Read v. TaylorRead v. Taylor
Philip Michael Cullen, III, of Philip Michael Cullen, III, Chartered, Fort Lauderdale, for appellants.
Stuart L. Cohen and Scott M. Sarason of Rumberger, Kirk & Caldwell, P.A., Miami, for appellees Kerry Taylor and CBB Consultants, Inc., d/b/a Re/Max Consultants Realty.
SHAHOOD, J.
The seminal issue presented in this case is whether the trial court erred in awarding appellees attorney‘s fees pursuant to
Appellant, Carol Read, and her husband, Kevin Dow, filed a complaint alleging breach of contract and negligence against appellees, Kerry Taylor, CBB Consultants, Inc. d/b/a REMAX Consultants Realty (collectively “REMAX“), and against Geoffrey Sproul and Carol Sproul for intentional inference with prospective economic advantage, breach of a lease agreement, and trespass.1 Appellants alleged that Read contacted REMAX regarding the purchase of a parcel of real property listed with REMAX. Read was given a Notice of Nonrepresentation, which she signed and which stated as follows:
You are hereby notified that REMAX CONSULTANTS REALTY and I [Taylor] do not represent you in any capacity. You should not assume that any real estate broker or salesperson represents you unless you agree to engage a real estate licensee in an authorized brokerage relationship, either as a single agent or as a transaction broker. You are advised not to disclose any information you want to be held in confidence until you make a decision on representation.
In addition, Read signed a Brokerage Relationship Disclosure notifying Read that Taylor, as a transaction broker, provides only a limited form of representation. The disclosure provided limited confidentiality, including preventing the disclosure of “any other information requested by a party to remain confidential.”
Read alleged that REMAX offered to represent her as a transaction broker pursuant to which she executed a deposit receipt agreement to purchase the property, which agreement was accepted by REMAX. Read alleged that Taylor, without her permission, disclosed her interest in the property to the Sprouls, causing them to send her a letter demanding to be assigned a one-half interest in the property and threatening to file legal proceedings to prevent her from buying the property.
As to their negligence claim, appellants alleged that REMAX breached their duty to use reasonable care to preserve Read‘s confidences by disclosing information concerning her business dealings to third parties, the Sprouls. This breach effectively prevented Read from purchasing the property.
In a motion to dismiss for failure to state a cause of action, REMAX claimed that the breach of contract claim must fail because the Notice of Nonrepresentation and Brokerage Relationship Disclosure did not create any legal obligations creating a contract and that no consideration was given binding the parties. As to the negligence count, REMAX argued that appellants failed to demonstrate any legal duty on the part of REMAX or causation. The trial court denied dismissal as to count I, breach of contract, but granted dismissal with leave to amend as to count II, negligence.
In their amended complaint, count I remained intact; however, as to count II, negligence, appellants alleged that the Notice of Nonrepresentation and Brokerage Relationship Disclosure authorized REMAX to act as her broker on her behalf and that REMAX owed her a duty of
Again, REMAX moved to dismiss appellant‘s amended complaint. This time the court dismissed the complaint as to both counts, with leave to amend.
Thereafter, appellants filed a second amended complaint, which essentially contained identical claims to those previously dismissed. As to the contract claim, appellants added that Taylor orally offered to assist Read in acquiring the property by representing her as a transaction broker. As to the negligence claim, appellants added that Taylor orally offered to assist her in acquiring the property by representing her as a transaction broker in consideration of Read agreeing to waive certain obligations of loyalty and confidentiality. Read claimed that but for REMAX‘s agreement to abide by the terms and conditions of the Brokerage Relationship Disclosure, she would not have entered into the listing agreement or disclosed any confidential information.
