final until disposition of timely filed motion for rehearing.
Appeals from the Circuit Court for Miami-Dade County Lower
Tribunal No. 11-39508, Jacqueline Hogan Scola, Judge.
Kopelowitz Ostrow Ferguson Weiselberg Gilbert, and John J.
Shahady and Thomas R. Shahady (Fort Lauderdale); Law Offices
of Douglas Paul Solomon, and Douglas P. Solomon (Fort
Lauderdale), for appellant.
Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff and
Christopher M. Yannuzzi; Marshall Socarras Grant, P.L., and
Ruben E. Socarras (Boca Raton), for appellees.
LOGUE, SCALES and LINDSEY, JJ.
defendant/counter-plaintiff/cross-plaintiff below, Haas
Automation, Inc. ("Haas"), appeals three final
judgments entered against Haas in this case. In appellate
case number 3D16-1692, Haas appeals the final judgment
entered in favor of (i) appellees,
plaintiffs/counter-defendants below, Dr. Robert Fox, Helene
Fox, Dr. Steven Fox and Sherri Fox ("the Foxes"),
on the Foxes' claims for breach of a third-party
beneficiary contract and for declaratory relief; and (ii)
appellee, defendant/cross-defendant below, Fisher Auction
Company, Inc. ("Fisher Auction") on Haas's
crossclaims for breach of contract, material alteration and
deceptive and unfair trade practices. In appellate case
number 3D17-173, Haas appeals the final judgment awarding
attorney's fees and costs to the Foxes. In appellate case
number 3D17-174, Haas appeals the final judgment awarding
attorney's fees and costs to Fisher Auction. We
consolidated the three appeals, and affirm the final judgment
on the merits, and affirm, in part, the attorney's fees
The Relevant Documents
Foxes engaged the services of Fisher Auction to sell two
oceanfront homes in Golden Beach, Florida at the same
auction. The auction brochure advertising the auction, and
the property information package describing the subject
properties, plainly indicated that the two homes would be
sold separately. Pursuant to the auction's eligibility
rules, Haas registered to bid on the homes and executed a
Bidder Registration Form and a document titled "General
Terms and Conditions of Sale." In order to be eligible
to bid on both homes, pursuant to the General Terms and
Conditions of Sale, Haas deposited $1, 000, 000 with Newman
Guaranty Title Insurance Agency ("Newman Title")
(i.e., $500, 000 for each property), and noted on the Bidder
Registration Form that Haas would be bidding on both
General Terms and Conditions of Sale contained, inter
alia, provisions requiring the highest bidder at the
auction to execute, as the buyer, a purchase and sale
contract, with no edits, revisions, or
amendments. The General Terms and Conditions of Sale
provided that should the highest bidder fail to comply with
this requirement immediately following the auction, the
seller (the Foxes) would retain the required deposits as
If the Buyer fails to comply with any of these General Terms
and Conditions of Sale, the Seller shall retain the required
deposit(s), which shall be considered fully earned and
non-refundable, under the Agreement as liquated damages and
not as a penalty. Upon Default, Buyer agrees to the immediate
release of the deposit funds to the Seller without the
requirement of further documentation from Buyer.
purchase and sale contract that the highest bidder was
required to execute contained the following prevailing party
attorney's fee provision:
6. Special Clauses:
. . . .
M. . . . In any litigation, including breach, enforcement or
interpretation arising out of this Contract, the prevailing
party in such litigation shall be entitled to recover from
the non-prevailing party, reasonable attorney's fees,
costs and expenses.
November 10, 2011, the auction of both homes was held in the
living room of one of the homes. Fisher Auction's
auctioneer explained at the auction that the homes would be
sold using the "High Bidder's Choice" method,
whereby the highest bidder in the first round would
choose which of the two homes to purchase at that high bid.
