County Civil Court: CONTRACTS – due to confusion and inconsistency in final judgments cause must be remanded – there should be one final judgment – Tiger’s Counterclaim sufficiently stated a cause of action to enforce claim on bond and attorney’s fees – Florida Statutes, §§ 559.917(1)(b) and 559.921(1), leaves award of fees in trial court’s discretion  - Final Judgments reversed.  Tiger Enterprises of Tyrone, Inc. v. Teresa Dukes, No. 03-5061AP-88A (Fla. 6th Cir. App. Ct. Feb. 1, 2005). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

TIGER ENTERPRISES OF TYRONE, INC.,

                        Appellant,

 

vs.                                                                                    Appeal No. 03-5061AP-88A

                                                                                        UCN522003AP005061XXXXCV

 

TERESA DUKES,

                        Appellee.

_________________________________________/

 

Appeal from Final Judgments

Pinellas County Court

Judge Karl B. Grube

 

Thomas John Dandar, Esquire

Attorney for Appellant

 

Teresa Dukes, pro se

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Tiger Enterprises of Tyrone, Inc (Tiger), from the Order Denying Defendant/Counter-Plaintiff’s Motion for Rehearing, entered October 9, 2003, the Order Directing Release of Bond to Plaintiff, entered October 2, 2003, the Final Judgment, entered August 29, 2003, in favor of Tiger, and the Final Judgment, entered August 29, 2003, in favor of the Plaintiff/Counterclaim Defendant, Teresa Dukes (Dukes).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses these rulings and remands this action to the trial court as set forth below.

            The record shows that on or about January 8, 2003, Dukes brought her vehicle to Tiger to have a used engine installed.[1]   At some point between January 8th and mid-March 2003, the used engine was installed, but the vehicle still would not run.  Tiger diagnosed the problem as being in the computer.  Dukes did not pay for the labor charges already owed, $661.26, and no other work was completed.  Dukes was advised by Tiger that if she did not pay for the engine installation, Tiger would begin charging Dukes $25.00 per day for storage.  On April 3, 2003, Tiger filed a Claim of Lien, pursuant to Florida Statutes, § 713.585, in the amount of $661.26, plus storage charges commencing March 21, 2003.  On April 9, 2003, Dukes posted a bond with the Clerk of Court in the amount of $1,161.26, and Tiger released her vehicle the following day.

            Also on April 9, 2003, Dukes filed a Statement of Claim seeking the principle sum of $5,000 from Tiger for being “unfair with the price and time of my car repair.”  On May 21, 2003, Tiger filed a Counterclaim seeking to recover labor and storage charges, together with interest, costs and attorney’s fees.  After a non-jury trial on June 16, 2003, the trial court entered, on August 29, 2003, two Final Judgments: one judgment in favor of Tiger for labor charges, $661.26, and attorney’s fees, $2,000.00, and ordered the clerk to disburse the proceeds of the bond to Tiger; and, one judgment in favor of Dukes for storage charges, $342.72.  Thereafter, Dukes filed a Motion to Release Final Judgment.  On Dukes’ motion and the trial court’s own motion to reconsider disbursement of the bond, the trial court, on October 2, 2003, found that Tiger had not sufficiently stated a cause of action to enforce its claim on the bond, relying on Sheltee, Inc. v. Davis, 472 So.2d 831 (Fla. 4th DCA 1985).  The Court amended the Final Judgment in favor of Tiger to delete the award of attorney’s fees and the disbursement of the bond to Tiger and ordered that the bond be disbursed to Dukes.  The trial court denied Tiger’s Motion for Rehearing on this order.

            The Court finds that due to the confusion and inconsistency of the appealed orders, the Final Judgments, the Order Directing Release of Bond to Plaintiff, and the Order Denying Defendant/Counter-Plaintiff’s Motion for Rehearing, must be reversed and this cause remanded for the entry of one Final Judgment.  See e.g. Pointer Oil Company v. Butler Aviation of Miami, Inc., 293 So.2d 389, 390 (Fla. 3d DCA 1974)(stating there should be only one final judgment).  Such inconsistencies include that the Order Directing Release of Bond to Plaintiff provides that Dukes is to receive the entire bond, but does not amend the Final Judgment in her favor to delete an award for storage fees that she never paid to Tiger.  Likewise, this Order apparently leaves intact the Final Judgment in favor of Tiger for labor charges without providing release of the bond to Tiger to recover these charges.      

In remanding this matter, the Court finds that Tiger’s Counterclaim sufficiently states a cause of action to enforce its claim on the bond.  The Counterclaim was filed within 60 days from the posting of the bond, as required by § 559.917(1)(b), sufficiently alleges the bond was posted and that Tiger was seeking recovery for labor and storage charges owed by Dukes.  Additionally, Tiger set forth its entitlement to attorney’s fees pursuant to § 559.917(2)(d) and § 559.921(1).  The Counterclaim attached a copy of the written estimate, the Claim of Lien and the bond; these exhibits were a part of the complaint and support Tiger’s suit to recover on the bond.  See Abele v. Sawyer, 750 So.2d 70, 74 (Fla. 4th DCA 1999)(finding that exhibits are encompassed within the four corners of the complaint and must be considered therewith, citing Fla. R. Civ. P. Rule 1.130(b)).  The Pre-Trial Conference Order, entered May 7, 2003, states that the issue to be determined is “D [defendant] is claiming bond posted by P [plaintiff].”

Therefore, Sheltee, while having some similar facts, is distinguishable and not controlling in this case since the complaint filed by the repair shop in Sheltee did not contain sufficient allegations to state a cause of action to enforce a claim on the bond.  As discussed, the Court finds Tiger’s Counterclaim does state a cause of action to recover on the bond. 

            Accordingly, on remand, the trial court must determine Tiger’s entitlement to labor charges, storage charges, and attorney’s fees and costs.  The disbursement of the bond must reflect the trial court’s decision regarding any award of these items.  In remanding this matter, the Court notes that Dukes never disputed the amount of labor charges owed to Tiger and that the only two matters at issue were storage costs and attorney’s fees.  For the sake of clarity on remand, the Court finds that § 559.917(1)(b) and § 559.921(1), does not mandate the award of attorney’s fees to the prevailing party.  These sections provide that “[t]he prevailing party in that action may be entitled to damages plus court costs and reasonable attorney’s fees.”  (e.a).  The clear statutory language leaves the award of fees in the trial court’s discretion.    

            Therefore, it is,

            ORDERED AND ADJUDGED that the trial court’s rulings are reversed and this cause is remanded for action consistent with this Order and Opinion.  The trial court has the discretion of entering one Final Judgment based on the record already developed below or having a new hearing on the matter. 

It is further

            ORDERED AND ADJUDGED that the Appellant’s Motion for Attorney’s Fees is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ of February 2005.

 

                       

                                                                                    ________________________

                                                                                    JOHN A. SCHAEFER

                                                                                    Circuit Judge, Appellate Division

 

 

 

Copies furnished to:

Judge Karl B. Grube

 

Thomas J. Dandar, Esquire

Post Office Box 24597

Tampa, FL 33623-4597

 

Teresa Dukes

1420 10th Avenue South

St. Petersburg, FL  33705


[1] The Court will accept Tiger’s Statement of Facts, approved by the trial court on December 3, 2003, as the pertinent facts set forth therein are supported by the record.   However, the Court notes that there is no basis for the trial court to approve a statement of facts “ex-parte.”  Rather, the procedures of the Florida Rules of Appellate Procedure, Rule 9.200(b)(4), should be utilized.