Profit corporation,

                                                      Defendant – Appellant.


                                ______________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                              ______________

                                (October 4, 2016)

Before TJOFLAT, JILL PRYOR and DUBINA, Circuit Judges.

PER CURIAM:
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      This is an appeal from the district court’s order denying defendant Thor

Motor Coach, Inc.’s request for attorneys’ fees and costs pursuant to Florida’s

offer of judgment statute. Fla. Stat. Ann. § 768.79 (West 2016). Specifically, Thor

Motor Coach, Inc. (Thor) argues that the district court erred in finding that Fla.

Stat. § 768.79 was inapplicable because plaintiffs Robin and David Davenport’s

complaint included claims for both monetary and non-monetary relief. Thor

contends that as a matter of law the Davenports were not entitled to equitable

relief, therefore any claim for such should not bar recovery under Fla. Stat.

§ 768.79. For the reasons discussed below, we affirm.

                                I. BACKGROUND

      The Davenports brought suit against Thor, a non-selling manufacturer of the

housing component of motor coaches, under the Magnuson-Moss Warranty Act,

15 U.S.C. § 2301 et. seq, and Fla. Stat. § 320.838 for breach of warranty arising

out of alleged defects in their 2013 Thor Motor Coach Palazzo (“motor coach”).

Under the Magnuson-Moss Warranty Act the Davenports sought an order requiring

Thor to accept the return of the motor coach and refund the purchase price, as well

as payment for incidental and consequential costs, attorneys’ fees, and court costs.

Under Fla. Stat. § 320.838 the Davenports sought compensation for repairs to the



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motor coach, as well as attorney’s fees and costs. Pursuant to Fla. Stat. § 768.79

Thor properly made a demand for judgment, which the Davenports rejected.

      Ultimately, the district court granted summary judgment in favor of Thor,

finding that (1) the Davenports’ request for an order requiring Thor to accept the

return of the motor coach and refund the purchase price was not properly pled as a

revocation of acceptance claim under Florida’s Uniform Commercial Code, Fla.

Stat. § 672.608, and, even if properly pled, Florida law bars revocation of

acceptance claims against non-selling vehicle manufacturers; and (2) the

Davenports failed to provide competent evidence showing defects in the motor

coach and failed to demonstrate Thor’s breach of the limited warranty.

      After entry of summary judgment, Thor moved for an award of reasonable

costs and attorneys’ fees pursuant to Fla. Stat. § 768.79 and Fla. Stat. § 320.838.

The district court denied recovery under both, finding that Fla. Stat. § 768.79 was

inapplicable because the Davenports’ sought both equitable and monetary relief

and that Fla. Stat. § 320.838 was an inappropriate use of the court’s discretion

because the lawsuit was not frivolous. Thor brought this appeal claiming that Fla.

Stat. § 768.79 does apply in this case, thus attorneys’ fees and costs should be

awarded.




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                          II. STANDARD OF REVIEW

      We review questions of law and a district court’s interpretation of a state law

de novo. Jones v. United Space Alliance, L.L.C., 

, 1309 (2007).

                                      III. ANALYSIS

      Here, because jurisdiction arises under 28 U.S.C. § 1367, the applicable law

depends on whether the issue is substantive or procedural. See Erie R.R. Co. v.

Tompkins, 

, 

(1938). Florida’s offer of judgment statute,

§ Fla. Stat. 768.79, is substantive law for Erie purposes. 

.

Therefore Florida law guides our determination of whether Fla. Stat. § 768.79 is

applicable in the present case. 

Supreme Court, in Diamond Aircraft Industries, Inc.v.

Horowitch, held that Fla. Stat. § 768.79 “does not apply to an action for both

damages and equitable relief” and that “no exception for a meritless equitable

claim exists.” 

, 376 (2013). The court reasoned that strict

construction of the statutory language, allowing recovery in “any civil action for

damages,” required the exclusion of equitable claims. 

(emphasis added).

The court also noted that the statute lacked guidance as to how to calculate non-

monetary damages, suggesting that the legislature intended to only include claims

for monetary damages. 

the dispositive issue here is whether the

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Davenports’ action against Thor included a claim for equitable relief, in addition to

their claim for monetary damages.