REMAX moved to dismiss the second amended complaint against them with prejudice. REMAX alleged that appellees failed to allege or demonstrate that REMAX entered into a contract with Read. Thus, REMAX argues that her claim was barred by the statute of frauds, that there was no valid consideration necessary to support a binding contract, and that she failed to state a cause of action. Again, with regard to the negligence claim, REMAX argued that appellants failed to state a cause of action by failing to demonstrate any legal duty on the part of REMAX or allege causation sufficient enough to rise to the level of negligence.
The trial court dismissed both counts with prejudice for failure to state a cause of action. No appeal was taken following such dismissal.
Thereafter, REMAX moved for attorney‘s fees and costs pursuant to
The trial court granted REMAX‘s motion for fees pursuant to the revised
(1) Upon the court‘s initiative or motion of any party, the court shall award a reasonable attorney‘s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party‘s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party‘s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts. (2) Paragraph (1)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
As explained by this Court in Forum v. Boca Burger, Inc., 788 So. 2d 1055, 1060 (Fla. 4th DCA 2001), review granted, 817 So. 2d 844 (Fla. 2002), the 1999 revision changed the standards governing fee awards under
Although the revised statute expanded the number of circumstances in which fees should be awarded, courts have made clear that an award of fees may not be appropriate under
“The purpose of
section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney‘s fees awards on losing parties who engage in these activities.” Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 505 (Fla. 1982). Florida favors access to courts and has interpretedsection 57.105 to provide a remedy only where the plaintiff‘s complaint is completely untenable. An award of attorney‘s fees is not appropriate as long as the complaint alleges some justiciable issue. Boyce v. Cluett, 672 So. 2d 858, 861 (Fla. 4th DCA 1996). “[A] party‘s good faith efforts to change existing law does not render an action frivolous.” Carnival Leisure Indus., Ltd., v. Holzman, 660 So. 2d 410, 412 (Fla. 4th DCA 1995). Where a party asserts a good faith attempt to change an existing rule of law, that party is not subject to attorney‘s fees undersection 57.105 . See Jones v. Charles, 518 So. 2d 445 (Fla. 4th DCA 1988).
See also Weatherby Assocs., Inc. v. Ballack, 783 So. 2d 1138, 1142 (Fla. 4th DCA 2001)(“[T]here are two prongs to the analysis under
A transaction broker is a “broker who provides limited representation to a buyer, a seller or both, in a real estate transaction, but does not represent either in a fiduciary capacity or as a single agent.”
The Brokerage Relationship Disclosure provides:
As transaction broker Kerry Taylor/REMAX Consultants and its associates, provides to you a limited form of representation that includes the following duties:
- Dealing honestly and fairly;
- Accounting for all funds;
- Using skill, care, and diligence in the transaction;
- Disclosing all known facts that materially affect the value of the property and are not readily observable to the buyer;
- Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing;
- Limited confidentiality unless waived in writing by a party. This limited confidentiality will prevent disclosure that the seller will accept a price less than the asking or listed price, that the buyer will pay a price greater than the price submitted in a written offer, of the motivation of any party for selling or buying property, that a seller or buyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential.
- Any additional duties that are entered into by this or by separate written agreement.
(emphasis added). See also
As provided in the Disclosure, by virtue of the parties’ agreement to the transaction broker relationship, REMAX did, in fact, owe certain obligations in connection with the real estate transaction to appellants for which REMAX, as a transaction broker, would receive a fee. While not a traditional form of contract, REMAX‘s obligations under the Brokerage Relationship Disclosure were not merely gratuitous. Inasmuch as REMAX agreed to perform certain services and obligations to Read for which it would be entitled to a commission, it logically follows that Read was entitled to expect REMAX to perform its obligations, and, if necessary, to enforce its rights under the Disclosure Agreement in an action for breach of contract.
Similarly, appellants may have had a valid claim for negligence. REMAX‘s duties to Read as transaction broker not only exist by virtue of the written Disclosure, but are codified in
While the propriety of the trial court‘s dismissal of these claims is not before us,
REVERSED.
STEVENSON and HAZOURI, JJ., concur.