               Case: 14-11243       Date Filed: 06/11/2015      Page: 1 of 33


                                                                    [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-11243
                              ________________________

                         D.C. Docket No. 1:12-cv-20607-RSR

THE DEMOCRATIC REPUBLIC OF THE CONGO,


                                                                      Plaintiff-Appellee,

                                           versus

AIR CAPITAL GROUP, LLC and MARIO ABAD,
                                                                    Defendant-Appellants.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                      (June 11, 2015)

Before MARTIN and FAY, Circuit Judges, and GOLDBERG,* Judge.




__________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
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GOLDBERG, Judge:

      A vintage aircraft, a Miami executive, and a central African head of state.

With a cast like that, one might confuse this case for a Bond film. But the matter

before us is no work of fiction—it is the true story of an airplane maintenance

check gone south and the weeks-long trial that followed. And the star of the show

is not a tuxedoed spy, but the Florida Deceptive and Unfair Trade Practices Act

(“FDUTPA”), a law that protects consumers from predatory business schemes.

See Fla. Stat. §§ 501.201–501.23.

      The Democratic Republic of the Congo (“DRC”) sued Air Capital Group,

LLC (“ACG”), and its CEO, Mario Abad, for breach of contract, fraud, and

FDUTPA violations. The DRC won a jury verdict, and the defendants now appeal

aspects of the judgment, including jurisdiction, their liability under the FDUTPA,

and monetary damages. We reject each of these challenges, however, because the

trial court had proper jurisdiction and correctly interpreted Florida law. We thus

affirm and close the book on a saga that began in a Kinshasa apartment.




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                                      BACKGROUND

   A. The Workscope Agreement

       Charles Deschryver had a problem. 1 As the Logistical Assistant to Joseph

Kabila, president of the DRC, Deschryver was charged to care for the president’s

aircraft, including a four-engine Boeing 707-100 (the “plane” or “707”). By early

2010, the plane was due for a “C-check,” or heavy maintenance. Deschryver

searched from Ethiopia to Saudi Arabia to find a shop that would do the job, but

without success.

       Then in June 2010, Deschryver found what he thought he was looking for.

At a flat in Kinshasa (the DRC’s capital), Deschryver met with Stavros

Papaioannou, the CEO of Hewa Bora Airlines, and with two executives from

ACG, Mario Abad and Jaime Sanchez. Papaioannou suggested that ACG could do

the C-check for Kabila’s 707, and Abad agreed. Deschryver was delighted by the

news, and soon after the meeting ended, Abad and Sanchez inspected the plane at

the airport. Abad remarked the plane was in “good shape,” and the parties agreed

that ACG would fix the 707 in Florida.

       Soon thereafter, Abad sent Deschryver a workscope agreement (the

“Workscope” or “Agreement”). The Workscope said that ACG would perform the

C-check, apply airworthiness directives (“ADs”) to the plane’s engines, and finish

       1
         The facts that follow represent plaintiff’s version of the evidence. See Shannon v.
Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th Cir. 2002).


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other tasks for a flat fee of $2,255,872.30. Deschryver signed the Agreement for

the “Republic Democratic of Congo,” and he stamped the seal of the Presidency of

the Republic on the signature block.

      ACG prepared its first invoice for the DRC on July 30, 2010. The DRC

requested the invoices because “they needed some sort of documentation to be able

to go to their government and get payments” from the Ministry of Finance. The

DRC paid the first $1 million installment on July 12, and the plane arrived in

Florida on July 31.

   B. Oral Agreements to Replace Engines Three and Four

      Unwelcome difficulties arose soon after the plane reached Miami. While

doing the C-check, ACG’s “technical people discovered that one of the engines did

not have appropriate paperwork and needed to be replaced.” Abad and Sanchez

returned to the DRC to discuss the matter with Deschryver, and on September 10

or 11, the parties orally agreed to replace engine number three. Deschryver asked

that the new engine come “with all the documents, QEC [quick engine change

equipment], all the AD and all the airworthiness directives and all the service in

order, a 707 engine.” The price for the engine would be $250,000.

      Then, when Deschryver visited Miami in late September, he learned that

engine four also needed replacing. In its stead, Deschryver wanted “a 707 engine




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with all the service built in, all the AD, full QEC, full overhaul with all the

documents.” Like engine three, engine four would cost $250,000.

   C. A String of Broken Promises

      By October 28, 2010, the DRC had paid $4 million toward the cost of

repairs. Just days before, ACG’s chief financial officer Antonio Neuman had

asked for more money even though the company held over $2 million in reserve,

allegedly to cover future charges. Deschryver was bewilderded by the mounting

costs but paid the money anyway, and Abad reassured Deschryver that the

replacement engines would soon arrive from Ireland. Abad added that he would

do a test flight on December 12 and deliver the plane by December 16.

      Yet nothing happened the way Abad said it would. When the engines

arrived from Ireland, ACG learned that neither were properly documented. As a

result, the engines were unusable, and ACG agreed with ABX Air, Inc. (“ABX”),

to buy replacements. Antonio Neuman signed the contract with ABX, which set

the price of each new engine at $49,500. The replacement engines, which carried

serial numbers 645402 (“402”) and 669706 (“706”), were not serviceable upon

delivery.

      Meanwhile, the December 16 deadline for delivery slipped past. When it

did, Abad repeated that the work would finish soon, this time by January—but

Abad had no personal knowledge that the project was near completion. In reliance



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on Abad’s statements, Jean Tshiumba from the DRC Civil Aviation Authority and

technical engineer Zacharie Nakwaya departed to inspect the 707 and collect it

from ACG.

