North Palm Motors, LLC, an Illinois Limited Liability Company, D/B/A Napleton's Car Rental Center v. Custom Fleet Services, Inc. D/B/A Auto Rentals of the Palm Beaches

majority opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NORTH PALM MOTORS, LLC,

Appellant/Cross-Appellee,

CUSTOM FLEET SERVICES, INC., et al.,

Appellees/Cross-Appellants.

No. 4D2025-0167

[September 30, 2026]

Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Bradley Harper, Judge; L.T. Case No. 502016CA001515XXXXMB.

Jack R. Reiter and Sydney Feldman D’Angelo of GrayRobinson, P.A., Miami, for appellant.

Kara Rockenbach Link of Link & Rockenbach, P.A., West Palm Beach, and Bruce E. Loren, Michael I. Kean, and Kyle W. Ohlenschlaeger of Loren & Kean Law, Palm Beach Gardens, for appellees/cross-appellants Schumacher Automotive, Inc., Charles A. Schumacher, and George Bengston.

GROSS, J.

This appeal primarily concerns the issues of liability, damages, attorney’s fees and punitive damages under the Uniform Trade Secrets Act, sections 688.001–009, Florida Statutes (2015).

North Palm Motors, LLC (“Napleton”), appeals a second amended final judgment awarding Napleton “unjust enrichment” damages of $864,000, but no “actual loss” damages, on Napleton’s claim for misappropriation of trade secrets against Custom Fleet Services, Inc. (“Auto Rentals”), Charles A. Schumacher, George Bengston, Richard Boyce, Schumacher

Automotive, Inc., d/b/a The Schumacher Automotive Group (“SAG”), Amanda Homyak and Joan Mantovi. Defendants Schumacher, SAG, and Bengston (the “Schumacher Defendants”) cross-appeal the award of $864,000 in unjust enrichment damages.

No party to this appeal challenges the trial court’s finding that Boyce, Homyak, and Mantovi were liable for misappropriation of a trade secret— Napleton’s web-based customer list for its car rental business.

Most of the issues in the appeal and cross-appeal pertain to the Schumacher Defendants. In the main appeal, Napleton challenges the trial court’s (1) refusal to award Napleton attorney’s fees against the Schumacher Defendants, (2) denial of punitive damages against both the Schumacher Defendants and Boyce, and (3) refusal to award “actual loss” damages against the Schumacher Defendants.

In the cross-appeal, the Schumacher Defendants challenge their liability for trade secret misappropriation, their joint and several liability for unjust enrichment damages, and the trial court’s refusal to reduce the unjust enrichment award by 15%.

We affirm the circuit court’s thoughtful, detailed final judgment in all respects but one—we reverse and remand the $864,000 unjust

enrichment damage award for reduction by 15%.

I. The Facts at Trial

A. Background

Ed Napleton Sr. (“Ed”) is the dealer, principal, and owner of Napleton. Napleton operated a car rental business in Florida that it purchased from Maroone Lincoln-Mercury (“Maroone”) in 2009. The business contained three components: (1) a seasonal, long-term rental business catering to “snowbirds,” which was the most profitable component; (2) a daily rental fleet; and (3) long-term limousine and black car rentals to livery companies.

Napleton maintained a confidential customer list in a web-based system called TSD, which contained contact information, rental preferences, credit card information, and other details. TSD is software provided by a third-party vendor to run a car rental business. Between 2009 and 2015, Napleton’s customer database grew from approximately 10,000 to 22,000 customers. Napleton grew its business by “word of mouth.”

Richard Boyce became the manager of Napleton’s rental car business when Napleton acquired the business from Maroone in 2009, and he continued in that role thereafter. Amanda Homyak served as Napleton’s office manager, and Joan Mantovi was a Napleton receptionist.

Charles Schumacher was the owner of various vehicle franchises, including SAG. George Bengston served as SAG’s national fleet manager.

B. The GM Fleet Program

Napleton purchased vehicles through fleet incentive programs offered by General Motors (“GM”). Under GM’s “buyback” program, authorized companies could purchase cars at a fixed rate of depreciation and sell them back to GM at a pre-set price after six to twelve months if the cars met certain criteria regarding mileage and condition. Vehicles under this program were termed “nonrisk.” GM also offered cash incentives or “hood money” for “risk” cars—vehicles not part of a buyback program that had to be resold by the purchaser, usually at auction.

To qualify for GM’s fleet incentive programs, Napleton was required to obtain a unique six-digit number called a fleet account number (“FAN”). Napleton had to acquire its GM fleet through an authorized GM dealer. From 2012 to 2014, Napleton ordered and purchased its GM vehicles from SAG’s GM dealership. However, GM did not permit GM dealers to obtain a FAN and purchase fleet vehicles.

C. The Creation of Auto Rentals

In early 2015, SAG had a “serious issue” with service customers’ use of loaner vehicles. Service advisors were failing to collect payment from manufacturers or customers for loaner vehicles, and SAG’s loaner fleet was too small, requiring SAG to provide body shop customers with cars rented from Enterprise and Hertz. These issues affected up to sixty customers per day and caused hundreds of thousands of dollars in losses.

In the spring of 2015, Bengston approached Schumacher about

obtaining vehicles through GM’s repurchase program to establish an inhouse rental company. The idea was to “keep it all in-house” instead of paying Enterprise or Hertz for customer rentals.

Boyce and Bengston texted each other in May 2015 about business matters. On May 11, 2015, Bengston texted Boyce: “FYI, I have a call into [Schumacher] waiting to hear back from him,” to which Boyce responded, “Lmk [Let me know] and we can confer[e]nce.” They met the following day, and on May 14, 2015, Bengston texted Boyce, “I just heard from [Schumacher.] I am meeting with him Monday to go over the information we discussed.”

Bengston denied that he and Boyce were discussing the creation of a competing rental car business. However, Boyce’s girlfriend at the time testified that Boyce and Bengston had begun discussing the creation of a “mirror image” of Napleton’s rental car business.

By the end of June 2015, Schumacher approved filing a fictitious name, Auto Rentals of the Palm Beaches (“Auto Rentals”), for one of his existing companies, Custom Fleet Services, Inc., which would operate the in-house rental business.

D. Boyce’s Accident and Napleton’s Business Decisions in the Spring

and Summer of 2015

In March or April 2015, Boyce began discussing with his supervisor, Jim Priegel, the number of cars to order for the upcoming season. Around this same time, Napleton took a “massive receivable hit” when its largest livery customer, Worldwide, defaulted on $450,000 in receivables, causing Napleton’s management to question the viability of the livery business.

The planning for the upcoming season was interrupted when, over the 2015 Memorial Day weekend, Boyce was involved in a serious automobile accident with a drunk driver. The accident occurred while Boyce was driving a vehicle owned by Napleton. The accident injured Boyce, paralyzed his passenger, and killed the drunk driver. When Boyce returned to work about three weeks after the accident, his demeanor had “changed completely,” as he appeared “shaken up” and “very emotional.”

During this time, Ed began to reconsider the direction of Napleton’s rental car business. Ed decided to “scale back a bit” and focus on the core long-term, seasonal rental business while reducing or eliminating the unprofitable livery business. Ed also wanted to reduce deliveries of cars to the Fort Lauderdale airport because those deliveries were not profitable.

In July 2015, Napleton’s management prohibited Boyce from ordering new rental inventory for the 2016 model year. In response to Bengston pressing Boyce to place his fall GM order, Boyce showed Bengston a text message from a Napleton executive, which stated: “Do not order cars.”

E. The August 2015 Conference Call

On August 14, 2015, several members of Napleton’s management— including Ed, Eddie Napleton Jr. (“Eddie”), Priegel, Boyce, Ken Stevens (Napleton’s CFO), and Carolyn Barlow (Napleton’s controller)—participated in a conference call. Ed testified that during the call he approved ordering

400 cars for the seasonal rental business and expressed his “total dissatisfaction” with the livery business. However, Ed’s testimony was impeached regarding whether he had given such approval; he could not recall giving approval at his earlier deposition.

Bruce Etheridge (Napleton’s COO, and corporate representative) admitted: “There was no plan to approve. I saw . . . the emails you are sending, we are waiting for [Boyce] for the plan.”

During this call, Ed also stated he wanted the business to earn $600,000 a year in net profit, which Boyce did not think was possible. Ed was irate and said that he was “going to shut the MFer down.” According to Boyce, Ed told him that “Napleton rental car was being closed and that [Boyce] no longer had a job.”

