Opinion
Case No. 96-2604
Opinion filed November 26, 1997. Rehearing Denied January 7, 1998
An appeal of a non-final order from the Circuit Court of Dade County, Robert P. Kaye, Judge.
Walter M. Dingwall (Ft. Lauderdale), for appellant/cross appellee.
Caldwell Carroll; Deutsch Blumberg and James C. Blecke, for appellee/cross appellant.
Before SCHWARTZ, C.J. and COPE and FLETCHER, JJ.
In order to conclude litigation between them, appellant/cross appellee Toyota Motor Credit Corporation [Toyota] and appellee/cross appellant Dollar Enterprises, Inc. d/b/a Dade Towing and Recovery [Dade Towing] entered into a settlement agreement (in the form of two letters) under which Toyota agreed to pay Dade Towing $5,500.00, and "[t]axable costs and reasonable attorneys' fees to be determined by the court at a post settlement hearing." After paying the $5,500.00, Toyota opposed Dade Towing's demand for attorneys' fees, contending that the settlement agreement authorized an award of attorneys' fees only if the trial court first found statutory entitlement to such fees under Dade Towing's cause of action against Toyota. Dade Towing countered that the agreement unambiguously provided for the payment of attorneys' fees and, thus, the trial court's only responsibility was to determine the "reasonable" amount thereof. The trial court rejected Toyota's position, heard evidence on the amount of fees requested, and then awarded Dade Towing $5,600.00 in attorneys' fees. Toyota appeals the attorneys' fee award and Dade Towing cross appeals the amount of the award. We affirm on both the appeal and the cross appeal.
An award of attorneys' fees requires a finding of entitlement (whether statutory or otherwise) and a determination of a reasonable amount to be paid to the entitled party. An agreement for the payment of attorneys' fees is a sufficient entitlement thereto if it unambiguously states that intention and clearly identifies the matter in which the fees are recoverable. Sholkoff v. Boca Raton Community Hosp., Inc., 693 So.2d 1114 (Fla. 4th DCA 1997). Here, the agreement called for Toyota to pay as damages the sum of $5,500.00 as a "portion of its obligation under the settlement contract." Toyota's other obligations included "reasonable attorneys' fees" which were to be determined by the court.
The Fourth District also concluded that if an attorneys' fee agreement is ambiguous it is per se unenforceable and no attempt is to be made to look beyond the contract for the parties' intentions. Sholkoff, 693 So.2d at 1118. We do not reach that issue.
As we discern Toyota's argument, it contends that the words "reasonable attorneys' fees" are to be construed to mean a fee which is fair in amount, and to which the receiving party is (reasonably) entitled. We conclude, however, that in common parlance the words "reasonable attorneys' fee" are used to identify a standard as to amount (fair or not excessive) and do not relate to the question of entitlement, which is primarily based on statute or contract (which may or may not be seen as reasonable by observing non-parties). See Kuhnlein v. Department of Revenue, 662 So.2d 309, 312-13 (Fla. 1995);Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145, 1149-50 (Fla. 1985); Dade County v. Oolite Rock Co., 311 So.2d 699 (Fla. 3d DCA), cert. denied, 330 So.2d 20 (Fla. 1976); see also People v. Johnson, 417 N.E.2d 1062, 1065 (Ill.App.Ct.)("A reasonable fee infers at least some compensation."), aff'd, 429 N.E.2d 497 (Ill. 1981). Thus the issue to be put before the trial court under the plain terms of the parties' agreement was the amount of the "obligation," not whether there was an obligation at all.
Finding that the trial court properly resolved the issue put before it by the parties through the agreement, and concluding that the cross appeal as to the amount of attorneys' fees is without merit, we affirm on both the appeal and the cross appeal.
Affirmed.
COPE, J., concurs.
