SAM JOSEPH AND SAMUEL A. JOSEPH, D/B/A SAM JOSEPH & SON, AND THE HOME INDEMNITY COMPANY OF NEW YORK, APPELLANTS,
v.
HOUDAILLE-DUVAL-WRIGHT COMPANY, APPELLEE
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A surety company appeals the award of attorney's fees in a construction contract dispute, arguing that Florida statute § 627.0905(2) limits reasonable attorney's fees to 12.5% of the judgment. The court held that parties to a contract secured by a compensated surety bond may contractually agree to reasonable attorney's fees without being limited by the statutory cap.
The statute does not limit reasonable attorney's fees agreed to by contract. Parties are free to contract for reasonable fees rather than statutory fees, particularly in contracts involving compensated sureties, provided the fees are reasonable and arise by contract.
“Joseph, the contractor, covenanted to pay reasonable fees for collection. The surety covenanted to indemnify Joseph in the payment of all costs of collection of reasonable fees, etc. We find that the statute is not applicable and that the parties were free to contract for reasonable fees rather than statutory fees.”
Establishes the holding that contractual provisions for reasonable attorney's fees override statutory limitations when parties expressly agree to them.
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Join FLexlaw to unlock all legal intelligenceSam Joseph, a general contractor, entered into a subcontract with Houdaille-Duval-Wright Company that provided for recovery of reasonable attorney's f…
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The only point involved in this appeal is whether or not the provisions of § *4627.0905 (2)1 limit reasonable attorney’s fees provided for in a construction contract secured by a surety bond.
The record on appeal reveals that Sam Joseph, a general contractor, entered into a sub-contract with the ap-pellee which provided, among other things, the following:
* * * ifc * * “* * * All past due payments will be subject to an interest rate of 6% per annum, together with all expenses of collection, including reasonable attorney’s fees which Buyer agrees to pay.”
* *****
The appellant, The Home Indemnity Company of New York, executed the surety bond in connection with the basic contract. In this surety agreement, the following is found:
* * x * * *
“5. In each and every suit brought against the Obligor upon this bond, in which the plaintiff shall be successful, there shall be assessed therein against the Obligor herein, in favor of the plaintiff therein, reasonable counsel fees, engineers, architect and other expert witness fees, which the Obligor hereby expressly agrees to pay as part of the cost and expense of such suit.”
* * * * * *
The complaint was filed in the trial court to recover approximately $38,000.00 At the opening of the trial, the plaintiff [ap-pellee herein] received $25,000.00 in part payment of the sums due it under the basic contract with Sam Joseph. Thereafter, final judgment was rendered on the balance claimed in the amount of $12,797.02 and attorney’s fees were fixed in the amount of $4,000.00. The only point preserved on appeal in this case is whether or not the provisions of § 627.0905(2), Fla.Stat., F.S.A., limit the reasonable fees2 that may be recovered in the instant case. We hold that it does not.
Joseph, the contractor, covenanted to pay reasonable fees for collection. The surety covenanted to indemnify Joseph in the payment of all costs of collection of reasonable fees, etc. We find that the statute is not applicable and that the parties were free to contract for reasonable fees rather than statutory fees. This is particularly true in construing contracts involving compensated sureties. Phoenix Indemnity Company v. Board of Public Instruction of Alachua County, Fla.App.1959, 114 So.2d 478; 4 Fla.Jur., Bonds, § 12; 30 Fla.Jur., Suretyship and Guaranty, § 11. Attorney’s fees must arise either by contract or statute. Phoenix Indemnity Co. v. Union, Finance Co., Fla.1951, 54 So.2d 188; Dillman v. Dillman, Fla.App.1958, 105 So.2d 33; In Re Fields Estate, Fla.App.1960, 121 So.2d 46. In the instant case they rise by contract. If it were not for the contracts, then any recovery against the surety would have to be limited by the provisions of the statute.
Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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R. W. King Constr. Co., Inc. v. City OF Melbourne, 384 So. 2d 654 (Fla. 5th DCA 1980)…construe the contractual obligation to be one for the payment of reasonable attorney’s fees and we hold that the parties are free to contract for reasonable attorney fees rather than statutory attorney fees. Joseph v. Houdaille-Duval-Wright Company, 213 So. 2d 3 (Fla. 3d DCA 1968). This holding does not resolve the question of the propriety of the award of fees for extraordinary services. The affidavit submitted by appellee’s counsel outlined in detail the services rendered and the time spent, but no attem…
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Milgen Dev., Inc. v. Goodman, 302 So. 2d 491 (Fla. 3d DCA 1974)…was any request made at the time of trial for attorney’s fees. Appellant Mil-gen’s contention that attorney’s fees are costs is without merit. Attorney’s fees arise out of contract or statute. Joseph v. Houdaille-Duval-Wright Company, Fla.App.1968, 213 So. 2d 3. In the case sub judice, attorney’s fees are included in the note which is, of course, contractual. However, as this court held in Economy Plumbing Company v. Charles Sales Corp., Fla.App. 1967, 204 So. 2d 348, it is not error for a court to fail to…
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Stubbs v. Md. Cas. Co., 225 So. 2d 175 (Fla. 3d DCA 1969)…PER CURIAM. Affirmed. See United Bonding Insurance Company v. Inter National Bank of Miami, Fla.App.1969, 221 So. 2d 20; Joseph v. Houdaille-Duval-Wright Co., Fla.App. 1968, 213 So. 2d 3.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Phoenix Indem. Co. v. Union Fin. Co., 54 So.2d 188 (Fla. 1951)
- Phoenix Indem. Co. v. Bd. OF Pub. Instruction OF Alachua Cnty., 114 So. 2d 478 (Fla. 1st DCA 1959)
- Dillman v. Dillman, 105 So. 2d 33 (Fla. 2d DCA 1958)
- Matter of the Estate of T. S. Field, 121 So. 2d 46 (Fla. 1st DCA 1960)