F. Boyce is Hired as Manager of Auto Rentals

Following the August 14, 2015 conference call at Napleton, Boyce texted Bengston, “I know [you’re] on vacation but 911 need to talk when [you are] in range.” On a phone call shortly thereafter, Boyce told Bengston that Napleton was shutting down its rental car business and that Boyce was losing his job. Boyce also told Bengston that Ed was “furious” with Boyce about the accident because Ed was self-insured, a “huge settlement” was involved, and “the accident cost Ed a lot of money.” Ed was also upset with Boyce about the uncollected receivables from Worldwide.

Bengston testified that he believed Boyce’s representation that Napleton was shutting down its car rental business, which was consistent with Napleton’s failure to order GM vehicles as it had in the previous three years and Boyce’s presentation of text messages confirming his lack of authority to order vehicles. The trial court found Bengston’s testimony credible regarding his belief that Napleton was closing.

Schumacher originally refused to hire Boyce when Bengston first mentioned the idea because Boyce was a customer of the Schumacher organization through the GM fleet program. However, after August 14, 2015, Bengston recommended Boyce again, and Schumacher allowed Bengston and Bob Furr (the controller of the Schumacher entities) to vet him.

On August 17, 2015, Boyce had a “brief meet and greet” with

Schumacher and interviewed with Bengston and Furr. During the interview, Boyce discussed how Ed had told him that Ed was “shutting the

MFer down,” and that Boyce would be out of a job. Boyce also said that he was not authorized to order a fleet of vehicles for the new season. Schumacher and Bengston hired Boyce in August 2015 but did not add him to Auto Rentals’ payroll until January 2016.

Bengston admitted that part of the reason they hired Boyce was because they thought Napleton customers would follow Boyce to Auto Rentals. However, Bengston denied that he hired Boyce specifically “to get access to his customer list.”

G. Boyce’s Use of Napleton’s FAN to Order Cars

On August 14, 2015, the same day as the conference call, Boyce used Napleton’s FAN to order 75 Cadillacs for $3.9 million. Boyce claimed that he had planned to buy the Cadillacs himself and start his own livery or leasing service. However, shortly after Boyce placed this order, Bengston agreed to purchase the Cadillacs for Auto Rentals.

On August 24, 2015, Boyce sent Bengston an order matrix for 456 cars. A few days later, Bengston ordered these cars using Napleton’s FAN because Auto Rentals did not yet have its own FAN, and SAG, as an authorized dealer, was not eligible for a FAN. Bengston testified that using another company’s FAN as a “placeholder” is “industry standard” under GM’s rules, explaining: “If you don’t have [a FAN number] and you know you’re getting it, you can place [the order] this way.”

Bengston’s email to GM placing the order stated that the order was for a “daily rental” company—not for an internal loaner company. On September 17, 2015, Bengston emailed GM to apply for a FAN for Auto Rentals, stating he was “starting an auto rental company” and would be “purchasing around 450 [cars] this year.” GM issued a FAN to Auto Rentals on September 30, 2015, and thereafter, at Boyce and Bengston’s request, diverted the prior order from Napleton’s FAN to Auto Rentals’ FAN.

H. Napleton Management Requests Updates from Boyce

Following up after the August 14 conference call, Napleton’s

management sent multiple emails to Boyce throughout the rest of August 2015 asking for updates on the status of ordering cars and the plan for the season. On August 31, 2015, Boyce replied to Priegel that he had “placed a few orders to see where we will end up as far as production” but that he had “yet to hear a definite date.”

I. Boyce’s Dual Employment

When Bengston agreed to hire Boyce in August 2015, Bengston knew that Boyce was still employed by Napleton. Boyce told Bengston that he was helping Napleton “wind things down.” Bengston testified that he did not call anyone at Napleton to ask if Napleton was really going out of business, because he did not want to alert a competitor and he was concerned that Napleton would “probably terminate” Boyce if it knew Boyce was looking for another job.

Boyce and Homyak began helping Auto Rentals set up its business in August 2015 while continuing to work at Napleton. Bengston knew that Boyce was continuing to work at Napleton throughout 2015, but Boyce “was insisting on helping [Eddie] close down because [Boyce] made that agreement with him.” While Boyce’s dual employment frustrated Bengston and made Schumacher uncomfortable, Bengston believed Boyce’s

commitment to wind down Napleton’s rental business spoke to Boyce’s character because it showed Boyce was trying to help people he had worked with for a long time. Boyce declined to be put on Auto Rentals’ payroll until January 2016.

On September 9, 2015, Boyce texted Bengston: “Hope you’re ready. The corporate guys are headed down today, uh oh.” Bengston replied: “I’m ready.” Bengston interpreted Boyce’s text as meaning that Boyce felt Napleton was going to fire him.

On September 16, 2015, Boyce removed his and Homyak’s cell phone numbers from Napleton’s corporate account. The phone numbers were important because of the quantity of business Napleton’s customers conducted through them.

Boyce claimed he attempted to quit Napleton in September 2015, but Eddie asked him to stay to help wind down the business. In October 2015, Priegel suspected Boyce might “take[] rental customers with him” and wrote that he “would be shocked if [Boyce] didn’t resign.”

J. Auto Rentals Begins Operations

Auto Rentals created its own TSD account in October 2015. TSD was the same software that Napleton used to manage its car rental business. Auto Rentals hired temporary workers who copied information from Napleton’s reservation cards and printouts from Napleton’s TSD system into Auto Rentals’ new TSD system. Homyak told one temporary worker

that the assignment consisted of transferring data from the “old” TSD system into a “new” TSD system.

Homyak accessed Auto Rentals’ TSD account from Napleton’s

computers thousands of times. During litigation, a neutral computer expert located Napleton’s customer list on Homyak’s Auto Rentals computer in a temporary internet folder that had been automatically saved when she logged into the system.

Homyak admitted that she downloaded a report of Napleton’s entire TSD customer list on an Auto Rentals computer, though she later claimed the download was an “honest mistake” that occurred when she logged into the wrong system by entering her previous credentials from Napleton when the web-based system took too long to load. She also testified that neither Bengston nor Schumacher had any knowledge of her access to Napleton’s system or her downloading of the Napleton customer list.

When customers contacted Napleton to reserve a car, they were placed into Auto Rentals’ cars by Boyce, Homyak, or Mantovi without being told that they were now booking with Auto Rentals. Boyce did not tell customers that he had quit Napleton or that he was booking their reservations with Auto Rentals. In Boyce’s view, he “owned the relationship” with the customers.

Boyce told Bengston and Furr that customers were contacting him and that he was “referring” them to Auto Rentals. However, many customers disputed charges appearing on their credit card statements from Schumacher Chevrolet as unauthorized or fraudulent because the customers thought they were renting from Napleton. When customers inquired about the charges, Boyce, Homyak, or Mantovi would answer the telephone (purportedly on behalf of Napleton) and would tell customers that Napleton was “going through a name change,” was “part of Schumacher,” or was operating out of “both locations.”

In late October or early November 2015, Auto Rentals’ cars began to arrive.

Auto Rentals had no marketing, no paid employees, and no website during this period, but Auto Rentals nonetheless generated revenue.

In December 2015, Homyak was added to Auto Rentals’ payroll, and several “porters” were hired around that time to service vehicles. In January 2016, Boyce was added to Auto Rentals’ payroll.

By February 2016, Auto Rentals had generated $820,000 in business transactions or accounts receivable, with about 80% of its renters being former Napleton customers.

K. Schumacher’s Capitalization of Auto Rentals

In late November 2015, Schumacher contributed $250,000 of his own funds to Auto Rentals and personally guaranteed a $20 million line of credit. Separately, SAG lent Auto Rentals $1.25 million, and another Schumacher entity lent Auto Rentals $750,000.

Schumacher was the sole shareholder of Auto Rentals, but he testified that he had “no supervisory role besides approving and getting the business started.”

L. Napleton Hires Erik Lowery to Manage the Business

By December 2015, Ed and Eddie had concerns about their rental car business. Ed considered firing Boyce, but ultimately decided to hire Erik Lowery, an experienced rental professional, to manage the business while Boyce continued to be the front man with customers.

M. The February 2016 Incident

Lowery’s first day of work was February 8, 2016. Video surveillance from that evening showed Boyce, Mantovi, Homyak (who had resigned from Napleton and become an Auto Rentals employee), and Rochelle Hardy (a Schumacher employee) entering Napleton’s office, using Napleton’s computers, reviewing reservation cards, and writing notes. Boyce later pleaded guilty to a felony for wrongfully accessing Napleton’s computer system.

On February 9, 2016, in a text exchange about rental vehicles, Boyce told Bengston that he was getting nervous about progress. Bengston replied that he had “20 lined up,” and Boyce responded that “we need all u can get.”

Video surveillance from the night of February 9th showed that Boyce and Homyak returned to the Napleton office, cleaned out drawers, and packed up boxes.

