GERALD R. COLEN, TRUSTEE, APPELLANT,
v.
WILLIAM G. PATTERSON AND HELEN S. PATTERSON, APPELLEES
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A trustee appealed a judgment removing a cloud on title to real estate, challenging the trial court's determination that an agreement granting a first right of refusal (or option) was an invalid and unenforceable restraint on alienation, and the award of attorney's fees for slander of title. The appellate court affirmed, holding that agreements of indefinite duration with fixed prices constitute unreasonable restraints on alienation, and that attorney's fees are properly recoverable by a party removing such impediments through court action.
The court held that an agreement of indefinite duration with a fixed price constitutes an unreasonable restraint on alienation and is therefore invalid and unenforceable, regardless of whether it is technically labeled an option or a right of first refusal. The court also held that attorney's fees are properly recoverable as pecuniary loss by a party who removes an impediment to title through court action in a slander of title case, and that proof of malice is unnecessary when the disparaging act is unprivileged.
[1] An agreement for the purchase of real estate, regardless of whether it is labeled an option or a right of first refusal, is an unreasonable restraint on alienation if it…
[2] An agreement constituting an unreasonable restraint on alienation is invalid and unenforceable.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Whether the agreement is technically labeled an option or a right of first refusal, it was of indefinite duration and contained a fixed price. Such an agreement constitutes an unreasonable restraint on alienation.”
Establishes the legal standard that indefinite-duration agreements with fixed prices are unreasonable restraints on alienation, regardless of their technical characterization.
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Join FLexlaw to unlock all legal intelligenceThe appellees owned real property known as the Cobb Building. The agreement at issue, recorded by the appellant (as trustee for assignor Maitland F. K…
The full statement of facts, procedural history, and disposition for this case are member content.
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LEHAN, Judge.
This is an appeal from a final judgment removing a cloud from title to real estate. The cloud was alleged to consist of an agreement between appellees and appellant’s assignor which was recorded by appellant. It was characterized by appellant as an option and by appellees as a first right of refusal. The agreement in pertinent part reads:
For and in consideration of $10.00 and other good and valuable considerations, receipt of which is hereby acknowledged, I, HEREBY Grant unto MAITLAND F. KNAPP, Trustee, first right of refusal for purchase of Cobb Building [legal description omitted] for the total consideration of $675,000.00, paying $175,000.00 down and balance in the form of wrap around purchase money mortgage at current interest rates prevailing at time of. closing on a twenty-five (25) year amortization schedule.
Whether the agreement is technically labeled an option or a right of first refusal, it was of indefinite duration and contained a fixed price. Such an agreement constitutes an unreasonable restraint on alienation. Iglehart v. Phillips, 383 So. 2d 610 (Fla.1980). The trial court properly found the agreement to be invalid and unenforceable.
Appellant also appeals from the trial court’s judgment awarding to appel-lees their attorney’s fees. The second count of appellees’ complaint asked for damages resulting from appellant’s slander of appel-lees’ title. Under these circumstances, appellees’ attorney’s fees are treated as a pecuniary loss properly recoverable by the party removing an impediment from title by court action. Lehman v. Goldin, 160 Fla. 710, 36 So. 2d 259 (Fla.1948); Glusman v. Lieberman, 285 So. 2d 29 (Fla. 4th DCA 1973); Susman v. Schuyler, 328 So. 2d 30 (Fla. 3d DCA 1976). Proof of malice is unnecessary to support a slander of title action if the act constituting disparagement is unprivileged. Maass v. Christensen, 414 So. 2d 255 (Fla. 4th DCA 1982); Gates v. Utsey, 177 So. 2d 486 (Fla. 1st DCA 1965). Privilege is an affirmative defense. Maass, 414 So. 2d at 258. Privilege was not raised in this case, nor do we conclude that it was applicable under the facts as presented to us.
Accordingly, the judgment is affirmed.
HOBSON, A.C.J., and RYDER, J, concur.
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Pony Express Courier Corp. of Fla. v. Zimmer, 475 So. 2d 1316 (Fla. 2d DCA 1985)…st blush, it may seem a unique principle of law to permit the recovery of attorney’s fees as special damages in a setting in which the claimant was not a litigant participating in active litigation giving rise to the damages. Cf. Colen v. Patterson, 436 So. 2d 182 (Fla. 2d DCA 1983). Our sister courts, however, have recognized: that where the wrongful act of the defendant has involved the claimant in litigation with others or placed him (or her) in such relation with others as makes it necessary to incur exp…
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Residential Cmtys. OF Am. v. Escondido Cmty. Ass'n, 645 So. 2d 149 (Fla. 5th DCA 1994)…ority. Because the record will not justify a finding that ECA had a “privilege” to record the amendment without the approval of RCA, I would hold that RCA should recover its costs in having the amendment removed from record. See Colen v. Patterson, 436 So. 2d 182 (Fla. 2d DCA), rev. denied, 438 So. 2d 831 (Fla.1983). . A "falsehood” is merely "an untrue statement.” The recorded amendment to the Declaration of Covenants and Restrictions falsely indicated that only purchasers, at least one of which was 55 yea…
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Kelley v. Burnsed, 805 So. 2d 1101 (Fla. 1st DCA 2002)…itta, 537 So. 2d 113 (Fla. 2d DCA 1988). Finally, it included a demand to remove clouds of title and “pay all fees and costs associated therewith,” and a demand for attorney’s fees and costs “pursuant to slander of title,” citing Colen v. Patterson, 436 So. 2d 182 (Fla. 2d DCA), rev. denied, 438 So. 2d 831 (Fla.1983). Appellant denied the allegations in both affirmative defenses. His response to the motion for summary judgment stated that the lease agreement by its terms is binding upon the heirs of the Newma…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Iglehart v. Phillips, 383 So. 2d 610 (Fla. 1980)
- Glusman v. Lieberman, 285 So. 2d 29 (Fla. 4th DCA 1973)
- Ethelee G. Gates v. Utsey, 177 So. 2d 486 (Fla. 1st DCA 1965)
- Lehman v. Ellis Goldin, 160 Fla. 710 (Fla. 1948)
- Myron B. Susman v. Schuyler, 328 So. 2d 30 (Fla. 3d DCA 1976)
- Maass v. Sigurd Christensen and Dola Christensen, 414 So. 2d 255 (Fla. 4th DCA 1982)