Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT NORTH PALM MOTORS, LLC, Appellant/Cross-Appellee, v. 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. 2 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 in- house 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.” 3 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 4 400 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 5 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.” 6 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 7 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. 8 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 9 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 then- existing reservations for 907 customers to Napleton. Auto Rentals 10 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 11 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.” 12 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. 13 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. 14 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). 15 (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). 16 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: 17 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