4D07-3837-The Keyes Company v. Spencer

State: Florida

Court: Florida Southern District Court

Docket No: 4D07-3837.op

Case Date: 08/12/2009

Plaintiff: 4D07-3837-The Keyes Company

Defendant: Spencer

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009

THE KEYES COMPANY, Appellant, v. ANNE MARIE SPENCER and PATRICIA DIGIACOMO, Appellees. No. 4D07-3837 [August 12, 2009] SHAHOOD, GEORGE A., Senior Judge. Appellant, The Keyes Company, was the Real Estate Broker and the holder of a $25,000 earnest money deposit in a contract for Purchase and Sale of real estate. Appellee and cross-appellant, Anne Marie Spencer, was the buyer under the contract. Patricia DiGiacomo was the seller. When the contract failed to close, both the buyer and the seller claimed the deposit money, and appellant asserted that it was entitled to deduct a Broker's commission from those funds. As the holder of the deposit, appellant exercised its contractual option to file an arbitration action in the nature of interpleader. The arbitrator ruled that neither the buyer nor the seller had defaulted because the contract had been cancelled pursuant to its terms. He awarded $9,116.80 in costs for the interpleader proceeding, which included the holder's attorney's fees to appellant. He did not award appellant a commission nor did he designate a prevailing party or award prevailing party costs. After the trial court entered judgment confirming the award, Spencer filed a motion under Florida Rule of Civil Procedure 1.540(b), asking the trial court to amend its judgment and award her prevailing party attorney's fees and costs in the arbitration action and prejudgment interest. The trial court granted the motion and ultimately awarded Spencer costs and fees against appellant in the amount of $18,107.81. It did not award Spencer prejudgment interest or prevailing party costs. Appellant appealed the award of attorney's fees. We reverse the award of fees.

Spencer cross-appealed the failure to award prejudgment interest and prevailing party costs. We affirm the denial of costs and reverse the failure to award prejudgment interest on the arbitration award. With respect to the award of attorney's fees to Spencer, Spencer waived her right to have the court modify the arbitration award and award fees. She h a d three opportunities to seek modification or clarification of the award. A-1 Duran Roofing, Inc. v. Select Contracting, Inc., 865 So. 2d 601, 604 (Fla. 4th DCA 2004) ("[A] party desiring changes to the arbitration award is required to seek timely modification or clarification from either the arbitrator, pursuant to section 682.10, or the court, pursuant to sections 682.13 or 682.14 . . . ."). She filed a timely motion to correct the award in which she asked the arbitrator to award her prevailing party fees and costs.

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