Loxahatchee River Environmental Control Dist. v. Guy Villa & Sons, Inc., s. 77-1061 and 78-1036

• Decision Date: 08 November 1978
• Docket Number: Nos. 77-1061 and 78-1036,s. 77-1061 and 78-1036
• Parties: LOXAHATCHEE RIVER ENVIRONMENTAL CONTROL DISTRICT, Appellant, v. GUY VILLA & SONS, INC., a Foreign Corporation authorized to do business in Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 111

371 So.2d 111

LOXAHATCHEE RIVER ENVIRONMENTAL CONTROL DISTRICT, Appellant, v. GUY VILLA & SONS, INC., a Foreign Corporation authorized to do business in Florida, et al., Appellees.

Nos. 77-1061 and 78-1036.

District Court of Appeal of Florida, Fourth District.

Nov. 8, 1978.

Supplemental Opinion Feb. 28, 1979.

William C. Owen, Jr. of Cone, Owen, Wagner, Nugent, Johnson & McCeown, Tequesta, for appellant.

Richard K. Rosenberg, Hawthorn, N. J., and John P. Fitzgerald of Ryan, Ryan & Fitzgerald, North Palm Beach, for appellees.

DOWNEY, Chief Judge.

As a result of a contract between appellant and appellee for the construction of various waste water sewage facilities, differences arose and the parties agreed to submit some of those differences to arbitration pursuant to Chapter 682, Florida Statutes (1975).

At the close of the hearings the arbitrators called for a submission of all costs incurred by the parties, including attorney's fees. Both parties submitted their costs and claims for attorney's fees and the ultimate award made by the arbitrators included an award of $18,500 attorney's fees for appellee. Immediately after receiving a copy of the award appellant moved to vacate or correct the award by elimination of While the aforementioned appeal was pending, appellee moved the lower court for an order directing issuance of a writ of execution on that portion of the judgment "from which no appeal was perfected." ¹ This motion was granted and the trial court directed the Clerk to issue an execution for $202,458.00, together with interest from May 6, 1977. ² An interlocutory appeal was perfected to review that order.

the provision for attorney's fees. That motion was unsuccessful and the circuit court eventually entered a judgment confirming the award and this plenary appeal ensued.

Adverting now to the plenary appeal, the construction contracts between the parties contain no provision for attorney's fees which would control the questions presented here. However, the parties did enter into a stipulation which provided that "the arbitrators are further empowered to award such other costs and fees as is provided under the contract between the parties." Article 40 of the Contract, providing for arbitration, included a provision that "(i)f they deem the case demands it, the arbitrators are authorized to award to the party whose contention is sustained any sums they shall consider proper for the time, expense and trouble incident to the arbitration."

Appellant contends that the judgment of confirmation should be reversed because the arbitrators had no power even by stipulation to adjudicate entitlement to or amount of attorney's fees. On the other hand, appellees argue that, even if the arbitrators did not have the authority to determine attorney's fees in the first instance, if the parties stipulate that a fee be awarded by the arbitrators, they may do so.

Appellant relies heavily upon the case of Tassinari v. Loyer, 189 So.2d 651 (Fla. 2nd DCA 1966). There the parties to a law suit, after the case was at issue, agreed to submission of " 'the matters in dispute as set forth in plaintiff's amended complaint and defendant's answer and counterclaim there(to) be arbitrated under the provisions of the Florida Arbitration Code . . . '." One of the issues raised by the pleadings was the question of attorney's fees; however, the arbitrator denied the plaintiff an award of attorney's fees. On appeal from the judgment confirming the award, the court held:

"As to attorney fees, while it is true that the right to attorney fees was one of the disputed subjects as evidenced by the pleadings and that all the matters in dispute were submitted to arbitration, nevertheless, the arbitrator could not decide matters outside of his authority. The matters were submitted to him in accordance with the Florida Arbitration Code and said code includes Fla.Stat., Sec. 57.20, F.S.A. from which his authority to award costs and expenses derives." 189 So.2d at 653.

In making it clear that attorney's fees were not to be the subject of arbitrator's consideration the court stated further:

"There is no statutory authorization for attorney fees in arbitration proceedings. The only way that they might be recovered would be by agreement of the parties. Hence, the purpose for including this phrase 'not including counsel fees (in Section 57.20, now Section 682.11, Florida Statutes (1975)) is to modify and explain 'expenses,' the word immediately preceding the subject phrase, so as to be certain that counsel fees (when awardable) remain outside of the perimeter of the arbitrator's view." 189 So.2d at 653.

The foregoing quote indicates that the parties to an arbitration proceeding can agree to an award of attorney's fees by contract, but even then the award is made not by the In Kingswood Management Corporation v. Salzman, 272 App.Div. 328, 70 N.Y.S.2d 692 (1947), the court considered an award of attorney's fees which had been submitted by agreement to arbitration. The main dispute involved treble damages between tenant and landlord under the federal Emergency Price Control Act. The Act authorized treble damages and attorney's fees to a tenant for overcharges in rent. However, the Act specified that the attorney's fees were to be determined "by the court." The Appellate Division pointed out that the Act which created the right to treble damages also provided for the award of attorney's fees and limited that...