GERALD ROSS AND ANNA MAE ROSS, APPELLANTS,
v.
MICHAEL S. HACKER, AS ASSIGNEE OF A. BARRY KON, APPELLEE
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Appellants who successfully defended against specific performance action are entitled to attorney's fees under the contract provision, as appellee is estopped from claiming the fee provision ceased to exist after contract cancellation.
A party seeking specific performance of a contract containing an attorney's fees provision is estopped from denying that provision's applicability after the contract is cancelled.
[1] A party seeking specific performance of a contract containing an attorney's fees clause is estopped from denying the enforceability of that clause by claiming the underly…
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Join FLexlaw to unlock all legal intelligence“In connection with any litigation arising out of the contract, the prevailing party shall be entited to recover all costs incurred, including reasonable attorney's fees.”
Contract provision at issue regarding attorney's fees
Appellee sought specific performance to purchase real property through an assignment of a contract. The contract provided that the prevailing party in…
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PEARSON, Judge.
The appellants successfully defended an action brought by the appellee for specific performance of a contract to sell real property. The appellee claimed the right to purchase the property through an assignment of the contract. The contract provided for costs and attorney’s fees as follows : “In connection with any litigation arising out of the contract, the prevailing .party shall be entited [sic] to recover all costs incurred, including reasonable attorney’s fees.”
The final judgment dismissing appellee’s complaint was entered March 23, 1973; it contained the following provision:
“2. The Court reserves jurisdiction to assess and enter judgment for costs and reasonable attorneys fees to be hereafter taxed.”
Thereafter, on April 5, 1973, the trial court denied appellants’ motion for attorney’s fees.
The trial judge did not set forth the ground for the denial of attorney’s fees in his order. However, the plaintiff-appellee contended before the trial court that as a result of the contract being cancelled prior to its assignment, the provision for attorney’s fees ceased to exist. We hold that the plaintiff is estopped to maintain such a position in an action in which he has sought s )ecific performance of a contract providing for attorney’s fees. Cf. Keller v. Penovich, Fla.App.1972, 262 So. 2d 243; Federated Mutual Implement and Hardware Insurance Company v. Griffin, Fla.App.1970, 237 So. 2d 38. Wherefore, the order denying attorney s fees is reversed and the cause is remanded with directions to the trial court to set a fee in accordance with the value of the services rendered.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tatyana Nudel v. Flagstar Bank, FSB, 60 So. 3d 1163 (Fla. 4th DCA 2011)…ibed as the “lender” and “borrower” respectively in the mortgage and they are bound by it. Flagstar may not seek affirmative relief under the mortgage and then take the position that provisions of the mortgage do not apply to it. See Ross v. Hacker, 284 So. 2d 399 (Fla. 3d DCA 1973). [*1166] Reversed and remanded for further proceedings. POLEN and DAMOORGIAN, JJ., concur. . We do not address the grounds for dismissal since Flagstar did not appeal that final order.…
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MCG Fin. Servs., L.L.C. v. Technogroup, Inc., 149 So. 3d 118 (Fla. 4th DCA 2014)…or proceeding deny such allegations and set up a new and different state of facts inconsistent thereto for another purpose.” Fed’d Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So. 2d 38, 41 (Fla. 1st DCA 1970). For instance, in Ross v. Hacker, 284 So. 2d 399 (Fla. 3d DCA 1973), Hacker brought suit, for specific performance of a contract for a sale of real property assigned to him. Ross successfully defended by arguing that the contract was cancelled prior to its assignment. Subsequently, Ross sought att…
Authorities Cited
- Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So. 2d 38 (Fla. 1st DCA 1970)
- Keller v. Penovich, 262 So. 2d 243 (Fla. 4th DCA 1972)