      But when Tshiumba and Nakwaya arrived in Miami on January 10, 2011,

their hopes were dashed. As he inspected the replacement engines, Nakwaya

found that 402 was completely disassembled and that 706 was closed and

unserviceable. Both were choked with dust and nests. Furthermore, the engines

were configured for a DC8 airplane, not for a Boeing 707, which meant installation

would take longer than anticipated. And Tshiumba, for his part, reported that the

engines were not mounted and there was “no avionics equipment installed” on the

aircraft. The plane was unfit to fly, despite Abad’s earlier assurances.

   D. The Liens and the Audit

      On April 21, Abad sent Deschryver more bad news. Bonus Tech, the

company servicing the plane’s original engines, had filed a lien on the engines for

$147,861.42. A few weeks later, Abad reported that Commercial Jet, Inc., which

was performing the C-check, planned to file its own lien on the plane. The news

irked Deschryver, because the DRC had already paid $5 million for the repairs, and

Abad kept “on telling [Deschryver] that the aircraft [was] ready.” The DRC forked

over another $1,381,531.64 to keep the work going.




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        The constant pleas for money prompted Deschryver to order an audit of the

project. On May 27, he asked Nakwaya and Ben Kalala, a deputy logistical

assistant, to review the project’s progress and finances. Nakwaya and Kalala asked

for notarized invoices from each vendor to verify the amount paid for services

provided. In response, Antonio Neuman furnished a contract between ACG and

ABX for engines 402 and 706. Unlike the contract signed in November 2010,

however, the contract provided in May was signed by Abad, not Neuman. And

while the November contract said each engine cost $49,500, the May contract said

each engine cost $57,000. Apparently, ACG had given the DRC false statements

to inflate actual costs.

   E. The Failed Flight Test and the Rejected Engines

        By September 2011, President Kabila’s plane was finally ready for a test

flight. Or so they thought. During the test, after the plane had ascended to 24,000

feet, engine 402 stopped, or “flamed out.” Nakwaya also noticed that the plane

was leaking fuel and that the generators were dead. In Nakwaya’s opinion, the 707

was in worse shape now than when the plane touched down in Florida in July

2010.

        After the failed test, the parties gathered to discuss next steps. At first, Abad

promised to fix engine 402 at his own cost, but later, after Nakwaya found




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corrosion and other damage in the engine, the DRC chose to reject it. ACG kept

engine 402 for its inventory.

        Then in December, the parties met to discuss engine 706. While moving to

a new facility, the company servicing 706, the Turbine Engine Center, had

misplaced the engine’s records. The DRC had requested the records since June,

and they now threatened to reject 706 unless the documents turned up within 48

hours. The DRC rejected the engine when ACG failed to find the records in the

time allotted.

   F. The Lawsuit

        The DRC lodged a civil complaint against ACG, Abad, and others on

February 14, 2012. Six counts were alleged, including fraudulent inducement,

breach of contract, fraud in the purchase and repair of engines 402 and 706, fraud

in the purchase and installation of Stage III hush kits (to quiet engine noise), a

violation of the FDUTPA, and replevin. The trial began over a year later on July 2,

2013.

        At trial, expert witness John Zappia testified about damages. As part of his

testimony, he presented a chart listing twenty-six line items. In lines 4 through 23,

part of 24, and 26, Zappia recounted the costs of ACG’s alleged breach of contract.

The estimated damages from the breach totaled $1,175,415.04.




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       Zappia also testified about damages from the replacement engines,

comprising lines 1 through 3 and 25 of the chart. Included in this estimate were:

(1) the costs of repairing engine 706 ($121,676.15); (2) the costs of repairing

engine 402 ($151,691.92); (3) the cost of the failed test flight, which would need to

be performed again ($85,969.66); and (4) the purchase price of engines 402 and

706, which ACG still held ($1,178,048.50).2 Zappia also recommended a recovery

of $2,204,810.45 under the FDUTPA, consisting of items 1−2, 5−15, 17−23, and

25 of the damages summary. For each of these items, Zappia said he calculated the

amount based on “the difference between the value of the product or service that

DRC paid for and the value of the product or service that they received.”

       At the close of the evidence, defendants moved for judgment as a matter of

law. The court denied the motion. Then, on July 31, the court instructed the jury

regarding liability and damages. When addressing the FDUTPA, the court

explained that the statute allowed only actual damages, or “the difference in the

market value of the product or service in the condition in which it was delivered

and its market value in the condition it should have been delivered according to the

agreement of the parties.” The court did not instruct the jury regarding the

apportionment of damages between defendants.



       2
           Zappia testified that the total damages from the replacement engines was $540,755.83.
It is not clear where Zappia got this number, as the sum of lines 1−3 and 25 is $1,537,386.23.


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      The jury returned a verdict on August 1, 2013. ACG was held liable for

breach, and the jury awarded the entire amount Zappia recommended on that claim

($1,175,415.04). They also held ACG and Abad liable for fraud regarding the

replacement engines. On the verdict sheet, the jury wrote that ACG had to pay

$362,707.03, plus plaintiff could “pick up [the] engines” from ACG. The jury also

found ACG and Abad liable for a FDUTPA violation, and they awarded

$720,848.04 from ACG on that count. The jury exacted no monetary damages

from Abad on the fraud and FDUTPA claims.

      Later that month, the DRC moved to alter the judgment. Plaintiff argued

that although the jury demanded no damages from Abad, ACG and Abad were

jointly and severally liable on the engine fraud and FDUTPA claims.

      Defendants filed a motion of their own, but for remittitur and renewed

judgment as a matter of law. They argued that plaintiff could not recover under

FDUTPA because Zappia had not established the difference between the market

price of contracted-for services and the value the DRC actually received. They

also claimed that the FDUTPA award constituted a double-recovery because it

included line items from both the breach and fraud claims.

