ALEXANDER MUSS AND SONS, INC., ETC., APPELLANT,
v.
THEODORE R. NELSON ET AL., APPELLEES
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Landlord's judgment for rent following tenants' death was affirmed as supported by a settlement agreement acting as novation, but the award of attorney's fees was reversed.
A settlement agreement between a landlord and the personal representative of deceased tenants may constitute a novation of the lease contract, and the judgment should be based on the settlement amount rather than the full remaining rent.
[1] A settlement agreement between a landlord and the personal representative of deceased tenants may constitute a novation of the lease contract, and judgment should be rend…
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Join FLexlaw to unlock all legal intelligenceA landlord sued for rent on an apartment for the balance of the lease term after the tenants died. The personal representative proved a settlement agr…
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PER CURIAM.
The plaintiff landlord sued for the rent on an apartment for the balance of the term after the death of the tenants. The personal representative proved a settlement agreement entered into prior to the institution of this suit. Although the existence of the settlement was controverted, the court found that the settlement was, in fact, made and that it acted as a novation of the contract. The final judgment for the plaintiff was for the amount specified in the settlement agreement. In addition, the court allowed the plaintiff an attorney’s fee ' pursuant to an agreement in the lease. The plaintiff appealed and urged as error the refusal of the trial court to apply the Florida Rules of Probate and Guardianship Procedure to the trial of the cause. We find no error and affirm the judgment upon the merits.
The defendant has cross-appealed and urges as error that portion of the final judgment allowing an attorney’s fee to the plaintiff. Without reaching the question of the plaintiff’s entitlement to an attorney’s fee, we hold that the award must be reversed upon authority of the rule set forth in Flournoy v. Smith, 84 Fla. 553, 94 So. 503 (1922); Lee v. Gilbert, Silverstein and Hellman, 350 So. 2d 1147 (Fla. 3d DCA 1977); and Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964).
The judgment is affirmed except for that portion allowing an attorney’s fee to the plaintiff, which is reversed.
Affirmed in part and reversed in part.
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Feldman v. Zena K. Feldman, 390 So. 2d 1231 (Fla. 3d DCA 1980)…al of American Men’s Wear Clothing Company, Inc., are reversed upon holdings that (1) the failure of the wife to offer expert testimony to establish the reasonableness of the attorneys’ fees vitiates the award, Alexander Muss & Sons, Inc. v. Nelson, 366 So. 2d 532 (Fla. 3d DCA 1979); Wilson v. Wilson, 362 So. 2d 1030 (Fla. 3d DCA 1978); Segal v. Segal, 353 So. 2d 894 (Fla. 3d DCA 1977); Lee v. Gilbert, Silverstein & Heilman, P. A., 350 So. 2d 1147 (Fla. 3d DCA 1977); (2) the trial court, although well within…
Authorities Cited
- Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964)
- Flournoy v. Smith, 84 Fla. 553 (Fla. 1922)
- Joan v. LEE, 350 So. 2d 1147 (Fla. 3d DCA 1977)