Fikes v. Keller

466 So. 2d 965, 1985 Ala. Civ. App. LEXIS 1135

• Court: Court of Civil Appeals of Alabama
• Decided: February 27, 1985
• Docket: Civ. 4443
• Status: Published

Opinions

ROBERT M. PARKER,

Retired Circuit Judge.

This is an appeal from denial of attorney’s fee in an action on a contract.

Fikes and Page contracted to buy the stock of Redmont Broadcasting Corporation from Keller and Butler. The contract provided that the sellers would be responsible for, hold harmless, and indemnify the buyers from all claims and indebtedness incurred prior to the closing date, including reasonable attorney’s fee incurred by buyers as result of sellers’ default.

Associated Press filed an action against Piedmont Broadcasting Corporation eleven days prior to the closing date, which was not revealed to the buyers and which resulted in a default judgment against Piedmont Broadcasting Corporation in the sum of $4,902.45.

The buyers sued sellers for breach of contract and received judgment against sellers in the sum of $4,902.45. The trial court did not award buyers an attorney’s fee. This is cited as error.

“As a general rule, when a party to a contract has been adjudicated as being in default, provisions in a contract providing for the payment of reasonable attorney’s fees will be upheld.” King v. Calvert & Marsh Coal Co., 362 So.2d 889 (Ala.1978).

In this case the sellers contracted to pay all judgments, costs, and expenses, including a reasonable attorney’s fee incurred by the buyers as a result of sellers’ breach. The trial court found the sellers to have breached the contract. “[Djamages for the breach of a contract should restore the injured party to the condition he would have occupied if the contract had been fully performed.” Kennedy v. Hudson, 224 Ala. 17, 138 So. 282 (1932). Failure to award buyers a reasonable attorney’s fee, in this case, was error.

The record reveals that a reasonable attorney’s fee for trial of the case is the sum of $735.36, and for this appeal $200, for a total fee of $935.36. Therefore, the judgment in this case is reversed and the cause remanded to the circuit Court with instructions to enter a judgment in favor of plaintiffs in the sum of $5,837.81 plus all costs.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED WITH INSTRUCTIONS. '

WRIGHT, P.J., and BRADLEY, J., concur. HOLMES, J., concurs specially.