WILKINSON & JENKINS CONSTRUCTION COMPANY, INC., APPELLANT,
v.
FLORIDA ROCK INDUSTRIES, INC., APPELLEE
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The court held that attorney's fees and interest at the highest legal rate could not be awarded based on terms of sale embossed on stationery when those terms were not part of the contract for the disputed goods.
[1] Attorney's fees may only be awarded pursuant to a contract, applicable statute, or where a fund has been created or brought into court.
[2] The rate of prejudgment interest is established by statute unless altered by contract.
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Join FLexlaw to unlock all legal intelligenceAppellant purchased jetty stone from appellee and sued for excess freight charges due to improper loading. Appellee counterclaimed for the balance of …
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GRIMES, Judge.
Appellant (Wilkinson) purchased certain quantities of jetty stone f.o.b. place of shipment from appellee (Florida Rock).
Wilkinson claimed that Florida Rock failed to properly load the jetty stone on the railroad cars for shipping, thereby causing appellant to incur excess freight charges. Wilkinson deducted what it believed to be the excess charges from its payment to Florida Rock and brought suit for declaratory judgment and damages. Florida Rock counterclaimed for the balance of the purchase price on theories of goods sold and delivered, open account and account stated. After a nonjury trial, the court determined that the jetty stone had been properly loaded and that Florida Rock was entitled to judgment for $15,977.03 plus prejudgment interest from May 1, 1981. Wilkinson’s complaints with respect to that portion of the judgment are without merit.
The court awarded Florida Rock attorney’s fees and set the rate of prejudgment interest at eighteen per cent. Florida Rock’s counterclaim did not contain a prayer for attorney’s fees or for interest above the statutory rate.
However, at the beginning of the trial Florida Rock moved to amend its pleadings to include these claims. The court initially deferred ruling but later allowed Florida Rock to amend its pleadings to conform to the evidence with respect to claims for attorney’s fees and prejudgment interest at the highest legal rate. The predicate upon which the court autho rized the amendment was two letters written by Florida Rock to Wilkinson which were introduced into evidence over Wilkinson’s objection. One of the letters dealt with a prior purchase by Wilkinson from Florida Rock and the other pertained to the dispute over the excess loading charges which finally led to this litigation. At the bottom of each letter the following language was embossed as part of Florida Rock’s stationery:
AGGREGATE GROUP TERMS OF SALE: All offers, quotations and shipments are upon the following terms. Payment due on or before 10th of the month following invoice date. Discount, if offered, and terms will be shown on invoice. All quotations are withdrawn after 30 days if not accepted by written purchase order. All orders, contracts and agreements are contingent upon strikes, accidents, and all other delays unavoidable or beyond our control. Our liability in the case of unsuitable materials is limited strictly to the proper replacement thereof. We do not guarantee freight rates. If invoice is not paid when due, interest on the unpaid balance will accrue at the highest rate allowed by law. If after due dates the account is placed in the hands of an attorney or collection agency for collection of all or part of amount of invoices, the customer shall be liable for all costs of collection including a reasonable attorney’s fee or collection charge. All amounts due shall be paid to Florida Rock Industries, Inc.— Aggregate Group in Jacksonville, Duval County, Florida, at the address shown or at such other address as may be furnished from time to time in writing.
It was upon this provision that the court awarded Florida Rock attorney’s fees and interest at the highest legal rate.
Absent extraordinary circumstances not pertinent to this case, attorney’s fees may only be awarded pursuant to a contract or applicable statute or where a fund has been created or brought into court. Colvin v. Homan, 442 So. 2d 870 (Fla. 2d DCA 1983).
Likewise, unless altered by contract, the rate of prejudgment interest is established by section 687.01, Florida Statutes (1983).
Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985).
Florida Rock contends that the quoted provision contained at the bottom of its letters evidenced the parties’ course of dealings and as such became a part of the contract for the purchase of the rock. Admittedly, there may be circumstances under which a party who breaches his contract could be assessed attorney’s fees and interest in excess of the statutory rate even though he did not explicitly agree to the payment of such charges.
Thus, had it been shown that Florida Rock submitted to Wilkinson the quoted terms as the basis upon which it would sell and Wilkinson then ordered the stone, the provision for the payment of attorney’s fees and interest would have become part of the contract between the parties. Here, however, one of the letters which contained the quoted terms of sale had nothing to do with the transaction in question, and the other letter was not written until after the stone had been delivered and the dispute had ensued. There was simply no evidence that the quoted terms of sale were part of the contract for the purchase of the rock which is the subject of this lawsuit.
We affirm Florida Rock’s judgment for $15,977.03 plus prejudgment interest from May 1, 1981. We reverse the award of attorney’s fees and the interest calculation at eighteen per cent and remand for the entry of a new judgment reflecting prejudgment interest at the proper rate.
RYDER, C.J., and OTT, J., concur.
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The Celotex Corp. v. Buildex, Inc., 476 So. 2d 294 (Fla. 3d DCA 1985)…month or 18% per annum on all past due accounts.” No proof was presented, however, that the parties ever agreed in writing that interest shall accrue at 18% per annum. See Wilkinson & Jenkins Construction Co., Inc. v. Florida Rock Industries, Inc., 475 So. 2d 743 (Fla. 2d DCA 1985) (preprinted clause at bottom of stationery used in correspondence providing for interest at highest legal rate in event of default insufficient basis for award of interest at rate above statutory rate absent evidence that terms we…
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Nelson v. Ameriquest Techs., Inc., 739 So. 2d 161 (Fla. 3d DCA 1999)…ompanied the goods. We held that absent proof of a written agreement between the parties for the higher rate of interest, interest accrues at the statutory rate. Id. at 296; see also Wilkinson & Jenkins Contr. Co., Inc. v. Florida Rock Indus., Inc., 475 So. 2d 743 (Fla. 2d DCA 1985). We think that our Celotex holding is in harmony with section 687.01’s which requires a “special contract” to deviate from the statutory interest rate. See WPB, Ltd. v. Supran, 720 So. 2d 1091, 1092 (Fla. 4th DCA 1998) (discussing…
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Morroni v. Philip L. Burnett, P.A., 38 So. 3d 195 (Fla. 2d DCA 2010)…led, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss.”) (quoting Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla.1985)); see also Wilkinson & Jenkins Constr. Co. v. Fla. Rock Indus., Inc., 475 So. 2d 743 (Fla. 2d DCA 1985). Main appeal affirmed; cross-appeal affirmed in part and reversed in part; case remanded to the circuit court for recalculation of prejudgment interest accruing at the statutory rate beginning November 20, 2006. CASANUEVA, C.J…
Authorities Cited
- Argonaut Ins. Co. v. MAY Plumbing Co., 474 So. 2d 212 (Fla. 1985)
- Colvin v. Homan, 442 So. 2d 370 (Fla. 2d DCA 1983)