GLACE & RADCLIFFE, INC., A FLORIDA CORPORATION, AND CONTINENTAL CASUALTY COMPANY, APPELLANTS,
v.
CITY OF LIVE OAK, FLORIDA, A MUNICIPAL CORPORATION, APPELLEE
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Glace & Radcliffe, Inc. and its insurer appealed an order awarding attorney's fees to the City of Live Oak in litigation involving a performance bond dispute. The appellate court affirmed the fee award, finding that an innocent party drawn into litigation by another's wrongdoing may recover attorney's fees, and that Glace's negligence in handling the sewer project justified the award.
The court affirmed the attorney's fees award. An innocent party drawn into litigation with a third party by the wrong of another party may be entitled to recover expenses, including attorney's fees in defending that litigation. The trial court's order comes with a presumption of correctness that the appellants failed to overcome, particularly given the absence of a trial court record.
[1] An innocent party drawn into litigation by the wrongful conduct of another may recover expenses, including attorney's fees, incurred in defending that litigation.
[2] An order from a trial court comes to the appellate court with a presumption of correctness that must be overcome by the appellant.
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Join FLexlaw to unlock all legal intelligence“That an innocent party drawn into litigation with a third party by the wrong of another party may be entitled to recover expenses, including attorney's fees in defending that litigation, is well established.”
Establishes the legal principle supporting the award of attorney's fees to the City for defending against claims caused by Glace's negligence.
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Join FLexlaw to unlock all legal intelligenceThe City of Live Oak retained Glace & Radcliffe as consulting and supervising engineers for a sewer construction project. A surety on the performance …
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PER CURIAM.
Appellant, Glace & Radcliffe, Inc. (Glace) and its insurer seek reversal of an order awarding attorney’s fees to appellee, City of Live Oak (City) entered in connection with litigation in which the City and Glace were being sued by a third party, a surety on a performance bond for completion of a sewer construction project in the City of Live Oak. The City cross-claimed for indemnity against Glace, claiming that any damages suffered by the surety in connection with the surety’s completion of the project after default of the general contractor was the fault of Glace, a firm retained by the City as consulting and supervising engineers for the project. We affirm.
The parties are in hopeless disagreement as to what occurred in the proceedings culminating in the trial court’s entry of the order on appeal. Glace urges, primarily, that the attorney’s fee award was premature, in that there had never been a trial resulting in a final judgment on the City’s cross-claim against Glace, and that in the absence of such an adjudication there could be no award of attorney’s fees. The City, on the other hand, maintains that the matter was submitted to the trial court by agreement and representation to the court that the only issue for determination was the amount of fees to be awarded to the City. It is undisputed that trial of the claims by the surety against the City and Glace was severed from trial of the City’s cross-claim against Glace, and that the latter would be triable before the court, non-jury, at the conclusion of the trial of the surety’s claims.
Unfortunately, no record was made of the proceedings before the trial court leading up to entry of the order on appeal, and a transcript is therefore not available •for our review. Accordingly, we have no basis upon which to determine the applicability of the legal arguments presented by appellants on appeal, nor to determine which of these arguments, if any, were preserved for appellate review by timely objection below. The net effect of an appeal under these circumstances is little more than an attempt to transfer trial of the controversy to this court. This case is a perfect example of the futility of such an effort.
Notwithstanding our inability to fully review the merits of this case, we are able to discern from the court file transmitted to us that the City successfully defended the actions against it by the surety, and that in the surety’s case against Glace, Glace was found guilty by a jury of substantial negligence in its handling of the project. That an innocent party drawn into litigation with a third party by the wrong of another party may be entitled to recover expenses, including attorney’s fees in defending that litigation, is well established. Auto-Owners Insurance Co. v. Hooks, 463 So. 2d 468, 477 (Fla. 1st DCA 1985), and cases cited therein; see generally, 12 Fla. Jur.2d, Contribution, Indemnity, and Subrogation, §§ 14-15, pp. 28-31. Thus, we cannot say that the record before us discloses no basis upon which the trial court could have been justified in awarding attorney’s fees to the City.
The trial court’s order comes to us with a presumption of correctness which has not been overcome. St. Joe Paper Company v. State, Department of Environmental Regulation, 371 So. 2d 178 (Fla. 1st DCA 1979); Pitts v. Ahlswede, 139 So. 2d 159 (Fla. 1st DCA 1962); and Bates v. Brady, 126 So. 2d 750 (Fla. 1st DCA 1961).
The order appealed from is therefore AFFIRMED.
MILLS, SMITH and THOMPSON, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Sami Behar v. Jefferson Nat'l Bank at Sunny Isles, 519 So. 2d 641 (Fla. 3d DCA 1987)…bank charter. “(A]n innocent party drawn into litigation with a third party by the wrong of another party may be entitled to recover expenses, including attorney’s fees in defending that litigation. ...” Glace & Radcliffe, Inc. v. City of Live Oak, 471 So. 2d 144, 145 (Fla. 1st DCA 1985) (emphasis supplied). This court has recognized that: [t]he general rule of law is 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…
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State Farm Fire & Cas. Co. v. Pritcher, 546 So. 2d 1060 (Fla. 3d DCA 1989)…wrongful act” doctrine that would have been Pritcher, except for the finding of an equitable assignment. See and compare Behar v. Jefferson National Bank at Sunny Isles, 519 So. 2d 641 (Fla. 3d DCA 1988); Glace & Radcliffe, Inc. v. City of Live Oak, 471 So. 2d 144 (Fla. 1st DCA 1985); Milohnich v. First National Bank of Miami Springs, supra. Where a defendant has committed a wrong toward the plaintiff, and the wrongful act has caused the plaintiff to litigate with third persons, the wrongful act doctrine perm…
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Novom v. Novom, 513 So. 2d 789 (Fla. 3d DCA 1987)…reporter’s transcript of said hearing. Under these circumstances, we have no authority to upset any of the above-stated awards. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979); Glace & Radcliffe, Inc. v. City of Live Oak, 471 So. 2d 144, 145 (Fla. 1st DCA 1985); Pape v. Pape, 444 So. 2d 1058, 1061 (Fla. 1st DCA 1984); Wright v. Wright, 431 So. 2d 177, 178 (Fla. 5th DCA 1983); Lambert v. Lambert, 340 So. 2d 1221 (Fla. 4th DCA 1976). Affirmed.…
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
- Falcon Pitts and Mike McKinley v. Erichc Ahlswede and Adeline M. Ahlswede, 139 So. 2d 159 (Fla. 1st DCA 1962)
- Auto-Owners Ins. Co. v. Hooks, 463 So. 2d 468 (Fla. 1st DCA 1985)
- Bates v. Brady, 126 So. 2d 750 (Fla. 1st DCA 1961)
- ST. JOE Paper Co. v. State of Fla. Dep't OF Env't Reg., 371 So. 2d 178 (Fla. 1st DCA 1979)