NCN ELECTRIC, INC., APPELLANT,
v.
ANTHONY LETO AND G. JAMES BOCK, APPELLEES
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NCN Electric, the prevailing party in a mechanics lien foreclosure action, appeals the trial court's denial of attorney's fees. The appellate court held that under Florida Statute § 713.29, the award of attorney's fees to the prevailing party is mandatory, and the trial court erred in requiring proof of fees during trial rather than allowing proof after final judgment.
The award of attorney's fees to the prevailing party in a mechanics lien foreclosure proceeding is mandatory when such fees are sought. The trial court erred in requiring proof of attorney's fees during trial; costs, including attorney's fees, are properly taxed at or following final judgment, and the trial court must afford the prevailing party an opportunity to establish the amount of reasonable attorney's fees after judgment.
[1] In a mechanics lien foreclosure action, an award of attorney's fees to the prevailing party is mandatory when sought.
[2] Proof of attorney's fees in a mechanics lien foreclosure action need not be adduced during the trial on the merits.
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Join FLexlaw to unlock all legal intelligence“the award of an attorney's fee to the prevailing party in a mechanics lien foreclosure proceeding is mandatory when such fee is sought”
Establishes the mandatory nature of attorney's fees awards in mechanics lien cases, overriding the trial court's discretion to deny such fees.
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Join FLexlaw to unlock all legal intelligenceNCN Electric was the successful cross-plaintiff in a mechanics lien foreclosure action. The trial court entered final judgment in NCN's favor on the c…
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FRANK, Judge.
The appellant, NCN Electric, Inc., the successful cross-plaintiff before the trial court in a mechanics lien foreclosure action, disputes the denial to it of an attorney’s fee. The final judgment entered on the cross-claim states that although § 713.-29, Florida Statutes (1983), contemplates that the prevailing party in a mechanics lien proceeding “be made whole by an award of attorney’s fees and costs, ... the Court finds that there was no testimony as to attorney’s fees adduced at trial hereof, liability for nor amount.” The final judgment also provides for the retention of jurisdiction, without limitation, for the entry of “further orders as are proper.” Immediately following execution of the final judgment, NCN filed a motion for rehearing, which was denied, seeking the trial court’s revisitation of that aspect of the judgment denying it recovery of an attorney's fee. The trial court erred.
We have held that the award of an attorney’s fee to the prevailing party in a mechanics lien foreclosure proceeding is mandatory when such fee is sought. Peter Marich & Associates, Inc. v. Powell, 365 So. 2d 754 (Fla. 2d DCA 1978). The trial court obviously believed the only appropriate stage at which to prove the amount of the fee was during the trial. Apart from the absence of any authority to support that view, the difficulty we have with it derives from two considerations.
Section 713.29, Florida Statutes (1983), provides that:
Attorney’s fees. — In an action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.
Costs are taxable only pursuant to a statute or rule, Johnson v. Schnee gold, 419 So. 2d 684 (Fla. 2d DCA 1982), and generally the taxation occurs at or following the final judgment. Lake Region Paradise Island, Inc. v. Graviss, 323 So. 2d 610 (Fla. 2d DCA 1975); see also Data Lease Financial Corporation v. Blackhawk Heating & Plumbing Co., Inc., 384 So. 2d 211 (Fla. 4th DCA 1980). Indeed, our supreme court has said that “costs may be adjudicated after final judgment, after the expiration of the appeal period, during the pendency of an appeal, and even after the appeal has been concluded.” Roberts v. Askew, 260 So. 2d 492, 494 (Fla.1972). The sole caveat appended to the foregoing holding is that the “motion to tax costs should be made within a reasonable time after the appeal has been concluded.” Id. Based upon the foregoing, it is our opinion the trial court was mistaken in concluding that NCN’s proof in support of its claim to an attorney’s fee had to occur during the trial of the merits.
