Caufield v. Cantele

• Decision Date: 05 November 1999
• Docket Number: No. 98-2960.,98-2960.
• Parties: Edward B. CAUFIELD and Rose Caufield, Appellants, v. Gino CANTELE and Armando Cantele, Appellees.
• Court: Florida District Court of Appeals

745 So.2d 431

Edward B. CAUFIELD and Rose Caufield, Appellants, v. Gino CANTELE and Armando Cantele, Appellees.

No. 98-2960.

District Court of Appeal of Florida, Fifth District.

November 5, 1999.

Robert Bruce Snow, Brooksville, for Appellants.

Donald R. Peyton of Peyton Law Firm, PA., New Port Richey, for Appellees.

W. SHARP, J.

Edward and Rose Caufield appeal from an order of the trial court which denied their motion for attorney's fees pursuant to the provisions of a contract, after Gino and Armando Cantele voluntarily dismissed their lawsuit against the Caufields. Although not raised by the parties, there is an issue concerning the proper method for an appellate court to review this order. For the reasons stated in this opinion, we affirm.

The facts in this case are not in dispute. In 1995, the Canteles sued the Caufields for damages arising out of the Canteles' purchase of an RV park from the Caufields. In a one count complaint, they alleged that the sewer plant serving the park had been represented to them by the Caufields as being in "great shape" but that after their purchase of the property, the Canteles learned the plant violated Florida law, and they were required to spend substantial sums to bring the plant into compliance. They further alleged the Caufields intentionally concealed the status of the plant and misrepresented material facts concerning the plant to them.

In the last paragraph of the complaint, the Canteles requested an award of attorney's fees pursuant to the contract for sale and purchase of the RV park. Paragraph 9 of the contract provides:

In connection with any litigation arising out of this contract, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney's fees ...

The contract was executed in 1993 by the Caufields, and by Gino Cantele only, although title to the RV park was conveyed to both Gino and Armando Cantele.

The Caufields moved to dismiss the complaint because it pled separate elements of breach of contract and fraud in the same count, failed to state a cause of action in contract for Armando since only Gino was a party thereto, and failed to state a cause of action in fraud, since the complaint alleged the Canteles had inspected the property before purchasing it. The Caufields also prayed for attorney's fees in a "wherefore" clause at the end of the motion:

Defendants pursuant to Stockman v. Downs, 573 So.2d 835 (1991) pray[s] (sic) for attorney fees.

The Caufields also filed a motion to strike the complaint for various claimed defects, and at the end of that motion, included a plea for attorney's fees identical to the one quoted above.

Both parties requested a jury trial, and the cause was set for trial. The court held a hearing on the motions to dismiss and to strike. In an order, the court recited that the Canteles had announced in court that their single count complaint was restricted to a claim for intentional misrepresentation, and that the relief sought was limited to monetary damages for correcting the latent defects in the sewer treatment plant. The court then ordered: "the single count Complaint shall be considered and solely treated as a Complaint based upon a theory of intentional misrepresentation and a prayer for monetary damages for correcting alleged latent defects in the wastewater treatment plant." The balance of the motions were denied and the Caufields were ordered to file a responsive pleading within 20 days.

In their responsive pleading, the Caufields alleged the Canteles had conducted an in depth inspection of the property before entering into the contract. They also pointed out that paragraph 14G of the contract provided the buyers had made a complete inspection of the property, and were relying on their own inspection and not representations made by the sellers, as well as a number of other defenses. At the end of the pleading, the Caufields stated simply: "Defendants have been compelled to employ the undersigned attorney and Plaintiffs are obligated to pay Defendants' attorney's fees."

The trial of this cause was scheduled and rescheduled a number of times. No pre-trial compliance documents were filed by the Caufields, although the attorney for the Canteles filed one early in the trial rescheduling process. In March of 1998, the attorney for the Canteles withdrew from representing them. In June of 1998, an order to show cause was entered by the court against the Canteles for failure to attend a pre-trial conference. Shortly thereafter, on June 18, 1998, a different attorney then representing the Canteles filed a notice of appearance and took a voluntary dismissal pursuant to Florida Rule of Civil Procedure 1.420.

In July of 1998, the Caufields filed a motion to tax costs and to award attorney's fees. They relied upon paragraph 9 of the purchase contract quoted above and pointed out that the Canteles sought attorney's fees under the same provision. The Caufields argued that they pled for attorney's fees as required by Stockman in their earlier motions and answer, and that they had also orally proclaimed their entitlement to fees at the hearing where the Canteles announced a voluntary dismissal.

