Civil Court: CONTRACTS
– contract that is clear, complete, and unambiguous does not require judicial
construction – trial court did not err in awarding damages to Plaintiff/client when
Defendant/accountant failed to inform Plaintiff what additional information was
needed to complete audit – any ambiguities in the contract must be construed
against the Defendant who drafted the contract - Final Judgment affirmed. Barbara
Clark & Co. v. Sharon Wilson,
Appeal No. 05-0055AP-88B (Fla. 6th Cir. App. Ct. August 7, 2006).
IN THE CIRCUIT COURT FOR THE SIXTH
IN AND FOR PINELLAS COUNTY, FLORIDA
BARBARA CLARK & COMPANY,
SHARON WILSON, as President of the
St. Petersburg Alumnae Chapter of
DELTA SIGMA THETA SORORITY, INC.,
from Final Judgment
Judge Walt Fullerton
Sheila D. Turner, Esquire
Attorney for Appellant
Lynda B. Barack, Esquire
Gregory K. Showers, Esquire
Attorneys for Appellee
ORDER AND OPINION
THIS CAUSE came before the Court on appeal,
filed by Barbara Clark (Clark), from the Final Judgment for Plaintiff,
entered June 24, 2005, in favor of Sharon Wilson, as President of the St.
Petersburg Alumnae Chapter of Delta Sigma Theta Sorority, Inc. (Delta). Upon review of the briefs, the record and being otherwise
fully advised, the Court affirms the trial court’s ruling as set forth below.
The record shows that in June 2004, Clark
was retained by Delta to conduct and complete an audit of the
organization. The agreement was
memorialized in an retainer letter from Clark
to then-president of Delta, Cheryl Johnson-Tindall, dated June 13, 2004. The letter constitutes the contract in the
underlying dispute. The incoming
president, Sharon Wilson, signed the letter on June 29, 2004, indicating
Delta’s acceptance of the terms.
Pertinent provisions of the agreement include:
If, for any reason, we are
unable to complete the audit or are unable to form or have not formed an
opinion, we may decline to express an opinion or to issue a report as a result
of this engagement.
You are responsible for
making all financial records and related information available to us and for the
accuracy and completeness of that information.
We will advise you about appropriate accounting principles and their
application and will assist you in the preparation of your financial
statements, but the responsibility for the financial statements remains with
We expect to begin our
audit on approximately June 21, 2004 and issue our report no later than July
30, 2004. Our audit engagement ends on
delivery of our audit report.
We estimate that our fees
for these services will range from $ 1,750.00 to $ 1,900.00 for the audit. . .
The fee estimate is based on anticipated cooperation from your personnel and
the assumption that unexpected circumstances will not be encountered during the
audit. If significant additional time is
necessary, we will discuss it with you and arrive at a new fee estimate before
we incur additional costs.
Clark testified that she was on vacation from July 1st to July 12, 2004, and
did not return to her office until July 14th, at which time she received the
signed letter and retainer of $ 875.00.
On June 29, 2004, Ruby Griffin, Delta’s former treasurer, hand-delivered
bank statements, cancelled checks and vouchers to Clark’s
office. No additional documents were
requested of Griffin. In October, Clark
contacted Dorothy Bryant, Delta’s current treasurer, and requested bank
statements for the month of June and a bank transcript for the month of
August. Bryant promptly delivered the
requested documents. No other requests
for information or documentation were requested from Clark.
In a certified letter, dated November 10, 2004, counsel for Delta
requested that Clark complete the
audit within ten days to avoid litigation.
After receiving the letter, Clark
did attempt to contact several members of Delta by phone without success, but
did not complete the audit nor provide any written explanation to Delta’s
counsel for the delay. In a letter to Wilson, dated December 10, 2004, Clark canceled the contract because Delta had “been
uncooperative in providing information we need to complete our work.”
On January 12, 2005, Delta sued Clark for damages, attorney’s fees and costs. Clark
answered the complaint and pled several affirmative defenses. Clark
also filed a counterclaim seeking damages, attorney’s fees and costs. After a bench trial, the lower court entered
its Final Judgment for Plaintiff, finding that:
“It was incumbent upon Defendant to specify or request the specific
documentation necessary to complete the agreed upon audit. Even after a direct request from Plaintiff’s
counsel, Defendant neither asked for additional financial information, nor
explained the delay.”
raises several issues on appeal: (1) Did the
trial court abuse its discretion in interpreting the contract between the
parties in a manner inconsistent with explicitly delineated terms; (2) Is Clark
entitled to be compensated on her counterclaim for her performance of the
contract, including staffing, costs, and attorneys fees in asserting the
counterclaim; and, (3) Is Clark entitled to judgment as a matter of law when
Delta did not file a responsive pleading to Clark’s counterclaim?
the Court finds that the trial court’s interpretation of a contract is a matter
of law subject to a de novo standard of review.
See Jenkins v. Eckerd Corporation, 913 So.2d 43, 49 (Fla. 1st DCA 2005). “It is a fundamental rule of
contract interpretation that a contract which is clear, complete, and
unambiguous does not require judicial construction.” See Jenkins, 913 So.2d at 50. If the contract is clear and unambiguous, a
court cannot consider extrinsic or parol evidence to change the plain meaning
of the contract. See id. at
parties’ contract clearly provides that Delta was responsible for making all
financial records and related information available
to Clark. (emphasis added). There is nothing in the record to show that
Delta did not make documents available; rather, the testimony shows that when Clark verbally requested certain documents from
Delta in October, those documents were promptly provided. There is nothing in the record to show that Clark ever informed Delta that she needed additional
information to complete the audit or that she perceived Delta was being
uncooperative in the preparation of the audit, even after receiving the
November 10th letter requesting that the audit be completed within ten
than Clark’s termination letter, the only document ever provided by Clark to Delta was the initial retainer
agreement. While the record shows that
Delta had retained Clark to perform various services prior to the agreement
entered into June 29, 2004, it cannot be seriously argued that Delta, as the
client, was supposed to know what documents Clark needed to perform the audit
without assistance by Clark, which the contract states would be provided. Further, to the extent that there may be
ambiguities in the contract, such ambiguities are to be construed against Clark, as the drafter of the retainer
agreement. See Planck v.
Traders Diversified, Inc., 387 So.2d 440, 442 (Fla. 4th DCA 1980).
the foregoing, the Court finds that the trial court did not err in entering
final judgment in favor of Delta. Further,
there is no merit to Clark’s
argument that she should have been awarded damages on her counterclaim given
that she never completed the audit due to her own failure to inform Delta as to
what documents were needed.
Court finds that there is no merit to Clark’s
argument that she is entitled to judgment as a matter of law because Delta
failed to file a response to the counterclaim.
Defensive pleadings are not required in small claims court. See Fla.
Sm. Cl. R. Rule 7.090(c). Even if they
were required, the record shows that Delta filed her answer to the counterclaim
on February 28, 2005.
Therefore, it is,
AND ADJUDGED that Final Judgment for Plaintiff is affirmed.
ORDERED in Chambers, at St. Petersburg,
______ of August 2006.
DAVID A. DEMERS
Circuit Judge, Appellate Division
PETER RAMSBERGER ANTHONY
Circuit Judge, Appellate Division Circuit
Judge, Appellate Division
Copies furnished to:
Judge Walt Logan
Sheila D. Turner, Esquire
100 Second Avenue
Petersburg, FL 33701
Lynda B. Barack, Esquire
305 South Plant Avenue
Tampa, FL 33606
Gregory K. Showers, Esquire
133 North Ft.
Clearwater, FL 33755