      On March 19, 2014, the court granted the DRC’s motion to amend the

judgment and denied ACG’s motion for judgment as a matter of law. This appeal

followed.



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                                     DISCUSSION

        The defendants now attack multiple components of the result below, from

the cornerstone of jurisdiction to cupola of damages apportionment. We reject

each argument and affirm in full.

   I.       The DRC Has Constitutional Standing to Bring Its Claims

        To begin, defendants allege that the trial court lacked jurisdiction to try the

case. Citing quotes sprinkled throughout the record, they suggest that the DRC

government—the plaintiff here—has nothing to do with the DRC’s Office of the

President and Joseph Kabila, who owns the 707. If this were true, then the DRC

would lack a stake in the litigation, and the court would have to dismiss the case

for want of constitutional standing. 3

        We find defendants’ cherry-picked political theory too fragile to support the

argument. We agree, of course, that the Constitution extends the federal judicial

power only to controversies between real parties in interest. See U.S. Const. art.

III, § 2. Courts cannot decide claims where plaintiffs have suffered no invasion of

a legally protected interest, or injury in fact. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 560−61 (1992); Houston v. Marod Supermkts., Inc., 733 F.3d 1323,

1328−29 (11th Cir. 2013). But here, plaintiff more than proved that it suffered an


        3
         “We review de novo basic questions concerning our subject matter jurisdiction,
including standing.” DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1301 (11th Cir. 2008).



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injury respecting its breach, fraud, and FDUTPA claims. See Lujan, 504 U.S. at

561 (holding plaintiff at final stage must prove standing with facts “supported

adequately by the evidence adduced at trial”). A review of the record shows how.

      First, the evidence establishes that the DRC is a party to the Workscope

Agreement. The name “Republic Democratic of Congo” stands in capital letters

above the Agreement’s signature block, and the same name pervades the rest of the

document. More importantly, the record attests that Charles Deschryver had

authority to sign the contract on the DRC’s behalf. When he approved the

Workscope, Deschryver stamped the seal of the Office of the President over his

name. Deschryver further testified that the president is part of the DRC’s

executive branch, together with the prime minister and his government. As an

agent of the state, Deschryver could enter into agreements for the DRC as long as

the principal retained control over his actions. See Fla. State Oriental Med. Ass’n,

Inc. v. Slepin, 971 So. 2d 141, 145 (Fla. Dist. Ct. App. 2007) (outlining tests for

actual and apparent authority of agents). We find nothing to suggest that

Deschryver departed from his instructions when he arranged to repair the 707. As

a consequence, the DRC was bound to the Workscope and is eligible to sue for

breach.

      Second, the parties stipulated that the DRC paid for all work performed.

The record fully supports this fact. For instance, Antonio Neuman testified that



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ACG billed the DRC, not the Office of the President, for tasks completed under the

Workscope. Deschryver added that the DRC’s Ministry of Finance paid for the

repairs. And Kalala confirmed the point, testifying that the Office of the President

liaised with the Ministry of Finance to wire a $1.36 million tranche to ACG in May

2011. This evidence demonstrates plaintiff’s financial stake in the claims on

appeal. 4

       In response, ACG gathers snippets implying that the Office of the President

and the DRC government are unrelated. Yet these scraps of evidence, read in

context, do little to confirm defendants’ theory. For example, Tshiumba testified

that President Kabila’s fleet of planes “is the same as companies like Hewa Bora,”

the private airline. ACG cites this as proof that the Office of the President and the

government are separate, but this is not Tshiumba’s testimony. By comparing

presidential aviation to a private company, Tshiumba meant that the president is

free to choose where to service his fleet, just like a private airline. ACG also

quotes Deschryver, who said that “[he] was . . . employed not by the government,

[but] by the Office of the President, because the Office of the President and the

government [are] different.” But Deschryver, like Tshiumba, was not teaching

       4
          Plaintiff also touts a stipulation which supposedly confirms that the DRC was a party to
the Workscope. While we agree that plaintiff had standing to bring its claims, the DRC reads too
much into the stipulation. The stipulation says, “The contract for maintenance of the Aircraft
between [ACG] and the [DRC] is dated June 21, 2010, but actually was executed in July, 2010.”
This sentence aims to establish the date of the Workscope, not to identify the parties to the
contract.


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civics from the stand. He distinguished between the Office of the President and the

government to clarify who paid him when he worked at Hewa Bora, and in all

likelihood, Deschryver used the term “government” to refer to the prime minister’s

cabinet, not the state apparatus as a whole. None of defendants’ citations oust

plaintiff from our jurisdiction.

         Defendants also argue that because Kabila owned the 707, the DRC has no

interest in the outcome of the dispute. In their words, “the aircraft involved in this

lawsuit has as little to do with the [DRC] government as President Obama’s golf

cart does with respect to governmental property.” But perhaps ACG forgets that

people can (and often do) agree to buy services for third-party beneficiaries. Cf.

Polo Ralph Lauren, L.P. v. Tropical Shipping & Constr. Co., 215 F.3d 1217, 1222

(11th Cir. 2000) (“Contracts bind only named parties unless both parties to the

contract clearly express an intent to benefit a third party.”). The DRC earned its

berth in court by contracting for services that were never delivered, whether or not

Kabila owned the plane.

         The DRC has constitutional standing to bring its breach, fraud, and

FDUTPA claims.

   II.      The DRC Has Statutory Standing to Bring an FDUTPA Claim

         Next, ACG attacks plaintiff’s statutory right to bring an FDUTPA claim.

