HOWARD I. KAY, APPELLANT,
v.
JERRY B. KATZEN, H. STEPHEN RASH, RASH & KATZEN, P.A. AND RASH, KATZEN, KAY & PINTADO, P.A., APPELLEES
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Howard I. Kay appealed from a directed verdict entered against him on his breach of oral contract claim to share law firm profits, and from an adverse cost judgment. The Florida District Court of Appeal affirmed the directed verdict on statute of frauds grounds and the dismissal of tort claims, but reversed the cost judgment to allow remand for assessment of only proper taxable costs.
The court affirmed the directed verdict because the oral profit-sharing agreement was barred by the statute of frauds (could not be performed within one year, had no written evidence, and no partial performance exception applied). The court affirmed dismissal of the conversion, civil theft, and punitive damages claims because they were contractual, not tort claims. The court reversed the cost judgment and remanded for reassessment of only proper taxable costs.
[1] An oral agreement is barred by the statute of frauds if it cannot be performed within one year of its making.
[2] Partial performance is required to remove an agreement from the statute of frauds.
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Establishes the court's primary holding that the breach of contract claim fails on statute of frauds grounds
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Join FLexlaw to unlock all legal intelligenceKay sued Katzen, Rash, and their law firms for breach of an oral agreement to share profits from the law firm. The jury returned a verdict in Kay's fa…
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PER CURIAM.
This is an appeal by the plaintiff Howard I. Kay from an adverse final judgment entered upon directed verdict after the jury had returned a verdict in his favor in an action for breach of an oral agreement to share profits from a law firm against the defendants Jerry B. Katzen, H. Stephen Rash, and Rash, Katzen, Kay & Pintado, P.A.; this is also an appeal by the plaintiff from a subsequent adverse cost judgment entered in favor of the above defendants. We affirm in part and reverse in part.
First, the trial court properly entered a directed verdict for the defendants on the breach of contract action; plainly, the oral agreement sued upon was barred by the statute of frauds. § 725.01, Fla. Stat. (1987).
Contrary to the plaintiffs argument, (1) the subject oral agreement could not be performed within one year of its making, (2) there were no writings evidencing that the plaintiff was entitled to a profit distribution from the professional association, and (3) there was no partial performance on the part of the plaintiff to take the case out of the statute of frauds. Byam v. Klopcich, 454 So. 2d 720 (Fla. 4th DCA 1984); Lane, Gelety, Woolsey & Centrone, P.A. v. Woolsey, 377 So. 2d 743 (Fla. 4th DCA 1979), cert. denied, 388 So. 2d 1120 (Fla.1980); First Realty Invest. Corp. v. Gallaher, 345 So. 2d 1088 (Fla. 3d DCA 1977), cert. denied, 359 So. 2d 1214 (Fla.1978).
Second, the trial court properly entered a summary judgment on the plaintiffs action for conversion, civil theft, and punitive damages. The claim sued upon was clearly a contractual claim, not a tort claim, and accordingly the actions for conversion, civil theft, and punitive damages did not lie. AFM Corp. v. Southern Bell Tel. & Tel. Co., 515 So. 2d 180 (Fla.1987); Lewis v. Guthartz, 428 So. 2d 222 (Fla.1982); Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA), rev. denied, 494 So. 2d 1151 (Fla. 1986); Waltman v. Prime Motor Inns, Inc., 446 So. 2d 185 (Fla. 3d DCA 1984), approved in part, quashed in part, 480 So. 2d 88 (Fla.1985); Rolls v. Bliss & Nyitray, Inc., 408 So. 2d 229 (Fla. 3d DCA 1981), dismissed, 415 So. 2d 1359 (Fla.1982).
Third, there is no merit to plaintiffs chief attack on the cost judgment. Assuming without deciding that Fla.R. Civ.P. 1.442 (1989 version) is inapplicable to this case, as urged by the plaintiff, because the subject rule does not allow costs for a defendant who, as here, is the prevailing party, see Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), plainly the defendants in the instant case were entitled to all their “legal costs and charges” under Section 57.041, Florida Statutes (1989), because they were the prevailing parties below; indeed, the trial court had no discretion to deny the defendants such costs. Oriental Imports, Inc. v. Alilin, 559 So. 2d 442, 443 (Fla. 5th DCA 1990).
