Opinion

Fikes v. Keller

  • 466 So. 2d 965
  • 1985 Ala. Civ. App. LEXIS 1135
Court
Court of Civil Appeals of Alabama
Filed
Feb 27, 1985
Status
Published
Author
Holmes
On the bench
Parker, Wright, Bradley, Holmes
Cited by
0 cases
Authority
More cited than 26.2%

The opinion

HOLMES, Judge

(concurring specially).

I concur generally with the result reached by the majority.

The general rule is that attorney’s fees are recoverable only when authorized by statute, provided in a contract, or in an equitable proceeding when efforts of an attorney create a fund out of which fees may be paid. Peseau v. Civil Service Board of Tuscaloosa County, 401 So.2d 79 (Ala.Civ.App.1981). See also Ex Parte Handley, 460 So.2d 167 (Ala.1984).

In this instance, by the wording of the contract, it is clear that the seller is obligated to bear the cost of a reasonable attorney’s fee as a result of the seller’s breach. The instant fee provision, in fact, is in the nature of an indemnification clause and by its terms also provided for the cost of all proceedings that were caused by the breach. Therefore, in view of the language of the contract, an award of a reasonable attorney’s fee for the cost of the trial and the appeal appears to be mandated.

However, I should not be understood as concluding that in all appropriate “contract cases” an attorney’s fee must be awarded at trial or on appeal. It might well be that the award of an attorney’s fee as well as the amount of the fee would fall within the discretionary power of the trial court and/or this court.

Furthermore, I would remand this case to the trial court for the determination of a reasonable attorney’s fee rather than this court determining the specific amount of such fee.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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