BERT A. NEWCOMBE ET AL., APPELLANTS,
v.
SOUTH FLORIDA BUSINESS NEGOTIATORS, INC., A FLORIDA CORPORATION, APPELLEE
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A Florida appellate court affirmed a jury verdict of $34,500 in a breach of contract action brought by a business broker, but reversed the trial judge's post-verdict awards of prejudgment interest and attorney's fees, holding that such damages must be determined by the jury in jury trials, not imposed by the court afterward.
Where a case is tried by jury, the trial judge has no authority to assess prejudgment interest or attorney's fees over and above the amount awarded by the jury. When a contract provision makes attorney's fees an element of damages, that claim must be presented to and determined by the jury.
[1] A jury verdict in a breach of contract action must be affirmed if supported by substantial competent evidence.
[2] A trial court may tax costs following a jury verdict.
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Join FLexlaw to unlock all legal intelligence“However, where a case is tried by jury, there is no authority for the trial judge to assess interest over and above the amount awarded by the jury.”
Establishes the core holding that judges cannot add prejudgment interest after a jury verdict
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Join FLexlaw to unlock all legal intelligenceAppellee South Florida Business Negotiators, Inc., a business broker, entered into a listing contract with Municipal Supply and Sign Corporation to se…
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SCHEB, Judge.
The trial court entered judgment on a jury verdict for $34,500 in favor of appel-lee/plaintiff against appellants/defendants. Thereafter, the trial judge entered a post trial order awarding plaintiff costs of $953.13, interest of $2,942.50, and attorney’s fees of $3,000. After examining the record and briefs and hearing oral argument, we find the only meritorious questions on appeal are whether the trial judge erred in awarding interest and attorney’s fees over and above the amount of the jury verdict. On these points, we reverse.
Plaintiff is a business broker whose recovery was based upon its performance under a listing contract whereby Municipal Supply and Sign Corporation gave it an exclusive listing to sell the corporate business. Under the contract, Municipal agreed to pay plaintiff a commission of 15% of the gross sales price for finding a purchaser for its business. Additionally, Municipal agreed to pay:
“. . . reasonable attorney’s fees, court costs, collection fees and expenses including costs incurred by the broker in the enforcement of any of the conditions, terms or provisions of this agreement.”
There is substantial competent evidence to sustain the jury’s verdict for plaintiff of $34,500. Therefore, the judgment entered thereon by the trial court must be affirmed.
There is no question as to the trial court’s authority to enter a post trial order taxing costs, Roberts v. Askew, 260 So. 2d 492 (Fla.1972), and we find no error in the trial judge’s order on this point. To the extent, however, that the trial judge awarded interest of $2,942.50 for the period from November 14, 1974 to April 20, 1976 (date of verdict), and attorney’s fees of $3,000, the court committed reversible error. It is proper to allow recovery of prejudgment interest as part of the plaintiff’s damages in a breach of contract action, 9A FlaJur., Damages, § 87. However, where a case is tried by jury, there is no authority for the trial judge to assess interest over and above the amount awarded by the jury. Shoup v. Waits, 91 Fla. 378, 107 So. 769 (1926); Grayson v. Fishlove, 266 So. 2d 38 (Fla.3d DCA 1972); Schulman v. Cort Aviation, 330 So. 2d 114 (Fla.3d DCA 1976).
Since many breach of contract actions are tried without a jury, there is a dearth of authority as to whether it is proper for the court to award attorney’s fees following a jury verdict. The sole cases we have located on this point are Ronlee, Inc. v. P. M. Walker Co., 129 So. 2d 175 (Fla.3d DCA 1961), and Riess v. Goldman, 196 So. 2d 184 (Fla.3d DCA 1967), both of which hold that such fees must be awarded by the jury.1 We agree with the rationale of these cases decided by our sister court. In a jury trial a claim for attorney’s fees predicated upon a provision in the contract between the parties becomes an element of damages and must be determined by the jury.2 Plaintiff in this case did not produce evidence on attorney’s fees before the jury and, therefore, waived any entitlement for this element of damages.
Accordingly, the judgment in favor of the plaintiff in the amount of $34,500 is affirmed; however, the order and judgment taxing costs, adding interest and awarding attorney’s fees is vacated and the trial court is directed to enter an amended order deleting therefrom the attorney’s fees and prejudgment interest.
HOBSON, Acting C. J., and GRIMES, J., concur. . While the trial court assessed attorney’s fees following a jury verdict in Grayson v. Fishlove, supra, and the appellate court upheld the reasonableness of the fee, it does not appear that the power of the court to award such fees was an issue before the appellate court.
. A different situation prevails, of course, when attorney’s fees are awardable by a statute which provides that they are to be assessed by the court. See e. g„ §§ 73.091; 627.428, Fla. Stat. (1975).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Cheek v. McGOWAN Elec. Supply Co., 511 So. 2d 977 (Fla. 1987)…1983), the trial court reversed its position and awarded fees to McGowan. On appeal, the district court affirmed the award of attorney’s fees, holding, contrary to several other district courts, Newcombe v. South Florida Business Negotiators, Inc., 340 So. 2d 1192, 1194 (Fla. 2d DCA 1976); Machado v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985); Lhamon v. Retail Development, Inc., 422 So. 2d 993 (Fla. 5th DCA 1982), that attorney’s fees predicated upon a provision in a contract may be awarded upon p…1 / 2
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Commodore Plaza AT Century 21 Condo. Ass'n, Inc. v. Cohen, 350 So. 2d 502 (Fla. 3d DCA 1977)…; Grayson v. Fishlove, 266 So. 2d 38 (Fla. 3rd D.C.A. 1972); Franklin v. Boyd, 272 So. 2d 191 (Fla. 3rd D.C.A. 1972); Schulman v. Cort Aviation Corporation, 330 So. 2d 114 (Fla. 3rd D.C.A. 1976); Newcombe v. South Florida Business Negotiators, Inc., 340 So. 2d 1192 (Fla. 2nd D.C.A. 1976); 18A Fla.Jur., Interest, § 18. Where the jury, in its verdict, fails to allow or indicate a desire to allow interest and/or attorney fees, there is no authority for the trial judge to assess interest over and above the jury ve…
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Broward Cnty. v. Sattler, 400 So. 2d 1031 (Fla. 4th DCA 1981)…terest when the case was tried by jury and the verdict failed to allow or indicate the desire to allow interest. See, e. g., Aetna Insurance Co. v. Settembrino, 369 So. 2d 954 (Fla. 3d DCA 1978); Newcombe v. South Florida Business Negotiators, Inc., 340 So. 2d 1192 (Fla. 2d DCA 1976). However, we find that there is no need to submit the question of interest to the jury where the amount of damages is liquidated and the assessment merely requires calculation. See, Plantation Key Developers, Inc. v. Colonial Mort…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roberts v. Reubin O'D. Askew, 260 So. 2d 492 (Fla. 1972)
- Shoup v. Waits, 91 Fla. 378 (Fla. 1926)
- Ronlee, Inc. v. P. M. Walker Co., Inc., 129 So. 2d 175 (Fla. 3d DCA 1961)
- Riess v. Goldman, 196 So. 2d 184 (Fla. 3d DCA 1967)
- Grayson v. Fishlove, 266 So. 2d 38 (Fla. 3d DCA 1972)
- Schulman v. Cort Aviation Corp., 330 So. 2d 114 (Fla. 3d DCA 1976)