On February 10, 2016, Lowery arrived for work at about 9:00 a.m. but found no employees inside and no porters outside. The business “should have been open” but was not. Among the missing items were customer

reservation cards, paper printouts of customer data, folders, key tags with Napleton’s company name and phone number, blank car rental forms, vehicle inspection forms, and rental agreements. Lowery found a key tag saying “Auto Rentals of the Palm Beaches” in a desk drawer.

Boyce and Homyak both testified that they were taking personal items out of the Napleton office. At trial, Boyce denied taking customer reservation cards and claimed that he took “blank reservation cards.” However, Boyce admitted testifying at deposition that he took some customer reservation cards but returned them later. Homyak claimed that she was using the computer to do Napleton’s payroll with Boyce’s authorization, even though she was no longer employed at Napleton.

N. The Aftermath and the Lawsuit

On February 16, 2016, Napleton sued Auto Rentals, Schumacher, Bengston, Boyce, Homyak, and Mantovi for injunctive relief and damages.

Napleton moved for a temporary injunction, and on March 7, 2016, the parties agreed to an order granting temporary injunctive relief. Pursuant to this order, Auto Rentals permanently deleted Napleton’s customer information from its TSD system and transferred existing reservations for Napleton’s customers back to Napleton.

On March 16, 2016, the parties sent a joint letter to all customers explaining that Napleton and Auto Rentals were separate entities and providing contact information for each. Nevertheless, there was “still a tremendous amount of confusion,” and Napleton received “nonstop” customer complaints.

Bengston claimed that it was not until February 2016, when he was served with the complaint, that he learned Boyce was lying to him about Napleton closing. Similarly, Schumacher testified that he “had no idea” what the suit was about.

On June 1, 2016—nearly ten months after Boyce was hired and nearly four months after the lawsuit was filed—an internal email distributed to Schumacher entities referenced Auto Rentals’ role as a supplier of loaners: “Auto Rentals can supply all customer needs from recalls to shortage of company loaners at dealership locations.”

Ultimately, Schumacher decided to wind down Auto Rentals. Auto Rentals ordered no 2017 model year cars; it offered to transfer thenexisting reservations for 907 customers to Napleton. Auto Rentals

discontinued daily rentals by November 1, 2016, started returning its 2016 model year cars to GM, and finally closed.

Auto Rentals terminated Boyce in March 2017, and Homyak left shortly thereafter.

Napleton tried to keep its rental business afloat for about two years but lost customers, revenue, inventory, and goodwill. Napleton ultimately shut down the rental business on June 30, 2018.

O. Fifth Amended Complaint

In the operative Fifth Amended Complaint, Napleton sued Boyce, Homyak, Mantovi, Auto Rentals, Bengston, Schumacher, and SAG, raising eight counts: Count I – Injunctive Relief (all Defendants); Count II – Misappropriation of Trade Secrets (all Defendants); Count III – Conversion (all Defendants); Count IV – Tortious Interference with Business Relationships (all Defendants); Count V – Fraud (Boyce, Homyak and Mantovi); Count VI – Civil Theft (all Defendants); Count VII – Violation of the Federal Computer Fraud and Abuse Act (all Defendants); and Count VIII – Civil Conspiracy (all Defendants).

In February 2024, the case proceeded to an eleven-day bench trial, which revealed the facts set forth above. At trial, the parties presented competing damages experts who extensively criticized each other’s opinions.

P. Expert Testimony on Actual Loss

Napleton presented testimony from Alan Barbee, a forensic accountant and CPA, who opined that Napleton had suffered lost profit damages of $6,229,000, including projected future lost profits. Of the total lost profits, Barbee testified that $4,157,000 represented actual operating losses incurred from October 2015 through Napleton’s shutdown in 2018.

The Schumacher Defendants’ expert, Sheri Fiske Schultz, disagreed with Barbee’s lost profit methodology and opined that he did not adequately account for certain factors unrelated to the Schumacher Defendants, like the loss of Worldwide’s livery business.

Schultz testified that the appropriate methodology to value Napleton’s actual damages was a “business valuation methodology” as of May 31, 2015, which she described as “the last good date that we knew the business was running smoothly.” She opined that if liability were

established, Napleton’s fair market value as of May 31, 2015 was $441,000. She was vigorously cross-examined about her opinions.

Similarly, Barbee criticized Schultz’s use of a business valuation approach because it did “not come close to . . . even attempting to make the plaintiff whole for the acts that caused damage to the North Palm entity.” Barbee did not perform his own business valuation, but he opined that a business valuation should have included Napleton’s actual lost profits from October 2015 through the 2018 shutdown—in other words, the $4,157,000 in losses that Napleton had incurred while it was still open. Barbee also criticized Schultz’s use of a capitalization of earnings method that projected perpetual earnings of about $60,000 a year, which Barbee believed understated Napleton’s projected earnings because Napleton was historically earning between $200,000 and $250,000 a year.

Barbee challenged Schultz’s methodology at length, opining that her methodology was not reliable, her conclusions were inaccurate, and her damages figure was not calculated to a reasonable degree of certainty. Barbee testified that the court should adopt his methodology over Schultz’s.

Similarly, in closing, Napleton’s counsel argued that Barbee’s testimony was based upon admitted exhibits, so “if an appellate court was to look at this, there’s Mr. Barbee who has all of his stuff and Ms. Schultz who has nothing.” Napleton’s counsel vigorously urged the trial court to reject Schultz’s testimony.

Q. Expert Testimony on Disgorgement

As an alternative method of calculating damages, Barbee proposed disgorgement of Auto Rentals’ profits, defining it as “an accounting of . . . what the defendant made . . . related to the acts.” He calculated that from 2015 to 2017, Auto Rentals earned gross profits of $864,000.

Barbee testified that 85% of Auto Rentals’ revenue could be tied either directly to Napleton’s customer list or to the period while the individual defendants were still employed by Napleton. Barbee explained that “at least 85 percent of the reservations” in the Auto Rentals system were from Napleton customers, a figure that was based on matching “the last name and the date of birth.” Barbee clarified that he “had observed additional parties above the 85 percent that were also included, but it wasn’t a match on the date of birth and last name.”

However, Barbee did not quantify any amount linked to these additional parties. Indeed, Barbee conceded that not all of the Auto Rentals reservations could be tied to the Napleton customer list, stating: “It’s not 100 percent that I’m aware of.” Barbee admitted that he made no adjustment for the approximately 15% of revenue that could not be directly tied to Napleton’s customer list.

Schultz also provided an opinion on disgorgement. She testified: “I looked at Auto Rental[s’] sales, what was the income that they generated and what were their expenses that generated that income and determined what the net income was from each year of Auto Rental[s’] sales from their general ledgers.” Schultz opined that once all appropriate expenses were included, Auto Rentals earned no profit and was not unjustly enriched.

R. Original Final Judgment

Following the bench trial, the trial court issued its original Final Judgment, which addressed Counts II-VI and VIII. 1

The court found that Napleton’s TSD customer list constituted a protected trade secret under the Florida Uniform Trade Secrets Act (“FUTSA” or “the Act”). The court further found that Boyce, Homyak, and Mantovi “knowingly misappropriated” Napleton’s proprietary customer list, which was copied and utilized in the Auto Rentals TSD system.

The court determined that the Schumacher Defendants had reason to know of this misappropriation. The court emphasized that “Bengston and Schumacher were aware Boyce remained employed with Napleton during Auto Rentals’ formation,” and that “Auto Rentals did no advertising, had no website and possessed no preexisting rental car clientele.” Accordingly, the court found that Boyce, Homyak, and Mantovi, together with the Schumacher Defendants, were liable for the misappropriation of the TSD in the formation and operation of Auto Rentals under Count II, the misappropriation of trade secrets count.

The court found credible the testimony of Bengston, Schumacher, and Furr that Boyce told them Napleton was shutting down. The court also found that “Boyce, Homyak, and Mantovi put Napleton customers into Auto Rentals cars in secret.” (emphasis in original). The court also noted

1 Count I for injunctive relief was dismissed as moot, and Napleton voluntarily

dismissed Count VII for violation of the federal computer fraud and abuse act after trial.

that “the evidence from both parties demonstrated Boyce lied to both dealerships and was duplicitous in most of his business dealings.”

As to damages, the court found that Napleton’s alleged losses were “speculative” and that Napleton had “failed to demonstrate a causal link between the Defendants’ misappropriation of the customer list and the losses Napleton alleges it suffered after Boyce joined Schumacher.” The court cited Schultz’s testimony that Barbee’s methodology was highly speculative, as it failed to account for numerous factors that may have contributed to Napleton’s losses, including Boyce’s car accident, the bankruptcy of a major livery customer, and changes to GM’s buyback program.

