Caufield v. Cantele

• Decision Date: 19 December 2002
• Docket Number: No. SC99-95.,SC99-95.
• Citation: 837 So.2d 371
• Parties: Edward B. CAUFIELD, et al., Petitioners, v. Gino CANTELE, et al., Respondents.
• Court: Florida Supreme Court

837 So.2d 371

Edward B. CAUFIELD, et al., Petitioners, v. Gino CANTELE, et al., Respondents.

No. SC99-95.

Supreme Court of Florida.

December 19, 2002.

Robert Bruce Snow, Brooksville, FL, for Petitioners.

Donald R. Peyton of Peyton Law Firm, P.A., New Port Richey, FL, for Respondents.

Jon H. Anderson and Ralph Artigliere of Anderson & Artigliere, P.A., Lakeland, FL, for Academy of Florida Trial Lawyers, Amicus Curiae.

QUINCE, J.

We have for review the Fifth District Court of Appeal's opinion in Caufield v. Cantele, 745 So.2d 431 (Fla. 5th DCA 1999), which certified conflict with 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),review 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); 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 have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We approve the decision below in part and quash it in part, and specifically hold: (1) plenary appeal is the proper method for a district court to review a trial court's determination of attorney's fees and costs after a voluntary dismissal; (2) the contractual or statutory basis of a claim for attorney's fees does not need to be specifically pled and failure to specifically plead the basis for fees does not result in a waiver of the claim;¹ and (3) a suit for damages for fraudulent misrepresentation concerning property purchased pursuant to a contract may constitute litigation "arising out of" the contract where the parties have intended such litigation to be covered by an attorney's fees provision included in the contract. Therefore, we remand this case for proceedings consistent with our holdings.

FACTUAL AND PROCEDURAL BACKGROUND

Edward and Rose Caufield (the Caufields) entered into a contract with Gino and Armando Cantele (the Canteles) to sell to the Canteles a mobile home park located in Hernando County, Florida. Closing on the sale occurred and title was passed to the Canteles in 1993. In 1995, the Canteles filed a complaint in the Circuit Court for the Fifth Judicial Circuit, alleging concealment of defects and fraudulent misrepresentations as to the condition of a sewer plant located on the property. The Caufields filed a motion to dismiss and a motion to strike the complaint, claiming that the complaint alleged fraud and breach of contract in a single count. The Caufields included a general prayer for attorney's fees in the wherefore clauses of both motions. In 1996, the trial court entered an order resolving both motions by treating the complaint as one which asserted a single claim for intentional misrepresentation. In their responsive pleading, the Caufields included another general prayer for attorney's fees. After the Canteles' initial counsel withdrew and new counsel failed to appear at a pretrial conference, the Canteles voluntarily dismissed their complaint.

The contract contained a provision which entitled the prevailing party to costs and attorney's fees in connection with any litigation "arising out of" the contract. Pursuant to the provision, the Caufields filed a motion in the trial court for costs and attorney's fees. The trial court entered an order denying the Caufields' request for attorney's fees for two reasons. First, the trial court concluded that the Caufields had failed to plead for attorney's fees as required by Stockman v. Downs, 573 So.2d 835 (Fla.1991).² Second, the court concluded that because the cause of action was for the tort of intentional misrepresentation, the litigation was not based on the contract and, thus, the litigation did not "arise out of" the contract.

The Caufields sought review of the trial court's order by plenary appeal in the Fifth District Court of Appeal. In addition to affirming the trial court's determination that the Caufields did not properly plead for attorney's fees and that the litigation did not arise out of the contract, the Fifth District addressed, sua sponte, the jurisdictional issue of whether plenary appeal was the proper method of review.

The Fifth District held that a judgment denying attorney's fees entered after a voluntary dismissal was properly reviewed by plenary appeal. As to this holding, the Fifth District certified conflict with decisions of other district courts, which have held that under this Court's decision in Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1968), a petition for certiorari is the proper method for reviewing orders denying or granting attorney's fees 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),

review 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 Caufields seek discretionary review of the Fifth District's decision in Caufield v. Cantele, 745 So.2d 431 (Fla. 5th DCA 1999), based on certified conflict.