The FDUTPA bans “unfair or deceptive acts or practices in the conduct of any



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trade or commerce,” see Fla. Stat. § 501.204(1), and as defendants understand the

law, only “consumers” qualify for FDUTPA protection. Because the DRC is a

sovereign government—not your ordinary market participant—ACG reasons that

plaintiff is not a “consumer” entitled to FDUTPA safeguards.5

       We do not accept defendant’s restrictive reading of the law. When

explaining the statute’s rules of construction, the Florida legislature urged courts to

construe the law “liberally to . . . protect the consuming public and legitimate

business enterprises from those who engage in . . . unconscionable, deceptive, or

unfair acts.” Fla. Stat. § 501.202(2). To achieve this goal, the statute originally

extended relief to “consumers,” id. § 501.211(2) (2000), that is, any “individual . . .

firm; association; joint venture; partnership; estate; trust; business trust; syndicate;

fiduciary; corporation; or any other group or combination,” id. § 501.203(7)

(emphasis added). Then in 2001, the legislature revised the statute to ensure that

businesses received the same protections as individual consumers. Senate Staff


       5
          The DRC claims we should ignore this issue because ACG did not raise it below, and
defendants counter that the matter is jurisdictional and not subject to waiver. The DRC might be
right. Not long ago, the Supreme Court held that statutory preconditions to suit are
“jurisdictional” (and hence immune to waiver) only if “the Legislature clearly states that a
threshold limitation on a statute’s scope shall count as jurisdictional.” Arbaugh v. Y&H Corp.,
546 U.S. 500, 515 (2006). A statutory limitation is not jurisdictional “when [the Legislature]
does not rank a statutory limitation . . . as jurisdictional.” Id. at 516; see also In re Trusted Net
Media Holdings, LLC, 550 F.3d 1035, 1042−46 (11th Cir. 2008) (holding law requiring three or
more creditors to petition for involuntary bankruptcy was not jurisdictional). Here, it seems the
Florida legislature did not expressly condition jurisdiction on plaintiff’s consumer status, so we
doubt ACG’s argument was unsusceptible to waiver. See Fla. Stat. § 501.211(2). We decline to
decide the issue in any event because the briefing on the matter was thin, and because the DRC
had a right to sue under the FDUTPA.


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Analysis, CS/SB 208, Mar. 22, 2001, at 3 (“Because the remedies under the

FDUPTA [sic] were intended by the Legislature to be available to all persons,

including businesses, the Legislature has several times amended the definition of

‘consumer’ in the FDUTPA to clarify the intent to include businesses.”). The law

now allows “a person who has suffered a loss as a result of a violation” of the

FDUTPA to recover “actual damages, plus attorney’s fees and court costs.” Fla.

Stat. § 501.211(2) (emphasis added).

      Courts have interpreted the new provision generously, but not consistently.

One line of cases—the more conservative view—extends FDUTPA protection only

to persons who were deceived when buying or selling goods and services. In

Kertesz v. Net Transactions, Ltd., 635 F. Supp. 2d 1339, 1348–50 (S.D. Fla. 2009),

for example, plaintiff sued a website operator who posted lewd photos of the

plaintiff without her consent. The court held that plaintiff lacked standing because

she was not injured in a market transaction between the parties. Id.; see also

Cannova v. Breckenridge Pharm., Inc., No. 08-81145-CIV, 2009 WL 64337, at *3

(S.D. Fla. Jan. 9, 2009) (denying FDUTPA claim alleging plaintiff’s employer

violated post-termination agreement); Goodbys Creek, LLC v. Arch Ins. Co., No.

3:07-cv-947-J-33HTS, 2008 WL 2950112, at *8−9 (M.D. Fla. July 31, 2008)

(denying FDUTPA claim alleging defendant failed to fulfill obligations under

performance bond); Badillo v. Playboy Entm’t Grp., Inc., No.



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8:04CV591T30TWM, 2006 WL 785707, at *6 (M.D. Fla. Mar. 28, 2006) (denying

FDUTPA claim alleging defendant used lewd photos of plaintiffs without consent).

      Another line of cases, the permissive view, extends FDUTPA protection to

any person injured by a deceptive or unfair practice, regardless of whether she

sustained the injury in a sale or purchase. In Hinson Electrical Contracting Co. v.

Bellsouth Telecommunications, Inc., No. 3:07-cv-598-J-32MCR, 2008 WL

360803, at *1 (M.D. Fla. Feb. 8, 2008), for instance, plaintiff broke defendant’s

underground lines in an excavation, and defendant overbilled plaintiff for the

damage. The court found plaintiff had standing under the FDUTPA because he

suffered an unfair and deceptive act in the course of commerce. It did not matter

that he purchased nothing of value from the defendant. Id. *3; see also Furmanite

Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d 1134, 1145−47 (M.D. Fla.

2007) (denying summary judgment on FDUTPA claim alleging defendants

resigned en masse from plaintiff’s employ).

      We need not referee this interpretive tussle. Even if we adopted the former

view—that plaintiffs have FDUTPA standing only if they are injured in a purchase

or sale—the DRC can still sue. Though it is a sovereign state, the DRC acted like

a private airline when it contracted with ACG to perform the C-check and replace

two engines. It signed a standard work agreement, and it paid ACG over $6

million to do the job. We see no reason why standing should not extend to



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government bodies when they engage in consumer transactions the way private

actors do. Cf. White v. Mass. Council of Constr. Emp’rs, Inc., 460 U.S. 204,

214−15 (1983) (denying Commerce Clause claim where city hired mostly Boston

residents for city-funded construction projects).

      The defendants rejoin that the FDUTPA precludes governments from filing

private suits. In one provision, the statute permits the “enforcing authority” (i.e.,

the state attorney or Department of Legal Affairs) to bring an action “on behalf of

one or more consumers or governmental entities for the actual damages caused by”

a FDUTPA violation. Fla. Stat. § 501.207(1)(c) (emphasis added); see also id.

