Opinion
No. 4D01-1618.
November 21, 2001.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Timothy P. McCarthy, J.
Robert Zarco, Robert M. Einhorn, and Hamanshu M. Patel of Zarco Pardo, P.A., Miami, for appellant.
Michael W. Simon of Simon Sigalos Spyredes, P.A., Boca Raton, for appellees.
Appellant prevailed in an arbitration proceeding involving a dispute over a franchise agreement and moved for attorney's fees pursuant to a contractual provision. The trial court denied the motion, determining that appellant had not prevailed on its contract claims but only on a claim of negligent misrepresentation. Appellant relies on Kelly v. Tworoger, 705 So.2d 670 (Fla. 4th DCA 1998), in advocating reversal of the order. Kelly, however, is distinguishable. In Kelly, we suggested that a contractual attorney's fee provision should include recovery for litigation involving a misrepresentation inducing a contract. See id. at 672-73. The provision in that case permitted the recovery of attorney's fees "[i]n connection with any arbitration or litigation arising out of this Contract." Id. at 671 (emphasis added). In contrast, the attorney's fee provision in the instant case provided for attorney's fees where the franchisor was required to retain legal counsel "to enforce the provisions of this Agreement." As such, the entitlement to attorney's fees is much narrower than in Kelly, and Kelly is inapposite. The claims upon which appellant recovered did not involve the enforcement of the agreement.
Affirmed.
GUNTHER and GROSS, JJ., concur.