THOMAS AND VIRGINIA DANIELS, APPELLANTS,
v.
ARTHUR JOHANNESSEN, INC., APPELLEE
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The Daniels contracted with Johannessen for home construction and sought recovery of their deposit when the deal fell through. The jury awarded them $15,000 of their $25,000+ deposit, but the trial court denied their attorney's fees claim despite a contract clause requiring the breaching party to pay attorney's fees, and incorrectly required the Daniels to pay Johannessen's costs. The appellate court reversed, holding that the Daniels were entitled to attorney's fees as the prevailing party under the contract language, regardless of the jury's finding of no breach.
The Daniels were entitled to attorney's fees and costs under the contract clause as the prevailing party who recovered more than offered in settlement, regardless of the jury's no-breach finding. The trial court lacked discretion to refuse enforcement of the attorney's fee clause and erred in requiring the Daniels to pay Johannessen's costs.
[1] A party who prevails in litigation to enforce a contract provision for the return of a deposit is entitled to attorney's fees and costs, even if the jury finds no breach…
[2] A party is considered to have prevailed for purposes of an attorney's fee provision when they recover more than was offered by the opposing party prior to litigation.
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Join FLexlaw to unlock all legal intelligence“Should either party be forced to take legal action to force [sic] this agreement, the parties agree to pay a reasonable legal fee and court costs.”
The contract provision on which the Daniels' attorney's fees claim was based; the provision applied to any party forced to litigate to enforce the agreement, not merely for breach.
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Join FLexlaw to unlock all legal intelligenceThe Daniels contracted with Arthur Johannessen, Inc. for construction of a custom home and deposited over $25,000. The contract entitled them to retur…
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FRANK, Judge.
Mr. and Mrs. Daniels have appealed from an order of the trial court denying their motion for attorney’s fees and requiring each party to pay the other’s costs. We reverse.
The Daniels contracted with Johannessen and others for the construction of a custom home in Pinellas County. Consistent with the contract, the Daniels gave Johannessen a deposit in excess of $25,000. The contract entitled the Daniels to the return of their deposit less “all costs relating to design, engineering, permits and surveys” if the parties could not agree on final plans and specifications or if the Daniels could not sell their Minnesota home.
The inevitable occurred: the Daniels were unable to sell their home and the parties reached no agreement on plans and specifications. Exercising their rights under the contract, the Daniels demanded the return of their deposit and an accounting of all amounts withheld by Johannessen. Johannessen offered to return approximately $5,700.
Dissatisfied with the settlement offer, the Daniels sued and Johannessen increased the offer to approximately $9,000.00, which was rejected.
The jury found that the Daniels were entitled to receive approximately $15,000 of their deposit. The Daniels sought attorney’s fees and costs, claiming that the following contract language justified such an award: “Should either party be forced to take legal action to force [sic] this agreement, the parties agree to pay a reasonable legal fee and court costs.” The trial court declined to construe the contract provision or award the Daniels their attorney’s fees, however, because in answer to a special interrogatory the jury found that Johannessen did not breach the contract. That finding was viewed by the trial court as a basis for denying the Daniels an award of attorney’s fees.
We disagree.
The Daniels were forced to initiate legal action to enforce that aspect of the agreement providing for the return of the entire deposit minus, of course, the specified deductions. It is evident that had the Daniels accepted the $9,000.00 offer of judgment and not pursued the litigation, they would have received some $6,000 less than the amount the jury ultimately awarded them. They prevailed in the lawsuit, however, and were entitled to an award of attorney’s fees and costs notwithstanding the jury’s finding that the defendants had not breached the contract.
The trial court lacked discretion to refuse to enforce the attorney’s fee clause. Blue Lakes Apartments v. George Gowing, Inc., 464 So. 2d 705 (Fla. 4th DCA 1985); Brickell Bay Club Condominium Ass’n. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981), rev. denied, 408 So. 2d 1092 (Fla.1981). Notwithstanding that the Daniels did not recoup the entire deposit, they did recover more than they were offered. See Williams v. Dolphin Reef, Ltd., 455 So. 2d 640 (Fla. 2d DCA 1984) (appellee was prevailing party and entitled to contractual attorney’s fees even though recovery was less than sought in initial counterclaim).
Furthermore, the Daniels, as the “party recovering judgment” under section 57.041, Florida Statutes, were entitled to the payment of their costs by Johannesen as was ordered by the trial court. Error, however, occurred when the trial court also required the Daniels to pay Johannessen’s costs. No basis exists for such an order. Accordingly, we reverse the order under review and remand this cause to the trial court to strike the award of costs to Johan-nessen and to hold a hearing to determine an appropriate attorney’s fee for the Daniels.
SCHEB, A.C.J., and HALL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Moritz v. Hoyt Enters., Inc., 604 So. 2d 807 (Fla. 1992)…ontract. The Moritzes argue that, for the purpose of attorney’s fees, the prevailing party is the one who recovers an affirmative judgment, as held by the Fifth District in Casa-van and by the Second District in Daniels v. Arthur Johannessen, Inc., 496 So. 2d 914 (Fla. 2d DCA 1986). Hoyt argues that the test for determining the prevailing party is that set forth by the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In Hensley, the United States Suprem…
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Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla. 1993)…h did not provide for the payment of attorney’s fees. However, Moritz bears significantly upon the instant case because it disapproved Casavan v. Land O’Lakes Realty, Inc., 542 So. 2d 371 (Fla. 5th DCA 1989), and Daniels v. Arthur Johannessen, Inc., 496 So. 2d 914 (Fla. 2d DCA 1986), each of which had held that the party obtaining the greater award was the prevailing party even though that party rather than the other had breached the contract. We also believe it is significant that in 1977 the legislature ame…
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Garvin v. Squiers, 502 So. 2d 47 (Fla. 2d DCA 1987)…sually contemplated fees and costs. Brickell Bay Club Condominium Association, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981), rev. denied, 408 So. 2d 1092 (Fla.1981). The Garvins were the prevailing party. See Daniels v. Arthur Johannessen, Inc., 496 So. 2d 914 (Fla. 2d DCA 1986). Accordingly, the final judgment is reversed in part and remanded to the trial court for the determination of a reasonable award of fees and costs to the Garvins. SCHOONOVER, A.C.J., and HALL, J., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blue Lakes Apts., Ltd. v. George Gowing, Inc., 464 So. 2d 705 (Fla. 4th DCA 1985)
- Brickell BAY Club Condo. Ass'n, Inc. v. Forte, 397 So. 2d 959 (Fla. 3d DCA 1981)
- Frank M. Williams, M.D. v. Dolphin Reef, Ltd., 455 So. 2d 640 (Fla. 2d DCA 1984)