§ 501.203(2). Another provision lets a “person” sue for damages but does not

expressly give governments a private right of action. Id. § 501.211(2). In ACG’s

view, the inclusion of government bodies as interested parties in suits by Florida

authorities, and the exclusion of government bodies as plaintiffs in private suits,

effectively bars entities like the DRC from bringing their own FDUTPA cases.

      We disagree. The interpretive maxim that ACG implies, expressio unius est

exclusio alterius, does not block the DRC from filing FDUTPA claims. Translated

from Latin, the phrase means “to express or include one thing implies the

exclusion of the other.” Black’s Law Dictionary 701 (10th ed. 2014). In other

words, if the legislature grants a right or privilege in only one situation, one may

infer that the legislature withheld the right or privilege elsewhere. But as the



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Supreme Court has explained, expressio unius arguments “ha[ve] force only when

the items expressed are members of an associated group or series, justifying the

inference that items not mentioned were excluded by deliberate choice, not

inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (internal

quotation marks omitted). And here, no such inference is justified. The FDUTPA

extends its aegis to “persons,” a cavernous term that could easily include

government bodies acting in the market. See Fla. Stat. § 501.211(2). What is

more, the statute’s rules of construction compel courts to interpret the law liberally.

Id. § 501.202. Given the statute’s broad language and sweeping purpose, we doubt

the legislature meant to deny private suits by public entities.

       The DRC has standing to sue under the FDUTPA.

   III.    The Jury Reasonably Held ACG Liable for Violating the FDUTPA

       In its next challenge, ACG shifts focus from jurisdiction to the merits. At

trial, the jury held defendants liable on a number of counts, including the FDUTPA

claim. ACG now argues that the jury erred to do so, because the DRC’s

representatives were too sophisticated to fall for defendants’ deceits.6

       This argument builds on a flawed understanding of the statute. As noted

before, the FDUTPA bans “unfair or deceptive acts or practices in the conduct of

any trade or commerce.” Fla. Stat. § 501.204(1). By claiming that plaintiff was

       6
         The court must uphold the jury’s verdict unless there is no “legally sufficient
evidentiary basis to find” for the DRC. Fed. R. Civ. P. 50(a).


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too savvy to be swindled, defendants imply that the statute espouses a subjective

standard of deceit—that is, they would hold a defendant liable only if the victim

suffered harm in actual reliance on a deceptive act or practice. But this is not the

law. A FDUTPA claim, unlike a claim for fraud, requires proof that defendant’s

act would likely “mislead the [objective] consumer acting reasonably in the

circumstances.” See PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777

(Fla. 2003) (quoting Millennium Commc’ns & Fulfillment, Inc. v. Office of Att’y

Gen., 761 So. 2d 1256, 1263 (Fla. Dist. Ct. App. 2000)); Davis v. Powertel, Inc.,

776 So. 2d 971, 974 (Fla. Dist. Ct. App. 2000) (“The plaintiff need not prove the

elements of fraud to sustain an action under the statute.”). No proof of subjective

reliance is needed.

      The court identified an objective deception in Cummings v. Warren Henry

Motors, Inc., 648 So. 2d 1230 (Fla. Dist. Ct. App. 1995). There, the defendant

purported to sell plaintiff a car to be paid off in sixty months. In reality, defendant

only leased the car for sixty months, and at the end of the term, the vehicle would

not be paid off. Id. at 1233. The court held that this “bait and switch” tactic was

unfair and deceptive under the FDUTPA. Id. Federal courts ruled similarly when

a chewing gum company wrongly claimed that its product killed germs, Smith v.

William Wrigley Jr. Co., 663 F. Supp. 2d 1336, 1337−40 (S.D. Fla. 2009), when a

manufacturer misrepresented that its vacuum cleaners were fit for use, Hill v.



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Hoover Co., 899 F. Supp. 2d 1259, 1263−64 (N.D. Fla. 2012), and when a

producer misstated that its products were wheat and gluten free, Nature’s Prods.,

Inc. v. Natrol, Inc., 990 F. Supp. 2d 1307, 1322 (S.D. Fla. 2013).

      By contrast, the court found no deceit in Millennium Communications, 761

So. 2d at 1263−64, where defendant told consumers that they qualified for credit

cards with a $4000 limit. The Florida Department of Legal Affairs sued, claiming

that defendant led consumers to believe they could get a MasterCard or Visa

despite their past credit troubles. The court rejected this claim on a motion to

dismiss, because a reasonable consumer was unlikely to conclude from defendant’s

statements (which did not mention Visa or Mastercard) that he qualified for a Visa

or MasterCard. Id.; see also Cold Stone Creamery, Inc. v. Lenora Foods I, LLC,

332 F. App’x 565, 567−68 (11th Cir. 2009) (denying FDUTPA claim where

plaintiff relied on statement by franchisee who lacked authority to speak on

defendant’s behalf); Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281, 1284−85

(11th Cir. 2007) (denying FDUTPA claim where real estate reservation contract

clearly stated that it was not a purchase agreement).

      Like the courts in the cases above, we define deception objectively. We also

find ample proof of conduct that would deceive a reasonable consumer in the

DRC’s circumstances. In September 2010, for example, Deschryver asked Abad

to buy two 707 engines for the plane, “with all the documents, QEC, all the AD



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and all the airworthiness directives and all the service in order.” Abad purchased

the engines, but they were configured for a DC8 aircraft, and neither was

serviceable upon delivery. Abad also promised to deliver the plane in December

2010 and January 2011, but the deadlines passed without explanation. Instead,

Abad hustled the DRC for more money and let subcontractors file liens on the

plane, despite earlier assurances that the work was done. And perhaps worst of all,

when Nakwaya and Kalala requested invoices from vendors, ACG furnished a

contract listing the price of each replacement engine at $57,000. In the original

contract with ABX, the price for each engine was only $49,500, which suggests

that ACG kept double books to inflate the DRC’s costs. Given this record of

misstatements, broken promises, and lies, we have little trouble holding that

ACG’s conduct would deceive the reasonable consumer.

