Perry

This is an appeal from an order denying a motion to tax costs. Renae Perry obtained a favorable verdict in an action against the defendants, real estate brokers and salespersons, asserting liability for inadequate compensation received for the sale of her house attributable to their negligence in drafting the written sales agreement. The defendants acted for Perry under a written listing agreement which provided: “If action be instituted to enforce this agreement, the prevailing party shall receive reasonable attorney’s fees and costs as fixed by the Court.” Perry filed a timely motion for an award of costs and attorney’s fees. Defendants opposed the motion contending that a fees award would be improper because Perry had pursued her cause of action as a tort rather than as a contract. They renew that contention on appeal.

We will conclude that Perry’s pleading put in issue both contract and tort theories of recovery. Since the remedy sought and obtained—damages measured by the amount lost by the drafting error—is the same under either theory, Perry was not required to elect a remedy prior to the request for attorney’s fees. The request for attorney’s fees, as costs…