A second significant consideration arises from the fact that entitlement to the statutory costs cannot be determined until such time as there is a “prevailing party.” See Magee v. Bishop Signs, Inc., 458 So. 2d 1174 (Fla. 4th DCA 1984). “The prevailing party is regarded as that party who has affirmative judgment rendered in his favor at the conclusion of the entire case.” Sharpe v. Ceco Corporation, 242 So. 2d 464, 465 (Fla. 3d DCA 1970). Thus, to require proof of the amount of fees claimed prior to final judgment imposes upon the parties to the litigation the burden of proving facts which are then only speculatively pertinent with the result that the ultimate nonprevailing party’s proof is useless. An efficient expenditure of judicial and litigant time, money and effort contraindicates following that procedure.
Accordingly, that aspect of the final judgment denying NCN an attorney’s fee is vacated and this matter is remanded to the trial court with direction that NCN, upon the filing of an appropriate motion, be afforded an opportunity to establish the amount of a reasonable attorney’s fee to be determined in accordance with the criteria announced in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985).
GRIMES, A.C.J., and SCHEB, J., concur.
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Citator
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Xanadu OF Cocoa Beach, Inc. v. Lenz, 504 So. 2d 518 (Fla. 5th DCA 1987)…part of costs to the prevailing party in a mechanic’s lien case), attorney’s fees may be taxed as costs in a motion which need be made only within a reasonable time after the appeal in the case has been concluded. See N.C.N. Electric, Inc. v. Leto, 498 So. 2d 1377 (Fla.2d DCA 1986). . Cf. L. Ross, Inc. v. R. W. Roberts Const. Co., 466 So. 2d 1096 (Fla. 5th DCA 1985), approved, 481 So. 2d 484 (Fla. 1986) (crucial date for determination of due process limitation on legislative power to retroactively change sta…
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John Temple v. Marianna Temple, 539 So. 2d 564 (Fla. 4th DCA 1989)…y loss and there is a fixed date of that loss. The purpose in awarding such interest is to compensate a party for the deprivation of his property. Attorney’s fees are not liquidated damages, they are litigation costs. See NCN Electric, Inc. v. Leto, 498 So. 2d 1377 (Fla. 2d DCA 1986); Grasland v. Taylor Woodrow Homes Limited, 460 So. 2d 940 (Fla. 2d DCA 1984), rev. denied, 471 So. 2d 43 (Fla.1985); First [*565] American Bank & Trust v. Windjammer Time Sharing Resort, Inc., 483 So. 2d 732 (Fla. 4th DCA), rev. d…
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Parsons v. Whitaker Plumbing OF Boca Raton, Inc., 751 So. 2d 655 (Fla. 4th DCA 1999)…e section 713.06(1) lien are equally applicable to the lien at issue in this case, and we expressly adopt them. Section 713.29 fees may properly be taxed after the entry of a final judgment in a lien foreclosure action. See NCN Elec., Inc. v. Leto, 498 So. 2d 1377 (Fla. 2d DCA 1986). This rule makes [*657] practical sense. Only the prevailing party is entitled to fees under section 713.29. The court’s determination of attorney’s fees after the lien foreclosure judgment avoids the necessity of both sides prese…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Roberts v. Reubin O'D. Askew, 260 So. 2d 492 (Fla. 1972)
- Peter Marich & Assocs., Inc. v. Powell, 365 So. 2d 754 (Fla. 2d DCA 1978)
- Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. 3d DCA 1970)
- Great Sw. Fire Ins. Co. & C A F Indus., Inc. v. Biddle, 419 So. 2d 684 (Fla. 4th DCA 1982)
- Lake Region Paradise Island, Inc. v. Graviss, 323 So. 2d 610 (Fla. 2d DCA 1975)
- Magee v. Bishop Signs, Inc., 458 So. 2d 1174 (Fla. 4th DCA 1984)
- Data Lease Fin. Corp. v. Blackhawk Heating & Plumbing Co., Inc., 384 So. 2d 211 (Fla. 4th DCA 1980)