ROBERT E. LHAMON, D/B/A HITCH-N-POST, APPELLANT,
v.
RETAIL DEVELOPMENT, INC., APPELLEE
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In a jury trial, a claim for attorney's fees based on a contract provision is an element of damages and must be determined by the jury.
[1] In a jury trial, a claim for attorney's fees predicated upon a contractual provision becomes an element of damages and must be determined by the jury.
[2] In actions at law tried by a jury, attorney's fees are properly recoverable as part of damages in a breach of contract case.
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Join FLexlaw to unlock all legal intelligenceAppellant leased property from appellee and breached the lease. Appellee sued for rent and, after a jury verdict, sought attorney's fees from the judg…
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DAUKSCH, Judge.
This is an appeal from a judgment awarding attorney’s fees in a breach of contract case. Appellant was the lessee of property owned by appellee and when appellant breached the terms of the lease appellee sued. Among the allegations in the. complaint was one regarding attorney’s fees. The lease contract provided for attorney’s fees should the lessor be required to hire an attorney to collect past due rent. Such was the case and at trial a jury determined appellant was indebted for the rent.
Appellee presented no evidence at trial regarding attorney’s fees but waited until the verdict and rent judgment were rendered to present his claim to the judge for the fees. Appellant objected saying the fees were a part of the damages to be considered by the jury at trial for the breach of contract.
The question for us to resolve is who determines the attorney’s fees award, the jury or the judge?
There is conflict in earlier decisions on the question but we have followed Newcombe South Florida Business Negotiators, Inc., 340 So. 2d 1192 (Fla. 2d DCA 1976) where Judge Scheb wrote for the court “In a jury trial a claim for attorney’s fees predicated upon a provision in the contract between the parties becomes an element of damages and must be determined by the jury.” Mystery Fun House, Inc. v. Magic World, Inc., 417 So. 2d 785 (Fla. 5th DCA 1982); also see Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977) where it was held “In actions at law, interest and attorney fees are properly recoverable as a part of damages in a breach of contract case and, as such, are to be determined by the jury where a case is tried by a jury.” This Third District decision is apparently in conflict with an earlier Third District decision, Richmond v. Lumb, 339 So. 2d 1147 (Fla. 3d DCA 1976). See Parker v. Solar Research Corporation, 210 So. 2d 271 (Fla. 1st DCA 1968) which is in conflict, as well.
The judgment awarding attorney’s fees is
REVERSED.
ORFINGER, C.J., and COWART, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Cheek v. McGOWAN Elec. Supply Co., 511 So. 2d 977 (Fla. 1987)…olding, contrary to several other district courts, Newcombe v. South Florida Business Negotiators, Inc., 340 So. 2d 1192, 1194 (Fla. 2d DCA 1976); Machado v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985); Lhamon v. Retail Development, Inc., 422 So. 2d 993 (Fla. 5th DCA 1982), that attorney’s fees predicated upon a provision in a contract may be awarded upon proof presented after a final judgment. The district court certified the following question: WHERE ATTORNEY’S FEES ARE PLED IN A SUCCESSFUL SUIT…1 / 2
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Taggart Corp. v. Benzing, 434 So. 2d 964 (Fla. 4th DCA 1983)…That is obviously an easier task after the fact. We would be remiss in not referring to the opposite view expressed in Newcombe v. South Florida Business Negotiators, Inc., 340 So. 2d 1192 (Fla. 2d DCA 1976), and Lhamon v. Retail Development, Inc., 422 So. 2d 993 (Fla. 5th DCA 1982). Once again these two latter cases can be factually distinguished inasmuch as they concern jury rather than non-jury proceedings. However, we believe the principle involved to be identical. Accordingly, perceiving conflict with…
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Constellation Condo. Ass'n, Inc. v. Harrington, 467 So. 2d 378 (Fla. 2d DCA 1985)…n attorneys’ fees. Newcombe v. South Florida Business Negotiators, Inc., 340 So. 2d 1192 (Fla. 2d DCA 1976); Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964), cert. denied, 172 So. 2d 601 (Fla. [*384] 1964). Accord Lhamon v. Retail Development, Inc., 422 So. 2d 993 (Fla. 5th DCA 1982); Fifty-Six Sixty Collins Avenue Condominium, Inc. v. Dawson, 354 So. 2d 432 (Fla. 3d DCA 1978). Compare Taggart Corp. v. Benzing, 434 So. 2d 964 (Fla. 4th DCA 1983), on motion to review, 451 So. 2d 1046 (Fla. 4th DCA 1984). Of co…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Commodore Plaza AT Century 21 Condo. Ass'n, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977)
- Newcombe v. S. Fla. Bus. Negotiators, Inc., 340 So. 2d 1192 (Fla. 2d DCA 1976)
- Jones v. State, 417 So. 2d 785 (Fla. 3d DCA 1982)
- Parker v. Solar Research Corp., 210 So. 2d 271 (Fla. 1st DCA 1968)
- Richmond v. Colin F. Lumb and P. H. Jennefer Lumb, 339 So. 2d 1147 (Fla. 3d DCA 1976)