Wednesday, June 6, 2012

3d DCA Watch -- The Longest Day.

We've given our share of well-deserved salutes to those who sacrificed on this fateful day, but it occurs to me something else very significant happened  -- "was the dark of moon on the Sixth of June":

True, probably not as significant in the long run.

Ok let's get to it, this cold bitter brew won't swill itself:

Arthur Tifford and client have disagreement, lawsuit ensues:
We affirm, holding that the trial court properly entered final summary judgment in favor of appellees on appellants’ claims for breach of contract and fraudulent inducement. See Faro v. Romani, 641 So. 2d 69, 71 (Fla. 1994) (holding “when an attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.”).
We likewise affirm the trial court’s orders denying each party’s motion for sanctions pursuant to section 57.105, Florida Statutes (2010), finding no abuse of discretion in the trial court’s determinations.
Hmm, sounds like that was fun.

Tylinski v. Beach Honda:

This is a bummer, I guess you better seek fees pursuant to the right contract with your car dealer:
Beach Honda argues that the Tylinskis are not entitled to attorney’s fees because the document sued upon and attached to the Complaint, the Retail Order Contract, does not contain a provision for attorney’s fees.3 The financial contract is contained in the RISC, and that contract does contain an attorney’s fee provision,4 but that is not the document upon which Beach Honda sued. Beach Honda sued only for breach of the ROC. The RISC was not admitted as an exhibit at trial. The Tylinskis’ Answer to the Complaint clearly asserts a claim for 57.105(7) fees,5 but it was based on the ROC, which does not contain an attorney’s fee provision. See Stockman v. Downs, 573 So. 2d 835, 838 (Fla. 1991) (“[A] party seeking attorney’s fees pursuant to statute or contract must plead
entitlement to such fees.”). The Tylinskis prevailed in their defense against the dealership on the dealership’s suit to recover the cash down payment. We understand the Tylinskis’ argument that, but for the financial commitment reflected in the RISC, the dealership would not have allowed them to drive the caroff the lot.6 Nevertheless, the dealership sought recovery under the ROC, not the RISC; there is no contractual avenue for recovering attorney’s fees based on the ROC, and the Tylinskis did not plead any statutory basis for recovering attorney’s fees other than § 57.105(7).

This is a true hold-your-nose opinion, get a load of this footnote:
We agree with our colleague who informed Beach Honda at oral argument that it was very lucky in its procedural posture in the trial court below. We would add that Beach Honda is very lucky that we are, in this case regretfully, bound by our standard of review.
Hey, don't let that stop you now!


Anonymous said...

SFL, what was your handle?

Anonymous said...

Bo Bear?