The court awarded Napleton $864,000 in disgorgement damages,

finding that “Auto Rentals was conferred a benefit by the misappropriation of Napleton’s TSD” and that Barbee’s testimony was credible that “Auto Rentals achieved gross profits of $864,000.00 between 2015 and 2017.” The court held all defendants jointly and severally liable for this amount of unjust enrichment damages.

The court found Boyce liable for fraud, but denied Napleton’s remaining claims for conversion, civil theft, tortious interference, and civil conspiracy. In fact, the court specifically found that “the competent, substantial evidence at trial did not prove that there was an agreement between the parties to do an unlawful act or a lawful act by unlawful means.”

The court found that Napleton was entitled to an award of attorney’s fees against Boyce because his misappropriation was willful and malicious. However, the court denied Napleton’s request for attorney’s fees against the Schumacher Defendants because Napleton had “fail[ed] to demonstrate a malicious and willful misappropriation of the trade secrets stored in Napleton’s TSD database by the Schumacher Defendants.”

The court declined to award exemplary damages as to any of the defendants, finding that “an award [of] exemplary damages under section 688.004 is unsupported by the greater weight of the evidence.”

After considering the Schumacher Defendants’ motion for rehearing, the court entered a second final judgment reflecting the disposition of all counts and awarding Napleton $864,000, plus prejudgment interest, “jointly and severally” against all defendants on the misappropriation of trade secrets count. This appeal ensued.

II. Standard of Review

A trial court’s decisions on whether to award attorney’s fees or exemplary damages under FUTSA are reviewed for an abuse of discretion. See Real-Time Labs., Inc. v. Predator Sys., Inc., 757 So. 2d 634, 637–38 (Fla. 4th DCA 2000) (applying abuse of discretion standard to denial of fees under chapter 688); Perdue Farms Inc. v. Hook, 777 So. 2d 1047, 1052–53 (Fla. 2d DCA 2001) (reviewing punitive damages award under chapter 688 for an abuse of discretion).

After a bench trial, a trial court’s “decisions based on legal questions are reviewed de novo and those based on findings of fact from disputed evidence are reviewed for competent, substantial evidence.” Corya v. Sanders, 155 So. 3d 1279, 1283 (Fla. 4th DCA 2015).

III. The Trial Court Did Not Err by Failing to Hold

Bengston, Schumacher, and SAG Liable for Willful and

Malicious Misappropriation and Denying an Award of

Attorney’s Fees on That Basis

A. Arguments

Napleton argues that the trial court erred in failing to hold the Schumacher Defendants liable for willful and malicious misappropriation and thus abused its discretion by denying an attorney’s fee award under the Act. In this appeal, no party challenges the trial court’s finding that Napleton’s customer list was a trade secret. 2

B. Legal Discussion

The focus of the Act is on the defendant’s behavior and the “improper means” used to acquire a trade secret.

Section 688.002(2), Florida Statutes (2015) defines an actionable “misappropriation” as follows:

2 A customer list can qualify as a trade secret under FUTSA if: (1) it “was the

product of great expense and effort”; (2) “it included information that was confidential and not available from public sources”; and (3) “it was distilled from larger lists of potential customers into a list of viable customers for [a] unique business.” Patient Depot, LLC v. Acadia Enters., Inc., 360 So. 3d 399, 407–08 (Fla. 4th DCA 2023).

(a) Acquisition of a trade secret of another by a person who

knows or has reason to know that the trade secret was

acquired by improper means; or

(b) Disclosure or use of a trade secret of another without

express or implied consent by a person who:

1. Used improper means to acquire knowledge of the trade

secret; or

2. At the time of disclosure or use, knew or had reason to

know that her or his knowledge of the trade secret was:

a. Derived from or through a person who had utilized

improper means to acquire it;

b. Acquired under circumstances giving rise to a duty to

maintain its secrecy or limit its use; or

c. Derived from or through a person who owed a duty to

the person seeking relief to maintain its secrecy or limit

its use; or

3. Before a material change of her or his position, knew or

had reason to know that it was a trade secret and that

knowledge of it had been acquired by accident or mistake.

Section 688.002(1) defines “improper means” as “includ[ing] theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.” This subsection obviously applies to the bad actor who actually steals a trade secret. But sections 688.002(2)(a) and 688.004(1) together impose liability for “misappropriation” on a “person who knows or has reason to know that the trade secret was acquired by improper means.” § 688.002(2)(a), Fla. Stat. (2015) (defining “misappropriation”); § 688.004(1), Fla. Stat. (2015) (authorizing award of damages for misappropriation).

In the absence of a defendant’s egregious behavior, FUTSA operates as a traditional business tort with regard to recoverable damages and the requirement that each party bear its own attorney’s fees.

But if a “willful and malicious misappropriation” of a trade secret occurs, the Act permits the imposition of two penalties. See §§ 688.004(2) & 688.005, Fla. Stat. (2015).

First, the court “may award exemplary damages in an amount not exceeding twice” any compensatory award. § 688.004(2), Fla. Stat. (2015).

Second, “the court may award reasonable attorney’s fees to the prevailing party.” § 688.005, Fla. Stat. (2015). 3 “It is for the [factfinder] to determine whether a misappropriation was willful and malicious.” Fin. Info. Techs., LLC v. iControl Sys., USA, LLC, 21 F.4th 1267, 1275 (11th Cir. 2021).

By using the word “may” when discussing exemplary damages and liability for attorney’s fees, the Act commits such awards to the trial court’s discretion. The awards are not mandatory even where the evidence might support them.

FUTSA’s “willful and malicious” standard was adopted in 1988. Ch. 88-254, § 4, Laws of Fla. The Act’s threshold for imposing punitive damages was not impacted by the requirements for punitive damages contained in section 768.72(2), Florida Statutes (2015). Section 768.72(2) “altered the law by codifying and defining substantive legal standards (‘intentional misconduct’ and ‘gross negligence’) to govern the availability of punitive damages.” Perlmutter v. Fed. Ins. Co., 434 So. 3d 681, 686 (Fla. 2026).

As a limitation on section 768.72(2)’s application, section 768.71(3), Florida Statutes (2015), states that “[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” The FUTSA standard is “in conflict” with section 768.72(2) because FUTSA adopts the common law “willful and malicious” standard for punitive damages—that “[a] legal basis for punitive damages exists where torts are committed in an outrageous manner or with fraud, malice, wantonness or oppression.” Perlmutter, 434 So. 3d at 686.

We agree with the Second District that FUTSA’s “willful and malicious” standard is the same as the common law standard for awarding punitive or exemplary 4 damages under Florida law. See Perdue Farms, 777 So. 2d

3The court may also award attorney’s fees “[i]f a claim of misappropriation is made in bad faith” or “a motion to terminate an injunction is made or resisted in bad faith.” § 688.005, Fla. Stat. (2015).

4 “Exemplary damages” are the same as punitive damages. The Florida Supreme Court has used the terms interchangeably:

at 1052–53. In Perdue Farms, the Second District explained that exemplary damages are available to punish a defendant who “acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others,” such as “when the wrong done partakes of a criminal character.” Id. at 1053 (quoting Winn & Lovett Grocery Co. v. Archer, 171 So. 214, 221 (Fla. 1936)).

Consistent with Perlmutter’s description of the common law rule, Perdue Farms explained:

Exemplary damages are given solely as a punishment where

torts are committed with fraud, actual malice, or deliberate

violence or oppression, or when the defendant acts willfully,

or with such gross negligence as to indicate a wanton

disregard of the rights of others. Exemplary or punitive

damages are therefore damages ultra compensation, and are

authorized to be inflicted when the wrong done partakes of a

criminal character, . . . or consists of aggravated misconduct

or a lawless act resulting in injury to plaintiff when sought to

be redressed by a civil action for the tort.

Id. (quoting Archer, 171 So. at 221).

“[T]he degree of conduct required to sustain an award of such

damages has been characterized as conduct necessary to

sustain a conviction for manslaughter. . . . [E]xemplary

damages are not recoverable unless the defendant’s conduct

. . . rises to the level of an independent tort showing actual

malice, moral turpitude, wantonness or outrageousness.”

Id. (citations omitted).

Exemplary or punitive (sometimes called vindictive) damages are

assessable dependent on the circumstances showing moral

turpitude or atrocity in the defendant’s conduct in causing an injury

that is wanton and malicious or gross and outrageous to such an

extent that the measured compensation of the plaintiff should have

an additional amount added thereto as ‘smart money’ against the

defendant, by way of punishment or example as a deterrent to

others inclined to commit similar wrongs.

