M. ALEX DICKSON ET UX., APPELLANTS,
v.
JOHN G. DUNN ET UX., APPELLEE
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The court held that litigation arising from fraud inducing a contract does not arise out of the contract itself for the purpose of awarding attorney's fees.
Sellers sold real estate to buyers. Buyers sued sellers for fraud, alleging misrepresentation about the property's condition. Sellers counterclaimed f…
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COWART, Judge.
Appellants, as sellers, sold, under contract, certain improved real estate to appel-lees, as buyers. Subsequently appellees sued appellants in fraud for money damages for claimed misrepresentation made by appellants to appellees as to the condition of the improvements on the property. Appellants counterclaimed for attorney’s fees under a provision of the sales contract allowing attorney’s fees to the prevailing party “in connection with any litigation arising out of this contract .. .. ” The trial court entered summary judgment for appellants on the fraud claim but against them on their counterclaim for attorney’s fees. The question on appeal is whether the litigation in question arose out of the sales contract so as to entitle appellants to attorney’s fees in defending the litigation.
Appellees’ asserted cause of action was for an alleged misrepresentation by appellants which induced appellants to enter into the contract. Therefore, the litigation arose out of the alleged misrepresentation inducing appellees to enter into the sales contract and not out of the contract itself.
An action in trespass for deceit to recover damages for material misrepresentations inducing the making of a contract is founded on fraud or moral wrong, and is not based on the contract.
Associated Hardware Supply Co. v. Big Wheel Distributing Co., 355 F. 2d 114, 120 (3d Cir. 1966).
An action of deceit to recover damages for fraud inducing the making of the contract is not based upon the contract but upon the tort.
Chanin v. Chevrolet Motor Co., 89 F. 2d 889, 891 (7th Cir. 1937).
The final summary judgment denying appellants attorney’s fees under the contract is
AFFIRMED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.
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Caufield v. Gino Cantele, 837 So. 2d 371 (Fla. 2002)…epresentation concerning the subject matter of the contract do “arise out of the contract.” The Fifth District relied on its decisions in Hopps v. Smith, 520 So. 2d 673 (Fla. 5th DCA), review denied, 529 So. 2d 695 (Fla. 1988), and Dickson v. Dunn, 399 So. 2d 447 (Fla. 5th DCA 1981), in reaching the decision in this case. See Canfield, 745 So. 2d at 436. In Dickson, the court found that buyers suing for misrepresentation of improvements to realty could not recover attorney’s fees based on a clause in the con…
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Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So. 2d 360 (Fla. 3d DCA 1985)…crest Homes, Inc., 382 So. 2d 386 (Fla. 4th DCA 1980). Additionally, contractual attorney’s fee provisions must be construed strictly. Venetian Cove Club, Inc. v. Venetian Bay Developers, Inc., 411 So. 2d 1323 (Fla. 2d DCA 1982). In Dickson v. Dunn, 399 So. 2d 447 (Fla. 5th DCA 1981), relied upon by Ocean Divers to support its contention that the suit was upon the lease, our sister court affirmed the denial of attorney’s fees under a contract, finding that the litigation arose out of an alleged misrepresentat…
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Ines Collia Kelly v. Tworoger, 705 So. 2d 670 (Fla. 4th DCA 1998)…87), where this court held that attorney’s fees incurred in defense of a fraudulent inducement claim could not be awarded under an attorney’s fee provision in the contract that was supposedly induced by fraud. Location 100 relied on Dickson v. Dunn, 399 So. 2d 447 (Fla. 5th DCA 1981), which reasoned that a cause of action for fraudulent misrepresentation “arose out of the alleged misrepresentation inducing [one party] to enter into the sales contract and not out of the contract itself.” See also Fleischer v.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Associated Hardware Supply Co. v. The BIG Wheel Distrib. Co., 355 F.2d 114 (3d Cir. 1965)
- Chanin v. Chevrolet Motor Co., 89 F.2d 889 (7th Cir. 1937)