Toyota Motor Credit Corporation financed and retained a large lien on a vehicle which was towed and stored by the appellee Dollar Enterprises, Inc. After overly long and unnecessarily complicated litigation, the issues between the two boiled down to how much Toyota would pay of the $5,639.70 claimed by Dollar and whether Toyota was responsible for Dollar's attorney's fees. On the latter issue Toyota contended throughout the litigation that it had no such liability. While Dollar adamantly argued to the contrary, the statutory authority upon which it relied below, §§ 78.20, 713.78, Fla. Stat. (1995), seemed obviously not to apply to the situation. Indeed, in a preliminary ruling on the attorney fee contention, the trial judge specifically struck from an order proposed by Dollar a ruling that Toyota owed Dollar the fees. Prior to trial, Dollar proposed and Toyota's counsel unwarily accepted, a settlement for $5,500.00 plus
costs and reasonable attorneys' fees to be determined by the court at a post-settlement hearing.
In concluding that this provision irreparably bound Toyota to pay fees in whatever amount they were assessed — $13,000 was claimed and $5,600.00 awarded — the trial court and this one have held that Toyota voluntarily agreed to give up its claim that no such fees were awardable at all and acceded to Dollar's contrary position — for which there is to this day no known supporting authority — all in order to save $139.70 on Dollar's primary claim. This result is such an absurd travesty of the realities of the situation that its endorsement simply boggles the — or, at least, my — mind.
Even in this court, Dollar makes the patently lame claim that fees were somehow awardable under section 57.105, Florida Statutes (1995) — a position which it, for good reason, did not advance at any stage below.
It seems obvious to me that either
(a) in the factual context in which they were used, the words "reasonable attorneys' fees to be determined by the court" are at least ambiguous so that parol evidence should have been admitted to demonstrate that the parties actually meant what fairness requires — that the court would decide both entitlement and amount, see 11 Fla.Jur.2d Contracts §§ 148-49, 157 (1997); or
(b) if the majority is correct that, considering the words totally out of context, they may only be read to concede what Toyota had no intention of agreeing to, that its lawyer simply made a mistake in approving it. Unlike the majority of the states, Florida long ago established the salutary principle that, in the interests of justice, a contracting party may and should be relieved of her own, even unilateral error so long as the other side has not detrimentally changed its position in reliance on the mistake and it was not the result of an "inexcusable lack of due care." See Maryland Cas. Co. v. Krasnek, 174 So.2d 541, 543 (Fla. 1965), and cases cited (insurer relieved of mistaken settlement made although coverage had expired); Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Anderson, 445 So.2d 612, 613 (Fla. 3d DCA 1984) (insurer relieved of mistaken settlement based on appraisal of wrong car), pet. for review denied, 453 So.2d 43 (Fla. 1984). That principle applies directly here. Toyota, or rather, Toyota's attorney (a) labored under an understandable if naive assumption that the courts would view the situation with a modicum of common sense (b) which hurt no one — except his own client after Dollar, aided by those very courts, pounced upon him.
The majority discusses none of this. Apparently hypnotized by the dictionary meaning of the words as expressed in prior cases, it perceives itself as powerless even to consider that the ultimate result is patently unjust, much less to avoid it. Florida's version of the parol evidence rule and its adoption of the unilateral mistake doctrine show that this is not the case. As prior decisions of this very court — more, perhaps, than those of any other — demonstrate, it is not necessary to sacrifice justice on the altar of the supposed law. Hernandez v. Cacciamani Dev. Co., ___ So.2d ___ (Fla. 3d DCA Case no. 97-1027, opinion filed, September 10, 1997)[22 FLW D2148]. Compare the majority and dissenting opinions in Pennsylvania Nat'l, 445 So.2d at 612 with those in BMW of N. Am., Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985), review denied, 484 So.2d 7 (Fla. 1986) and Doctor v. State, 677 So.2d 1372 (Fla. 3d DCA 1996), approved, ___ So.2d ___ (Fla. Case no. 88,954, opinion filed, September 11, 1997)[22 FLW S561] with Wilson v. State, 668 So.2d 998 (Fla. 4th DCA 1995), quashed, 686 So.2d 569 (Fla. 1996). To say the least, I very much regret the majority's regression into the darkness of mindless legalism.