                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT           FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                         ELEVENTH CIRCUIT
                                                                            May 19, 2008
                                     No. 07-13817
                                                                          THOMAS K. KAHN
                               ________________________
                                                                              CLERK

                           D. C. Docket No. 06-81255-CV-WJZ

SAUL FOX,


                                                                           Plaintiff-Appellant,

                                             versus

PORSCHE CARS NORTH AMERICA, INC.,


                                                                         Defendant-Appellee.

                               ________________________

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

                                        (May 19, 2008)

Before ANDERSON, HULL and SILER,* Circuit Judges.

PER CURIAM:

       *
        Honorable Eugene Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
      In this diversity action, plaintiff-appellant Saul Fox seeks to recover

attorney’s fees and litigation costs under Florida Statute § 681.112 incurred in his

successful Florida lemon law arbitration proceeding against defendant-appellee

Porsche Cars North America, Inc. (“PCNA”). PCNA argues that the plain

language of § 681.112 allows a court to award a consumer, who prevails in a

§ 681.112 action, “reasonable attorney’s fees” incurred in that § 681.112 action,

but not attorney’s fees incurred in that lemon law arbitration proceeding as sought

by Fox. PCNA further argues that attorney’s fees are not “damages” under the

first sentence of § 681.112 and thus damages (other than attorney’s fees) must be

sought in the § 681.112 action before a consumer can recover attorney’s fees

under the second sentence of § 681.112. All parties agree that Florida law

controls this appeal.

      The Florida Fourth District Court of Appeal, however, already has

addressed this question and reached the opposite conclusion, stating that:

      Gelinas’s claim for attorney’s fees and costs is also cognizable under
      section 681.112, because where a consumer’s vehicle has been deemed
      a “lemon” by the arbitration board, a violation of [Florida] Chapter 681
      has been found, and that consumer can seek attorney’s fees and costs
      under section 681.112 because such cannot be sought from the
      arbitration board . . . .




                                          2
Gelinas v. Forest River, Inc., 931 So. 2d 970, 975-76 (Fla. Dist. Ct. App. 2006),

review denied, 954 So. 2d 27 (Fla. 2007). Although the plaintiff in Gelinas did

seek to recover other pecuniary losses, the Florida appellate court in Gelinas did

not tie or condition the recovery of attorney’s fees from Gelinas’s successful

separate arbitration to Gelinas’s seeking additional losses in the § 681.112 action,

but concluded that a claim for attorney’s fees and costs from the separate

arbitration proceeding is “also cognizable under section 681.112.” Id. at 975.

Whether we disagree with the Florida District Court of Appeal’s reading of this

Florida statute is not the issue. Rather, PCNA has failed to meet its burden of

showing there is “some persuasive indication” that the Florida Supreme Court

would decide this issue differently than the Florida Fourth District Court of

Appeal did in Gelinas. See Silverberg v. Paine, Webber, Jackson & Curtis, Inc.,

710 F.2d 678, 690 (11th Cir. 1983); Flintkote Co. v. Dravo Corp., 678 F.2d 942,

945 (11th Cir. 1982). Thus, after review and oral argument, we reverse the district

court’s order granting summary judgment in favor of PCNA, and remand to the

district court for proceedings consistent with this opinion.

      REVERSED AND REMANDED.




                                          3