       Defendants answer by citing Black v. Department of Legal Affairs, 353 So.

2d 655, 656 (Fla. Dist. Ct. App. 1977), and Golden Needles Knitting & Glove Co.

v. Dynamic Marketing Enterprises, Inc., 766 F. Supp. 421, 430 (W.D.N.C. 1991).

They claim that these cases require subjective proof of deception to justify a

recovery under the FDUTPA, but we do not read the cases that way. When these

opinions were published, the statute covered only consumer transactions, defined

as “a sale . . . or other disposition of an item of goods . . . to an individual . . . that

relate to a business opportunity that requires both his expenditure of money or



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property and his personal services on a continuing basis and in which he has not

been previously engaged.” Black, 353 So. 2d at 656 (emphasis added) (citing Fla.

Stat. § 501.203(1) (1975)). In other words, a plaintiff could not secure FDUTPA

relief if he knew the defendant’s business well enough to manage the risk. See id.;

Golden Needles, 766 F. Supp. at 430. But in 1993, the Florida legislature struck

this definition of “consumer transaction” and extended protection to any

transaction in “trade or commerce,” even if plaintiff was familiar with the

defendant’s craft. Tampa Bay Storm, Inc. v. Arena Football League, Inc., No. 96-

29-CIV-T-17C, 1998 WL 182418, at *7 (M.D. Fla. Mar. 19, 1998). The law now

permits recovery if the plaintiff proves she was injured by an objectively deceptive

act or statement, and as we said before, the DRC more than satisfies this standard.7

       We sustain the verdict finding defendants liable under the FDUTPA.

   IV.     The DRC Presented Proper Evidence of FDUTPA Damages

       Defendants’ remaining arguments zero in on the damages awarded at trial.

ACG first claims that expert witness John Zappia gave improper testimony about

plaintiff’s losses under the FDUTPA. The statute permits parties to recover actual


       7
         Some courts have injected a subjective element into FDUTPA claims for unfair
practices. See In re Motions to Certify Classes Against Court Reporting Firms for Charges
Relating to Word Indices, 715 F. Supp. 2d 1265, 1277−80 (S.D. Fla. 2010) (denying certification
because lawyers could avoid unfair court-reporting fees better than other class members);
Porsche Cars N. Am., Inc. v. Diamond, 140 So. 3d 1090, 1096−1100 (Fla. Dist. Ct. App. 2014)
(denying certification because some class members could avoid buying easily purloined
headlights better than other class members). We base our holding on ACG’s deceptive acts,
however, and deception is judged from an objective point of view. See PNR, 842 So. 2d at 777.


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damages—or the difference between a product’s value under the contract and the

market value of the product delivered—but defendants say Zappia failed to analyze

market values to measure the loss. ACG would exclude the expert testimony and

vacate the $720,848.04 FDUTPA award as unsupported in evidence.8

       We decline the defendants’ invitation for two reasons. First, ACG waived

its right to challenge Zappia’s testimony on appeal. In general, if defendants fail to

make an argument in a motion for judgment as a matter of law (“JMOL”), they

may not raise the argument after the verdict in a renewed motion for judgment as a

matter of law (“RJMOL”). See Fed. R. Civ. Proc. 50(a)−(b); Shannon v. Bellsouth

Telecomms., Inc., 292 F.3d 712, 717 n.3 (11th Cir. 2002) (“If a party asserts new

grounds in its [RJMOL] that it did not assert in its initial [JMOL], a court may not

rely on the new grounds to set aside the jury’s verdict.” (internal quotation marks

omitted)). Here, ACG attacked Zappia’s damages estimate in the RJMOL but not

the JMOL, so defendants cannot broach the issue now. Nor could they air the

grievance through a motion to alter the judgment. Parties “cannot use a Rule 59(e)

motion to . . . raise argument[s] . . . that could have been raised prior to the entry of

judgment,” and Zappia’s testimony was open to challenge well before the jury




       8
          Again, we sustain the jury’s verdict unless there is no “legally sufficient evidentiary
basis to find” for the DRC. Fed. R. Civ. P. 50(a). The court reviews the denial of remittitur for
abuse of discretion. Mason v. Ford Motor Co., 307 F.3d 1271, 1276 (11th Cir. 2002).


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returned a verdict. Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763

(11th Cir. 2005).

      Second, contrary to defendants’ claim, Zappia’s damages estimate fully

accorded with the law. Under Florida Statute § 501.211(2), “a person who has

suffered a loss as a result of [a FDUTPA violation] may recover actual damages,

plus attorney’s fees and court costs.” The statute does not define actual damages in

detail, but Florida courts agree on the following:

      Generally, the measure of actual damages is the difference in the
      market value of the product or service in the condition in which it was
      delivered and its market value in the condition in which it should have
      been delivered according to the contract of the parties. A notable
      exception to the rule may exist when the product is rendered valueless
      as a result of the defect—then the purchase price is the appropriate
      measure of actual damages.

Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla. Dist. Ct. App. 1984) (quoting

Raye v. Fred Oakley Motors, Inc., 646 S.W.2d 288, 290 (Tex. Ct. App. 1983). In

short, plaintiffs must marshal evidence to prove the gap in value between what was

promised and what was delivered, unless defendant palmed off a product that was

truly worthless. In the latter situation, plaintiff may recoup the full price he paid

for the valueless good or service.

