REGENCY HOMES OF DADE, INC., APPELLANT,
v.
BERTRAM MCMILLEN, III AND SARAH JANE SOUTHERLAND MCMILLEN, APPELLEES
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Regency Homes appeals an award of attorney's fees to homeowners who successfully defended against the contractor's construction lien foreclosure claim. The court affirms, holding that where lien-related issues are intertwined with other contract claims, attorney's fees need not be apportioned and may be awarded in full to the prevailing homeowner.
The court affirmed the full attorney's fee award to the homeowners, holding that where the issues involved in defending against the construction lien claim are intertwined with remaining issues in the case such that attorney's time cannot reasonably be apportioned, fees need not be apportioned and may be awarded to the prevailing homeowner under section 713.29, Florida Statutes.
[1] A prevailing party in a construction lien foreclosure action may recover attorney's fees under section 713.29, Florida Statutes.
[2] When claims and counterclaims in a construction lien foreclosure case are so intertwined that attorney's time cannot reasonably be apportioned, fees may be awarded for al…
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Join FLexlaw to unlock all legal intelligence“under section 713.29, a prevailing owner is not entitled to 'recovery of attorney's fees incurred in the breach of contract action ... or the defense of ... [the] counterclaim for goods and services, [but] ... is entitled to attorney's fees connected to the mechanics' lien litigation'”
Establishes the general rule that attorney's fees under section 713.29 are limited to lien-related matters, not breach of contract claims
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Join FLexlaw to unlock all legal intelligenceHomeowners sued a contractor for breach of residential construction contract, negligence, and fraud. The contractor counterclaimed for breach of contr…
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COPE, Judge.
Regency Homes of Dade, Inc. (“contractor”) appeals an order awarding attorney’s fees under section 718.29, Florida Statutes, after the appellee homeowners successfully defended against the appellant contractor’s claim to enforce a construction lien. We affirm.
The homeowners filed suit against the contractor, alleging breach of a residential construction contract, negligence, and fraud. The contractor counterclaimed for breach of the construction contract, quantum meruit, and foreclosure of its construction lien against the homeowners’ property under chapter 713, Florida Statutes. The residen tial construction contract did not have an attorney’s fees clause.
The case proceeded to trial, at which the homeowners recovered judgment against the contractor. Judgment was entered in favor of the homeowners on the claim to foreclose the construction lien. The homeowners moved for attorney’s fees under section 713.29, Florida Statutes. The trial court conducted an evidentiary hearing and after considering the testimony of the parties’ respective expert witnesses, entered an attorney’s fee award in favor of the homeowners.
On appeal the contractor contends that the trial court erred by failing to apportion the attorney’s fee award among the various claims and counterclaims. The contractor argues that the attorney’s fee award includes an allotment for time expended by the homeowners on their breach of contract and other claims. The contractor asserts that the case must be returned to the trial court for a new hearing.
The beginning point of the contractor’s analysis is this court’s decision in Metro-Centre Associates v. Environmental Engineers, Inc., 522 So. 2d 967 (Fla. 3d DCA 1988). In that ease, this court said that under section 713.29, a prevailing owner is not entitled to “recovery of attorney’s fees incurred in the breach of contract action ... or the defense of ... [the] counterclaim for goods and services, [but] ... is entitled to attorney’s fees connected to the mechanics’ lien litigation_” Metro-Centre Associates v. Environmental Engineers, Inc., 522 So. 2d at 969.
The record made in this ease, however, indicates that the issues involved in defending against the construction hen claim are intertwined with the remaining issues in the case, and that the attorney’s time cannot reasonably be apportioned. We conclude that on this record, the fees were properly awarded. We do not think that the Metro-Centre decision addresses the issue now before us. The result we reach is consistent with the reasoning which has been applied under other attorney’s fees statutes. See Copian v. 1616 East Sunrise Motors, Inc., 522 So. 2d 920, 921-22 (Fla. 3d DCA 1988); Chrysler Corp. v. Weinstein, 522 So. 2d 894, 896 (Fla. 3d DCA 1988).
As to the remaining issue on appeal, we see no abuse of discretion by the trial court in allowing the reopening of the record to permit additional evidence to be offered by the homeowners.
Affirmed.
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Anglia Jacs & Co., Inc. v. Dubin, 830 So. 2d 169 (Fla. 4th DCA 2002)…0, 922 (Fla. 3d DCA 1988)(reason-ing that “time spent marshaling the facts of the sale, the condition of the car, repairs, damages, etc., likely would have been spent defending any one or all of the counts”); Regency Homes of Dade, Inc. v. McMillen, 689 So. 2d 1204 (Fla. 3d DCA 1997)(plaintiffs who could not claim entitlement to fees arising on a contract claim were, nevertheless, entitled to the full award because they properly pled entitlement to another claim on which they prevailed). In Stockman, the supr…
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Baker v. Falcon Power, Inc., 788 So. 2d 1104 (Fla. 5th DCA 2001)…aker had filed pleadings and affidavits which acknowledged the intertwined nature of the transactions which formed the basis of Baker’s reformation claim and Falcon Power’s beach of contract counterclaim. See Regency Homes of Dade, Inc. v. McMillen, 689 So. 2d 1204 (Fla. 3d DCA 1997)(con-cluding that the trial court was not required to apportion attorney’s fee award among various claims and counterclaims where the issues involved in defending the claims were intertwined with other issues in the case and attorn…
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Daddono v. Domenic Miele & Forte Equity, Inc., 69 So. 3d 320 (Fla. 4th DCA 2011)…was spent on claims for which attorney’s fees are not available, the party may nonetheless be awarded all attorney’s fees if the awardable issues are “intertwined” with the issues that are not awardable. See Regency Homes of Dade, Inc. v. McMillen, 689 So. 2d 1204, 1205 (Fla. 3d DCA 1997) (concluding that a full award of attorney’s fees was proper where issues for which attorney’s fees were permitted were intertwined with issues for which attorney’s fees were not permitted); Baker v. Falcon Power, Inc., 788 S…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Caplan v. 1616 E. Sunrise Motors, Inc., 522 So. 2d 920 (Fla. 3d DCA 1988)
- Chrysler Corp. v. Weinstein, 522 So. 2d 894 (Fla. 3d DCA 1988)
- Metro-Centre Assocs. v. Env't Eng'rs, Inc., 522 So. 2d 967 (Fla. 3d DCA 1988)