Opinion
No. 5D01-861.
August 23, 2002.
Appeal from the Circuit Court for Orange County, James C. Hauser, Judge.
Elsie C. Turner, Altamonte Springs, for Appellant/Cross-Appellee.
Howard S. Marks, Samuel M. Nelson and Douglas K. Gartenlaub, of Graham, Builder, Jones, Pratt Marks, LLP, Winter Park, for Appellee/Cross-Appellant.
ON MOTION FOR REHEARING/CLARIFICATION
Appellee's motion for clarification of this court's opinion is granted. Its motion for rehearing is denied. We withdraw the prior opinion and issue the following clarified opinion in its place.
Specialty Insulation Waterproofing, Inc. ["Specialty"] and Mark Schmidter ["Schmidter"] appeal a judgment entered in favor of a property owner on claims involving the defective installation of a roof. The property owner has cross-appealed a set-off against damages. We find no merit to appellants' claim that the lower court improperly deprived them of their right to arbitrate. The right was plainly waived. We agree, however, that the lower court erred in setting aside the jury's verdict in favor of Schmidter on the Florida Deceptive and Unfair Trade Practices Act claim and awarding judgment in favor of the property owner. It cannot be said on the evidence that Schmidter was guilty of a fraudulent or deceptive trade practice as a matter of law and there was evidence from which the jury could have concluded there was, in fact, no statutory violation. We reverse on this issue and remand with instructions for entry of judgment in accordance with the jury's verdict and vacation of the award of fees. Without a judgment on the Chapter 501 claim, there is no legally sufficient basis for an award of attorneys' fees. The set-off issue was correctly decided.
AFFIRMED in part, REVERSED in part, and REMANDED.
PETERSON and PLEUS, JJ., concur.