AL WEINER, SALLY WEINER, RENARD AND NANCY CONLI, APPELLANTS/CROSS-APPELLEES,
v.
BENNY TENENBAUM AND ROSE TENENBAUM, APPELLEES/CROSS-APPELLANTS
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The court held that acceptance of an offer requires communication to the offeror within the contractually specified time, and if the contract never existed, attorney's fees are not recoverable.
Buyers made an offer to purchase, but sellers' agent did not communicate acceptance within the contract's deadline. The trial court ordered the return…
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PER CURIAM.
This appeal is brought from a final judgment after a non-jury trial where the trial court found that the sellers had not communicated notice of their acceptance of buyers’ offer within the time specified in the contract and ordered a return of the buyers’ deposit. We affirm.
The communication required in order to effect acceptance of an offer to buy is not satisfied where the document which constitutes the sole means of acceptance is still in the hands of the sellers’ agent after the time for acceptance has expired. See Kendel v. Pontious, 261 So. 2d 167 (Fla.1972) (an acceptance which only remains in the breast of the acceptor without being communicated to the offeror is not a binding acceptance).
By separate motion appellees claim an entitlement to attorney’s fees on the basis that the contract out of which this dispute arises provides that:
In connection with any litigation ... arising out of this contract, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.
Where an entitlement to attorney’s fees rests solely on a “contract” which is found to have never existed, an award of fees is precluded. Leitman v. Boone, 439 So. 2d 318 (Fla. 3d DCA 1983).1
The judgment appealed is AFFIRMED; the motion for attorney’s fees is DENIED.
. Our decision in Leitman v. Boone is contrary to the holding of Sousa v. Palumbo, 426 So. 2d 1072 (Fla. 4th DCA 1983).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Vargas v. Deutsche Bank Nat'l Tr. Co., 104 So. 3d 1156 (Fla. 3d DCA 2012)…thdrawn at any time before acceptance; and an offer which in its terms limits the time of acceptance is withdrawn by the expiration of the time, (quoting Waterman v. Banks, 144 U.S. 394, 402, 12 S.Ct. 646, 36 L.Ed. 479 (1892))); Weiner v. Tenenbaum, 452 So. 2d 986, 987 (Fla. 3d DCA 1984) (“The communication required in order to effect acceptance of an offer to buy is not satisfied where the document which constitutes the sole means of acceptance is still in the hands of the [offeree] after the time for accept…
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Vistaco, Inc. v. Prestige Props., Inc., 559 So. 2d 744 (Fla. 1st DCA 1990)…1985), petition for review denied, 480 So. 2d 1295 (Fla.1985); Bay Lincoln, Mercury, Dodge, Inc. v. Transouth Mortgage Corporation, 531 So. 2d 1027 (Fla. 1st DCA 1988); Schumacher v. Wellman, 415 So. 2d 120 (Fla. 4th DCA 1982); Weiner v. Tenenbaum, 452 So. 2d 986 (Fla. 3d DCA 1984), petition for review dismissed, 458 So. 2d 274 (Fla.1984). The trial court also erred in refusing to award appellant fees it sought for successfully defending on counterclaims raised by appellee. Appellant’s fee clause entitled i…
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Gibson v. Garth Courtois and Sally Courtois, 509 So. 2d 962 (Fla. 2d DCA 1987)…the contract upon which appellant’s motion for attorney’s fees was predicated never came into existence, there was no basis on which to award attorney’s fees. Therefore, the trial court was correct in denying appellant’s motion. Weiner v. Tenenbaum, 452 So. 2d 986 (Fla. 3d DCA), pet. for rev. dismissed, 458 So. 2d 274 (Fla.1984); Leitman v. Boone, 439 So. 2d 318 (Fla. 3d DCA 1983). In following Weiner and Leitman, we recognize that we are in conflict with Sousa v. Palumbo, 426 So. 2d 1072 (Fla. 4th DCA 1983).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lorn Leitman and John Gentile v. Boone, 439 So. 2d 318 (Fla. 3d DCA 1983)
- Kendel v. Pontious, 261 So. 2d 167 (Fla. 1972)
- Sousa v. Palumbo, 426 So. 2d 1072 (Fla. 4th DCA 1983)