      Rodriguez v. Recovery Performance & Marine, LLC, 38 So. 3d 178 (Fla.

Dist. Ct. App. 2010), illustrates the general rule. In that case, plaintiff bought a jet-

boat from the defendant. Then one day, when plaintiff was out riding, the boat



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“began to burn and eventually sunk.” Id. at 179. Defendant later repaired the jet-

boat, but plaintiff sued under the FDUTPA, requesting the return of her “down

payment, payments on the loan, interest, [as well as the] balance on the loan.” Id.

The court denied the claim and explained that plaintiff could recover only “the

difference in the market value of the jet-boat as delivered and market value as it

should have been delivered.” Id. at 181; see also Gastaldi v. Sunvest Resort

Communities, LC, 709 F. Supp. 2d 1299, 1304−06 (S.D. Fla. 2010) (excluding

testimony where expert based damages on condo’s adjusted purchase price instead

of market value). Because the jet-boat retained some of its value, plaintiff could

not base damages on the purchase price.

      In contrast, the court allowed plaintiff to use the purchase price as a proxy

for damages in Tri-County Plumbing Services, Inc. v. Brown, 921 So. 2d 20, 21

(Fla. Dist. Ct. App. 2006). There, plaintiff paid the defendant to fix her plumbing,

but the repairs failed inspection, and defendant walked off the job before correcting

remaining defects. Id. The trial court awarded damages equal to the amount

plaintiff deposited with the defendant, and the appellate court affirmed. The court

reasoned that defendant’s repairs did nothing to complete the work assigned, so the

deposit price was the correct measure of FDUTPA damages. Id. at 22.

      The DRC’s case falls within the Tri-County Plumbing exception to the

general rule. We note, at the outset, that the jury compensated plaintiff completely



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for ACG’s breach of contract. Zappia recommended $1,175,415.04 in damages for

breach, and the jury awarded just that amount. As a consequence, the only

damages pertinent to the FDUTPA claim are those from the purchase and repair of

the replacement engines. To recover these losses under the statute, plaintiff had to

prove the difference in the market value of the products as promised and as

delivered, or to prove that those products and services were worthless. Id. at 22.

      Zappia’s testimony achieved the latter. In items 1 through 2 of the damages

summary, Zappia attributed a $273,368.07 loss to repair work done on engines 402

and 706. The job was to update the engine’s anticorrosion ADs and extend their

useful life, yet when Nakwaya reviewed the engines’ records in June 2011, he

found neither one had current ADs and both had only a short useful life remaining.

Because defendants’ work added no value, plaintiff can recover the entire price it

paid for the repairs. Id.

      The DRC also gave adequate proof of damages from the purchase of the

engines. After the September 2011 test flight, plaintiff rejected engine 402

because it was corroded and had sustained impact damage. Abad held onto the

engine for his inventory. Later that year, the DRC also rejected engine 706

because its records were missing. As Sanchez testified, an engine without

documents must be replaced, and though ACG later found the records for 706,

defendants never gave the engine to the DRC. Because it received nothing that it



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paid for, the DRC may collect $1,178,048.50 for the engines, as Zappia

recommended.9

        Defendants respond that Zappia erred to list “specific items and claim[]

these as [FDUTPA] damages, without ever looking at the value difference between

an aircraft as delivered to [plaintiff] compared to one as [plaintiff] claims should

have been delivered.” But defendants overlook that the DRC bought only a C

check, engines, and hush kits from ACG—not a whole airplane. Had plaintiff

purchased an entire aircraft from ACG, and that aircraft had come with the defects

listed in the damages summary, then the measure of damages would be the plane’s

market value as contracted minus the plane’s value as delivered. See Rodriguez,

38 So. 3d at 181. But here, the DRC purchased discrete goods and services from

ACG, and we measure damages against those items and not against the plane as a

whole.

        The evidence supports the jury’s FDUTPA damages award, and the trial

court did not abuse its discretion to deny remittitur.

   V.       The FDUTPA Award Was Not a Double Recovery

        Next, ACG argues that the FDUTPA damages awarded to plaintiff were a

double recovery. At trial, Zappia said the DRC should get $1,175,415.04 for
        9
           It is less clear whether plaintiff could collect FDUTPA damages for the test flight.
Though it ended in failure, the test achieved its central aim: to prove whether the 707 was
airworthy. Assuming the test had value, plaintiff could not collect the purchase price under the
Florida statute. The DRC could collect the price as part of the fraud award, however, so the
error, if any, was harmless.


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breach of contract, comprising lines 4 through 23, part of 24, and 26 of the

damages chart. He also recommended a $1,537,386.49 recovery for fraud related

to the engines, corresponding to lines 1 through 3 and 25 of the chart. In light of

these estimates, ACG claims it was wrong to award FDUTPA damages under lines

1−2, 5−15, 17−23, and 25. Each of these items was covered already in the breach

or fraud counts, and defendants argue that the trial court erred to give a duplicative

FDUTPA award.

      We will not disturb the jury’s decision, because despite appearances, the

FDUTPA award was not actually duplicative. To merit remittitur, the damages

granted for breach, fraud, or other claims must exceed plaintiff’s actual loss. A

court reduced an award, for example, where plaintiff proved $2,535,990.48 in

damages for breach and fraud arising from the same incident. The jury awarded

$1,372,700 and $2,745,400 on each count, but the court whittled the total award to

$2,535,990.48 to ensure plaintiff did not receive more than his actual loss. See

Novak v. Gray, 469 F. App’x 811, 812−13, 816−18 (11th Cir. 2012).

