BARRY A. COHEN, P.A., A PROFESSIONAL ASSOCIATION, PETITIONER,
v.
WILLIAM A. LATORRE, RESPONDENT
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A party is entitled to attorney's fees under a contract provision for enforcement, even after a voluntary dismissal of the action, if the action sought to void the contract.
[1] Certiorari jurisdiction is the appropriate means by which to review a circuit court order denying a motion for attorney's fees entered after a nonfinal and unappealable v…
[2] A contractual provision for attorney's fees in an action to enforce a retainer agreement may encompass fees incurred in defending against an action seeking to void that s…
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Join FLexlaw to unlock all legal intelligenceThe respondent filed a declaratory judgment action to determine amounts owed under a legal representation contract and to void the contract. After the…
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PER CURIAM.
The petitioner, Barry A. Cohen, P.A., seeks a writ of certiorari to review a circuit court order denying the petitioner’s motion for attorney’s fees. Certiorari jurisdiction is the appropriate means by which to review the order because it was entered after a nonfinal and unappealable voluntary dismissal. Chatios v. City of Hallan-dale, 220 So. 2d 353 (Fla.1968); Solimando v. Aloha Medical Center, 566 So. 2d 580 (Fla. 2d DCA 1990). We grant the petition.
The respondent, William A. La-Torre, filed a complaint for declaratory judgment to ascertain the amount owed by him to Cohen, or by Cohen to LaTorre, arising out of a contract under which Cohen provided legal representation to La-Torre. The complaint sought a determination of whether the contract between the parties should be declared void, and whether there had been a breach of the contract. The contract was attached as an exhibit to the complaint. The following fee provision is contained within the contract:
8. If it becomes necessary for The Law Firm of Barry A. Cohen to employ attorneys or collectors to enforce this retainer agreement, you shall bear all costs of collection, including reasonable attorney fees and interest at ten (10) percent per annum.
After the respondent voluntarily dismissed his action, the petitioner filed a motion for assessment of attorney’s fees and costs. Following a hearing, the circuit court denied the motion on the authority of Chesterfield Co. v. Ritzenheim, 350 So. 2d 15 (Fla. 4th DCA 1977). The court’s order contained a provision stating that the order did not foreclose an award of the fees from being considered as awardable in any other pending case brought to enforce the payment of attorney’s fees and costs in any other proceeding. It appears from the record that at the time the order was entered, there was a pending action in Hills-borough County.
The petitioner contends that he was entitled to an award of attorney’s fees under the provisions of the contract which provided for attorney’s fees in actions “to enforce this retainer agreement.” It is clear from the terms of the contract that the petitioner is correct.
The circuit court’s reliance on Chesterfield is misplaced. That case involved a declaratory judgment action filed by the lessee to determine its obligations under a lease. The attorney’s fee provision in the lease provided that the lessee pay the lessor’s fees in the event of a breach of the lease agreement. The fourth district found that the declaratory judgment did not involve a breach of the lease and so rejected the trial court’s award of fees to the lessor. The fee provision in the contract between LaTorre and Cohen differs from that in Chesterfield. Additionally, the declaratory judgment sought not only a determination of rights under the contract, but also to void the contract. The fee provision clearly provided for attorney’s fees for Cohen when enforcing the contract, a task obviously undertaken in defense of the action to void the same contract.
There is ample authority to support the award of attorney’s fees following a voluntary dismissal where such award is provided for by statute or agreement of the parties. Century Construction Cory. v. Koss, 559 So. 2d 611 (Fla. 1st DCA) review denied, 574 So. 2d 141 (Fla.1990) (attorney’s fees are properly awarded after a voluntary dismissal where such award is provided for by statute or agreement of the parties); Stuart Plaza, Ltd. v. Atlantic Coast Development Corp. of Martin County, 493 So. 2d 1136 (Fla. 4th DCA 1986) (where contract between the parties provides for attorney’s fee award to prevailing party, defendant was entitled to both attorney’s fees and costs upon plaintiff’s voluntary dismissal even though Florida Rule of Civil Procedure 1.420(d) refers only to “costs”); Hatch v. Dance, 464 So. 2d 713 (Fla. 4th DCA 1985) (statutory or contractual provi sions for award of attorney’s fees to prevailing party encompass defendants in suits voluntarily dismissed); Wiggins v. Wiggins, 446 So. 2d 1078 (Fla.1984) (where dissolution of marriage action is voluntarily dismissed by petitioner, trial court has jurisdiction to award statutory attorney’s fees to the respondent).
