In short: ETW Corp., Tiger Woods’ licensing company, appealed a Miami-Dade jury verdict won by memorabilia dealer Gotta Have It Golf on contract and FDUTPA claims. The Third DCA affirmed in December 2015, citing the two-issue rule: when a general verdict could rest on more than one claim, an error tied to one claim usually will not reverse it.
The Facts
Gotta Have It Golf, a sports memorabilia company, had a licensing arrangement with ETW Corp., the company that handles Tiger Woods’ name and likeness. According to the arguments described in the oral-argument video, the license grew out of the settlement of an earlier federal lawsuit, and Gotta Have It Golf later sued in Miami-Dade circuit court claiming ETW never delivered the signed items the deal called for.
The case went to a jury in 2014. Press reports at the time said the jury found for Gotta Have It Golf and awarded about $668,000, with interest and fees pushing the judgment higher. The claims went to the jury on both breach of contract and Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA).
On appeal, ETW argued, among other things, that lost profits are not the kind of “actual damages” FDUTPA allows, that mediation-confidential material was misused, and that expert testimony should have been limited. Those arguments come from the video description; the appellate opinion itself does not describe them.
The Decision
The Third District affirmed in a per curiam opinion that offered no discussion of the facts. Instead, it cited a line of cases applying the two-issue rule, including the Florida Supreme Court’s decisions in Grenitz v. Tomlian and Barth v. Khubani. The court later denied ETW’s motion for rehearing, and both sides’ requests for appellate attorney’s fees were denied.
The citations tell the story. Where a jury returns a general verdict on two or more independent claims and nobody asked for a verdict form that separates them, the appellant cannot show it was hurt by an error on one claim if another claim independently supports the result. So even if ETW was right that FDUTPA does not cover lost profits, the contract claim could carry the verdict.
The Law
FDUTPA lets a person who has suffered a loss from a deceptive or unfair trade practice recover actual damages, attorney’s fees and costs under section 501.211. Florida courts have long debated how far “actual damages” reach, and many decisions hold that consequential damages such as lost profits are not recoverable under the statute. That is exactly the kind of issue a defendant wants decided on appeal.
The two-issue rule is a procedural trap that can keep the appellate court from ever reaching it. The fix happens at trial: a party who thinks one theory is legally defective should ask for a special verdict form that makes the jury answer each claim and each damages item separately. Without that, the general verdict is presumed to rest on whichever theory was error-free.
Lessons
- If you think one of the other side’s claims is legally flawed, ask for a special verdict form that splits the claims and damages. Otherwise the two-issue rule can bury your best appellate argument.
- Pleading the same loss as both breach of contract and FDUTPA gives a plaintiff a second path to keep a verdict.
- A short per curiam opinion that only cites cases still tells you the reason. Read the cited cases.
- Licensing deals that come out of a settlement should spell out delivery obligations and remedies precisely, since the settlement terms often become the evidence at trial.
Source: ETW Corp. v. Gotta Have It Golf, Inc., No. 3D14-1421 — Fla. 3d DCA (December 23, 2015).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Tiger Woods License Fight: Lost Profits Under FDUTPA? | ETW v. Gotta Have It Golf, 3D14-1421
Go Deeper
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Frequently Asked Questions
What is the two-issue rule in Florida?
It is an appellate doctrine. When a jury returns a general verdict on two or more independent claims or defenses, and no party asked for a verdict form separating them, an appellate court will not reverse because of an error affecting only one of them. The verdict is presumed to rest on the theory that was free of error, so the appellant cannot show harm.
How do you avoid the two-issue rule?
Ask the trial court for a special verdict form or interrogatories that require the jury to answer each claim separately, and object on the record if the request is denied. That way the appellate court can tell which theory the jury relied on and whether any error actually affected the outcome.
Can you recover lost profits under FDUTPA?
FDUTPA allows recovery of actual damages, and many Florida courts read that to exclude consequential damages such as lost profits. Some decisions have allowed lost profits in particular settings, so the answer depends on the facts and the district. Pairing FDUTPA with a contract claim is common because contract law can reach lost profits.
Did the court decide whether FDUTPA covers lost profits in the ETW case?
No. The Third District affirmed without discussing FDUTPA damages. It cited two-issue rule cases, which indicates the verdict could stand on another basis, such as breach of contract, regardless of how the FDUTPA damages question came out. The court also denied both sides’ motions for appellate attorney’s fees and later denied ETW’s motion for rehearing.
Talk to a Florida business litigation lawyer
Weidner Law, P.A. handles business, LLC, shareholder and contract disputes from St. Petersburg. If you need a civil litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