Archer, 171 So. at 221 (emphasis added); see also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 2, at 9 (5th ed. 1984) (discussing availability of “punitive” or “exemplary” damages).

Perdue Farms found “no reason to set a different standard for the award of such damages pursuant to section 688.004(2).” Id.; see also Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357 So. 3d 703, 706 (Fla. 4th DCA 2023) (observing that conduct sufficient to warrant punitive damages must be “so outrageous in character, and so extreme in degree . . . [that] the facts [of the case] to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’”) (citation omitted).

As we explain below, competent, substantial evidence supported the finding that the Schumacher Defendants committed misappropriation on a “reason to know” basis.

But even though the Schumacher Defendants had reason to know of such misconduct, the evidence on liability did not rise to that level of culpability required to meet the heightened “willful and malicious” standard. Section 688.005 requires such a showing for an award of attorney’s fees. § 688.005, Fla. Stat. (2015).

We reject Napleton’s attempt to have us lower the bar for punitive damages and attorney’s fees under the Act. As one court observed, conduct crosses “the willfulness/malice line” only when it is done “with the intent to harm the trade secret holder beyond the mere loss of the trade secret or with reckless disregard that that kind of harm will occur.” Highland Consulting Grp., Inc. v. Minjares, No. 19-CV-81636-RLR/BER, 2024 WL 776792, at *9 (S.D. Fla. Feb. 8, 2024).

Here, Bengston and Schumacher testified that they believed Boyce’s representations that Napleton was closing. The trial court expressly found this testimony credible, which is a finding that cannot be disturbed on appeal. This testimony belies any claim that the Schumacher Defendants committed a “willful and malicious” misappropriation within the meaning of Perdue Farms and Perlmutter’s description of the common law standard—conduct rising to the level of actual malice, moral turpitude, wantonness, or outrageousness.

Viewed in the light most favorable to the trial court’s ruling, the evidence established that Boyce informed Bengston in August 2015 that Napleton was closing and Boyce would be out of a job. To be sure, the trial court reasonably found that Auto Rentals’ early success while Boyce was still employed at Napleton—high revenues without employees or advertising—was a factor supporting misappropriation liability on a “reason to know” theory. However, the evidence also supports the notion that Bengston and Schumacher might have believed that customers would

eventually follow Boyce to Auto Rentals based on longstanding personal relationships alone, which is a factor weighing against a finding of a “willful and malicious” misappropriation. Accordingly, even if the Schumacher Defendants had reason to know that Boyce had misappropriated a customer list from Napleton, the Schumacher Defendants’ conduct is a far cry from “willful and malicious” misappropriation.

Napleton presented no direct evidence that Bengston or Schumacher had actual knowledge that Boyce had misappropriated Napleton’s customer list before they were served with the lawsuit in February 2016. Significantly, the Schumacher Defendants cooperated with Napleton’s investigation and promptly agreed to a broad injunction shortly after service of process, which tends to prove that any misappropriation of trade secrets on their part was not willful and malicious. Taken together, this evidence supports the trial court’s conclusion that Bengston and Schumacher lacked the requisite intent for willful and malicious misappropriation.

As for SAG, Napleton’s claim of direct liability likewise fails. “It is axiomatic that a corporation can only act through its officers and agents.” Kent Ins. Co. v. Schroeder, 469 So. 2d 209, 210 (Fla. 5th DCA 1985) (cleaned up). “Under Florida law, a corporation is directly liable for the actions of a managing agent or a person who holds a policy-making position.” Barrows v. Truly Nolan of Am., Inc., No. 2:04-CV-323-FtM29-SPC, 2005 WL 8159431, at *4 (M.D. Fla. Apr. 8, 2005). “[A] managing agent is an individual like a ‘president [or] primary owner’ who holds a ‘position with the corporation which might result in his acts being deemed the acts of the corporation.’” Fla. Power & Light Co. v. Dominguez, 295 So. 3d 1202, 1205 (Fla. 2d DCA 2019) (citation omitted).

A corporation can act only through its officers and agents, and the trial court’s determination that no managing agent of SAG acted with willful and malicious intent is supported by the record. While the record includes references to SAG providing IT support for Auto Rentals, that evidence alone was insufficient to warrant reversing the trial court’s finding that SAG was not liable for willful and malicious misappropriation.

In sum, although the trial court determined that the Schumacher Defendants were liable for misappropriation under the Act’s “reason to know” standard, the court reasonably found that the evidence did not support the more demanding finding of willful and malicious conduct required for an award of attorney’s fees under section 688.005. We decline Napleton’s invitation to reweigh the evidence and substitute our judgment for that of the trial judge.

IV. The Trial Court Did Not Abuse Its Discretion in

Failing to Award Punitive Damages Against Boyce and

the Schumacher Defendants

A. Arguments

Based upon the court’s findings that Boyce committed willful and malicious misappropriation as well as fraud, Napleton asserts that the trial court abused its discretion by declining to impose punitive damages against Boyce.

Also, Napleton contends that the Schumacher Defendants purposefully ignored mounting evidence of misappropriation so that their conduct was reprehensible and warranted the imposition of punitive damages.

For the reasons discussed above, competent, substantial evidence supported the trial court’s conclusion that the Schumacher Defendants did not willfully and maliciously misappropriate Napleton’s customer list. Under the Act, the same “willful and malicious” standard applies to both punitive damages and the award of prevailing party attorney’s fees. We therefore affirm the trial court’s denial of an award of exemplary damages against the Schumacher Defendants.

As to Boyce, we note that the commission of a business tort, without more, is insufficient to warrant punitive damages. “Record evidence may support an intentional tort, but not necessarily an award of punitive damages.” Air Ambulance Pros., Inc. v. Thin Air, 809 So. 2d 28, 30 (Fla. 4th DCA 2002).

For example, “[p]roof of the elements of tortious interference may be established even though the evidence may not justify an award of punitive damages.” Id. Similarly, “[m]erely pleading a facially sufficient claim for an intentional business tort is not sufficient to claim punitive damages.” Bistline v. Rogers, 215 So. 3d 607, 611 (Fla. 4th DCA 2017). We have written that “punitive damages are reserved for particular types of behavior which go beyond mere intentional acts.” Weinstein Design Grp., Inc. v. Fielder, 884 So. 2d 990, 1001 (Fla. 4th DCA 2004) (reversing award of punitive damages in an unauthorized publication claim brought under section 540.08, Florida Statutes), overruled in part on other grounds by Seadler v. Marina Bay Resort Condo. Ass’n, 376 So. 3d 659, 661 (Fla. 2023); accord Matrix Grp. Ltd. v. Rawlings Sporting Goods Co., 477 F.3d 583, 595 (8th Cir. 2007) (stating that “[i]n order to recover punitive

damages [plaintiff] would have had to prove more than just the elements of a claim for tortious interference.”).

The trial court’s finding that Boyce had willfully and maliciously misappropriated a trade secret did not require the court to also award exemplary damages under section 688.004(2). We decline to reverse the trial judge’s decision for two reasons.

First, section 688.004(2), Florida Statutes (2015), provides that a court “may award exemplary damages” if “willful and malicious

misappropriation exists.” “The word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory

connotation of the word ‘shall.’” Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002). The statute thus gives the trial court broad discretion over the decision whether to award punitive damages.

Second, punitive damages “operate as ‘private fines’ intended to punish the defendant and to deter future wrongdoing.” Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1262 (Fla. 2006) (quoting Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001)). The trial court reasonably could have concluded that ordering Boyce to pay $864,000 in compensatory damages, along with Napleton’s attorney’s fees, was sufficient to “make an example” out of Boyce and satisfy the deterrence policy behind exemplary damages. The trial court did not abuse its discretion in making that ruling. 5

V. We Reject Napleton’s Invitation to Reverse the Trial

Court’s Decision on the Ground That It Is Against the

Manifest Weight of the Evidence

Napleton challenges the trial court’s finding that the Schumacher Defendants did not engage in willful and malicious misappropriation, arguing that such a finding is contrary to the manifest weight of the evidence. Napleton asserts that Bengston hired Boyce “precisely because he knew customers would follow Boyce,” and that it “defies belief” that Schumacher would contribute $2.25 million to Auto Rentals and guarantee millions worth of inventory “unless he knew Boyce was bringing Napleton’s business and trade secrets to Auto Rentals.”

5 We have uncovered no Florida cases, and Napleton has cited no cases, where

an appellate court reversed a judge or jury’s decision not to award punitive damages.

Napleton’s argument urges us to apply an incorrect standard of review of the trial court’s decision.

“In a non-jury action, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.” Fla. R. Civ. P. 1.530(e).