Accordingly, we reverse the denial of the petitioner’s motion for attorney’s fees and remand with directions to the trial court to determine reasonable fees and enter a judgment awarding fees to the petitioner. The court did not make a specific finding regarding the request for costs, and the petitioner does not raise any error with that portion of the order. SCHOONOVER, C.J., HALL and THREADGILL, JJ., concur.
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Caufield v. Gino Cantele, 837 So. 2d 371 (Fla. 2002)…rp., 708 So. 2d 959 (Fla. 4th DCA), review denied, 725 So. 2d 1107 (Fla.1998); O.A.G. Corp. v. Britamco Underwriters Inc., 707 So. 2d 785 (Fla. 3d DCA 1998); Kelly v. Tworoger, 705 So. 2d 670 (Fla. 4th DCA 1998); and Barry A. Cohen, P.A. v. LaTorre, 595 So. 2d 1076 (Fla. 2d DCA 1992), on the issue of whether an order concerning attorney’s fees is an appealable order. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We approve the decision below in part and quash it in part, and specifically hold: (1) p…1 / 2
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Sholkoff v. Boca Raton Cmty. Hosp., Inc., 693 So. 2d 1114 (Fla. 4th DCA 1997)…courts have squarely held that review of awards of costs following a voluntary dismissal is properly by certiorari. See Rose Printing Co. v. Wilson, 602 So. 2d 600 (Fla. 1st DCA 1992), aff'd, 624 So. 2d 257 (Fla.1993); Barry A Cohen P.A. v. LaTorre, 595 So. 2d 1076 (Fla. 2nd DCA 1992); and Solimando v. Aloha Medical Center, 566 So. 2d 580 (Fla. 2nd DCA 1990), after remand, 594 So. 2d 850 (Fla. 2nd DCA 1992). So too with orders denying costs after the voluntary dismissal. See Wiper Hut Systems Inc. v. Steavens,…
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Rose Printing Co., Inc. v. Wilson, 602 So. 2d 600 (Fla. 1st DCA 1992)…f jurisdiction and argues alternatively that the order should be affirmed on the merits. We treat Rose’s appeal as a petition for writ of certiorari, see Chatlos v. City of Hallandale, 220 So. 2d 353, 354 (Fla.1968), Barry A. Cohen, P.A. v. LaTorre, 595 So. 2d 1076 (Fla. 2d DCA 1992); Coastal Petroleum Co. v. Mobil Oil Corp., 550 So. 2d 158, 159 (Fla. 1st DCA 1989), rev’d on other grounds, 583 So. 2d 1022 (Fla. 1991); Keener v. Dunning, 238 So. 2d 113, 114 (Fla. 4th DCA 1970); and Craft v. Clarembeaux, 162 So.…
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
- Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. OF Martin Cnty., 493 So. 2d 1136 (Fla. 4th DCA 1986)
- Chatlos v. City OF Hallandale, 220 So. 2d 353 (Fla. 1968)
- J.J. Wiggins v. Wiggins, 446 So. 2d 1078 (Fla. 1984)
- Century Constr. Corp. v. Koss, 559 So. 2d 611 (Fla. 1st DCA 1990)
- The Chesterfield Co. v. Ritzenheim, 350 So. 2d 15 (Fla. 4th DCA 1977)
- Solimando v. Aloha Med. Ctr. & William J. Young, M.D., 566 So. 2d 580 (Fla. 2d DCA 1990)
- Hatch v. Dance, 464 So. 2d 713 (Fla. 4th DCA 1985)
- In re The Forfeiture OF 1979 Porsche 911 Targa, 464 So. 2d 713 (Fla. 4th DCA 1985)