If, however, the high bidder in the first round had
registered to bid on both homes, as did Haas, the high bidder
could purchase both homes for two times the
high bid amount; and, if the high bidder exercised this
option, the auction would be over.
auction's first round, Haas, through Mr. Wadsworth, was
the high bidder, bidding $6.2 million. At the fall of the
gavel, the auctioneer asked if Mr. Wadsworth wanted to
exercise the option to take both homes at "two times the
bid." Mr. Wadsworth indicated he did wish to exercise
the option, which decision was clearly acknowledged by the
auctioneer. After exercising the option, the
auctioneer announced that the high bidder had taken both
homes and, thus, the auction was over. The auctioneer stated:
He takes them both, folks. It's times two's the
money. He takes both properties at $6.2 million.
Auction's over folks. Ladies and gentlemen, I want you to
understand, that's what's happened. Remember I told
you the high bidder could take them, two times the bid.
He's indeed done that.
the auction, Mr. Wadsworth signed a Bid Acknowledgment
that indicated that the bid price was "6.2M" rather
than twice that number. After Mr. Wadsworth executed the Bid
Acknowledgement Form, Fisher Auction's executive vice
president, Francis Santos, who was also in attendance,
handwrote "x2" next to the bid price on the form.
Mr. Santos then took the Bid Acknowledgment Form to the
"contract room, " where a Fisher Auction employee
filled in blanks on the form, including the ten percent
buyer's premium ($620, 000) provided for in the General
Terms and Conditions of Sale, and the total purchase price
($6, 820, 000).
he signed the Bid Acknowledgment Form, Mr. Wadsworth refused
both: (i) to execute the two purchase and sale agreements;
and (ii) to pay an additional deposit ($364, 000) as required
by the General Terms of Conditions of Sale. Mr. Wadsworth
stated that he believed that he had purchased
both homes for the $6.2 million
The Foxes then ended up selling the two homes to other buyers
for well less than $6.2 million each, resulting in a
significantly smaller amount of sales proceeds to the Foxes
after sales commissions were deducted.
November 2011, the Foxes filed the underlying action in the
Miami-Dade County Circuit Court. In their Amended Complaint,
the Foxes brought: (i) a claim against Haas for breach of a
third-party beneficiary contract (i.e., the General Terms and
Conditions of Sale) (Count I), seeking to retain, as
liquidated damages, the $1, 000, 000 Haas had deposited with
Newman Title in order to bid on the two homes at the
auction; and (ii) a claim against Haas and Fisher Auction for
declaratory relief (Count II) regarding the Foxes'
entitlement to the $1, 000, 000 deposit.
filed an Amended Counterclaim for breach of contract against
the Foxes, alleging that the Bid Acknowledgement Form created
a binding contract requiring the Foxes to sell both
properties to Haas for $6.2 million. Haas also filed a Second
Amended Crossclaim against Fisher Auction alleging: (i)
breach of contract (Count I), based on Fisher Auction's
purported breach of the Bid Acknowledgment Form; (ii)
material alteration (Count II) of the Bid Acknowledgment
Form, based on Mr. Santos's adding "x2" next to
the bid price; and (iii) deceptive and unfair trade practices
the course of the proceedings, the Foxes served a request for
admissions on Haas. Haas denied those admissions that were
directed to the events that took place at the auction,
including Mr. Wadsworth's understanding of, and actions
at, the auction.
parties also served proposals for settlement on each other.
Specifically, Haas served a separate proposal for settlement
on each of the four Foxes, offering to settle all claims and
counterclaims in exchange for Haas paying each of the Foxes
$28, 151 and each of the Foxes executing a general release of
their claims to the $1, 000, 000 deposit then being held by
Newman Title. The Foxes, jointly, served a single,
un-apportioned proposal for settlement on Haas, offering to
settle the Foxes' claims for $799, 999.00. According to
the Foxes' proposal, the settlement would be paid from
the $1, 000, 000 deposit then being held by Newman Title,
with $799, 999.00 going to the Foxes and the remaining $200,
001.00 going to Haas. ...