[DONOTPUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 13-11784

___________________________

D.C. Docket No. 1:08-cv-20738-KMM

PLATYPUS WEAR, INC., 

a Nevada Corporation, et al.,

Plaintiffs-Appellants,

versus

HORIZONTE LTDA, 

a Brazilian limited partnership, et al.,

Defendants-Appellees.

____________________________

Appeal from the United States District Court

for the Southern District of Florida

____________________________

(March 10, 2014)

Before ANDERSON, Circuit Judge, and MOODY* and SCHLESINGER,**

District Judges.

__________

*Honorable James S. Moody, Jr., United States District Judge for the Middle District of Florida,

sitting by designation.

**Honorable Harvey E. Schlesinger, Senior United States District Judge for the Middle District of

Florida, sitting by designation.

Case: 13-11784 Date Filed: 03/10/2014 Page: 1 of 6 
PER CURIAM:

This case is factually complex, as were the proceedings below. We have

carefully studied the briefs and relevant parts of the record, and have had the

benefit of oral argument.

The case involves, inter alia, the ownership of and/or right to use the

trademark BAD BOY for beverages in Brazil, Japan, the European Union and the

United States. Plaintiffs-appellants brought suit against, inter alia, defendant 1

Horizonte, Ltda., asserting multiple claims, including that Horizonte converted 2

one or more of plaintiffs’ trademarks and that Horizonte aided and abetted in the

breach of a fiduciary duty owed to plaintiffs. Plaintiffs sought damages for these

3

For convenience, we refer to plaintiffs-appellants collectively, although certain claims were

1

asserted only by a subset thereof.

Horizonte asserted multiple counterclaims, which are not at issue on appeal. 2

Because the briefs focus only on these two claims, we do likewise. However, there were

3

actually four claims by plaintiffs with respect to which the jury findings were identical. Our analysis

applies to all four.

2

Case: 13-11784 Date Filed: 03/10/2014 Page: 2 of 6 
claims, which were submitted to a jury. The jury found Horizonte liable for both

claims, but found zero damages.

4 5

After the jury verdict, plaintiffs sought declaratory and equitable relief from

the district court. The district court denied plaintiffs’ requests, concluding that it 6

was precluded from granting them because plaintiffs did not prevail on any of the

claims that were submitted to the jury. The district court reasoned that, because

the jury found zero damages on the several claims on which it found Horizonte

liable, and because proof of damages was a necessary element of each such claim,

plaintiffs had failed to establish success on the merits, which was a prerequisite to

the requested relief. The district court also denied plaintiffs’ motion for a new

trial.

The district court erred in concluding that it did not have the authority to

enter equitable relief because of the jury’s finding of no damages. It is true that

damages are a necessary element of the several causes of action at issue. But

For example, with respect to the conversion claim the jury found “that Horizonte converted 4

the property of [Plaintiffs].”

For example, the jury found that “as a result of Horizonte’s conversion,” plaintiffs sustained 5

“$0 No damages.”

Specifically, plaintiffs asked the court to declare that certain documents purporting to assign 6

the trademarks to Horizonte were invalid and unenforceable, and to enjoin Horizonte from claiming

rights under the same. Plaintiffs also asked the court to impose a constructive trust over the

trademarks.

3

Case: 13-11784 Date Filed: 03/10/2014 Page: 3 of 6 
damages are not a necessary element of a cause of action seeking declaratory and

injunctive relief, as Horizonte’s brief concedes.

We offer no opinion on the result reached by the district court. We only

hold that the district court is not precluded from entertaining the equitable relief

sought. Equitable relief is to be determined on a case-by-case basis after

considering the facts of the particular transactions at issue. Banco Industrial de

Venezuela, C.A. v. Credit Suisse, 99 F.3d 1045 (11th Cir. 1996). In doing so, the

district court may consider the entire panoply of equitable defenses such as

unclean hands, equitable estoppel, and in pari delicto. Id. at 1049.

Plaintiffs also contend that the district court erred in refusing to impose a

constructive trust and in failing to order a new trial because the verdict was

inconsistent in finding liability but not damages. The imposition of a constructive

trust is an equitable remedy. The district court may consider that remedy along

with other equitable remedies in the exercise of its discretion. The jury verdict

does not compel the court’s equitable decision on this issue either way.

Plaintiffs’ argument for a new trial is not well founded. After a jury has

found liability, its finding of no damages no more indicates an inconsistent verdict

than it does a failure of proof of damages. Here, the jury made findings of liability

on the part of both parties and, similarly, a finding of no damages for both parties. 

4

Case: 13-11784 Date Filed: 03/10/2014 Page: 4 of 6 
Although the jury was polled about its verdict, neither party objected to the jury’s

findings as inconsistent before the jury was discharged.

The district court correctly held that no new trial on damages was

warranted. Not only did the district court conclude that the verdict was supported

by a failure to prove damages, it also held that a new trial was precluded by the

plaintiffs’ failure to object to the verdict prior to the jury being discharged. As the

First Circuit aptly explained in Poulin Corp. v. Chrysler Corp., 861 F.2d 5, 7, Fn.

2 (1st Cir. 1988):

Although plaintiff principally insists, as aforesaid, that the verdict is

inconsistent, at one point it contends – which it did not do below –

that the correct meaning of the verdict is that, in finding liability in

favor of plaintiff, it found damages, but then failed to “assess” them. 

Plaintiff does not realize that suggesting the possibility of this claim

is a death wish. When a jury has made a readily remediable mistake

or omission, the party detrimentally affected must move forthwith to

correct it, not wait and ask for another trial, burdening the court, the

parties, and another jury. McIsaac v. Didriksen Fishing Corp., 809

F.2d 129, 134 (1st Cir. 1987); Merchant v. Ruhle, 740 F.2d 86, 91

(1st Cir. 1984). While some courts speak in terms of waiver in such

circumstances, we regard it as more basic, an application of the

general rule that an expeditious cure, when practical, must be the one

embraced. In fairness to all, failure to do so must mean a loss of

right. We do not invoke this principle against plaintiff because we do

not so construe the verdict. We do not invoke it against defendant

because we construe the verdict to mean exactly what defendant

contends.

5

Case: 13-11784 Date Filed: 03/10/2014 Page: 5 of 6 
For the foregoing reasons, the judgment of the district court is vacated to the

extent that it denied declaratory and equitable relief. The district court may

entertain the equitable claims of both parties. Of course, in exercising its broad

discretion, the district court may reach the same result. The case is REMANDED

for further proceedings.

VACATED and REMANDED.

6

Case: 13-11784 Date Filed: 03/10/2014 Page: 6 of 6