AJAX PAVING INDUSTRIES, INC. v. Hardaway Co., 2D01-4362.
| Decision Date | 30 August 2002 |
| Docket Number | No. 2D01-4362.,2D01-4362. |
| Citation | 824 So.2d 1026 |
| Parties | AJAX PAVING INDUSTRIES, INC., Appellant, v. The HARDAWAY COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Stuart Jay Levine and Joseph F. Summonte, Jr., of Walters Levine Brown Klingensmith & Thomison, P.A., Sarasota, for Appellant.
Leo H. Meirose, Jr., of Meirose & Friscia, P.A., Tampa, for Appellee.
The appellant, Ajax Paving Industries, Inc. (Ajax), challenges an order denying its motion for prevailing party attorney's fees. Ajax requested such fees after the appellee, The Hardaway Company (Hardaway), voluntarily dismissed its third-party indemnity action against Ajax. We reverse.
According to the third-party complaint, Hardaway, a large-scale industrial contractor, entered into an agreement with Lee County in May 1995 "to construct a bridge and related access roadway extensions in Lee County." In September 1995, Hardaway entered into a subcontract with Ajax to pave the aforementioned "roadways and roadway extensions ... with asphalt." Pursuant to the subcontract:
[Ajax agreed] to indemnify, defend and hold [Hardaway] harmless ... from any and all claims, liabilities, costs, expenses, and losses, including, without limitation, reasonable attorneys' fees, of every nature whatsoever ... arising out of, or in any way connected, with the performance of th[e] Subcontract, regardless of whether or not such claims, liabilities, costs, expenses, or losses shall be attributable, in part, to any act or failure to act on the part of [Hardaway].
In September 1999, Astrid and Nils Lovdal sued Hardaway, Kisinger-Campo & Associates, and Lee County for damages.1 The lawsuit arose from personal injuries Astrid Lovdal suffered when she was allegedly thrown from her bicycle while riding across one of the roadways constructed by Hardaway. Ajax was not named as a defendant in the Lovdals' suit.
In May 2000, Hardaway filed the instant third-party action against Ajax pursuant to the indemnity provision of the subcontract. In addition to contractual indemnity, Hardaway also alleged causes of action against Ajax for common law indemnity and contribution, in the event the Lovdals prevailed against Hardaway in their negligence action. Hardaway claimed that any negligence that might be found to have caused Astrid Lovdal's injuries would be necessarily attributable to Ajax. For that reason, Hardaway demanded a judgment requiring Ajax to defend and indemnify it for any damages awarded to the Lovdals. Hardaway also sought an award for pre-judgment interest, costs, and reasonable attorney's fees against Ajax.
In February 2001, Ajax filed a written motion to dismiss Hardaway's third-party complaint for failure to state a cause of action. After a hearing in March 2001, the trial court "upon stipulation of counsel" entered a written order granting Ajax's motion to dismiss without prejudice. The order gave Hardaway until April 3, 2001, to file an amended third-party complaint.
On April 4, 2001, Hardaway voluntarily dismissed its suit against Ajax without prejudice. On April 19, 2001, Ajax filed a motion for prevailing party attorney's fees and costs pursuant to the fee provision of the subcontract. Ajax also sought attorney's fees under section 57.105(1)(a), Florida Statutes (2001), which provides for prevailing party fees when the losing party either knew or should have known prior to trial that its claims were not supported by material facts necessary to establish such claims.
At the August 20, 2001, hearing on Ajax's motion, Ajax focused primarily on its entitlement to prevailing party fees under the fee provision of the subcontract. Ajax acknowledged that the subject provision stated that only Hardaway would be entitled to fees for any dispute arising under the subcontract. It was Ajax's contention, however, that unilateral provisions of that nature were rendered bilateral pursuant to the reciprocity mandate of section 57.105(5).