      First, to determine whether Fla. Stat. § 768.79 applies, the nature of the

Davenports’ claim must be examined. The district court found that the

Davenports’ sought a rescission of the purchase transaction. We agree. A

rescission is a restoration of the status quo–an attempt to put the parties in the same

place they were before the transaction occurred. See Phillips v. Kaplus, 

, 812 (11th Cir 1985) By requesting that the district court order Thor to accept

return of the motor coach and issue a full refund, the Davenports sought to rescind

their transaction and to be restored to the position they enjoyed before the

purchase. See Borkman v. Thor Motor Coach Inc., No. 6:14–cv–721–Orl–31KRS,

at *2 (Fla. M.D. 2014) (“[T]he Borkmans seek return of the

Subject Vehicle and refund of the purchase price as relief for their Magnuson–

Moss Act claim. This relief is essentially a request for rescission of the purchase

transaction”); Powers v. Lazy Days RV Center, Inc., No. 8:05-CV-1542-T-17-

EAJ, 

at *2 (Fla. M.D. 2006) (holding that a claim seeking

return of the vehicle and full refund of the purchase price constitutes a rescission).

      Next, it must be determined whether a claim for rescission is legal or

equitable in nature. Looking to its nature and history, both Florida and federal

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courts have recognized rescission as an equitable claim. See Scheurenbrand v.

Wood Gundy Corp., 

, 1551 (11th Cir. 1993) (citing E.F. Hutton & Co.

v. Rousseff, 

, 981 (Fla.1989); Royal v. Parado, 

, 853

(Fla. 1st Dist. Ct. App. 1985)); Raulerson v. Metzger, 

, 577 (Fla. 5th

Dist. Ct. App. 1979). Therefore, the Davenports’ claim is properly classified as

one in equity. Because the Florida Supreme Court has clearly held that the Florida

offer of judgment statute, Fla. Stat. § 768.79, does not apply to actions seeking

both monetary damages and equitable relief, Thor is not entitled to attorneys’ fees

and costs.

      While not contesting the equitable nature of a claim for rescission, Thor

argues that because the Davenports were never entitled to rescission as a matter of

law, the award of attorneys’ fees under Fla. Stat. § 768.79 is proper. In short, Thor

claims that because the statute prohibits revocation of acceptance claims brought

by buyers against non-selling manufacturers, the claim for equitable relief was

never legally available to the Davenports, and therefore Thor is not barred from

pursuing attorneys’ fees under Fla. Stat. § 768.79.

       However, the fact that the Davenports’ claim for rescission, or revocation of

acceptance, ultimately failed does not negate the fact that they made a demand for

equitable relief. An analogous issue was discussed by the Florida Supreme Court

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in Diamond 

. There, the plaintiff improperly filed a

complaint under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA),

and the defendant sought attorneys’ fees permitted by the Act. 

argued that because FDUPTA was inapplicable, the defendant was not entitled to

attorneys’ fees. 

Supreme Court disagreed;

      By invoking FDUPTA and seeking redress under its remedial provisions,
      [plaintiff] exposed himself to both the benefits and the possible
      consequences of that act's provisions…simply because FDUTPA is
      ultimately held to have no application and does not provide a plaintiff with a
      basis for recovery after the provisions of the act have been invoked does not
      negate a defendant's status as a prevailing party in an action filed by a
      plaintiff under that act.

      Similarly, the Florida Supreme Court also rejected the idea that meritless

equitable claims could function as an exception to the rule that Fla. Stat. § 768.79

does not apply to actions seeking both equitable relief and monetary damages. 

The court reasoned that a consideration of the merits “does not apply to a

determination as to whether section 768.79 applies to a cause of action. Instead,

this factor applies only after a determination that section 768.79 is applicable and a

court has moved forward to determine the reasonableness of the fees.” 

      Here, Thor attempts to make a distinction between meritless claims and

claims that fail as a matter of law. This is a distinction without a difference. Thor’s

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theory would greatly expand Fla. Stat. § 768.79 to include any case in which the

equitable claim is adjudged insufficient as a matter of law—a net that captures too

many unsuccessful plaintiffs seeking equitable relief. This is not what the Florida

Supreme Court intended when they rejected the application of Fla. Stat. § 768.79

in cases seeking both monetary and non-monetary damages.

       Thor also argues that the district court’s holding encourages the filing of

frivolous equitable claims in order to escape Fla. Stat § 768.79 liability. While this

is a valid concern, other mechanisms exist to protect against the filing of frivolous

claims. See e.g. Fla. Stat. Ann. § 57.105 (West 2016) (requiring the court to award

attorneys’ fees to the prevailing party upon finding the losing party filed a

frivolous claim). Thus, the Davenports’ claim for equitable relief stands as a bar to

recovery of attorneys’ fees under Fla. Stat. § 768.79.

       For the aforementioned reasons, we affirm the district court’s order denying

Thor’s motion for attorneys’ fees and costs. 1

       AFFIRMED.




1
  The Davenports ask for relief from the costs granted to Thor by the district court pursuant to
28 U.S.C § 1920. They do not cross-appeal, nor do they present any argument as to why the
district court abused its discretion in awarding the costs to Thor. The Davenports’ request is
denied.
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