PATRICIA A. HEIDLE, APPELLANT,
v.
S & S DRYWALL AND TILE, INC., APPELLEE
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Patricia Heidle appeals a trial court's denial of attorney's fees after successfully defending against S & S's mechanic's lien foreclosure action through a dismissal for lack of prosecution. The appellate court reverses, holding that Heidle was the prevailing party and is entitled to recover attorney's fees and costs under Florida Statute § 713.29.
Heidle was the prevailing party in the action and is entitled to recover attorney's fees and costs under § 713.29. The trial court had jurisdiction to award attorney's fees despite the dismissal because Heidle's attorney's fees claim was properly pleaded and S & S received notice, and the fact that the mechanic's lien claim was dismissed—whether voluntarily or involuntarily—makes the party defending against it the prevailing party.
[1] A claim for attorney's fees must be pled to afford the opposing party notice, even when the claim arises from a dismissed action.
[2] A trial court retains jurisdiction to determine attorney's fees and costs after dismissing an entire case for lack of prosecution, provided the claim for fees was properl…
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Join FLexlaw to unlock all legal intelligence“In any action brought to enforce a lien under this part, the prevailing party is entitled to recover a reasonable fee for the services of [the party's] attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of [the party's] costs, as allowed in equitable actions.”
Establishes the mandatory statutory entitlement to attorney's fees for the prevailing party in mechanic's lien actions under § 713.29.
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Join FLexlaw to unlock all legal intelligenceS & S Drywall sued Heidle to foreclose a mechanic's lien and recover $10,840 for labor and materials on her home. Heidle filed an answer and countercl…
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THOMPSON, Judge.
Patricia A. Heidle (“Heidle”) appeals from a final order denying her recovery of attorney’s fees from S & S Drywall, Inc. (“S & S”). We find that Heidle was the prevailing party. We reverse and remand for imposition of attorney’s fees and costs.
S & S sued Heidle to foreclose a mechanic’s lien and for recovery of $10,840.00 for labor and materials provided in the construction of Heidle’s home. S & S sought attorney’s fees. Heidle filed an answer and counterclaim alleging that S & S’s lien was fraudulent. She sought damages and the recovery of attorney’s fees and costs for discharging the lien.
After a year had passed with no action in the case, Heidle moved to dismiss the entire case for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). The complaint, answer and counterclaim were dismissed. Subsequent to the case being dismissed, Heidle’s attorney moved for attorney’s fees and costs. S & S’s attorney objected to the motion arguing that the court had no jurisdiction because the entire case had been dismissed and the trial court did not reserve jurisdiction to determine and impose attorney’s fees and costs.
The trial court, relying upon Stockman v. Downs, 573 So. 2d 835, 837 (Fla.1991) (“a claim for attorney’s fees, whether based on statute or contract, must be pled” to afford the opposing party notice) denied Heidle’s motion.
The trial court did, however, tax costs in favor of Heidle in the amount of $492.00.
The trial court’s reliance upon Stockman, is misplaced. Id. The fact that Heidle’s pleading containing the attorney’s fees claim was dismissed when her motion to dismiss for lack of prosecution was granted does not mean the claim for attorney’s fees was not made.
The record is clear that S & ,S received appropriate notice.
The trial court did have jurisdiction. The only issue remaining is whether Heidle was the prevailing party.
Section 713.29, Florida Statutes (1991), which deals with construction liens, provides:
In any action brought to enforce a lien under this part, the prevailing party is entitled to recover a reasonable fee for the services of [the party’s] attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of [the party’s] costs, as allowed in equitable actions.
This statute is mandatory and requires the trial court to award attorney’s fees to the prevailing party. Sanfilippo v. Lurry Giacin Tile Co., Inc., 390 So. 2d 413 (Fla. 4th DCA 1980).
