W.G. TECHNOLOGIES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
PC FRANCHISE, INC., A FLORIDA CORPORATION, AND HOWARD FELLMAN, INDIVIDUALLY, APPELLEES
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Appellant W.G. Technologies prevailed in arbitration on a negligent misrepresentation claim but was denied attorney's fees because the contractual provision limited recovery to enforcement of the agreement itself, not claims arising from misrepresentation inducing the contract.
A contractual attorney's fee provision limiting recovery to enforcement of agreement provisions does not extend to claims of negligent misrepresentation, even if the misrepresentation induced the contract.
[1] A contractual attorney's fee provision limited to enforcement of agreement provisions does not extend to claims of negligent misrepresentation inducing the contract, dist…
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The contractual attorney's fee provision at issue limited recovery to situations where the franchisor was required to retain legal counsel to enforce the agreement's provisions.
W.G. Technologies prevailed in arbitration against PC Franchise and Howard Fellman on a negligent misrepresentation claim arising from a franchise agr…
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WARNER, J.
Appellant prevailed in an arbitration proceeding involving a dispute over a franchise agreement and moved for attorney’s fees pursuant to a contractual provision. The trial court denied the motion, determining that appellant had not prevailed on its contract claims but only on a claim of negligent misrepresentation. Appellant relies on Kelly v. Tworoger, 705 So. 2d 670 (Fla. 4th DCA 1998), in advocating reversal of the order. Kelly, however, is distinguishable. In Kelly, we suggested that a contractual attorney’s fee provision should include recovery for litigation involving a misrepresentation inducing a contract. See id. at 672-73. The provision in that case permitted the recovery of attorney’s fees “[i]n connection with any arbitration or litigation arising out of this Contract.” Id. at 671 (emphasis added). In contrast, the attorney’s fee provision in the instant case provided for attorney’s fees where the franchisor was required to retain legal counsel “to enforce the provisions of this Agreement.” As such, the entitlement to attorney’s fees is much narrower than in Kelly, and Kelly is inapposite. The claims upon which appellant recovered did not involve the enforcement of the agreement.
Affirmed.
GUNTHER and GROSS, JJ., concur.
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Islander Beach Club Condo. v. Skylark Sports, L.L.C., 975 So. 2d 1208 (Fla. 5th DCA 2008)…the enforcement of a contract.” An action for fraud in the inducement is not considered an action "in the enforcement of a contract,” but it may be considered an action that "arises out of the contract.” See W.G. Techs., Inc. v. PC Franchise, Inc., 814 So. 2d 458, 459 (Fla. 4th DCA 2001) (holding that an action for negligent misrepresentation is not an action "in the enforcement of a contract” and the prevailing party in that action would not be entitled to fees pursuant to a fee provision containing that cl…
Authorities Cited
- Ines Collia Kelly v. Tworoger, 705 So. 2d 670 (Fla. 4th DCA 1998)