Malt v. Carpet World Distributors, Inc. (770 So. 2d 303, 2000)

SHAHOOD, J.

We. have for review the trial court’s order granting attorney’s fees to appellee. We reverse.

This action arises out of a breach of contract suit filed by appellant, Robert C. Malt & Co. (“Malt”) against Carpet World Distributors, Gerald Martin, and appellee, Richard Susco (“Susco”). The trial court granted Susco’s motion to dismiss the third amended complaint filed against him, individually. That order was the subject of a separate appeal. While that appeal was pending, Susco moved in the trial court for fees based upon a prevailing party attorney’s fee provision in the contract. The trial court granted the motion; that order is the subject of the instant appeal. During the pendency of this appeal, the trial court’s order dismissing the complaint against Susco has since been reversed.

The trial court awarded attorney’s fees and costs to Susco based upon Katz v. Van Der Noord, 546 So.2d 1047 (Fla.1989). In that case, the court held that “when parties enter into a contract and litigation later ensues over that contract, attorney’s fees may be recovered under a prevailing party attorney’s fee provision contained therein even though the contract is rescinded or held to be unenforceable.” Katz, 546 So.2d at 1049. Because the order dismissing the complaint against Susco was reversed, so too should the order granting fees in his favor because he is no longer the prevailing party.

REVERSED AND REMANDED.

KLEIN and GROSS, JJ., concur.