Thereafter, the trial court informed the parties by a letter dated August 23, 2001, that it intended to deny Ajax's request for fees. The trial court explained, essentially, that the wording of the fee provision of the subcontract "limited [the] nature of the award." The trial court acknowledged that section 57.105(5) calls for reciprocity of such fee provisions. It concluded, however, that Hardaway's voluntary dismissal did not trigger the fee provision of the subcontract because the old version of section 57.105 governed these circumstances. The trial court went on to state, presumably with regard to Ajax's claim for fees under section 57.105(1)(a), that it could not otherwise say there was no basis for Hardaway's claim. A written order denying Ajax's request for prevailing party attorney's fees was entered accordingly.
On appeal, Ajax contends the trial court erred in denying its request for prevailing party fees. Ajax argues it was entitled to such fees pursuant to the fee provision of the subcontract and the reciprocity mandate of section 57.105(5).
The provision of the subcontract at issue here specifies that only Hardaway shall be entitled to fees for disputes arising from the parties' agreement. Section 57.105(5), however, mandates that contractual fee provisions must impose reciprocal obligations and benefits on all parties to a given contract. See Jakobi v. Kings Creek Vill. Townhouse Ass'n, 665 So.2d 325, 326 (Fla. 3d DCA 1995)
(); see also Landry v. Countrywide Home Loans, Inc., 731 So.2d 137, 139 (Fla. 1st DCA 1999) (addressing section 57.105(2)); Holiday Square Owners Ass'n v. Tsetsenis, 820 So.2d 450, 453-54 (Fla. 5th DCA 2002) (addressing section 57.105(5)). Section 57.105(5) expressly provides, as did its predecessor section 57.105(2), that it applies to all contracts entered into on or after October 1, 1988.
Hardaway does not dispute that section 57.105(5) renders the fee provision of the instant 1995 subcontract applicable to Ajax. It argues, however, that Ajax is not entitled to prevailing party fees because a judgment on the merits was not entered in favor of Ajax. Hardaway relies on Sal's Abatement Corp. v. Sid Harvey Industries, Inc., 718 So.2d 885 (Fla. 3d DCA 1998), and O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So.2d 785 (Fla. 3d DCA 1998), in support of its argument. Those cases, however, are distinguishable from the instant case. The contractual fee provision in Sal's and the...
To continue reading
Request your trial
-
Royal Palm Vill. Residents, Inc. v. Slider
...without prejudice. See, e.g., State ex rel. Marsh v. Doran , 958 F.2d 1082, 1082 (Fla. 1st DCA 2007) ; Ajax Paving Ind., Inc. v. Hardaway Co. , 824 So. 2d 1026, 1029 (Fla. 2d DCA 2002) ; Yampol v. Schindler Elevator Corp. , 186 So. 3d 616, 616 (Fla. 3d DCA 2016) ; Alhambra Homeowners Ass., ......
-
Int'l Fid. Ins. Co. v. Americaribe-Moriarity JV, Case No. 15–24183–Civ–COOKE/TORRES
...a unilateral contract clause for prevailing party attorney's fees, such as the one quoted above."); Ajax Paving Indus., Inc. v. Hardaway Co. , 824 So.2d 1026, 1029 (Fla. 2nd DCA 2002) ; ADF Int'l, Inc. v. Baker Mellon Stuart Const., Inc. , 2001 WL 34402607, at *1 (M.D. Fla. Apr. 6, 2001)"[D......
-
Alhambra Homeowners Ass'n, Inc. v. Asad
...Home Loans, Inc., 731 So.2d 137 (Fla. 1st DCA 1999) (attorney's fee provision on mortgage note); Ajax Paving Indus., Inc. v. Hardaway Co., 824 So.2d 1026, 1029 (Fla. 2d DCA 2002) (contractual provision); Rushing v. Caribbean Food Prods., 870 So.2d 953 (Fla. 1st DCA 2004) (lease Factually, t......
-
Tubbs v. Mechanik Nuccio Hearne & Wester, P.A.
...in litigation.” Alhambra Homeowners Ass'n v. Asad, 943 So.2d 316, 318 (Fla. 4th DCA 2006); see also Ajax Paving Indus., Inc. v. Hardaway Co., 824 So.2d 1026, 1029 (Fla. 2d DCA 2002) (stating the general rule); Century Constr. Corp. v. Koss, 559 So.2d 611, 612 (Fla. 1st DCA 1990) (stating th......