Thus, a landowner who successfully resists a mechanic’s lien claim is entitled to an attorney’s fee under this section, even if the landowner fails to prevail on a competing claim such as one for slander of title, see O’Kon & Co., Inc. v. Riedel, 588 So. 2d 1025 (Fla. 1st DCA 1991), or for breach of contract. See Java v. Atlas, Inc., General Contractors, 500 So. 2d 606 (Fla. 1st DCA 1986).
Heidle prevailed on the significant issue in the case, the foreclosure of the mechanic’s lien, because the case was dismissed. Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976) (where mechanic’s lien claim is voluntarily or involuntarily dismissed, party against whom the claim was brought is the prevailing party and is entitled to attorney’s fees); Fla. R.Civ.P. 1.420(d).
The fact that S & S filed the lawsuit does not preclude Heidle from recovering an attorney’s fee in the lawsuit because she had a claim arising out of the same transaction. See Prosperi v. Code, Inc., 626 So. 2d 1360, 1363 (Fla.1993).
We reverse with instructions that the trial court determine and award Heidle her attorney’s fees and costs as the prevailing party.
REVERSED and REMANDED with direction.
DAUKSCH and GRIFFIN, JJ., concur.
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Hollub Constr. Co. v. Onkar Narula and Joy Narula, 704 So. 2d 689 (Fla. 3d DCA 1997)…xed as part of his costs, as allowed in equitable actions. § 713.29, Fla. Stat. (1995). This provision indeed makes mandatory an award of attorney’s fees to the prevaiHng party in a mechanic’s Hen action. See Heidle v. S & S Drywall and Tile, Inc., 639 So. 2d 1105, 1106 (Fla. 5th DCA 1994); see also Metro-Centre Assocs. v. Envtl., Eng’rs., Inc., 522 So. 2d 967, 968 (Fla. 3d DCA 1988); Hub Cap Heaven, Inc. v. Goodman, 431 So. 2d 323, 324 (Fla. 3d DCA 1983) (“When a claimant in a mechanic’s Hen action recovers…
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Kenmark Constr., Inc. v. Cronin, 765 So. 2d 129 (Fla. 2d DCA 2000)…pelled to find a prevailing party in every construction lien case. They maintain that the Third, Fourth, and Fifth Districts have already so held. See Hollub Constr. Co. v. Narula, 704 So. 2d 689 (Fla. 3d DCA 1997); Heidle v. S & S Drywall and Tile, 639 So. 2d 1105 (Fla. 5th DCA 1994); Sanfilippo v. Larry Giacin Tile Co., 390 So. 2d 413 (Fla. 4th DCA 1980). The Second District has not issued an opinion that conflicts with these decisions and, thus, they are binding on trial courts in the Second District. See P…
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Corley v. Rivertown, Inc., 863 So. 2d 1244 (Fla. 5th DCA 2004)…ed as part of the prevailing party’s costs, as allowed in equitable actions. This court has held that “[t]his statute is mandatory and requires the trial court to award attorney’s fees to the prevailing party.” Heidle v. S & S Drywall & Tile, Inc., 639 So. 2d 1105 (Fla. 5th DCA 1994) (citing Sanfilippo v. Larry Giacin Tile Co., Inc., 390 So. 2d 413 (Fla. 4th DCA 1980)); see also CDI Contractors, LLC. v. Allbrite Elec. Contractors, Inc., 836 So. 2d 1031, 1033 (Fla. 5th DCA 2002) (“A party is entitled to recove…
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
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla. 1993)
- Gordon v. Warren Heating & AIR Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976)
- Press v. Press, 340 So. 2d 1234 (Fla. 4th DCA 1976)
- Sanfilippo v. Larry Giacin Tile Co., Inc., 390 So. 2d 413 (Fla. 4th DCA 1980)
- Sachs v. In re the Est. OF Tina Z. Wolf, 588 So. 2d 1025 (Fla. 3d DCA 1991)
- Logan A. Java and Ruby P. Java v. Atlas, Inc., 500 So. 2d 606 (Fla. 1st DCA 1986)