Opinion
Civ. 4443.
February 27, 1985.
Appeal from the Circuit Court, Franklin County, John D. Jolly, J.
Larry C. Odom, Red Bay, for appellants.
This is an appeal from denial of attorney's fee in an action on a contract.
Fikes and Page contracted to buy the stock of Redmont Broadcasting Corporation from Keller and Butler. The contract provided that the sellers would be responsible for, hold harmless, and indemnify the buyers from all claims and indebtedness incurred prior to the closing date, including reasonable attorney's fee incurred by buyers as result of sellers' default.
Associated Press filed an action against Piedmont Broadcasting Corporation eleven days prior to the closing date, which was not revealed to the buyers and which resulted in a default judgment against Piedmont Broadcasting Corporation in the sum of $4,902.45.
The buyers sued sellers for breach of contract and received judgment against sellers in the sum of $4,902.45. The trial court did not award buyers an attorney's fee. This is cited as error.
"As a general rule, when a party to a contract has been adjudicated as being in default, provisions in a contract providing for the payment of reasonable attorney's fees will be upheld." King v. Calvert Marsh Coal Co., 362 So.2d 889 (Ala. 1978).
In this case the sellers contracted to pay all judgments, costs, and expenses, including a reasonable attorney's fee incurred by the buyers as a result of sellers' breach. The trial court found the sellers to have breached the contract. "[D]amages for the breach of a contract should restore the injured party to the condition he would have occupied if the contract had been fully performed." Kennedy v. Hudson, 224 Ala. 17, 138 So. 282 (1932). Failure to award buyers a reasonable attorney's fee, in this case, was error.
The record reveals that a reasonable attorney's fee for trial of the case is the sum of $735.36, and for this appeal $200, for a total fee of $935.36. Therefore, the judgment in this case is reversed and the cause remanded to the circuit court with instructions to enter a judgment in favor of plaintiffs in the sum of $5,837.81 plus all costs.
The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as a judge of this court under the provisions of section 12-18-10 (e), Code 1975, and this opinion is hereby adopted as that of the court.
REVERSED AND REMANDED WITH INSTRUCTIONS.
WRIGHT, P.J., and BRADLEY, J., concur.
HOLMES, J., concurs specially.
I concur generally with the result reached by the majority.
The general rule is that attorney's fees are recoverable only when authorized by statute, provided in a contract, or in an equitable proceeding when efforts of an attorney create a fund out of which fees may be paid. Peseau v. Civil Service Board of Tuscaloosa County, 401 So.2d 79 (Ala.Civ.App. 1981). See also Ex Parte Handley, 460 So.2d 167 (Ala. 1984).
In this instance, by the wording of the contract, it is clear that the seller is obligated to bear the cost of a reasonable attorney's fee as a result of the seller's breach. The instant fee provision, in fact, is in the nature of an indemnification clause and by its terms also provided for the cost of all proceedings that were caused by the breach. Therefore, in view of the language of the contract, an award of a reasonable attorney's fee for the cost of the trial and the appeal appears to be mandated.
However, I should not be understood as concluding that in all appropriate "contract cases" an attorney's fee must be awarded at trial or on appeal. It might well be that the award of an attorney's fee as well as the amount of the fee would fall within the discretionary power of the trial court and/or this court.
Furthermore, I would remand this case to the trial court for the determination of a reasonable attorney's fee rather than this court determining the specific amount of such fee.