After a bench trial, an appellate court reviews a trial court’s factual findings under a competent, substantial evidence standard, not a “manifest weight of the evidence” standard. Siewert v. Casey, 80 So. 3d 1114, 1116 & n.2 (Fla. 4th DCA 2012). A contention that a trial court’s ruling is against the manifest weight of the evidence “is not directed to the applicable standard of appellate review in this context, which is whether there was substantial, competent evidence to support the trial court’s ruling.” Noonan v. Snipes, 569 So. 2d 1381, 1381 (Fla. 2d DCA 1990).

The manifest weight of the evidence standard applies in the trial court when a party moves for a new trial after a jury verdict. If a judge grants a new trial because the verdict is against the manifest weight of the evidence, an appellate court reviews that decision under an abuse of discretion standard.

In Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999), the Florida Supreme Court, relying on Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959), set the parameters for a trial court’s application of a manifest weight of the evidence standard in ruling on a motion for a new trial:

To summarize, this Court has repeatedly held that the trial

judge has broad discretion in ruling on a motion for a new

trial on the grounds that the verdict is contrary to the manifest

weight of the evidence. A trial judge has the responsibility to

draw “on his [or her] talents, his [or her] knowledge, and his

[or her] experience to keep the search for the truth in a proper

channel,” and the trial judge should always grant a motion for

a new trial when “the jury has been deceived as to the force

and credibility of the evidence or has been influenced by

considerations outside the record.”

Brown, 749 So. 2d at 497 (quoting Cloud, 110 So. 2d at 673).

When reviewing an order granting a new trial because a jury verdict is against the manifest weight of the evidence, an appellate court employs an abuse of discretion standard of review:

When reviewing the order granting a new trial, an appellate

court must recognize the broad discretionary authority of the

trial judge and apply the reasonableness test to determine

whether the trial judge committed an abuse of discretion. If

an appellate court determines that reasonable persons could

differ as to the propriety of the action taken by the trial court,

there can be no finding of an abuse of discretion.

Id. at 497–98.

Napleton cites cases using rhetorical flourishes when reversing judgments that were not supported by competent, substantial evidence, but those cases do not authorize an appellate court to conduct a freestanding “manifest weight” review of a trial court’s factual findings after a bench trial. See Miller v. First Am. Bank & Tr., 607 So. 2d 483, 484 (Fla. 4th DCA 1992) (“No court is obliged to approve a judgment which so obviously offends even the most hardened appellate conscience and which is so obviously contrary to the manifest justice of the case.”); Miami-Dade Police Dep’t v. Martinez, 838 So. 2d 672, 674 n.1 (Fla. 3d DCA 2003) (describing trial court’s factual determinations as “shockingly inconsistent with the realities of the situation”).

Similarly, Napleton cites two Florida Supreme Court cases from the early part of the last century which are relics of a time long before Cloud and Rule 1.530. 6 See Fla. Nat’l Bank of Gainesville v. Sherouse, 86 So. 279, 279 (Fla. 1920) (“[I]f a decree is manifestly against the weight of the evidence, or contrary to the legal effect of the evidence, then it becomes the duty of the appellate court to reverse the same.”); Newman v. Smith, 82 So. 236, 241 (Fla. 1918) (“Where the finding of a trial judge is contrary to the legal effect of the evidence on the issues made the appellate court should reverse the finding, even though the trial judge personally saw and

6 By way of analogy, just as it would be a mistake to rely upon harmless error

cases from the early part of the last century which used an outcome-oriented harmless error standard no longer in use, it would be a mistake to rely upon preCloud cases suggesting that an appellate court should review whether a judgment is against the manifest weight of the evidence. See Robert M. Gross and David R. Maass, Harmless Error in Civil Appeals, 89 Fla. Bar J. 10, 14 (Nov. 2015) (describing “early judicial interpretations” after the 1911 adoption of a harmless error statute in Florida).

heard the witnesses testify, and even though there were conflicts in the testimony, and there was some evidence tending to support the finding.”).

After the implementation of the Florida Rules of Civil Procedure, modern jurisprudence has come to recognize that the “weight” to be given to trial evidence is a matter for trial judges and juries who encounter the evidence first-hand.

VI. The Trial Court Did Not Abuse Its Discretion in

Rejecting the Valuation Testimony of Both Experts and

Awarding Zero Dollars for the “Actual Loss” Caused by

the Misappropriation

A. Arguments

Finally, Napleton argues that the trial court erred by awarding zero dollars for the actual loss caused by the misappropriation. Napleton emphasizes that the burden of proof for such damages is liberal and does not require mathematical certainty. Napleton asserts that while the trial court rejected Napleton’s expert’s testimony as speculative, the court overlooked that the Schumacher Defendants’ expert’s methodology provided a “reasonable basis” from which actual damages could be inferred or approximated. Accordingly, Napleton contends that the trial court erred by failing to award, at a minimum, damages in accordance with the defense expert’s testimony.

B. Legal Discussion

Unless a monetary recovery is what the statute describes as

“inequitable,” a prevailing “complainant is entitled to recover damages for misappropriation.” § 688.004(1), Fla. Stat. (2015). “Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.” Id. “In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty . . . .” Id.

“The law of damages as applied in misappropriation of trade secret cases holds that when some damage is proven and ‘the uncertainty lies only in the amount of damages, recovery may be had if there is proof of a reasonable basis from which the amount can be inferred or

approximated.’” Perdue Farms, 777 So. 2d at 1051. “A plaintiff’s burden of proof as to damages caused by the misappropriation is ‘liberal’ and is satisfied ‘by showing the misappropriation, the subsequent commercial

use, and . . . evidence by which the jury can value the rights the defendant has obtained.” Premier Lab Supply, Inc. v. Chemplex Indus., Inc., 94 So. 3d 640, 644 (Fla. 4th DCA 2012) (quoting Perdue Farms, 777 So. 2d at 1052).

Because “damages can seldom be proven with mathematical certainty, nor anything approaching it,” the case law allows “considerable flexibility in the calculation of appropriate monetary relief in trade secret actions.” Med. Store, Inc. v. AIG Claim Servs., Inc., No. 02-80513-CIV, 2003 WL 25669175, at *7 (S.D. Fla. Oct. 17, 2003) (internal quotation marks omitted). In short, “the plaintiff is required to prove the amount of such loss with only as much certainty as is reasonable under the

circumstances.” Id.

Significantly for this case, a factfinder “is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony.” Wald v. Grainger, 64 So. 3d 1201, 1205 (Fla. 2011).

Additionally, the requirement of preservation operates as a constraint on appellate review. “[T]o be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985).

Here, the trial court did not err in declining to award damages for “actual loss caused by misappropriation.”

First, Napleton does not challenge the trial court’s finding that its own expert’s lost profit analysis was too speculative.

Second, under the preservation doctrine, Napleton cannot be heard to complain for the first time on appeal about the trial court’s failure to adopt Schultz’s $441,000 figure as the measure of Napleton’s actual loss. Napleton spent much of the trial vigorously attacking Schultz’s opinion through both cross-examination and its own expert’s testimony.

Napleton argued in closing that Schultz’s methodology was based on “nothing” and urged the trial court to reject her opinion in full. Napleton never even hinted that Schultz’s opinion might be a valid alternative basis for assessing damages.

On the merits, the trial court was entitled to reject both expert opinions. A defense expert’s damages opinion does not necessarily set a “floor” on damages. The trial court could have believed that Schultz’s valuation opinion was not a reliable measure of actual loss caused by the misappropriation, as her opinions were unclear and wavered under crossexamination. For example, she gave inconsistent testimony about whether she was offering an opinion on causation.

In addition, the trial court was not required to accept the $441,000 figure as the measure of actual damages because the trial court reasonably found that Napleton failed to prove “some damage” of the actual loss variety—that is, an actual loss caused by misappropriation. The court specifically found that Napleton failed to demonstrate a causal link between the misappropriation of the customer list and the alleged losses, citing evidence that GM’s cancellation of its buyback program had a significant adverse effect on Napleton’s profitability and that Ed Napleton had planned to close the auto rental business. Accordingly, because the trial court reasonably could have believed that any causal link between the misappropriation and the subsequent closing of Napleton’s rental business was too speculative, the court was within its discretion to reject the $441,000 figure—representing Napleton’s May 2015 value—as a proper measure of actual loss caused by the misappropriation.

