Opinion
No. 86-14.
November 13, 1986.
Appeal from the Circuit Court, Marion County, Carven D. Angel, J.
Kenneth S. Davis, Gainesville, for appellant.
Ronald I. Cole, Ocala, for appellees.
We affirm the final judgment which awarded the Kronicks $2,304.00 in actual damages and $900.00 for expenses they necessarily incurred when appellant breached its contract with them by failing to deliver appellees' furniture, clothing and other household possessions on or before an agreed date, and by failing to honestly inform them as to the location and status of their shipment of goods. The appellees' motel expenses, food costs, telephone bills and purchase of minimal clothing were damages flowing from appellant's wrongs, and we think they may be considered general damages. See Hutchison v. Tompkins, 259 So.2d 129 (Fla. 1972); Jacksonville Electric Co. v. Batchis, 54 Fla. 192, 44 So. 933 (1907); 17 Fla.Jur.2d (1980) § 32 at 37.
However, we must reverse the award of attorney's fees to appellees. The award was based on section 57.105, Florida Statutes (1985). That section provides:
The court shall award a reasonable attorney's fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. (Emphasis added).
In this case we cannot agree that appellant's position in this lawsuit was so devoid of merit as to be frivolous. Wright v. Acierno, 437 So.2d 242 (Fla. 5th DCA 1983). Merely losing is insufficient to invoke the operation of this section. Allen v. Dutton's Estate, 384 So.2d 171 (Fla. 5th DCA), review denied, 392 So.2d 1373 (Fla. 1980).
The trial court also buttressed its attorney's fee award by finding "intentional misconduct" on the part of appellant. The trial court made no express punitive damage nor tort damage award in this case, although appellees sought such awards. Although intentional misconduct may serve as a basis for punitive damages or tort damages, it does not support an attorney's fee award.
REVERSED IN PART; AFFIRMED IN PART.
UPCHURCH, C.J., and SHARP, J., concur.
COBB, J., concurs in part, dissents in part, with opinion.
The appellant, a moving company, breached its contract to deliver the Kronicks' furniture and other possessions from New York to Ocala, Florida, by a specified date, and the delivery was made approximately eight days late. It was stipulated between the parties at trial that damage to the property during shipment was $2,304.00.
At nonjury trial in regard to damages occasioned by the delay, the trial court, over objection, admitted evidence relating to various items of damage such as motel receipts, restaurant receipts, telephone bills and a sales receipt for a clothing purchase. No special damages were pleaded. See Jacksonville Electric Co. v. Batchis, 54 Fla. 192, 44 So. 933 (1907). Therefore, the question on appeal is whether the various items may be considered general damages foreseen or contemplated by the parties at the time the contract was entered, and such as would necessarily flow from its breach. See A P Food Stores, Inc. v. Kornstein, 121 So.2d 701 (Fla. 3d DCA 1960); Ephrem v. Phillips, 99 So.2d 257 (Fla. 1st DCA 1957).
The motel charges incurred by the Kronick family during the delay period showed bills from the Ramada Inn for six days (one night the family stayed at their house, on the floor) at $75.60 per night for two rooms. The trial court found the rental of two rooms, the second for a grown son of the Kronicks', to be reasonable. This item, then, came to $453.60. The Kronicks claimed that their food cost them $100 more by reason of eating at a restaurant rather than at home during the delay. The itemized telephone bills for this period, incurred by the Kronicks in checking on their property in transit, aggregated $16.24. The bill for new clothing because of the warmer climate in Florida for the eight-day period cannot be considered an item of general, rather than special, damage.
I concur in reversal of the attorney fee awarded below, but I also would reduce the supplemental damages — i.e., those over the stipulated $2,304.00 — from $900.00 to $569.84.