PETER MAGEE, JOHN MAHON D/B/A P.J. CAVANAUGH'S RESTAURANT, CROSS APPELLANTS,
v.
BISHOP SIGNS, INC., CROSS APPELLEE; BISHOP SIGNS, INC., APPELLANT, V. PETER MAGEE, JOHN MAHON D/B/A P.J. CAVANAUGH'S RESTAURANT, APPELLEES
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Bishop Signs sought to foreclose a mechanic's lien against property owners Magee and Mahon. The trial court dismissed the foreclosure complaint for failure to plead furnishing of a contractor's affidavit as required by statute, discharged the lien, and awarded attorney's fees to the property owners. The appellate court reversed the attorney's fees award as premature, pending resolution of Bishop's appeal of the dismissal.
The property owners' entitlement to attorney's fees cannot be determined until the litigation is concluded. If Bishop successfully appeals the dismissal and eventually obtains judgment on the lien claim, the property owners would not be the prevailing party and thus not entitled to attorney's fees. The attorney's fees award is therefore premature and must be reversed without prejudice to future determination when the issue is ripe.
[1] A claim of lien under chapter 713, Florida Statutes, is subject to dismissal if the complaint fails to allege the furnishing of a contractor's affidavit as required by se…
[2] A cross-appeal seeking review of a non-appealable order is not cognizable without the pendency of the main appeal.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Thus, as matters now stand Magee is the prevailing party vis-a-vis Bishop's lien claim. However, should Bishop successfully appeal the dismissal of its complaint and eventually obtain a judgment thereon Magee would not be the prevailing party and thus not entitled to attorney's fees under the statute.”
Establishes that prevailing party status depends on the ultimate outcome of all pending appeals, not intermediate victories.
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Join FLexlaw to unlock all legal intelligenceBishop Signs filed a one-count complaint to foreclose a mechanic's lien on property owned by Magee and Mahon. The property owners answered and filed a…
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DOWNEY, Judge.
Appellant, Bishop Signs, Inc., (Bishop) filed a one count complaint to foreclose a mechanic’s lien. Appellees, Magee and Mahon (Magee), as owners of the property filed an answer and counterclaim, which among other things contended that the lien slandered appellees’ title, it was exaggerated and fraudulent, and the work was deficient. Well over a year after suit was commenced Magee moved to dismiss the amended complaint because the claim of lien was unsigned and the complaint failed to allege Bishop had furnished a contractor’s affidavit as required by section 713.-06(3)(d)(l).
Judgment was entered 1) dismissing the complaint with prejudice for failure to plead the furnishing of the contractor’s affidavit, 2) denying the motion to dismiss on the ground the claim of lien was unsigned, 3) discharging the lien and lis pendens, and 4) reserving jurisdiction to award attorney’s fees and costs in connection with the discharge of the lien. Bishop appealed the judgment in Case No. 83-284 and Magee cross appealed, the latter claiming error in not dismissing the complaint based on the ground the lien claim was unsigned. This court dismissed the appeal because the counterclaim involving the same subject matter was still pending. We should have dismissed the cross appeal also because it seeks review of a non-appealable order and is not cognizable without the pendency of the main appeal.
While Case No. 83-284 was pending on the cross appeal Magee obtained a judgment in the trial court awarding the owners attorney’s fees of $5,000 based upon a finding that Magee was the prevailing party within the meaning of section 713.29, Florida Statutes (1981). Bishop has appealed that judgment in Case No. 83-2687.
With regard to the judgment for attorney’s fees, the award thereof is appropriate if Magee is the prevailing party. Bishop sued in one count to foreclose a mechanic’s lien. It did not seek damages for breach of contract in a second count in the event it was unsuccessful in the foreclosure of its lien. Had it done so and failed on the foreclosure count but prevailed on the damages count, Magee would not have been the prevailing party.
First Atlantic Bldg. Corp. v. Neubauer Const., 352 So. 2d 103 (Fla. 4th DCA 1977).
Thus, as matters now stand Magee is the prevailing party vis-a-vis Bishop’s lien claim.
However, should Bishop successfully appeal the dismissal of its complaint and eventually obtain a judgment thereon Ma-gee would not be the prevailing party and thus not entitled to attorney’s fees under the statute. Since that potentiality remains, a resolution of the right to attorney’s fees cannot be made until the litigation is concluded.
In view of the foregoing, the cross appeal in Case No. 83-284 is dismissed and the judgment appealed from in Case No. 83-2687 is reversed without prejudice to a future determination of attorney’s fees when the issue is ripe.
LETTS and DELL, JJ., concur.
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Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla. 1993)…ic, Inc. v. Lighthouse Shores Town Homes Dev. Co., 543 So. 2d 422 (Fla. 5th DCA 1989); AAA Sod, Inc. v. Weitzer Corp., 513 So. 2d 750 (Fla. 4th DCA 1987); Plaza Builders, Inc. v. Regis, 502 So. 2d 918 (Fla. 2d DCA 1986); Magee v. Bishop Signs, Inc., 458 So. 2d 1174 (Fla. 4th DCA 1984); Schabert v. Montaltos, 445 So. 2d 1136 (Fla. 2d DCA 1984); General Dev. Corp. v. John H. Gossett Constr. Co., 370 So. 2d 380 (Fla. 2d DCA), cert. denied, 379 So. 2d 205 (Fla.1979); First Atl. Bldg. Corp. v. Neubauer Constr. Co.,…
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Mainlands Constr. Co., Inc. v. Wen-Dic Constr. Co., Inc., 482 So. 2d 1369 (Fla. 1986)…eir mechanic’s lien action, the potential of an adverse ruling on the lien still exists. Since that potentiality remains, a resolution of the right to attorney’s fees cannot be made until the litigation is concluded. See Magee v. Bishop Signs, Inc., 458 So. 2d 1174 (Fla. 4th DCA 1984). We hold that Wen-Dic is not a prevailing party nor have they received an affirmative judgment within the context contemplated by the statute. Accordingly, we approve in part, quash in part, and remand for proceedings consistent…
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Aksomitas v. Sabitra Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000)…We cited four cases in Packal to support our conclusion: Mainlands Constr. Co. v. Wen-Dic Constr. Co., 482 So. 2d 1369 (Fla.1986); Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So. 2d 484 (Fla. 5th DCA 1987); Magee v. Bishop Signs, Inc., 458 So. 2d 1174 (Fla. 4th DCA 1984); Steinhardt v. Eastern Shores White House Ass’n, 413 So. 2d 785 (Fla. 3d DCA 1982). Those cases did not involve the same issue as Packal. . The second district cited Cline with approval in Sabina v. Dahlia Corp., 678 So. 2d 822…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- First Atl. Bldg. Corp. v. Neubauer Constr. Co., 352 So. 2d 103 (Fla. 4th DCA 1977)