LANAHAN LUMBER COMPANY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
MCDEVITT & STREET COMPANY, A FLORIDA CORPORATION, AND THE AMERICAN INSURANCE COMPANY, A NEW JERSEY CORPORATION, APPELLEES
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Lanahan Lumber Company appealed the trial court's denial of attorney's fees following an arbitration award on breach of contract claims. The court reversed, holding that the trial court improperly relied on speculative arguments from opposing counsel rather than the actual arbitration record to deny fees to the prevailing party.
The trial court improperly denied attorney's fees to Lanahan Lumber. The speculative arguments of opposing counsel, unsupported by any record evidence or transcript of the arbitration, cannot serve as a basis for denying fees to the prevailing party under a contract provision authorizing such fees.
[1] An attorney's speculative arguments in a memorandum of law do not constitute evidence that a court can acknowledge.
[2] A court may award attorney's fees to a party prevailing in a contract action when the contract allows for such fees, even if the award is based on a statute providing mut…
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Join FLexlaw to unlock all legal intelligence“Factual matters originating in a memorandum of law are "unproven utterances documented only by an attorney [and] are not facts that a trial court or this court can acknowledge."”
Establishes that the trial court cannot base its decision on speculative arguments from counsel without factual record support
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Join FLexlaw to unlock all legal intelligenceLanahan Lumber and McDevitt & Street Company entered into a contract dispute that was submitted to arbitration. Lanahan Lumber prevailed in the arbitr…
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PER CURIAM.
We reverse an order denying Lana-han Lumber's motion for attorney’s fees following an arbitration award on breach of contract claims.
At the hearing on the motion, McDevitt argued that it should not be required to pay attorney’s fees to Lanahan Lumber as the prevailing party, despite a contract provision which effectively1 would authorize an award of such fees. McDevitt’s basis for opposing the fees was its attorney’s contention that the arbitrators must have found Lanahan Lumber to be the prevailing party only because Mr. Lanahan testified that he never read the contract. McDevitt’s attorney concluded from this testimony that Lanahan could only have won his claim on the grounds that he repudiated the terms of the contract, and therefore is not entitled to obtain an attorney’s fee award under the presumptively repudiated contract.
There is no transcript of the arbitration proceedings, and no evidence in the record before the trial court as to why Lanahan prevailed on the merits in the arbitration other than the contract in evidence, which was itself the only basis for resolving the dispute by arbitration. The speculative arguments of McDevitt s attorney to the trial court constitute the only record basis for concluding that the arbitrators found that McDevitt breached an undefined oral, rather than the written, contract. Factual matters originating in a memorandum of law are “unproven utterances documented only by an attorney [and] are not facts that a trial court or this court can acknowledge.” Schneider v. Currey, 584 So. 2d 86, 87 (Fla. 2d DCA1991). Therefore, we reverse and remand the issue of Lanahan’s attorney’s fees for further proceedings consistent with this opinion. We also note that Lanahan’s motion in the trial court to tax costs remains outstanding.
STONE, WARNER, JJ. and ROSS, DALE, Associate Judge, concur. . The contract, a purchase order on McDevitt’s form, provides that if Lanahan Lumber should fail to execute the work required by the contract diligently and properly, or if Lanahan Lumber failed to perform or observe the promises or conditions of the contract, McDevitt could recover from Lanahan “reasonable costs and attorney’s fees suffered or incurred" by McDevitt by reason of, or as a result of, Lanahan’s default. Lanahan’s claim for fees under the contract is based on section 57.105(2), Florida Statutes, which provides:
If a contract contains a provision allowing attorney’s fees to a party when he is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.
The intent of § 57.105(2) is to provide mutuality of attorney’s fees as a remedy in contract cases. County Waste, Inc. v. Public Storage Management, Inc., 582 So. 2d 87 (Fla. 3d DCA1991).
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Fla. Hurricane Prot. & Awning, Inc. v. Ethlyn Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010)…“[T]he purpose behind section 57.105(7) is to provide mutuality of attorney’s fees as a remedy in contract cases.” Mediplex Constr. of Fla., Inc. v. Schaub, 856 So. 2d 13, 15 (Fla. 4th DCA 2003) (citing Lanahan Lumber Co. v. McDevitt & Street Co., 611 So. 2d 591 (Fla. 4th DCA 1993)). The statute is designed to even the playing field, not expand it beyond the terms of the agreement. As Judge Farmer noted in his dissent in Mediplex, the literal reading of the statute limits its application to mutuality of “co…1 / 2
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Dale R. Landry and wife v. Countrywide Home Loans, Inc., 731 So. 2d 137 (Fla. 1st DCA 1999)…less defendant was not the prevailing party due to plaintiffs refiling its action, petitioner entitled to attorney’s fees as prevailing party where plaintiff voluntarily dismissed its suit); Lanahan Lumber Company, Inc. v. McDevitt & Street Company, 611 So. 2d 591, 592 n. 1 (Fla. 4th DCA 1993)(“The intent of § 57.105(2) is to provide mutuality of attorney’s fees as a remedy in contract cases.”). In the instant case, appellants specifically requested attorney’s fees pursuant to section 57.105(2) in their answ…
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Mediplex Constr. OF Fla., Inc. v. Schaub, 856 So. 2d 13 (Fla. 4th DCA 2003)…sent indigent clients. Section 57.105(7) is not that statute. Rather, as this court has held, the purpose behind section 57.105(7) is to provide mutuality of attorney’s fees as a remedy in contract cases. Lanahan Lumber Co. v. McDevitt & Street Co., 611 So. 2d 591 (Fla. 4th DCA 1998). We also disagree that the Schaubs’ contingency fee agreement with their attorney somehow avoids Palma’s application. Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720 (Fla. 5th DCA 1999), is instructive. In that case, the plainti…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schneider v. Currey, 584 So. 2d 86 (Fla. 2d DCA 1991)
- Cnty. Waste, Inc. v. Pub. Storage Mgmt., Inc., 582 So. 2d 87 (Fla. 3d DCA 1991)