CAROL MANAGEMENT COMPANY, A NEW YORK CORPORATION, APPELLANT,
v.
BARING INDUSTRIES, APPELLEE
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The court held that the trial court did not err in refusing to apply liquidated damages and in awarding attorney fees and interest, and that the amended judgment for damages was proper.
[1] Liquidated damages are not applied where actual damages are reasonably ascertainable by some adequate legal standard.
[2] An award of attorneys' fees is proper when a contract requires the buyer to pay reasonable attorneys' fees in the event the contract is referred to an attorney for collec…
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Join FLexlaw to unlock all legal intelligencePlaintiff sold property to defendant under an agreement where the deposit would be forfeited upon cancellation by the buyer. The buyer cancelled, and …
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A final judgment was rendered for plaintiff, Baring Industries, against Carol Management Company in the sum of $30,000 damages, $7,500 as attorneys’ fees and $1,650 as interest.
Subsequently, the final judgment was amended to allow recovery for Baring in the amount of $26,000 as damages, $6,500 attorneys’ fees, and $1,410 as interest. These consolidated appeals are from the original and amended judgments.
The written purchase agreement between the plaintiff (seller) and defendant (buyer) contained the following language:
“* * * Furthermore, the Buyer [Defendant] agrees that if this sales agreement is cancelled by the Buyer, the monies paid herewith as a down payment ‘if any’, shall become the property of the Seller, to partially compensate the Seller for its liquidated damages resulting from such cancellation.” (Brackets added)
Defendant (buyer) argues this agreement calls for liquidated damages and it was error for the trial court to refuse testimony regarding the reasonableness of the $13,000 deposit as a down payment. We find no error in this regard as the trial court permitted evidence that the *272$13,000 deposit was agreed upon after negotiations between the parties and determined that the $13,000 was not liquidated damages. The rule is that liquidated damages are not applied where actual damages are reasonably ascertainable of measurement by some adequate and approved legal standard. See Haas v. Crisp Realty Co., Fla.1953, 65 So.2d 765; and Pembroke v. Caudill, 160 Fla. 948, 37 So.2d 538 (1948).
Defendant asserts the court erred in the award and amount of fees to plaintiffs’ attorney. The agreement required the buyer (Carol Management) to pay reasonable attorneys’ fees in the event the contract was referred to an attorney for collection or enforcement. It was referred to an attorney for collection or enforcement and a suit for damages for breach of contract resulted. We hold that an award for attorneys’ fees is proper under these facts. All-Dixie Insurance Agency, Inc. v. Moffatt, Fla.App.1968, 212 So.2d 347.
The amount of the fees was apparently determined as a result of a letter between the parties. The letter provided essentially that should plaintiff present witnesses on fees they would testify that a reasonable fee comprised the following: one or two attorneys who would be qualified as experts would testify they examined the file, familiarized themselves with the work involved, took into account the nature of the litigation, the sum involved, the reputation of the firm, the years practiced by its attorney, their usual charges, the fact that a contingent fee was undertaken in this cause, and other bases. Such testimony would be to the effect that a fee equal to 25% of any recovery made by the plaintiff would be reasonable in the matter. The letter stipulated that the above would be the testimony of plaintiff’s witness and not that defendant agreed to be bound by such testimony.
The question is whether the proof is sufficient to sustain the amount awarded as attorneys’ fees based on the fact that the letter was entered without objection from defendant. It was stipulated between the parties, however, that this would be plaintiff’s evidence as to attorneys’ fees. The evidence was admitted without objection from defendant and the trial judge found it to be reasonable under the circumstances.
We have reviewed the record and find no reversible error has been clearly demonstrated on this point.
We find no error in the court allowing interest at the rate of 6% from the date of the defendant’s breach of this agreement. See Sullivan v. McMillan, Fla.1896, 37 Fla. 134, 19 So. 340 (1896); Huntley v. Baya, Fla.App.1962, 136 So.2d 248; and § 687.01, Fla.Stat., F.S.A.
Under Points Five and Six defendant challenges the trial court’s determination and award of damages to plaintiff. The trial judge devoted a considerable amount of time to hearing testimony and determining the amount of damages in this case. No reversible error has been clearly shown in his award of the amount of damages to plaintiff. First Atlantic National Bank v. Cobbett, Fla.1955, 82 So.2d 870 and Marek v. Patterson, Fla.1954, 75 So.2d 808.
In the cross appeal plaintiff contends the trial court was in error in reducing the original amount of damages from $30,000 to $26,000 as reflected in the amended final judgment. The trial judge, however, appears to have applied the proper formula in arriving at the amended final judgment. See Sundie v. Lindsay, Fla.App.1964, 166 So.2d 152.
The amended final judgment is, therefore,
Affirmed.
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Richmond v. Colin F. Lumb and P. H. Jennefer Lumb, 339 So. 2d 1147 (Fla. 3d DCA 1976)…es, having had to resort to legal action to enforce her rights, is entitled to recovery of a reasonable attorney’s fee. See All-Dixie Insurance Agency, Inc. v. Moffatt, 212 So. 2d 347 (Fla.3d DCA 1968); Carol Management Company v. Baring Industries, 257 So. 2d 270 (Fla.3d DCA 1972). Accordingly, we reverse the order of denial and remand the cause to the trial court to hold a hearing on the issue of the amount of a reasonable attorney’s fee and based on the evidence and testimony adduced therefrom to make an…
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Cioppa v. Gov't Emps. Ins. Co. OF Wash., 261 So. 2d 845 (Fla. 1972)…Certiorari denied. 257 So. 2d 270. ROBERTS, C. J., and ERVIN, BOYD, McCAIN and DEKLE, JJ., concur.…
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Purdy v. Brose, 515 So. 2d 1041 (Fla. 3d DCA 1987)…ed to such fees and costs under the contract between the parties. See Kendall East Estates v. Banks, 386 So. 2d 1245, 1247 (Fla. 3d DCA 1980); Richmond v. Lumb, 339 So. 2d 1147, 1148 (Fla. [*1042] 3d DCA 1976); Carol Management Co. v. Baring Indus., 257 So. 2d 270, 272 (Fla. 3d DCA 1972). Affirmed as modified, and remanded with directions to so modify the final judgment.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pembroke v. Caudill, 160 Fla. 948 (Fla. 1948)
- First Atl. Nat'l Bank OF Daytona Beach v. Olive S. Cobbett, 82 So. 2d 870 (Fla. 1955)
- Sullivan v. McMillan, 37 Fla. 134 (Fla. 1896)
- Huntley v. Baya, 136 So. 2d 248 (Fla. 3d DCA 1962)
- Sundie v. Lindsay, 166 So. 2d 152 (Fla. 3d DCA 1964)
- Haas et ux. v. Crisp Realty Co., 65 So. 2d 765 (Fla. 1953)
- Reese v. The State of Fla. ex rel. Malcolm E. Gracy, 212 So. 2d 347 (Fla. 3d DCA 1968)
- All-Dixie Ins. Agency, Inc. v. Moffatt, 212 So. 2d 347 (Fla. 3d DCA 1968)
- Marek v. Patterson, 75 So. 2d 808 (Fla. 1954)