VII. The Trial Court Did Not Erroneously Rewrite Section

688.002(2)(a) to Find the Schumacher Defendants Liable

for Misappropriation

A. Arguments

On cross-appeal, the Schumacher Defendants argue that the trial court “erroneously rewrote section 688.002(2)(a)” by imposing liability based on a “constructive knowledge” standard that is not supported by the statute’s plain text. Under section 688.002(2)(a), they contend, “there is only one threshold ‘acquisition,’ and the same person must (1) commit that ‘acquisition’ and (2) have done so when it was doing so by improper means.” They assert that subsection (2)(a) requires an active “acquisition” by the defendant, and that the trial court erred by finding them liable for “after-the-fact, derivative liability,” despite making no finding that they personally “acquired” the trade secrets. Finally, they argue that the trial court applied an erroneous “should have known” standard rather than the statutory “reason to know” standard, which they assert is a markedly different legal threshold that does not impose an investigatory duty of ascertainment.

B. Legal Discussion

As noted above, the Act defines misappropriation of trade secrets in two ways: “acquisition” and “disclosure or use.”

Misappropriation by “acquisition” under section 688.002(2)(a) means “[a]cquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means.” § 688.002(2)(a), Fla. Stat. (2015).

“Improper means” encompasses “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.” § 688.002(1), Fla. Stat. (2015).

In interpreting these provisions, we must follow “the ‘supremacy-of-text principle’—namely, the principle that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’” Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020) (citation omitted). Every word “is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.” Id. at 946–47 (citation omitted). Courts should avoid readings that would render part of a statute meaningless or superfluous. Brittany’s Place Condo. Ass’n v. U.S. Bank, N.A., 205 So. 3d 794, 799 (Fla. 2d DCA 2016).

“Misappropriation of trade secrets is an intentional tort,” and chapter 688 implements standards for the operation of that tort in Florida. Del Monte Fresh Produce Co. v. Dole Food Co., 148 F. Supp. 2d 1326, 1338 (S.D. Fla. 2001). Consequently, a plaintiff “must show more than mere possession of a trade secret” by the defendant. Id. For example, in one case, a defendant’s employee received an email attachment containing trade secrets. DynCorp Int’l v. AAR Airlift Grp., Inc., 664 F. App’x 844, 849 (11th Cir. 2016). The defendant then “took affirmative action not to acquire the document or its contents,” including closing the document and deleting it from the employee’s email accounts and personal computer. Id. The federal court held that such conduct did not constitute “acquisition” of a trade secret under the Act. Id.

Grammatically, section 688.002(2)(a) is written in the passive voice— referring to “a person who knows or has reason to know that the trade secret was acquired by improper means.” § 688.002(2)(a), Fla. Stat. (2015) (emphasis added). Thus, contrary to the Schumacher Defendants’ argument that liability under subsection (2)(a) is limited to the initial

acquirer, liability for misappropriation by acquisition is not so limited and can also include a subsequent acquirer who knows or has reason to know that the trade secret was acquired by improper means. See Thermodyne Food Serv. Prods., Inc. v. McDonald’s Corp., 940 F. Supp. 1300, 1308–09 (N.D. Ill. 1996).

In Thermodyne, for example, the court denied summary judgment because “if Specialty Equipment ‘knew or had reason to know’ that Liebermann was breaching a duty to maintain the confidentiality or secrecy of the Thermodyne technology when he revealed such,” Specialty Equipment would be liable for the misappropriation under both the “acquisition” and “disclosure or use” prongs. Id. at 1308. The court wrote that “when Specialty Equipment acquired the Thermodyne technology through Liebermann—who it knew was a former employee of Plaintiffs— arguably, it had reason to know at that point that the technology was misappropriated[.]” Id. at 1309; see also Dana Ltd. v. Am. Axle & Mfg. Holdings, Inc., No. 1:10-CV-450, 2013 WL 4498993, at *19 n.4 (W.D. Mich. Aug. 19, 2013) (“Because ‘improper means’ requires intentional conduct, the addition of ‘knows or has reason to know’ suggests that [the UTSA’s acquisition prong] applies to a person who obtains the secret from the one who improperly acquired it”); Restatement (Third) of Unfair Competition § 43, cmt. c (Am. L. Inst. 1995) (“A person who obtains a trade secret by inducing or knowingly accepting a disclosure from a third person who has acquired the secret by improper means . . . also acquires the secret by improper means.”).

Where the conduct of two persons falls under section 688.002(2)(a)’s definition of a “misappropriation” of the same trade secret, both are jointly and severally liable for damages “for misappropriation” under section 688.004(1). That result is consistent with the general rule that joint intentional tortfeasors are jointly and severally liable for damages caused by their wrongful conduct.

The “standard for trade secret claims” is “joint and several liability.” Arxada Holdings NA Inc. v. Harvey, 351 A.3d 519, 558 (Del. Ch. 2026); see also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 47, at 326–30 (5th ed. 1984) (discussing basic principles applicable to joint tortfeasors).

Thus, the Eleventh Circuit has held that where the record supports a finding that each of the defendants “acted in concert” to commit misappropriation of trade secrets, thereby causing a single injury, they are jointly and severally liable for the misappropriation regardless of their

“varying levels of culpability.” Compulife Software, Inc. v. Newman, 111 F.4th 1147, 1164 (11th Cir. 2024) (“Compulife II”).

In Compulife II, the Eleventh Circuit held that the trial court did not err in finding the defendants liable for misappropriating a competitor’s database through a coordinated “scraping attack” that harvested millions of insurance quotes. Id. As to the least culpable defendant in particular, the trial court’s findings—that the infringing websites were registered in his name, that he owned an insurance agency which benefited from the stolen database, and that he allowed his father to use his license in violation of a consent decree to illicitly engage in the insurance business— supported the conclusion that he “participated in and benefited” from the misappropriation. Id. at 1164–65.

Finally, the phrases “reason to know” and “should have known”—when used in the technical, legal sense—represent distinct legal standards.

Under the Restatement (Second) of Torts,

[t]he words ‘reason to know’ . . . denote the fact that the actor

has information from which a person of reasonable

intelligence or of the superior intelligence of the actor would

infer that the fact in question exists, or that such person

would govern his conduct upon the assumption that such fact

exists[, whereas] [t]he words ‘should know’ . . . denote the fact

that a person of reasonable prudence and intelligence or of

the superior intelligence of the actor would ascertain the fact

in question in the performance of his duty to another.

Restatement (Second) of Torts § 12 (1)–(2) (Am. L. Inst. 1965).

The “reason to know” standard “does not impose any duty to seek out and prevent violations.” Hard Rock Café Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143, 1149 (7th Cir. 1992); see also Sardis v. Overhead Door Corp., 10 F.4th 268, 293–95 (4th Cir. 2021) (holding that trial court reversibly erred in admitting expert’s testimony as to what defendant “should have known” because this testimony was incompatible with the “reason to know” standard governing a failure-to-warn claim).

The trial court did not use the wrong legal standard in finding the Schumacher Defendants liable for misappropriation.

First, the Schumacher Defendants constituted subsequent acquirers subject to liability under section 688.002(2)(a). The statute’s use of

passive voice—“[a]cquisition of a trade secret of another by a person who knows or has reason to know”—does not limit liability solely to the initial acquirer. A subsequent acquirer may be liable in addition to the individual who first wrongfully “acquired” the trade secret.

Viewed in the light most favorable to the trial court’s decision, the evidence supports a finding that the Schumacher Defendants acquired Napleton’s trade secrets by integrating customer information from the Napleton TSD system into the new Auto Rentals TSD system. The Schumacher Defendants had reason to know that the customer

information had been misappropriated, given that (1) Boyce was simultaneously working for both Napleton and Auto Rentals, (2) Auto Rentals was earning substantial revenues without any employees, marketing, or website, and (3) customers were disputing credit card charges from “Schumacher Chevrolet” as unauthorized or fraudulent because the customers thought they were renting from Napleton.

Unlike cases where the defendants “took affirmative action not to acquire” trade secrets and promptly deleted them upon learning of their potential sensitivity, 7 the Schumacher Defendants provided capitalization, premises, and operational support that enabled Auto Rentals to use Napleton’s customer list. The trial court found that the Schumacher Defendants “copied” and “utilized” Napleton’s trade secret to “determine the size, number and type of vehicles to acquire,” “quickly identify and convert Napleton Car Rental customers,” and “ramp up operations and the profitability of the Schumacher Car Rental operation.” 8

The Schumacher Defendants complain that the trial court used the phrase “should have known” several times in the final judgment instead of the statutory wording of “reason to know.” They contend that the court improperly foisted an “investigatory duty of ascertainment” upon them.

Viewed in its entirety, the final judgment consistently applied the “reason to know” standard in deciding the case. Nowhere did the court

7 See, e.g., DynCorp Int’l, 664 F. App’x at 849 (involving a trade secret case where

a defendant took affirmative action not to acquire the trade secret document or its contents, including closing the document and deleting it from an employee’s email accounts and personal computer).

