DR. JACK FREEDMAN AND SOUTHWEST ELECTRIC SUPPLY, INC., APPELLANTS,
v.
COLLIER COMMERCIAL BUILDERS, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 2d DCA | 1992-03-13
No. 91-00762
PARKER and PATTERSON, JJ., concur.
596 So. 2d 115 Florida District Court of Appeal, Second District (1992) Positive Treatment
Cited by 2 cases

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Synopsis

The court reversed a trial court's award of attorney's fees to Collier in a lien enforcement action, holding that the statute authorizing such fees for arbitration proceedings was not retroactively applicable to disputes initiated before the statute's effective date.


Holding

The court held that the amended statute's authorization for attorney's fees in arbitration proceedings does not apply retroactively to actions commenced before its effective date. Under the statute in effect when Collier initiated the action, attorney's fees were not available for arbitration-related matters. Additionally, there was neither a contractual nor statutory basis to award fees in this case.


Headnotes

[1] A statute is presumed to have prospective application unless the legislature specifies otherwise.

[2] A statute allowing attorney's fees for arbitration does not apply to actions commenced before its effective date.

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Key Quotes

“Section 713.29, Florida Statutes (1989), in effect when Collier commenced its action, did not contemplate legal fees arising from matters resolved through arbitration.”

Establishes that the statute in effect at the time of the action did not authorize attorney's fees for arbitration disputes.

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Facts & Procedural History

Collier recorded a lien claim on property owned by Freedman and Southwest Electric Supply. Pursuant to a construction contract, the parties submitted …

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Opinion of the Court
FRANK, Acting Chief Judge.

FRANK, Acting Chief Judge.

We reverse an award of attorney’s fees stemming from an arbitration proceeding.

On April 11, 1990, Collier Commerical Builders, Inc. (Collier) recorded a claim of lien on certain real property owned by Dr. Jack Freedman and Southwest Electric Supply, Inc. (Southwest).

Consistent with the terms of their construction contract, the dispute was submitted to arbitration which resulted in an award to Collier of $135,060. Collier then moved the trial court to confirm the award and successfully sought attorney's fees pursuant to section 713.29, Florida Statutes (Supp.1990), incurred during the arbitration proceeding. That statute in its amended form became effective January 1, 1991, and now includes the words “or for arbitration” as one of the bases for an award of legal fees. Ch. 90-109, § 14, Laws of Fla. (1990).

The revised version of the statute, however, became effective subsequent to the initiation of Collier’s action to enforce its lien.

Thus, Collier’s and the trial court’s reliance upon it was misplaced.1

Section 713.29, Florida Statutes (1989), in effect when Collier commenced its action, did not contemplate legal fees arising from matters resolved through arbitration.2 Zac Smith & Co., Inc. v. Moonspinner Condominium Ass’n., Inc., 534 So. 2d 739 (Fla. 1st DCA 1988); see also Fitzgerald & Co., Inc. v. Roberts Electrical Contractors, Inc., 533 So. 2d 789 (Fla. 1st DCA 1988).

Although fees may be recovered in an action associated with the confirmation or enforcement of an arbitral award, such award must be subtended by statute or contract. Julian E. Johnson & Sons, Inc. v. Balboa Ins. Co., 408 So. 2d 1044 (Fla.1982); Fewox v. McMerit Const. Co., 556 So. 2d 419 (Fla. 2d DCA 1989), approved, Insurance Co. of North America v. Acousti Engineering Co. of Florida, 579 So. 2d 77 (Fla.1991); Raymond James & Associates, Inc. v. Wieneke, 556 So. 2d 800 (Fla. 2d DCA 1990).

There is neither a statute nor a contractual predicate in the instant matter supporting the trial court’s fee award.

Finally, we reject Collier’s contention that the parties had stipulated during the arbitration proceeding to an award of fees. The record simply discloses a bilateral understanding, albeit ineffectual in the light of Fewox, that in the event the panel of arbitrators found a contractual or statutory basis to award legal fees to Collier as a prevailing party, entitlement to an attorney’s fee would be equally applicable to Southwest were it determined to be the prevailing party.

Accordingly, we reverse the award of attorney’s fees to Collier. PARKER and PATTERSON, JJ., concur. . Because the legislature was silent regarding the retroactive or prospective application of this statute, we abide by the general rule that a statute is presumed to have a prospective application. Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239, 241 (Fla.1977).

. Section 713.29 Attorney's fees. — In any action brought to enforce a lien under [sections 713.-01-.37], 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.


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Citator

Cited By

  • Suitt Constr. Co., Inc. v. 147 Assocs., 611 So. 2d 1374 (Fla. 3d DCA 1993)
    …PER CURIAM. Affirmed. Vance v. Freeman, 610 So. 2d 98 (Fla. 1st DCA 1992); Freedman v. Collier Commercial Builders, Inc., 596 So. 2d 115 (Fla. 2d DCA 1992); Beach Resorts Int’l v. Clarmac Marine Constr. Co., 339 So. 2d 689 (Fla. 2d DCA 1976); § 713.29, Fla.Stat. (1989).…

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