JAMES REG. CONST v. HANCOCK ACOUSTICS

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Docket Number

No. 87-1887.

Attorney(S)

J. Marshall Conrad, of Ausley, McMullen, McGehee, Carothers Proctor, Tallahassee, for appellant. Mark S. Levine, Tallahassee, for appellee.

Judges

WENTWORTH, Judge.

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Smart Summary

Factual and Procedural Background

The parties entered into a subcontract agreement whereby the appellee, a subcontractor, was to provide labor and materials for the construction of a nursing home. After completion, the appellee filed suit against the appellant, the general contractor, seeking payment for labor and materials furnished under the contract, along with attorney's fees incurred in bringing the action. The appellant denied entitlement to the full amount and to any attorney's fees. At trial, a written subcontract was introduced but was unsigned by both parties due to appellee's disagreement with certain provisions. The trial court found that the parties acted as if the contract was in effect and applied its terms. The court awarded damages and attorney's fees to appellee. The appellant moved for rehearing, arguing that the contract only allowed the general contractor to recover attorney's fees, but the motion was denied. The appellant then appealed the attorney's fee award.

Legal Issues Presented

Whether the trial court erred in awarding attorney's fees to the appellee subcontractor when the contract expressly provided that attorney's fees incurred in enforcement of the contract are recoverable only by the general contractor.

Arguments of the Parties

Appellant's Arguments

The contract provision regarding attorney's fees limits recovery to the general contractor only.
The trial court's award of attorney's fees to the appellee subcontractor was contrary to law and unsupported by the contract.

Appellee's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
All-Dixie Insurance Agency, Inc. v. W.J. Moffatt, 212 So.2d 347 (Fla. 3d DCA 1968)	Attorney's fees are not recoverable as damages absent contractual or statutory authority.	Confirmed that no statutory authority applied and attorney's fees must be contractually authorized.
Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983)	Contractual provisions for attorney's fees must be strictly construed.	Applied strict construction to the attorney's fees clause, supporting reversal of the fee award.
Edward L. Nezelek, Inc. v. G.E. Drywall, Inc., 406 So.2d 1220 (Fla. 4th DCA 1981)	Parties may be bound by contract terms even if unsigned, absent statutory or intentional requirements.	Supported the trial court's finding that parties acted under the contract despite lack of signatures.
11 Fla.Jur.2d Contracts, sec. 79 (1979)	Parties may become bound by contract even without signatures unless statute or intent requires otherwise.	Provided general legal principle supporting binding contractual obligations despite unsigned contract.

Court's Reasoning and Analysis

The court acknowledged that although the subcontract was unsigned, the parties acted as if the contract was in force, which is sufficient to bind them absent statutory or explicit intent to the contrary. The court emphasized that attorney's fees are only recoverable when authorized by contract or statute and found no applicable statute here. The contract provision regarding attorney's fees expressly required the subcontractor to pay all legal costs incurred in enforcement of the subcontract, effectively granting the right to recover fees only to the general contractor. The court applied strict construction to this provision, concluding that the trial court erred in awarding attorney's fees to the appellee subcontractor. Despite the lack of mutuality in the fee clause, the court found no justification to avoid the contract terms the parties had fashioned. Therefore, the attorney's fee award to the appellee was improper under the contract.

Holding and Implications

The court REVERSED the portion of the trial court's order awarding attorney's fees to the appellee subcontractor.

This decision directly affects the parties by removing the appellee's entitlement to attorney's fees under the contract terms. The opinion does not establish new precedent beyond applying established principles of contract interpretation and attorney's fees recovery.

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JAMES REGISTER CONSTRUCTION COMPANY, A FLORIDA CORP., APPELLANT, v. BOBBY HANCOCK ACOUSTICS, INC., A FLORIDA CORP., APPELLEE.

WENTWORTH, Judge.

Appellant seeks review of an order awarding appellee damages and a reasonable attorney's fee in a breach of contract action. Appellant, a general contractor, contends the trial court erred in awarding the appellee subcontractor attorney's fees when the contract upon which the action was brought expressly provides that attorney's fees incurred in the enforcement of the contract are recoverable only by the general contractor. We find the fee award was improper under the terms of the contract, and therefore reverse.

The parties entered into an agreement by which appellee was to provide labor and materials in the construction of a nursing home. Following completion of construction appellee filed a complaint against appellant, alleging that it was due payment for labor and materials furnished pursuant to the construction contract. Appellee also sought attorney's fees incurred by it in bringing the action. Appellant answered, denying that appellee was entitled to the full amount alleged or to an award of attorney's fees.

At trial, a written subcontract between the parties was presented in evidence. The subcontract was not signed by either party. Testimony indicated that appellee had refused to sign the contract because of disagreement with certain provisions. The court, upon review of correspondence between the parties, determined that in the course of construction both had acted as if they were operating under contract, and concluded that the terms of the contract would apply. In an amended final judgment, the trial court awarded appellee a portion of the general damages sought and a reasonable attorney's fee. Appellant filed a motion for rehearing, arguing that the fee award was contrary to law and the evidence in that the contract provided that only the general contractor was entitled to recover attorney's fees in the enforcement of the contract. The trial court denied the motion for rehearing.

The contract provision regarding attorney's fees stated:

This subcontractor agrees to pay all legal costs, including but not limited to reasonable attorney's fees, incurred in the enforcement of this subcontract.

Record evidence supports the trial court's finding that the parties acted as if the provisions of the contract were in force. "Except where a signed contract is required by statute, or where the parties intend that the contract shall not be binding until it is signed, parties may become bound by contract even though they do not sign it." 11 Fla.Jur.2d Contracts, sec. 79 (1979). Attorney's fees are not recoverable as damages in the absence of contractual or statutory liability. All-Dixie Insurance Agency, Inc. v. W.J. Moffatt, 212 So.2d 347 (Fla. 3d DCA 1968). No statutory authority applies to this case, and the contractual clause providing for attorney's fees is to be strictly construed. Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983). While the contract provision does lack mutuality, we find no ground for avoiding the terms of the contract which the parties fashioned for themselves. See Edward L. Nezelek, Inc. v. G.E. Drywall, Inc., 406 So.2d 1220 (Fla. 4th DCA 1981). The fee award to appellee was therefore improper under the terms of the contract.

The provision of the order for such fees is reversed.

ERVIN and ZEHMER, JJ., concur.