GERALD R. GORDON AND MARILYN T. GORDON, APPELLANTS,
v.
S. BILL BARTLETT AND JOYCE E. BARTLETT, HIS WIFE, APPELLEES
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The Gordons appealed an amended final judgment against them for an encroachment on the Bartletts' property, challenging awards of damages, attorney's fees, and survey costs. The court reversed the damages award, attorney's fees award, and survey costs assessment, finding insufficient evidence and improper legal bases for these awards.
The court reversed the awards of damages and attorney's fees and the assessment of survey costs. Damages were improper because the Bartletts presented no evidence of damages at trial and could not recover on remand. Attorney's fees were not warranted under Section 57.105 because the Gordons' position was not frivolous, and were not warranted under the sales contract because preliminary agreements merge into the deed. Survey costs were improper because the surveys were necessitated by the Bartletts' own failure to properly certify their initial survey.
[1] An award of damages is improper when the prevailing party fails to present sufficient evidence of damages at trial.
[2] Attorney's fees are not recoverable under Section 57.105, Florida Statutes, unless a party's position is wholly frivolous or lacking in merit.
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Join FLexlaw to unlock all legal intelligence“After examining the record, we find no evidence sufficient to support an award of damages and, therefore, reverse that provision in the amended final judgment.”
Establishes that the Bartletts failed to produce evidence of damages at trial, making damages recovery impossible on remand.
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Join FLexlaw to unlock all legal intelligenceThe Gordons owned land and transferred a portion to the Bartletts by warranty deed. The Bartletts discovered that the Gordons' concrete wall encroache…
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PER CURIAM.
The Gordons appeal from an amended final judgment and a cost judgment. They contend the trial court improperly awarded damages and attorney’s fees and improperly assessed the cost of two surveys against them. We agree and reverse.
The Gordons owned a parcel of land, a portion of which was transferred to the Bartletts by warranty deed. The Bartletts then surveyed the land and discovered that the Gordons’ concrete wall encroached upon their land. The Bartletts brought an action in ejectment against the Gordons.
During trial, the court refused to admit the Bartletts’ survey because it was not properly signed and sealed. At the conclusion of trial, the court entered a judgment for the Gordons after finding that the Bart-letts failed to meet their burden of proof. The Bartletts then sought a rehearing and offered two new surveys to establish the encroachment. The trial court denied the motion for rehearing and the first appeal of this case followed. This court reversed finding that the admission of the survey was not crucial; that the admissible evidence established an encroachment; and that the Gordons failed to rebut the evidence. Thus, we reversed and remanded with directions to enter judgment for the Bartletts. See, Bartlett v. Gordon, 414 So. 2d 1083 (Fla. 4th DCA 1982).
On remand, the trial court entered an amended final judgment in favor of the Bartletts. The court found the -Gordons liable for damages and for attorney’s fees. Also, the court taxed costs against the Gor-dons and assessed an amount for the two surveys prepared after trial for the Bart-letts’ motion for rehearing. Thus, we have the present second appeal in which the Gordons contest the issue of damages and attorney’s fees. Additionally, the Gordons contend that the trial court erred by taxing as costs the expense of the two surveys prepared after trial.
With respect to the finding of an entitlement to damages, the Gordons argue that the Bartletts failed to produce any evidence of damages at trial and, therefore, cannot recover damages on remand. After examining the record, we find no evidence sufficient to support an award of damages and, therefore, reverse that provision in the amended final judgment.
Next, the Gordons contest the award of attorney’s fees. They assert that no statutory or contractual provision exists to support the award. The Bartletts respond that they are entitled to attorney’s fees either pursuant to Section 57.105, Florida Statutes (1981) or pursuant to the real estate contract. We cannot agree. First, we do not find the Gordons’ position in this cause wholly frivolous or so lacking in merit as to warrant an award of fees under Section 57.105. See Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla.1982). Second, regarding the sales contract, a paragraph of the contract provided for an award of attorney’s fees to the prevailing party for any litigation arising out of the contract. However, under the general rule, “preliminary agreements and understandings relative to the sale of property usually merge in the deed executed pursuant thereto.” Milu, Inc. v. Duke, 204 So. 2d 31, 33 (Fla. 3d DCA 1967). Accordingly, the Bartletts cannot rely on the sales contract to support their claim for attorney's fees. Since the warranty deed does not contain an express provision regarding the recovery of attorney’s fees, there is no basis for such an award and, therefore, we reverse on this point.
Finally, the Gordons contend the trial court improperly assessed the costs of two surveys against them. Since the surveys were prepared after trial and were necessitated by the Bartletts’ own failure to present a properly certified survey at the first trial, we reverse the award for those costs as well.
Accordingly, we reverse and remand to the trial court with instructions to vacate its award of damages and attorney’s fees in the amended final judgment and to reduce the cost judgment by the amount of the two surveys.
REVERSED and REMANDED.
ANSTEAD, C.J., and DOWNEY and HURLEY,* JJ., concur.
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Pura Ramos v. State, 798 So. 2d 4 (Fla. 4th DCA 2001)…opinion. . If the issue was not preserved, why is it necessary to en banc the case to decide it? . See Fleischer v. Hi-Rise Homes Inc., 536 So. 2d 1101 (Fla. 4th DCA 1988) ("since the offending language was not the holding in Gordon [v. Bartlett, 452 So. 2d 1077, 1078 (Fla. 4th DCA 1984)], it is not necessary to consider excising that language en banc, in order to 'maintain uniformity in the court's decisions.' ”). As Fleischer was an en banc decision and the quoted part is the essence of its holding, I tak…
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Fleischer v. Hi-Rise Homes, Inc., 536 So. 2d 1101 (Fla. 4th DCA 1988)…dered unless the case is of exceptional importance or unless necessary to maintain uniformity in the court’s decisions.” In this regard, in the case at bar, it was our collective en banc intent, to recede from certain language in Gordon v. Bartlett, 452 So. 2d 1077, 1078 (Fla. 4th DCA 1984), which might give the impression that warranty deeds could be expected to “contain an express provision regarding the recovery of attorney’s fees.” After protracted debate, for which we must confess judicial dismay, we now…1 / 2
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Fleischer v. Hi-Rise Homes, Inc., 536 So. 2d 1105 (Fla. 4th DCA 1988)…STEIN, Judge. This is an appeal from an award of attorney’s fees of $19,000 to a broker against a purchaser. The court earlier issued an en banc opinion herein on December 14, 1988. We reverse and address some of the language in Gordon v. Bartlett, 452 So. 2d 1077 (Fla. 4th DCA 1984), because the question of attorney’s fees in cases purportedly arising from real property sales should be addressed as we suggest herein below. I We find that appellees’ overview of the chronology of the case is correct. The bro…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Ervin M. Smith, Jr. v. State, 204 So. 2d 31 (Fla. 3d DCA 1967)
- Bartlett v. Gordon, 414 So. 2d 1083 (Fla. 4th DCA 1982)