Opinion
No. 91-3495.
July 8, 1992. Rehearing and Rehearing En Banc Denied September 4, 1992.
Appeal from the Circuit Court, Broward County, Miette K. Burnstein, J.
Richard W. Epstein of Greenspoon, Marder, Hirschfeld Rafkin, P.A., Fort Lauderdale, for appellants.
Neil G. Frank of Frank, Effman Weinberg, P.A., Plantation, for appellee.
AFFIRMED. We agree with the trial court that the attorney's fee provision in the parties' agreement for purchase and sale of a business was a proper predicate for the award of fees in a subsequent dispute over compliance with a separately executed covenant not to compete provided for in the agreement. Although separately executed by the seller, the covenant not to compete, and certain terms thereof, was provided for in the agreement. The agreement, and the mutual promises provided for therein, was the legal predicate for the execution of the covenant by the seller and for enforcement of the covenant. Accordingly, the provision for fees in the agreement was a sufficient legal basis upon which to recover fees in an action to enforce the covenant. Cf. Durden v. Century 21 Compass Points, Inc., 541 So.2d 1264 (Fla. 5th DCA), rev. denied, Lepeska v. Durden, 548 So.2d 663 (Fla. 1989).
ANSTEAD and HERSEY, JJ., concur.
STONE, J., dissents with opinion.
In my judgment the trial court erred in concluding that appellees were entitled to attorney's fees.