THE CHESTERFIELD COMPANY, APPELLANT,
v.
FREDERICK E. RITZENHEIM AND ADA B. RITZENHEIM, HIS WIFE, APPELLEES
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The court held that attorneys' fees awarded to a lessor were improper because there was no showing that the lessee breached the lease agreement.
A lessee sought declaratory judgment regarding lease obligations. Before judgment, the lessee dismissed the suit and purchased the property. The trial…
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DAUKSCH, Judge.
Appellant was the lessee and Appellee the lessor. This appeal is from an Order awarding attorneys fees to the lessor based on a contract provision which stated
“The Lessee shall be liable to the Lessor for all costs, expenses, damages and attorneys’ fees which may be incurred or sustained by the Lessor by reason of the Lessee’s breach of any of the provisions of this lease.”
The lessee had sought a declaratory judgment under Chapter 86, Florida Statutes. That chapter does not provide attorneys fees for either party. Therefore, in order for the trial court to have properly awarded the fees it must have found the lessee to have breached a provision of the lease.
The lease provided a method by which the rent would escalate in proportion to the Consumer Price Index. The lease also had an option to purchase provision and the price to purchase rose with the Consumer Price Index.
Lessee became uncertain of his obligations under the lease because he alleged the rental and purchase price had risen beyond the fair market value of the property and beyond what the parties had contemplated when the lease was agreed upon. That is why he sought declaratory relief. Before Judgment lessee voluntarily dismissed his Complaint and bought the property.
The court awarded $3500 attorneys fees saying “the filing of this suit was in effect an effort ... to circumvent the provisions of the lease requiring the defense of the lease . . . and under the stated circumstances the Defendants are entitled to recover as costs their reasonable attorneys’ fees based on the lease.” If this Order meant the fees are recoverable as costs under Section 86.081, Florida Statutes, we disagree and reverse. Harris v. Richard N. Groves Realty, Inc., 315 So. 2d 528 (Fla.4th DCA 1975). If this Order meant based on the lease we disagree and reverse because there was no showing of any breach of the lease.
Reversed.
LETTS, J., concurs.
CROSS, J., concurs only in conclusion.
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Sholkoff v. Boca Raton Cmty. Hosp., Inc., 693 So. 2d 1114 (Fla. 4th DCA 1997)…nts and regulations of the lease.’ Id. at 1324. This court, in a case with a lease providing for payment of attorneys’ fees ‘incurred by lessor by reason of the lessee’s breach of any of the provisions of this lease,’ Chesterfield Co. v. Ritzenheim, 350 So. 2d 15, at 16 (Fla. 4th DCA 1977), denied attorneys’ fees for defense of a declaratory judgment action concerning disputed rent escalation clauses. In Chesterfield we looked to the form of the claim, a declaratory judgment, rather than the effect of the re…
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Fairways Royale Ass'n, Inc. v. Hasam Realty Corp., 428 So. 2d 288 (Fla. 4th DCA 1983)…ts and regulations of the lease.” Id., at 1324. This court, in a case with a lease providing for payment of attorneys’ fees “incurred by lessor by reason of the lessee’s breach of any of the provisions of this lease,” Chesterfield Co. v. Ritzenheim, 350 So. 2d 15, at 16 (Fla. 4th DCA 1977), denied attorneys’ fees for defense of a declaratory judgment action concerning disputed rent escalation clauses. In Chesterfield we looked to the form of the claim, a declaratory judgment, rather than the effect of the re…
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Barry A. Cohen, P.A. v. Latorre, 595 So. 2d 1076 (Fla. 2d DCA 1992)…er annum. After the respondent voluntarily dismissed his action, the petitioner filed a motion for assessment of attorney’s fees and costs. Following a hearing, the circuit court denied the motion on the authority of Chesterfield Co. v. Ritzenheim, 350 So. 2d 15 (Fla. 4th DCA 1977). The court’s order contained a provision stating that the order did not foreclose an award of the fees from being considered as awardable in any other pending case brought to enforce the payment of attorney’s fees and costs in an…
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- Harris v. Richard N. Groves Realty, Inc., 315 So. 2d 528 (Fla. 4th DCA 1975)