FLOYD POTTER, APPELLANT,
v.
DAN ROWAN, APPELLEE
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Potter sued Rowan for payment on a construction contract for a beach house built on a cost-plus basis with an alleged ceiling price of $41,500. The court affirmed that parol evidence was properly admitted to establish the ceiling price term despite the written cost-plus contract, but reversed the trial court's denial of attorney's fees to Rowan as the prevailing party.
The court held that parol evidence is admissible to supply a missing term in a written agreement even though it cannot be used to vary its terms. Rowan was the prevailing party entitled to attorney's fees because he initiated the action, tendered the amount adjudged due from the outset, and obtained judgment in his favor.
[1] Parol evidence is admissible to supply a missing term in a written agreement.
[2] The deletion of a clause stating that verbal agreements are not binding from a standard form contract strengthens the argument for the admissibility of parol evidence.
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Join FLexlaw to unlock all legal intelligence“while parol evidence is inadmissible to vary the terms of a written agreement, it is admissible to supply a missing term”
Establishes the legal principle permitting use of parol evidence to establish the ceiling price term not explicitly written in the cost-plus contract
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Join FLexlaw to unlock all legal intelligenceDan Rowan requested a bid from contractor Floyd Potter for a beach house similar to one Potter had built for another client for $25,000. Potter initia…
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Dan Rowan wanted a beach house like the one a friend had paid Potter $25,-000 to build. He wanted a few things changed, and asked Potter for a bid. “$41,-500,” said Potter. “Too much,” replied Rowan. Potter then suggested that Rowan might save a couple of thousand dollars if Potter did the job on a cost-plus basis. They signed a contract on a standard form, after striking through a clause which read: “Verbal agreement will definitely not be binding on either the Owner or Contractor.” Both Potter and Rowan initialed this deletion. That deletion from the standard contract is the only fact differentiating this case from Petrus v. Bunnell, Fla.App.2d 1961, 129 So.2d 702, and it strengthens Rowan’s side of this case. In Petrus this court held that while parol evidence is inadmissible to vary the terms of a written agreement, it is admissible to supply a missing term. Judge Culver Smith’s opinion for this court in Petrus collects all the au*122thority needed to explain why the trial judge correctly allowed testimony to prove that there was in fact a ceiling price of $41,500 agreed to by the parties. Petrus is also reported at 84 A.L.R.2d 132, and a pertinent annotation follows. The trial judge’s admission of parol evidence and his finding that there was in fact a ceiling of $41,500 on the cost-plus contract is affirmed.
The trial judge erroneously determined that there was no “prevailing party” in the Circuit Court, which had the effect of denying attorney’s fees pursuant to Fla.Stat. § 713.29, F.S.A. The Third District Court of Appeal said in Sharpe v. Ceco Corp., 1970, 242 So.2d 464, that the prevailing party is the one “who has affirmative judgment rendered in his favor at the conclusion of the entire case.” That case was rightly decided, and allowed fees to a subcontractor which recovered less than it claimed. What the opinion doesn’t emphasize is that Ceco recovered more than the owner and general contractor admitted to be due. Thus Ceco was a prevailing party. Here Rowan initiated the action, conceded about $3700 in extras that he might have quibbled about but was at least morally responsible for, and paid into the registry of the court exactly the sum the trial court found due to Potter. Unlike the owner in Sharpe and Emery v. International Glass & Mfg., Inc., Fla.App.2d 1971, 249 So.2d 496, Rowan from the very outset tendered the amount technically adjudged to be due Potter. He “prevailed” in every sense of the word. As Judge Walden said in H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., Fla.App.4th 1971, 253 So.2d 878, “we interpret ‘prevailing party’ to be just that — the party who prevails.” This aspect of the judgment is erroneous.
Affirmed in part and reversed in part.
LILES, Acting C. J., and HOBSON, J., concur.
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Ronald Jackson and Joanne v. Jackson, 288 So. 2d 564 (Fla. 2d DCA 1974)…ect, answering this contention by saying that a litigant need not win every point in order to be a prevailing party. Cf. H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., Fla.App.4th, 1971, 253 So. 2d 878; Potter v. Rowan, Fla.App.2nd, 1972, 266 So. 2d 121. Appellee’s reliance on Emery v. International Glass & Mfg., Inc., Fla.App.2nd, 1971, 249 So. 2d 496, is likewise misplaced insofar as appellee would totally deny the awarding of attorney’s fees to appellants. While the defendants in that case succ…
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Am. Insulation OF Fort Walton Beach, Inc. v. Pruitt, 378 So. 2d 839 (Fla. 1st DCA 1979)…v. Belefant, 280 So. 2d 28 (Fla. 4th DCA 1973). The record does not reflect, nor does appellee claim, that at any time he tendered an amount he agreed was owing. Flagala Corporation, supra; Peter Marich and Associates, Inc., supra; Potter v. Rowan, 266 So. 2d 121 (Fla. 2d DCA 1972), cert. denied, 271 So. 2d 143 (Fla.1972). Having determined appellant was the prevailing party, we must determine whether the added clause “as allowed in equitable actions” should be construed to make the attorney’s fee award dis…
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Vicente F. Dominguez v. Bienvenido M. Benach, Jr., 277 So. 2d 567 (Fla. 3d DCA 1973)…la.App.1971, 249 So. [*568] 2d 496; H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., Fla.App.1971, 253 So. 2d 878; Houdaille-Duval-Wright Company v. Charldon Construction Company, Fla.App.1972, 266 So. 2d 106; Potter v. Rowan, Fla.App.1972, 266 So. 2d 121; § 713.29, Fla.Stat, F.S.A. We therefore reverse so much of the final judgment here under review which denied the request for attorney fees by the appellant, as plaintiff in the trial court, and return the cause with directions to the trial judge t…
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
- B. Irwin Emery et ux. v. Int'l Glass & MFG., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971)
- Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. 3d DCA 1970)
- H. D. McPHERSON, Inc. v. Metro Elec. OF Orlando, Inc., 253 So. 2d 878 (Fla. 4th DCA 1971)
- Petrus v. Bunnell, 129 So. 2d 702 (Fla. 2d DCA 1961)