DISCUSSION

The Fifth District certified conflict as to whether district courts may review, by plenary appeal, a trial court's order determining attorney's fees and costs after voluntary dismissal of a complaint. We recognize that district courts are courts of limited jurisdiction and may only exercise the jurisdiction conferred upon them by the Florida Constitution. See Clement v. Aztec Sales, Inc., 283 So.2d 68, 71 (Fla. 4th DCA 1973)

; Warren v. State, 174 So.2d 429, 430 (Fla. 1st DCA 1965). Because we find that the Fifth District properly exercised the jurisdiction conferred upon it by the Florida Constitution, we approve the decision below on this issue.

In Chatlos v. City of Hallandale, this Court discussed the ways in which a cost determination could be reviewed on plenary appeal and certiorari by the district courts:

If the cost determination is entered in the final judgment or is made subsequent to the rendition of the final judgment but prior to timely appeal from that judgment, plenary appeal from the final judgment ... will bring the cost order to the appellate court.... Finally, in appropriate circumstances—as in the instant case wherein the order was entered following a non-final and unappealable voluntary nonsuit—writ of certiorari may lie as a means of securing review.

Chatlos, 220 So.2d at 354 (quoting Craft v. Clarembeaux, 162 So.2d 325, 327 (Fla. 2d DCA 1964)). Cases holding that a petition for certiorari is the appropriate method for a district court to review a cost determination entered after a voluntary dismissal have followed our language in Chatlos. See O.A.G. Corp.,707 So.2d at 786; Barry A. Cohen, P.A., 595 So.2d at 1077. Thus, cases following Chatlos have found that the district courts do not have jurisdiction to review such orders by plenary appeal. See O.A.G. Corp.,707 So.2d at 786; Sholkoff v. Boca Raton Community Hospital, Inc., 693 So.2d 1114, 1115 (Fla. 4th DCA 1997). Because the Fifth District certified conflict in this issue, we address the constitutional jurisdiction of the district courts in deciding this matter.

Under the Florida Constitution, district courts have jurisdiction to hear plenary appeals, as a matter of right, only from final judgments and orders of the trial courts. See art. V, § 4(b)(1), Fla. Const. Thus, district courts may only review a cost determination by plenary appeal if that determination is a final judgment or order of the trial court. Therefore, in the instant case, the issue of whether the Fifth District had jurisdiction to review the trial court's order on plenary appeal turns on whether an order determining costs after a voluntary dismissal is final.

A final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary. See Joannou v. Corsini, 543 So.2d 308 (Fla. 4th DCA 1989)

; Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980). Courts that have held that orders merely determining costs, especially when entered after a voluntary dismissal, are nonfinal and nonappealable have done so for three reasons. See Sholkoff, 693 So.2d at 1115; Craft, 162 So.2d at 326. First, such orders are incident to the merits of the case, and, as such, are not final judgments in the sense of final judgments on the merits. See Gray v. Mann, 47 Fla. 162, 37 So. 161 (1904); Hall v. Patterson, 45 Fla. 353, 33 So. 982 (1903). Second, where a voluntary dismissal is granted and the court does not award the defendant costs, if the plaintiff sues the defendant again on the same claim, rule 1.420(d) expressly provides that "the court shall make such order for the payment of the costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order." Fla. R. Civ. P. 1.420(d). See Sholkoff, 693 So.2d at 1115. Third, when a party has previously paid costs after a voluntary dismissal, if that party subsequently prevails in the same action, then such a party may recover at least some of the costs previously paid. See Rose Printing Co. v. Wilson, 602 So.2d 600, 604 (Fla. 1st DCA 1992),

approved, 624 So.2d 257 (Fla.1993); McArthur Dairy, Inc. v. Guillen, 470 So.2d 747, 749 (Fla. 3d DCA 1985).

However, we are not persuaded by any of these reasons. The mere fact that an action for costs and fees is incident to the merits of the original case does not preclude an order on these issues from being a final decision. See Clearwater Federal Savings & Loan Ass'n v. Sampson, 336 So.2d 78, 79 (Fla.1976)

. In Sampson we held that "[w]...