BOB G. MCCORMICK, APPELLANT,
v.
CORNELIUS P. MOLENKAMP AND CATHERINE M. MOLENKAMP, HIS WIFE, APPELLEES
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Appellant McCormick sued for specific performance and breach of contract against the Molenkamps for failing to sell him real estate. The trial court awarded $1,500 in damages but denied attorney's fees and costs. The appellate court affirmed the damage award but reversed the denial of attorney's fees and costs, which were contractually required for the prevailing party.
The court affirmed the $1,500 damage award and found prejudgment interest was properly within the trier of fact's discretion. However, the court reversed the denial of attorney's fees and costs because McCormick was the prevailing party and the contract expressly entitled the prevailing party to recover reasonable attorney's fees and costs, which cannot be denied based on equitable considerations in a legal action.
[1] A contract provision allowing the prevailing party to recover attorney's fees and costs entitles the prevailing party to such recovery.
[2] A prevailing party in a breach of contract action is entitled to an award of reasonable attorney's fees and taxable costs as a matter of law and by virtue of the parties'…
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“It is apparent from the final judgment that the plaintiff was the prevailing party. He was, therefore, entitled to an award of a reasonable attorney's fee by virtue of the parties' agreement.”
Establishes that the prevailing party in a breach of contract action is entitled to contractual attorney's fees regardless of equitable considerations.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcCormick entered into a contract with the Molenkamps to purchase real estate. The Molenkamps breached the agreement. McCormick initially sued for spe…
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NIMMONS, Judge.
After a non-jury trial, the trial court entered final judgment awarding damages to plaintiff/appellant who had brought suit against appellees by reason of the latter’s breach of their agreement to sell the appellant certain real estate. Appellant claims that the judgment erroneously failed to award interest, costs and an attorney’s fee. Appellant also claims that he was entitled to more in damages than the $1,500 awarded by the trial court.
This litigation started out as a suit by the appellant/purchaser for specific performance. However, prior to trial, the complaint was amended to add a count asserting a cause of action for breach of contract and seeking damages for such breach. During trial, plaintiff moved for voluntary dismissal of his specific performance count which motion was granted by the court. The court noted in the final judgment that plaintiff’s dismissal of the specific performance count complicated the matter because the defendants had eventually offered (apparently during the trial) to convey the property to plaintiff,1 that “the reversal of the positions of the parties makes it difficult to adjust the equities” and that “the court is convinced that the plaintiff has a more equitable situation in his favor but the equities are not totally with him.” The judgment also provided that “each of the parties will pay their own attorney and sustain any court costs expended herein.”
We first note that this case wound up as strictly an action at law with no equitable remedies being asserted. The contract upon which the action was based provided for the right of the prevailing party “to recover reasonable attorney’s fees and costs.” It is apparent from the final judgment that the plaintiff was the prevailing party. He was, therefore, entitled to an award of a reasonable attorney’s fee by virtue of the parties’ agreement. See Brickell Bay Club Condominium Association, Inc. v. Forte, 397 So. 2d 959 (Fla.3rd DCA 1981). He was also entitled to his taxable costs as a matter of law as well as by virtue of the agreement. It was not proper to deny attorney’s fees and costs under a “balancing of the equities” theory.
However, the appellants have not demonstrated error in the final judgment’s limitation of the damages to the sum of $1,500. Likewise, the appellants have failed to establish that the damages awarded in the judgment did not include prejudgment interest. That is an element of damages which is determined by the trier of fact as any other element of damages, Encompass Incorporated v. Alford, 444 So. 2d 1085 (Fla. 1st DCA 1984), and is not normally separately stated in a verdict or final judgment.
The final judgment is affirmed in part and reversed in part, and this cause is remanded for further proceedings for the determination of a reasonable attorney’s fee and costs and the inclusion of the same in an amended final judgment.
MILLS and SMITH, JJ., concur. . No issue has been raised as to whether the plaintiff could properly continue to pursue the breach of contract count after the defendants’ offer to convey the property.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blue Lakes Apts., Ltd. v. George Gowing, Inc., 464 So. 2d 705 (Fla. 4th DCA 1985)…Association v. Forte, 397 So. 2d 959 (Fla. 3d DCA), rev. denied, 408 So. 2d 1092 (Fla.1981). Moreover, given such a contractual provision, it is improper to deny attorney’s fees under a “balancing of the equities” theory. See McCormick v. Molenkamp, 449 So. 2d 384 (Fla. 1st DCA 1984). Therefore, on remand, we instruct the trial court to award Gowing reasonable attorney’s fees for representation at trial and on appeal. The judgment on appeal is affirmed in part and reversed in part and the cause is remanded w…
Authorities Cited
- Brickell BAY Club Condo. Ass'n, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981)
- Encompass Inc. v. Alford, 444 So. 2d 1085 (Fla. 1st DCA 1984)