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Lanahan Lumber v. McDevitt Street

District Court of Appeal of Florida, Fourth District
Jan 6, 1993
611 So. 2d 591 (Fla. Dist. Ct. App. 1993)

Summary

In Lanahan, the plaintiff prevailed in arbitration and moved for an award of attorney's fees pursuant to a "prevailing party" clause contained in the relevant contract.

Summary of this case from Central Fla. Investments v. Fishkind

Opinion

No. 92-0479.

January 6, 1993.

Appeal from the Circuit Court, Palm Beach County, Edward Rodgers, J.

Stephen H. Durant and Myra Loughran of Martin, Ade, Birchfield Mickler, P.A., Jacksonville, for appellant.

Esther E. Galicia and Clinton D. Flagg of George, Hartz, Lundeen, Flagg Fulmer, Coral Gables, for appellees.


We reverse an order denying Lanahan Lumber's motion for attorney's fees following an arbitration award on breach of contract claims.

At the hearing on the motion, McDevitt argued that it should not be required to pay attorney's fees to Lanahan Lumber as the prevailing party, despite a contract provision which effectively would authorize an award of such fees. McDevitt's basis for opposing the fees was its attorney's contention that the arbitrators must have found Lanahan Lumber to be the prevailing party only because Mr. Lanahan testified that he never read the contract. McDevitt's attorney concluded from this testimony that Lanahan could only have won his claim on the grounds that he repudiated the terms of the contract, and therefore is not entitled to obtain an attorney's fee award under the presumptively repudiated contract.

The contract, a purchase order on McDevitt's form, provides that if Lanahan Lumber should fail to execute the work required by the contract diligently and properly, or if Lanahan Lumber failed to perform or observe the promises or conditions of the contract, McDevitt could recover from Lanahan "reasonable costs and attorney's fees suffered or incurred" by McDevitt by reason of, or as a result of, Lanahan's default. Lanahan's claim for fees under the contract is based on section 57.105(2), Florida Statutes, which provides:
If a contract contains a provision allowing attorney's fees to a party when he is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.
The intent of § 57.105(2) is to provide mutuality of attorney's fees as a remedy in contract cases. County Waste, Inc. v. Public Storage Management, Inc., 582 So.2d 87 (Fla. 3d DCA 1991).

There is no transcript of the arbitration proceedings, and no evidence in the record before the trial court as to why Lanahan prevailed on the merits in the arbitration other than the contract in evidence, which was itself the only basis for resolving the dispute by arbitration. The speculative arguments of McDevitt's attorney to the trial court constitute the only record basis for concluding that the arbitrators found that McDevitt breached an undefined oral, rather than the written, contract. Factual matters originating in a memorandum of law are "unproven utterances documented only by an attorney [and] are not facts that a trial court or this court can acknowledge." Schneider v. Currey, 584 So.2d 86, 87 (Fla. 2d DCA 1991). Therefore, we reverse and remand the issue of Lanahan's attorney's fees for further proceedings consistent with this opinion. We also note that Lanahan's motion in the trial court to tax costs remains outstanding.

STONE, WARNER, JJ. and ROSS, DALE, Associate Judge, concur.


Summaries of

Lanahan Lumber v. McDevitt Street

District Court of Appeal of Florida, Fourth District
Jan 6, 1993
611 So. 2d 591 (Fla. Dist. Ct. App. 1993)

In Lanahan, the plaintiff prevailed in arbitration and moved for an award of attorney's fees pursuant to a "prevailing party" clause contained in the relevant contract.

Summary of this case from Central Fla. Investments v. Fishkind

In Lanahan Lumber Co., Inc. v. McDevitt Street Co., 611 So.2d 591 (Fla. 4th DCA 1993), the court held that unproven utterances documented only by an attorney are not facts that can be acknowledged by the trial or appellate court.

Summary of this case from Orange Lake Country Club v. Levin
Case details for

Lanahan Lumber v. McDevitt Street

Case Details

Full title:LANAHAN LUMBER COMPANY, INC., A FLORIDA CORPORATION, APPELLANT, v…

Court:District Court of Appeal of Florida, Fourth District

Date published: Jan 6, 1993

Citations

611 So. 2d 591 (Fla. Dist. Ct. App. 1993)

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