      On the other hand, a plaintiff may recover damages on two claims stemming

from the same conduct if the total does not exceed actual damages. In Coquina

Investments v. Rothstein, No. 10-69786-Civ, 2012 WL 4479057, at *1 (S.D. Fla.

Sept. 28, 2012), plaintiff sued defendant for fraudulent misrepresentation and for

aiding and abetting a Ponzi scheme. At trial, plaintiff proved that it lost $37.7



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million in the scheme. Id. at *20−21. The jury then rendered a verdict for $32

million: $16 million for the misrepresentations, and another $16 million for the

aiding and abetting. In a motion for remittitur, defendant argued that the award

was a double recovery because the misrepresentation and aiding and abetting

claims comprised the same conduct. Yet the trial court refused to reduce the

award, because $32 million was well within the total damages proven at trial. Id.

This court affirmed. Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300, 1319 (11th

Cir. 2014); see also Gentile v. Cnty. of Suffolk, 926 F.2d 142, 154 (2d Cir. 1991)

(“[D]efendants do not demonstrate that a jury’s award is duplicative merely by

noting that it allocated the damages under two different causes of action.”).

      We affirm here too, because plaintiff’s recovery did not exceed its actual

loss. As mentioned before, the DRC proved $1,175,415.04 in damages from lines

4 through 23, part of 24, and 26 of the damages chart, and the jury awarded exactly

that amount on plaintiff’s breach claim. The DRC also proved $1,537,386.49 in

damages from lines 1 through 3 and 25 of the chart, corresponding to the fraud

regarding the replacement engines. Here, however, the jury granted only

$362,707.03 in damages and added that plaintiff could “pick up” the engines from

ACG. The latter remedy was unauthorized, though, and when instructed by the

court to recalculate the fraud award, the jury refused to give anything more.




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Plaintiff ultimately received a sum for its fraud claim that was $1,174,679.46 less

than the estimate.

      In light of Coquina, we hold that the $720,848.04 FDUTPA award was a

permissible supplement to the fraud recovery. While it is possible, as defendants

allege, that the jury found $362,707.03 in fraud damages and granted the

$720,848.04 FDUTPA award as double damages for breach, they could just as

easily have awarded the $720,848.04 to round out the fraud recovery. In any

event, the total amount conferred on the breach, fraud, and FDUTPA claims

($2,258,970.11) was less than the total loss proven at trial ($3,423,718.32).

Because this sum stayed within range of the damages proven, the trial court did not

abuse its discretion to deny remittitur. Coquina, 2012 WL 4479057, at *1. We

sustain the jury’s FDUTPA verdict as lawful and grounded in evidence.

   VI.   The Trial Court Correctly Imposed Joint and Several Liability

      Finally, Abad argues that the trial court erred to hold defendants jointly and

severally liable on plaintiff’s fraud and FDUTPA claims. On the verdict form, the

jury wrote that both ACG and Abad were liable for fraud and FDUTPA violations.

Yet when it came to deciding damages, the jury said only ACG had to pay the

debt, leaving Abad with no personal obligations to the plaintiff. The court later

shifted the damages to ACG and Abad jointly and severally, and defendants say

this was contrary to the jury’s wishes.



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      We again sustain the trial court. Under Federal Rule of Civil Procedure

60(a), courts may modify a jury verdict to correct “a clerical mistake . . . in a

judgment.” The rule does not permit the revision of a jury’s factual findings, but

courts may adjust a verdict to comply with rules regarding the apportionment of

damages. Stuckey v. N. Propane Gas, Co., 874 F.2d 1563, 1574 (11th Cir. 1989).

      Here, apportionment is governed by state law. In Florida negligence cases,

courts allocate liability among defendants based on each “party’s percentage of

fault and not on the basis of the doctrine of joint and several liability.” Fla. Stat.

§ 768.81(3). Yet in actions concerning intentional torts, the doctrine of joint and

several liability still applies. See id. § 768.81(4); Meyer v. Thompson, 861 So. 2d

1256, 1258 (Fla. Dist. Ct. App. 2003). And when a corporate defendant is held

vicariously liable for the intentional torts of an individual, the doctrine works with

greater force. In such situations, it is impossible to compare fault between parties

because the corporation is liable for all harm caused by the primary actor. See

Grobman v. Posey, 863 So. 2d 1230, 1235−37 (Fla. Dist. Ct. App. 2003) (refusing

to compare liability where HMO vicariously liable for acts of doctor).

      In view of this law, the trial court did not err to divide liability jointly and

severally among ACG and Abad. In its final instructions, the court explained the

legal tests for fraud and FDUTPA claims, but it did not explain how to apportion

damages between the defendants. Left to their own devices, the jury distributed



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liability as they saw fit, perhaps exacting the award from the defendant best

equipped to bear the costs. But even if that was the jury’s reasoning, the rationale

contravened clearly established law. The court did not exceed its authority to

correct this error on motion, reallocating the damages to the right parties in the

right amount.

      ACG counters that the court could not modify the verdict because it was the

jury’s “obvious, but unexpressed” intent to exempt Abad from paying damages.

Though the jury marked Abad liable for fraud and FDUTPA infractions on the

verdict form, they did not take damages from him; this meant, in defendants’

estimation, that the jury held Abad liable on accident. But the court did not abuse

its discretion to take a contrary view of the evidence. By marking that Abad was

liable on both counts, the jury probably intended to hold Abad responsible for his

misrepresentations. That the jury required no money from Abad proves only that

they misunderstood how Florida law allots damages from intentional torts.

                                  CONCLUSION

      After reviewing the briefs and the record with care, we affirm the judgment

below in all respects.

      AFFIRMED.




                                          33
