Barry A. Cohen, P.A. v. LaTorre, 91-04129
| Decision Date | 13 March 1992 |
| Docket Number | No. 91-04129,91-04129 |
| Citation | 595 So.2d 1076 |
| Parties | 17 Fla. L. Weekly D712 BARRY A. COHEN, P.A., a Professional Association, Petitioner, v. William A. LATORRE, Respondent. |
| Court | Florida District Court of Appeals |
John T. Allen, Jr. and Christopher P. Jayson of John T. Allen, Jr., P.A., St. Petersburg, for petitioner.
Martin Errol Rice of Martin Errol Rice, P.A., St. Petersburg, for respondent.
The petitioner, Barry A. Cohen, P.A., seeks a writ of certiorari to review a circuit court order denying the petitioner's motion for attorney's fees. Certiorari jurisdiction is the appropriate means by which to review the order because it was entered after a nonfinal and unappealable voluntary dismissal. Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1968); Solimando v. Aloha Medical Center, 566 So.2d 580 (Fla. 2d DCA 1990). We grant the petition.
The respondent, William A. LaTorre, filed a complaint for declaratory judgment to ascertain the amount owed by him to Cohen, or by Cohen to LaTorre, arising out of a contract under which Cohen provided legal representation to LaTorre. The complaint sought a determination of whether the contract between the parties should be declared void, and whether there had been a breach of the contract. The contract was attached as an exhibit to the complaint. The following fee provision is contained within the contract:
8. If it becomes necessary for The Law Firm of Barry A. Cohen to employ attorneys or collectors to enforce this retainer agreement, you shall bear all costs of collection, including reasonable attorney fees and interest at ten (10) percent per 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 any other proceeding. It appears from the record that at the time the order was entered, there was a pending action in Hillsborough County.
The petitioner contends that he was entitled to an award of attorney's fees under the provisions of the contract which provided for attorney's fees in actions "to enforce this retainer agreement." It is clear from the terms of the contract that the petitioner is correct.
The circuit court's reliance on Chesterfield is misplaced. That case involved a declaratory judgment action filed by the lessee to determine its obligations under a lease. The attorney's fee provision in the lease provided that the lessee pay the lessor's fees in the event of a breach of the lease agreement. The fourth district found that the declaratory judgment did not involve a breach of the lease and so rejected the trial court's award of fees to the lessor.
The fee provision in the contract between LaTorre and Cohen differs from that in Chesterfield. Additionally, the declaratory judgment sought not only a determination...
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...O.A.G. Corp. v. Britamco Underwriters Inc., 707 So.2d 785 (Fla. 3d DCA 1998); Kelly v. Tworoger, 705 So.2d 670 (Fla. 4th DCA 1998); and Barry A. Cohen, P.A. v. LaTorre, 595 So.2d 1076 (Fla. 2d DCA 1992), on the issue of whether an order concerning attorney's fees is an appealable order. We ......
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