8 Because the record supports the imposition of liability under subsection (2)(a),

we do not reach the issue of whether the evidence also supports liability under section 688.002(2)(b).

suggest that the Schumacher Defendants had a duty to investigate or discover facts, requirements consistent with the “should have known” standard. The trial court quoted the correct “reason to know” standard three times and applied the correct analysis in the final judgment.

The trial court obviously used the two standards interchangeably, referring to “should have known” in the colloquial sense, rather than a technical, legal sense. Courts in misappropriation cases have sometimes used the two phrases interchangeably when articulating the scienter standard. See Mapei Corp. v. J.M. Field Mktg., Inc., 295 So. 3d 1193, 1200 (Fla. 4th DCA 2020) (affirming entry of injunction where trial court found defendant “knew or should have known” information was protected). 9

For these reasons, we affirm the trial court’s finding that the Schumacher Defendants were liable for misappropriation under the Act.

VIII. The Trial Court Properly Held the Schumacher

Defendants Liable for “Unjust Enrichment” Damages

under Section 688.004(1), Florida Statutes

The Schumacher Defendants argue that the trial court erred by holding them jointly and severally liable for disgorgement of Auto Rentals’ profits where Napleton failed to prove the essential elements of unjust enrichment as to them. The Schumacher Defendants maintain that keeping disgorgement tied to its “unjust enrichment origins” ensures that the remedy is not transformed into a penalty.

The Act provides that a “complainant is entitled to recover damages for misappropriation,” which can include “the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss.” § 688.004(1), Fla. Stat. (2015).

The Act thus allows a complainant to recover two different types of damages. The unjust enrichment recovery prevents a defendant from

9 Napleton points out that the use of “should have known” can also be found among courts that have recited the “misappropriation” definition of the Defend Trade Secrets Act, 18 U.S.C. § 1839(5), as well as other state trade secrets acts that contain the same “reason to know” language as is found in FUTSA. See Minjares, 2024 WL 776792 at *6; S. Nuclear Operating Co. v. Elec. Data Sys. Corp., 273 F. App’x 834, 834–35 (11th Cir. 2008) (affirming dismissal of complaint under Georgia Trade Secrets Act, which contains “reason to know” definitional language, but reciting “should have known” standard).

profiting from a misappropriation to the extent that it was not taken into account in determining a plaintiff’s actual loss.

The Schumacher Defendants’ reliance on the unjust enrichment cause of action is misplaced. Unjust enrichment is a type of implied contract where a plaintiff has conferred a benefit on the defendant. See Com. P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So. 2d 383, 386 (Fla. 4th DCA 1997). If the defendant knows of the benefit and “the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it,” the plaintiff may recover damages. Id.; Chiquita Fresh N. Am., L.L.C. v. Port Everglades Terminal, LLC, 372 So. 3d 277, 280 (Fla. 4th DCA 2023).

Misappropriating a trade secret is a tort. The Act is not concerned about the fair value of a benefit conferred; rather, it provides for the “unjust enrichment” recovery to prevent a wrongdoer from profiting from wrongful acts. “Unjust enrichment” is not a discrete cause of action in this context—it is a form of relief for misappropriation of trade secrets. Hurry Fam. Revocable Tr. v. Frankel, No. 8:18-CV-2869-CEH-CPT, 2022 WL 3156202, at *8 (M.D. Fla. Aug. 8, 2022), aff’d, No. 23-10365, 2026 WL 1244195 (11th Cir. May 6, 2026). That the trial court did not address the elements of a common law unjust enrichment cause of action has no impact on Napleton’s ability to recover “unjust enrichment” damages under the Act.

As we indicated above, “[j]oint and several liability is the standard for trade secret claims.” Harvey, 351 A.3d at 558. Where an intentional tort has been committed, joint and several liability generally applies. GG Inv. Realty, Inc. v. S. Beach Resort Dev., LLC, 337 So. 3d 431, 437 n.5 (Fla. 3d DCA 2022). “Joint and several liability among multiple tortfeasors exists when the tortfeasors, acting in concert or through independent acts, produce a single injury.” Acadia Partners, L.P. v. Tompkins, 759 So. 2d 732, 736 (Fla. 5th DCA 2000).

Here, the trial court found that the defendants had all

“misappropriated” the same trade secret within the meaning of the Act. They are thus all liable for damages “caused by” the “misappropriation,” including “unjust enrichment” of the wrongdoers.

No language in section 688.004 suggests that “unjust enrichment” damages should be treated differently than “actual loss” damages for codefendants who are all found to have misappropriated the same trade secret.

“In securities law cases awarding disgorgement, joint and several liability applies when multiple individuals or entities collaborate in illegal conduct.” SEC v. MCC Int’l Corp., No. 22-CV-14129, 2025 WL 1295061, at *8 (S.D. Fla. Feb. 25, 2025). “[W]hen parties act in concert to violate securities law, each party is jointly and severally liable for disgorgement of ill-gotten gains even if a particular party did not receive the proceeds.” SEC v. Radius Cap. Corp., No. 2:11-CV-116-FTM-29DNF, 2015 WL

1781567, at *3 (M.D. Fla. Apr. 20, 2015). Thus, upon a finding that the defendants acted in concert to violate securities laws, “a personal financial benefit” is not “a prerequisite for joint and several liability.” SEC v. Monterosso, 756 F.3d 1326, 1337–38 (11th Cir. 2014). 10

The trial court did not err in finding the Schumacher Defendants jointly and severally liable for unjust enrichment damages.

IX. The Trial Court Erred by Refusing to Reduce the

Unjust Enrichment Amount by 15% Because No

Competent, Substantial Evidence Linked an Amount

Greater than 85% of Auto Rentals’ Gross Profits to the

Misappropriated Customer List

Finally, we agree with the Schumacher Defendants that the trial court erred by refusing to reduce the $864,000 disgorgement award by 15%, because no competent, substantial evidence linked greater than 85% of Auto Rentals’ gross profits to the Napleton customer list.

Unjust enrichment damages under section 688.004(1) must be “caused by misappropriation.” § 688.004(1), Fla. Stat. (2015). As noted above, a plaintiff’s burden of proof as to damages in a trade secret action has been described as “liberal” and “flexible.” See Perdue Farms, 777 So. 2d at 1052; Med. Store, 2003 WL 25669175, at *7.

Still, a court cannot allow a factfinder “to award a greater amount of damages than what is reasonably supported by the evidence at trial.” Rivard v. Gioia, 872 So. 2d 947, 948 (Fla. 5th DCA 2004).

10 The Schumacher Defendants rely upon Liu v. SEC, 591 U.S. 71, 85 (2020), in

arguing for limits on joint and several liability for unjust enrichment damages. We agree with Napleton that Liu “reaffirmed that joint and several liability for disgorgement may be appropriate ‘for partners engaged in concerted wrongdoing’ (only recognizing exceptions that the Schumacher Defendants do not argue are applicable here).”

We reverse the unjust enrichment award and remand for reduction to $734,400 because no competent, substantial evidence links more than 85% of Auto Rentals’ gross profits to the misappropriated customer list.

Napleton’s expert testified that at least 85% of the reservations in the Auto Rentals TSD system were from Napleton customers. However, he conceded that the total was not 100% and that he did not make any adjustment to account for the other 15%. While he testified that he observed additional parties above the 85% figure who were not a match based on date of birth and last name, he did not attempt to quantify these additional parties or specify the amount linked to these additional parties. The full disgorgement award cannot be justified by the expert’s testimony that the “85 percent was quantifying only the customer list,” but there were “other alleged acts.” Napleton’s counsel admitted that the misappropriation claim was based solely on the customer list, even if it was taken “in multiple ways.”

The Napleton customer list was the only trade secret that the Schumacher Defendants were adjudicated to have misappropriated. The expert’s vague reference to “other acts” did not permit the trial court to disgorge profits above the 85% tied to Napleton’s customer list. While the law allows flexibility in awarding damages for misappropriation of trade secrets, the law does not allow speculation. Economic damages cannot be founded on guesswork. The trial court’s award of the remaining 15% of gross profits—without a quantifiable factual basis to tie this amount to the misappropriated Napleton customer list—was purely speculative.

X. Conclusion

We affirm in all respects except that we reverse the unjust enrichment award and remand for reduction to $734,400.

Affirmed in part, reversed in part, and remanded.

MAY and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.

North Palm Motors, LLC, an Illinois Limited Liability Company, D/B/A Napleton's Car Rental Center v. Custom Fleet Services, Inc. D/B/A Auto Rentals of the Palm Beaches

Authorities cited

Opinion · public domain