This being so, we reject the plaintiffs primary contention that the defendants were entitled to no costs whatever in this action. Upon the defendants’ concession, however, that not all the items of cost assessed below were proper taxable costs, we reverse the cost judgment under review and remand the cause to the trial court to assess taxable costs only. See Reeser v. Boats Unlimited, Inc., 432 So. 2d 1346, 1349 n. 2 (Fla. 4th DCA 1983) (quoting October 28, 1981 Florida Supreme Court Administrative Order: In re Statewide Uniform Guidelines For Taxation of Costs in Civil Actions).
Affirmed in part; reversed in part and remanded.
. In this connection, we reject the contention that the defendants were inter alia entitled to nontaxable costs under Fla.R.Civ.P. 1.442 (1989 version). Even if this rule were applicable to this case — and we assume without deciding that it is not — the defendants would only be entitled to their taxable costs, not nontaxable costs as well. Horn v. Corkland Corp., 518 So. 2d 418, 421 (Fla. 2d DCA 1988); Insurance Co. of North America v. Twitty, 319 So. 2d 141, 143 (Fla. 4th DCA 1975), cert. denied, 330 So. 2d 22 (Fla.1976). Contrary to the defendant’s argument, nothing we have said in Santiesteban v. McGrath, 320 So. 2d 476, 478 (Fla. 3d DCA 1975), should be construed as announcing a contrary rule.
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Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…ot lie where relationship is contractual in nature); Gilman Yacht Sales v. First Nat. Bank of Chicago, 600 So. 2d 1131 (Fla. 4th DCA 1992) (action for civil theft or conversion will not lie in suit for breach of a brokerage contract); Kay v. Katzen, 568 So. 2d 960 (Fla. 3d DCA 1990) (action for civil theft and conversion will not lie where claim is clearly contractual in nature); Futch v. Head, 511 So. 2d 314 (Fla. 1st DCA) (oral contract will preclude finding of conversion, recovery of damages for breach of…
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McARTHUR Farms & Gen. Accident Ins. v. Peterson, 586 So. 2d 1273 (Fla. 1st DCA 1991)…upon this interpretation, the JCC awarded all requested costs. We find that this was error. Generally, a prevailing party may only collect taxable costs rather than all costs which they have incurred. See § 57.-041, Fla.Stat. (1989); Kay v. Katzen, 568 So. 2d 960 (Fla. 3rd DCA 1990). The same rule is applicable to prevailing parties in workers’ compensation cases. G.W. Wood Products v. Parrott, 447 So. 2d 407 (Fla. 1st DCA 1984); Houck v. Guettler & Sons, 450 So. 2d 1267 (Fla. 1st DCA 1984); § 440.-34(3), Fl…
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Smith v. State, 701 So. 2d 348 (Fla. 1st DCA 1997)…parate and independent from the contracts with respect to the Board of Regents and Capital City Bank. See Ginsberg v. Lennar Florida Holdings, Inc., 645 So. 2d 490, 494-495 (Fla. 3d DCA 1994), review denied, 659 So. 2d 272 (Fla.1995); Kay v. Katzen, 568 So. 2d 960 (Fla. 3d DCA 1990). Smith has also' argued that section 772.19, Florida Statutes, is unconstitutional. This provision states: “No damages shall be recoverable under this [dvil theft] chapter against the state or its agencies, instrumen-talities, su…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- AFM Corp. v. S. Bell Tel. & Tel. Co., 515 So. 2d 180 (Fla. 1987)
- Delta Air Lines, Inc. v. August, 450 U.S. 346 (U.S. 1981)
- Murray Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986)
- Lewis v. Barnett Guthartz, 428 So. 2d 222 (Fla. 1982)
- Rolls v. Bliss & Nyitray, Inc., 408 So. 2d 229 (Fla. 3d DCA 1981)
- Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88 (Fla. 1985)
- Oriental Imports, Inc. v. Rosario Alilin and E. Roger Alilin, M.D., 559 So. 2d 442 (Fla. 5th DCA 1990)
- Dick Reeser and Margaret Reeser v. Boats Unlimited, Inc., 432 So. 2d 1346 (Fla. 4th DCA 1983)
- First Realty Inv. Corp. v. Gallaher, 345 So. 2d 1088 (Fla. 3d DCA 1977)
- Mariano Santiesteban v. McGRATH, 320 So. 2d 476 (Fla. 3d DCA 1975)