Leitman v. Boone, 82-1517

• Decision Date: 18 October 1983
• Docket Number: No. 82-1517,82-1517
• Citation: 439 So.2d 318
• Parties: Lorn LEITMAN and John Gentile, Appellants, v. Richard BOONE and Donna Boone, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 318

439 So.2d 318

Lorn LEITMAN and John Gentile, Appellants, v. Richard BOONE and Donna Boone, his wife, Appellees.

No. 82-1517.

District Court of Appeal of Florida,

Third District.

Oct. 18, 1983.

Kramer & Golden and Richard A. Golden, Miami, for appellants.

No appearance for appellees.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

Appellants, the plaintiffs below, brought an action for specific performance of a "contract" for the sale of real estate. After a non-jury trial, the trial court denied the plaintiffs relief, finding that the defendants, the putative sellers, had not accepted the plaintiffs' offer to purchase in the manner contemplated by the parties, that is, by executing the deposit receipt form, and thus, no contract to sell the subject real estate existed. See, e.g., Mehler v. Huston, 57 So.2d 836 (Fla.1952). Thereafter, the trial court awarded attorneys' fees to the defendants based on a provision in the deposit receipt form which stated that "[i]n connection with any litigation arising out of this contract, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorneys' fees." (emphasis supplied). The plaintiffs appeal solely from the award of attorneys' fees. We reverse.

It is well established that attorneys' fees may not be awarded unless authorized by a contract or, not pertinent here, a statute, or for services performed by an attorney in creating or bringing into the court a fund or other property. See Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976); Kittel v. Kittel, 210 So.2d 1 (Fla.1968); Codomo v. Emanuel, 91 So.2d 653 (Fla.1956); Rader v. Recarey, 352 So.2d 550 (Fla. 3d DCA 1977). See also Rivera v. Deauville Hotel, 277 So.2d 265 (Fla.1973); Stone v. Jeffres, 208 So.2d 827 (Fla.1968). In the present case, the defendants' entitlement to fees rested solely on a "contract" which the trial court found was never formed. Since there is no basis to conclude that the attorneys' fee provision was a separable mini-contract enforceable in and of itself, the trial court's finding that no contract was ever formed means that no legal obligations whatsoever were created between the parties, see Brickell Townhouse, Inc. v. Hirschfield, 404 So.2d 153 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 466 (Fla.1982); accord, Seafarers' Welfare Plan v. George E. Light Boat Storage, Inc., 402 S.W.2d 231 (Tex.Civ.App.1966); Ellis v. Williams, 312 S.W.2d 97 (Mo.1958); 1 S. Williston, W. Jaeger, Williston on Contracts § 15 (3d ed. 1957), and that an award of attorneys' fees is precluded.

We now address the dissent.

We have not for one moment suggested that the piece of paper in question (the deposit receipt) never existed, had its molecules miraculously rearranged, suddenly disappeared, was physically obliterated, or mysteriously evaporated. What we have said is that a piece of paper which, as here, was found to be a mere offer is not a contract.

" 'A mere offer not assented to constitutes no contract, for there must be not only a proposal, but an acceptance thereof. So long as a proposal is not acceded to, it is binding upon neither party, and may be retracted.' "

Etheredge v. Barkley, 25 Fla. 814, 817, 6 So. 861, 862 (1889) (quoting Story, J., 1 Story, Contracts § 490).

See also Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539 (1947); Webster Lumber Co. v. Lincoln, 94 Fla. 1097, 115 So. 498 (1927).

The trial court's finding in the present case was that the offer made by the plaintiffs was not accepted, that is, no contract was ever formed. ¹ It was not, as it might have been, that an agreement had been formed, but such agreement was not enforceable because the statute of frauds had not been satisfied. The trial court's finding is one of fact.

"When there is evidence from which it can be concluded that the parties intended to execute a written contract but never did so, it becomes a question of fact to determine whether the parties had agreed to an oral contract or whether there was to be no contract until the written contract was executed. Thus it is a question of the intent of the party whether the contemplation of the execution of a written contract was merely to memorialize a prior oral contract or whether it was intended that there should not be any binding contract until the written contract was executed. In resolving that question of fact, the absence of writing that would satisfy the statute of frauds may have some evidentiary value as indicating that there was no intent to be bound by a contract prior to the execution of a written contract."

