          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2318
                  _____________________________

THE PRESTIGE GALLERY, INC., M.
CRAIG HORNSBY, and COLBY
HORNSBY,

    Appellants/Cross-Appellees,

    v.

EDWARD F. NAPLETON,
NAPLETON’S TALLAHASSEE
IMPORTS, LLC, doing business
as, NAPLETON INFINITI, and
FRANK “PETE” DEE GRINNELL,

    Appellees/Cross-Appellants.
                _____________________________


On appeal from the Circuit Court for Leon County.
Terry P. Lewis, Judge.

                         October 24, 2019


PER CURIAM.

     Appellants and appellees challenge the final judgment and
various post-verdict orders rendered by the trial court in this civil
case. We affirm all issues raised on appeal and cross-appeal
without further comment except one: we reverse the final
judgment of $80,000 in nominal damages as legally excessive and
remand with directions for the trial court to award nominal
damages only.
     After a three-week trial during which appellants failed to
present admissible evidence of compensatory damages, the court
provided the jury a verdict form allowing them to award appellants
nominal damages, punitive damages, or both. During deliberations
the jury presented the court with a question concerning nominal
damages which the court answered:

    And I have your question and it is, is there a limit on the
    amount for nominal damages? And to answer that
    question, technically no, there is no limit. I would just
    read back to you the instructions which you have as to
    nominal damages. And it says, ‘If you find for a plaintiff
    on his/her slander claim, but find that no injury or
    damage has been proved, you may award nominal
    damages. Nominal damages are damages of an
    inconsequential amount which are awarded to vindicate
    a right where a wrong is established but no damages
    proved.’

     The jury then requested a definition for the term
“inconsequential” and the court instructed the jury:
“‘inconsequential’ means, and I’ve come up with this, which is
inconsequential means ‘of little or no importance or insignificant.’”

     The jury ultimately rendered a verdict of $80,000 in nominal
damages in favor of appellants and chose not to award punitive
damages. After the jury was dismissed, appellees filed a motion to
reduce the award on the basis that an $80,000 award is a legally
impermissible nominal damages award. The trial court ruled that
the award was legally excessive, improper, and contrary to law,
but nonetheless declined to reduce the award because the court felt
it had misled the jury when it told them there was technically no
cap on nominal damages.

     We share the trial court’s frustration with the current state of
the law and the lack of a definitive cap on “nominal damages.”
However, there is no legal basis to allow an award of $80,000 in
nominal damages to stand. See, e.g., State, Dep’t of Corr. v. Niosi,
583 So. 2d 441 (Fla. 4th DCA 1991). Even under federal law jury
awards of tens of thousands of dollars in nominal damages have
only been affirmed where there was a confusing jury instruction
and the jury had the ability to award compensatory damages. See
                                 2
Auwood v. Harry Brandt Booking Office Inc., 850 F.2d 884 (2d Cir.
1988). Nonetheless, federal case law holds that a court may not
award a legally excessive jury award of nominal damages when the
jury was not permitted to award compensatory damages. See e.g.,
XTech, Inc. v. Hembree Consulting Servs., Inc., 183 F. Supp. 3d
1245, 1272 (S.D. Fla. 2016) (holding that a jury award of $250,000
in nominal damages was error as a matter of law because the jury
was precluded from awarding compensatory damages when
rendering the verdict).

     There is little additional guidance we can offer the trial court
beyond that which the trial court gave the jury, instructing that
nominal damages are inconsequential. * Accordingly, we REVERSE
the final judgment and REMAND the case to the trial court with
directions to reduce the award to nominal damages only, and we
AFFIRM all other issues.

WOLF and M.K. THOMAS, JJ., and DUNCAN, J. SCOTT, ASSOCIATE
JUDGE, concur.


                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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    * We do note that there are some older cases where courts in
other states have found nominal damages in excess of $75 or $100
are legally impermissible. Baden v. Sunset Fuel Co., 225 Or. 116,
119 (1960); Gould v. Mountain States Tel. & Tel. Co., 6 Utah 2d
187 (1957) ($75); Lucas v. Morrison, 286 S.W.2d 190 (1956) ($100);
Moyer v. Cordell, 204 Okl. 255 (1951) ($105); People v. Giacobbi, 83
Cal.App. 12 (1927) ($100); Broads v. Mead, 159 Cal. 765 (1911)
($100).

                                 3
Marsha L. Lyons of Lyons & Farrar, P.A., Tallahassee, for
Appellants/Cross-Appellees.

Michael F. Coppins and Zackery A. Scharlepp of Coppins Monroe,
P.A., Tallahassee, for Appellees/Cross-Appellants.




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