Kay v. Katzen

• Decision Date: 02 October 1990
• Docket Number: 89-2438,Nos. 89-251,s. 89-251
• Citation: Kay v. Katzen, 568 So.2d 960 (Fla. App. 1990)
• Parties: 15 Fla. L. Weekly D2443 Howard I. KAY, Appellant, v. Jerry B. KATZEN, H. Stephen Rash, Rash & Katzen, P.A. and Rash, Katzen, Kay & Pintado, P.A., Appellees.
• Court: Florida District Court of Appeals

Page 960

568 So.2d 960

15 Fla. L. Weekly D2443

Howard I. KAY, Appellant, v.Jerry B. KATZEN, H. Stephen Rash, Rash & Katzen, P.A. and Rash, Katzen, Kay & Pintado, P.A., Appellees.

Nos. 89-251, 89-2438.

District Court of Appeal of Florida Third District.

Oct. 2, 1990.

Rehearing Denied Nov. 20, 1990.

Stanley Jay Bartel, Miami, for appellant.

Gilbride, Heller & Brown and Lawrence Heller, Miami, and Linda H. Gottlieb, Coral Gables, for appellees.

Before HUBBART, NESBITT and BASKIN, JJ.

PER CURIAM.

This is an appeal by the plaintiffHoward I. Kay from an adverse final judgment entered upon directed verdict after the jury had returned a verdict in his favor in an action for breach of an oral agreement to share profits from a law firm against the defendantsJerry B. Katzen, H. Stephen Rash, and Rash, Katzen, Kay & Pintado P.A.; this is also an appeal by the plaintiff from a subsequent adverse cost judgment entered in favor of the above defendants.We affirm in part and reverse in part.

First, the trial court properly entered a directed verdict for the defendants on the breach of contract action; plainly, the oral agreement sued upon was barred by the statute of frauds.§ 725.01,Fla.Stat.(1987).Contrary to the plaintiff's argument, (1) the subject oral agreement could not be performed within one year of its making, (2) there were no writings evidencing that the plaintiff was entitled to a profit distribution from the professional association, and (3) there was no partial performance on the part of the plaintiff to take the case out of the statute of frauds.Byam v. Klopcich, 454 So.2d 720(Fla. 4th DCA1984);Lane, Gelety, Woolsey & Centrone, P.A. v. Woolsey, 377 So.2d 743(Fla. 4th DCA1979), cert. denied, 388 So.2d 1120(Fla.1980);First Realty Invest. Corp. v. Gallaher, 345 So.2d 1088(Fla. 3d DCA1977), cert. denied, 359 So.2d 1214(Fla.1978).

Second, the trial court properly entered a summary judgment on the plaintiff's action for conversion, civil theft, and punitive damages.The claim sued upon was clearly a contractual claim, not a tort claim, and accordingly the actions for conversion, civil theft, and punitive damages did not lie.AFM Corp. v. Southern Bell Tel. & Tel. Co., 515 So.2d 180(Fla.1987);Lewis v. Guthartz, 428 So.2d 222(Fla.1982);Rosen v. Marlin, 486 So.2d 623(Fla. 3d DCA), rev. denied, 494 So.2d 1151(Fla.1986);Waltman v. Prime Motor Inns, Inc., 446 So.2d 185(Fla. 3d DCA1984), approved in part, quashed in part, 480 So.2d 88(Fla.1985);Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229(Fla. 3d DCA1981), dismissed, 415 So.2d 1359(Fla.1982).

Third, there is no merit to plaintiff's chief attack on the cost judgment.Assuming without deciding that Fla.R.Civ.P. 1.442(1989 version) is inapplicable to this case, as urged by the plaintiff, because the subject rule does not allow costs for a defendant who, as here, is the prevailing party, seeDelta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287(1981), plainly the defendants in the instant case were entitled to all their "legal costs and charges" under Section 57.041, Florida Statutes(1989), because they were the prevailing parties below; indeed, the trial court had no discretion to deny the defendants such costs.Oriental Imports, Inc. v. Alilin, 559 So.2d 442, 443(Fla. 5th DCA1990).This being so, we reject the plaintiff's primary contention that the defendants were entitled to no costs whatever in this action.Upon the defendants' concession, however, that not all the items of cost assessed below were proper taxable costs, we reverse the cost judgment under review and remand the cause to the trial court to assess taxable costs only.SeeReeser v. Boats Unlimited, Inc., 432 So.2d 1346, 1349 n. 2(Fla. 4th DCA1983)(quoting October 28, 1981Florida Supreme Court Administrative Order: In re Statewide Uniform Guidelines For Taxation of Costs in Civil Actions ).¹

Affirmed in part; reversed in part and remanded.

1In this connection, we reject the contention that the defendants were...