2 R. Anderson, Uniform Commercial Code § 2-201:18 (3d ed. 1982) (footnote omitted).

Thus, as in the present case,

"[T]he purported contract on which this bill of complaint was founded was in fact no contract at all because the instrument had not been signed.

....

"If ... a party neither had nor signified ... an intention to close the contract until it was fully expressed in a written instrument and attested by signatures, then he will not be bound until the signatures are affixed ...."

Rork v. Las Olas Co., 156 Fla. 510, 518-19, 23 So.2d 839, 843 (1945) (emphasis supplied).

Because the trial court found that there was to be no contract until the written contract was executed, and that finding is supported by substantial competent evidence, we are not free to cavalierly disregard the trial court's finding by saying that the deposit receipt was intended to be a mere memorialization of a prior agreement.

The distinction between no contract at all and a contract that is unenforceable ² makes all the difference here. One simply cannot be entitled to fees "arising out of this contract" when no contract ever existed; one may arguably be entitled to fees "arising out of this contract" where a contract exists, but its enforcement is prevented, as, for example, by the statute of frauds. ³

"A contract where the parties have not complied with the requirements of the statute is neither void nor voidable; it has much effect upon the legal relations of the contracting parties with each other and with third persons. It can be properly described as unenforceable, however, inasmuch as the ordinary legal remedies are unavailable. If the defense of the statute is properly made, a judgment for damages for breach of the contract cannot be obtained; and neither can a decree for specific performance unless there has been fraud, mistake, or substantial part performance or action in reliance on the contract. It has been held that a statutory criminal process, provided for the enforcement of certain types of contracts, is not available; and the contract cannot be indirectly enforced by the use of tort remedies by alleging that refusal to perform the contract or to execute a sufficient memorandum is tortious, or by suing the seller of goods in trover because he has repudiated the oral contract and sold the goods to a third person.

"In the foregoing ways the statute may make a contract 'invalid'; but there are many other ways in which the 'validity' of the contract is recognized."

2 A. Corbin, Corbin on Contracts § 279 at 20-21 (1950) (footnotes omitted).

See also Golden v. Golden, 273 Or. 506, 541 P.2d 1397 (1975) (statute of frauds not operative to prevent evidence of the oral contract being used to obtain relief other than enforcement of contract, e.g., action by buyer to recover downpayment on oral contract for sale of land); Daugherty v. Kessler, 264 Md. 281, 286 A.2d 95 (1972) (although oral agreement of lease unenforceable between parties because of non-compliance with statute of frauds, claim that third party interfered with agreement by inducing lessee to break lease sustainable).

Next, we do not agree that Brown v. Gardens by The Sea South Condominium Association, 424 So.2d 181 (Fla. 4th DCA 1983), and Rustic Village, Inc. v. Friedman, 417 So.2d 305 (Fla. 3d DCA 1982), are closely analogous or even apposite to the present case. These cases involved actions brought under Florida's Deceptive and Unfair Trade Practices Act, Section 501.201, et seq., Fla.Stat. (1981). In each the court's holding was that where a plaintiff unsuccessfully brings a claim under the Act, the defendant, as the prevailing party, is to be awarded the statutorily authorized attorneys' fees, notwithstanding that the plaintiff's cause of action is found to be one not covered by the statute.

We have no quarrel with such a holding. The holding, however, represents no more than a judicial construction of a statute and a determination that the Legislature intended that the prevailing party in a consumer protection suit be entitled to attorneys' fees without regard to the basis upon which the party prevails. Thus, by invoking an existing and valid statute which calls for an award of attorneys' fees, one may subject himself to having attorneys' fees assessed against him if he does not prevail. But surely it does not follow that when one unsuccessfully invokes a non-existent contract which calls for an award of attorneys' fees, that attorneys' fees may be awarded against him. Thus, the propriety of the attorneys' fees award in Brown and Rustic Village, Inc. flows from the existence of a valid statute, while the impropriety of the attorneys' fees award here is a consequence of the non-existence of a contract.

Care Construction, Inc. v. Century Convalescent Centers, Inc., 54 Cal.App.3d 701, 126 Cal.Rptr. 761 (1976), relied on in the dissent, sheds light on this distinction. There, even though no binding contract between the parties was found to exist, the prevailing party was said to be entitled to attorneys' fees because--and only because--a California statute was construed to provide for such fees. The statute in question, California Civil Code § 1717, provided:

"In any action on a contract, where such contract specifically provides that attorney's fees costs, which are incurred to...