County 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 JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

BARBARA CLARK & COMPANY,

Appellant,

vs. Appeal No.05-0055AP-88B

UCN522005AP000055XXXXCV

SHARON WILSON, as President of the

St. Petersburg Alumnae Chapter of

DELTA SIGMA THETA SORORITY, INC.,

Appellee.

____________________________________/

Appeal from Final Judgment

Pinellas County Court

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 you.

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.”

Clark 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?

Initially, 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 52.

The 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 days.

Other 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).

Based on 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.

Lastly, the 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,

ORDERED AND ADJUDGED that Final Judgment for Plaintiff is affirmed.

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of August 2006.

______________________________

DAVID A. DEMERS

Circuit Judge, Appellate Division

_____________________________ _____________________________

PETER RAMSBERGER ANTHONY RONDOLINO

Circuit Judge, Appellate Division Circuit Judge, Appellate Division

Copies furnished to:

Judge Walt Logan

Sheila D. Turner, Esquire

100 Second Avenue South, Suite 104N

St. Petersburg, FL 33701

Lynda B. Barack, Esquire

305 South Plant Avenue

Tampa, FL 33606

Gregory K. Showers, Esquire

133 North Ft. Harrison Ave.

Clearwater, FL 33755