The trial court denied the Caufields' request for attorney's fees for two reasons: first, because the Caufields failed to plead their entitlement to fees as required by Stockman v. Downs, 573 So.2d 835 (Fla. 1991) and second, because the cause of action was not based on the contract, but was for the tort of intentional misrepresentation. We agree with both grounds.

I. METHOD OF REVIEW

There is at the present time a lack of clarity as to how, and by what method, a party can seek review of an order granting or denying attorney's fees, after a voluntary dismissal. Should it be by petition for certiorari pursuant to Florida Rule of Appellate Procedure 9.030(b)(2), or by plenary appeal pursuant to rule 9.030(b)(1)(A)? The method selected can make a difference in the result. For example, the time in which to seek review under the rules can vary for certiorari and appeals. See Green Tree Vendor Services Corp. v. Lisi, 732 So.2d 422 (Fla. 1st DCA 1999); Shelnutt v. Citrus County, 660 So.2d 393 (Fla. 5th DCA 1995). In some district courts of appeal, such as the Fifth, oral argument is not granted if timely requested for certiorari proceedings, although it is for plenary appeals. Further, an appellate court has discretion to deny certiorari petitions but not appeals,¹ and the scope of review is more limited in certiorari cases. See Kelly v. Tworoger, 705 So.2d 670, 673 (Fla. 4th DCA 1998) (Klein, J., concurring). The granddad case cited by the more recent cases as controlling is Chatlos v. City of Hallandale, 220 So.2d 353 (Fla. 1968). It was decided under the pre-1977 Rules, and is cited as holding that an award of attorney's fees and costs after a voluntary dismissal is taken by the plaintiff should be reviewed by certiorari and not by appeal. However, if read carefully, the opinion was limited to resolving a conflict between the district courts of appeal as to the proper method by which to review cost judgments following a voluntary nonsuit. It left open the question of how orders granting or denying attorney's fees should be reviewed after a voluntary dismissal. Justice Drew expressly said:

Nor do we determine whether, if such attorney's fees and appraisal fees are properly recoverable in the eminent domain proceedings as was done in this case, the judgment entered is the "final judgment" in said cause subject to review on appeal as are other final judgments of trial courts under the Constitution.

220 So.2d at 355.

Sholkoff v. Boca Raton Community Hospital, 693 So.2d 1114 (Fla. 4th DCA 1997) read Chatlos as requiring that a judgment for costs and attorney's fees following a voluntary dismissal should be reviewed by certiorari. In that case, the attorney's fees were awarded as part of the "reasonable cost of collection" pursuant to an express contract which encompassed attorney's fees. Judge Farmer in that case reasoned that cost awards after voluntary dismissals are not absolutely final because of the impact of Florida Rule of Civil Procedure 1.420(d) which creates the possibility that if the dismissing party refiles and later prevails in a law suit, some of the costs previously paid may be recovered. See Rose Printing Co., Inc. v. Wilson, 602 So.2d 600, 604 (Fla. 1st DCA 1992), aff'd. 624 So.2d 257 (Fla.1993). However, this rule does not impact attorney's fee awards.

Our sister appellate courts have all applied Chatlos, without much discussion, to review orders denying or granting attorney's fee awards after a voluntary dismissal. See Green Tree Vendor Services Corp. v. Lisi, 732 So.2d 422 (Fla. 1st DCA 1999); Oakwood Plaza, L.P. v. D.O.C. Optics Corp., 708 So.2d 959 (Fla. 4th DCA), rev. denied, 725 So.2d 1107 (Fla.1998); 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); Barry A. Cohen, P.A. v. LaTorre, 595 So.2d 1076 (Fla. 2d DCA 1992). The rationale in some of these cases appears to be that since the suit has ended in a nonappealable dismissal, the attorney's fee award or denial is also unappealable. The Fifth District has apparently not directly ruled on this issue. See Cody v. Colonial Imaging Products & Service, 717 So.2d 1120 (Fla. 5th DCA 1998).

However, in Hatch v. Dance, 464 So.2d 713 (Fla. 4th DCA 1985) and Department of Environmental Protection v. Gibbins, 696 So.2d 888 (Fla. 5th DCA 1997), both courts assumed, without discussion, that it is proper to review by appeal a trial court's denial or award of attorney's fees after a voluntary dismissal of a lawsuit. In Hatch, the plaintiff voluntarily dismissed his complaint, the defendant moved for attorney's fees pursuant to an agreement, and the trial court denied the motion. In Gibbins, the Department voluntarily dismissed its petition seeking...