GLEN JOHNSON, INC., AND THE AMERICAN INSURANCE COMPANY, APPELLANTS,
v.
L.M. HOWDESHELL, INC., APPELLEE
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Glen Johnson, Inc. and its surety, American Insurance Company, appeal a judgment in favor of subcontractor L.M. Howdeshell for amounts due under a construction subcontract. The court affirms the underlying judgment but reverses the attorney's fees award to the extent it included compensation for services rendered during the prior arbitration proceeding, which is prohibited by Florida law.
The judgment of $11,045.10 for amounts due under the subcontract is affirmed. However, the award of $9,717.50 in attorney's fees is reversed in part because it improperly included compensation for services rendered during the arbitration proceeding, which is expressly excluded by Florida Statutes section 682.11. The case is remanded for recomputation of attorney's fees excluding time spent on the arbitration proceeding.
[1] Attorney's fees for arbitration proceedings are expressly excluded by statute.
[2] A trial court may award attorney's fees for services rendered in an enforcement proceeding following an arbitration, but not for the arbitration itself.
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Join FLexlaw to unlock all legal intelligence“Attorney's fees for arbitration proceedings are expressly excluded by section 682.11, Florida Statutes (1985).”
Establishes the legal basis for requiring exclusion of arbitration-related fees from the award
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Join FLexlaw to unlock all legal intelligenceHowdeshell, a subcontractor, agreed with Glen Johnson, a general contractor, to furnish labor and materials on a construction project. A dispute arose…
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THREADGILL, Judge.
Appellants, Glen Johnson, Inc. (Glen Johnson), and The American Insurance Company (American), appeal a final judgment of $11,045.10 plus attorney’s fees of $9,717.50 entered in favor of appellee, L.M. Howdeshell, Inc. (Howdeshell), on a construction contract. We affirm the judgment but find that the trial court erred in the computation of attorney’s fees by allowing compensation for services rendered in the prior arbitration proceeding.
Appellee Howdeshell, a subcontractor on a construction job, entered into an agreement with appellant Glen Johnson, a contractor, to furnish labor and materials. A dispute arose and Howdeshell filed a complaint to recover amounts due under the subcontract against Glen Johnson and American, the surety on the contractor’s bond. The complaint prayed for damages and attorney’s fees, pursuant to the surety agreement. Appellants requested arbitration and the trial court ordered the parties to submit their claims to arbitration. The arbitrator decided that payment was not due to the subcontractor from the general contractor until the general contractor was paid by the owner. The arbitrator dismissed the claims without prejudice because all conditions precedent to payment had not been met.
Appellee filed a motion to modify or vacate the arbitration award in circuit court. The trial court found that all conditions precedent to payment had been satisfied, entered final judgment for appellee in the sum of $11,045.10, and reserved jurisdiction to determine the amount of attorney’s fees. The court after a hearing awarded appellee $9,717.50 in attorney’s fees.
We agree with appellants’ contention that the trial court improperly included attorney’s fees for the arbitration proceeding in his award of fees against appellants. Attorney’s fees for arbitration proceedings are expressly excluded by section 682.11, Florida Statutes (1985). Appellee contends that this issue was not preserved below for review and therefore we should not consider it. However, it is clear from the transcript of the fee hearing that appellant’s counsel expected to argue this issue. His questions of the witnesses clearly show that he was trying to distinguish between time spent on the arbitration proceeding and time spent on the enforcement proceeding. The testimony presented demonstrates the award of fees included compensation for preparation and attendance at the arbitration proceedings which is prohibited.
We, therefore, remand for recomputation of the amount of fees awarded to exclude any time appellee’s counsel expended in connection with the arbitration proceeding. In all other respects the final judgment is affirmed.
DANAHY, C.J., and SCHOONOVER, J., concur.
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Fewox v. McMERIT Constr. Co., 556 So. 2d 419 (Fla. 2d DCA 1989)…lenge the trial court’s order denying their motion for attorney’s fees against appellee Federal Insurance Company (FIC). The court denied the motion for attorney’s fees relying on this court’s decision in Glen Johnson, Inc. v. L.M. Howdeshell, Inc., 520 So. 2d 297 (Fla. 2d DCA 1988). We reverse, and find it necessary to recede from Glen Johnson, as well as our opinion in St. Paul Fire & Marine Insurance Co. v. Sample, 533 So. 2d 1196 (Fla. 2d DCA 1988), for reasons which will be explained in this opinion. We…
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ZAC Smith & Co., Inc. v. Moonspinner Condo. Ass'n, Inc., 534 So. 2d 739 (Fla. 1st DCA 1988)…e award of attorney fees in arbitration proceedings, relying on a series of arbitration cases involving attorney fees sought in arbitrated mechanics liens foreclosure actions under section 713.29,3 and on Glen Johnson, Inc. v. L.M. Howdeshell, Inc., 520 So. 2d 297 (Fla. 2d DCA 1988).4 Appellee concedes that attorney fees should have been assessed only against Lumbermens and not against Smith. It argues, however, that sections 627.756 and 627.428, when read together, authorize the award of attorney fees to an…
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ST. Paul Fire & Marine Ins. Co. v. Sample, 533 So. 2d 1196 (Fla. 2d DCA 1988)…he arbitration, shall be paid as provided in the award.” § 682.11, Fla.Stat. (1987) (emphasis supplied). See also Beach Resorts International v. Clarmac Marine Construction, 339 So. 2d 689 (Fla. 2d DCA 1976); Glenn Johnson, Inc. v. Howdeshell, Inc., 520 So. 2d 297 (Fla. 2d DCA 1988). Although St. Paul’s second contention in this appeal is effectively rendered moot by our decision regarding the first contention, we shall address it because we agree there was error. St. Paul contends that the fee awarded the S…
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