T.A. Enterprises, Inc. v. Orlarte, Inc.
Annotate this Case
Download PDF
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2007
T.A. ENTERPRISES, INC., a foreign corporation authorized to do
business in the State of Florida,
Appellant,
v.
OLARTE, INC., a Florida corporation,
Appellee.
Nos. 4D05-829 & 4D05-3052
[March 14, 2007]
TAYLOR, J.
This is the third in a series of appeals from a Florida Lemon Law
claim. Because appellee, Olarte, Inc., did not prove its damages, we
reverse the trial court’s award of damages. Because appellee did not
plead entitlement to attorney’s fees, we reverse the trial court’s award of
fees as well.
In 2001, Olarte, Inc., filed a Lemon Law claim against the
manufacturer, T.A. Enterprises, Inc., regarding a custom van. The
Florida New Motor Vehicle Arbitration Board defaulted T.A. for failure to
timely file a response and rendered a decision in favor of Olarte. T.A.
filed a petition for trial de novo. Olarte filed a motion to dismiss the
petition, which the trial court granted. T.A. then appealed the dismissal
to our court. We held that the Arbitration Board erred by defaulting T.A.
and that the trial court erred by granting the motion to dismiss. See T.A.
Enterprises, Inc. v. Olarte, Inc., 835 So. 2d 1235 (Fla. 4th DCA 2003).
On remand, the trial court referred the matter to non-binding
arbitration. There, the arbitrator upheld the decision of the Arbitration
Board. T.A. thereafter filed a second request for trial de novo. In
February 2004, the circuit court held a trial at which evidence of the
alleged defects was presented.
No testimony regarding damages,
however, was introduced. At the conclusion of the trial, the court stated
that it was satisfied that the vehicle was a lemon. The court then
entered a final judgment expressly adopting and incorporating the
Arbitration Board’s award.
T.A. filed a motion to reconsider on the ground that the trial court
erred in entering a damages award when no evidence of “dollars and
cents” had been presented at the trial de novo. With only minor
modifications, the trial court affirmed its previous judgment. In the
amended final judgment, the court reserved jurisdiction to determine
whether and in what amount the manufacturer should pay the
consumer’s attorney’s fees as a condition of appellate review. T.A.
appealed the fees portion of the judgment to this court and we
determined that conditioning appellate review on payment of fees was
unconstitutional. See T.A. Enterprises, Inc. v. Olarte, Inc., 931 So. 2d
1016 (Fla. 4th DCA 2006).
The trial court held a hearing on the amount of attorney’s fees in July
2005.
Following the hearing, the court entered a final judgment
awarding Olarte’s attorneys fees and costs. We now consider T.A.’s
consolidated appeal of damages and the attorney’s fee award.
First, we hold that the trial court erred in awarding Olarte damages
because evidence of damages was never presented at the trial de novo.
See Chrysler v. Pitsirelos, 721 So. 2d 710, 715 (Fla. 1998) (holding that,
on appeal from Arbitration Board decision, consumer must present
evidence of damages at trial de novo). We further hold that Olarte is not
entitled to a new trial on damages. See Teca, Inc. v. WM-Tab, Inc., 726
So. 2d 828 (Fla. 4th DCA 1999); see also St. Petersburg Housing Authority
v. J.R. Development, 706 So. 2d 1377, 1377 (Fla. 2d DCA 1998)
(reversing an order granting a rehearing on damages because such a
hearing “improperly allows appellee a ‘second bite at the apple’ at proving
damages”).
We also reverse the trial court’s award of attorney’s fees to Olarte
because Olarte failed to plead entitlement to such fees. In Stockman v.
Downs, 573 So. 2d 835, 837-38 (Fla. 1991), our supreme court held: “[A]
claim for attorney’s fees, whether based on statute or contract, must be
pled. Failure to do so constitutes a waiver of the claim.” Although the
supreme court provided two exceptions to this rule, neither applies here.
Id. at 838.
Reversed and Remanded.
WARNER and Gross, JJ., concur.
*
*
*
Consolidated appeal from the Circuit Court for the Seventeenth
2
Judicial Circuit, Broward County; Miette K. Burnstein, Judge; L.T. Case
No. 01-17597 CACE (21).
Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for appellant.
No brief filed for appellee.
Not final until disposition of timely filed motion for rehearing.
3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.