PENNINGTON & ASSOCIATES, INC., APPELLANT/CROSS-APPELLEE,
v.
ORA EVANS, APPELLEE/CROSS-APPELLANT

Fla. 5th DCA | 2006-07-14
No. 5D05-3533
ORFINGER and TORPY, JJ., concur.
932 So. 2d 1253 Florida District Court of Appeal, Fifth District (2006) Positive Treatment
Cited by 4 cases

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Synopsis

Pennington & Associates appealed a judgment dismissing its construction lien foreclosure claim against property owner Ora Evans after the general contractor's client (360Networks) defaulted and filed bankruptcy. The court affirmed the dismissal but reversed the trial court's denial of attorney's fees and costs to the prevailing party Evans, holding that such awards are mandatory under Florida's construction lien statute.


Holding

The prevailing party in a construction lien foreclosure action is entitled to mandatory awards of both reasonable attorney's fees and costs. The trial court lacked discretion to deny these awards to Evans, the prevailing party.


Headnotes

[1] A party who successfully defends a suit brought to foreclose a construction lien is entitled to an award of attorney's fees.

[2] The award of attorney's fees to the prevailing party in a construction lien suit is mandatory.

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Key Quotes

“the prevailing party is entitled to recover a reasonable fee for the services of her or his 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 prevailing party's costs, as allowed in equitable actions”

Establishes the statutory basis for mandatory attorney's fees awards under section 713.29 to prevailing parties in lien foreclosure actions

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Facts & Procedural History

Pennington & Associates was engaged by 360Networks, a lessee, to construct a building on property owned by Ora Evans. Shortly after construction began…

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Opinion of the Court
PLEUS, C.J.

PLEUS, C.J.

Pennington & Associates, Inc., a general contractor, appeals the final judgment rendered in favor of Ora Evans in a construction lien foreclosure suit brought by Pennington. 360Networks was the lessee on a portion of a larger parcel owned by Evans and engaged Pennington to construct a building on the leased property. Shortly after construction began, 360Networks defaulted and went into bankruptcy.

We affirm the final judgment in Evans’ favor, but reverse the denial to Evans of attorney’s fees and costs. In making our ruling we have carefully reviewed all the numerous issues raised by Pennington and find them to be without merit.

On cross-appeal, Evans raised the denial by the trial judge of his attorney’s fees and costs. The parties agree that the prevailing party is entitled to an award of its attorney’s fees pursuant to section 713.29, which provides:

In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his 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 prevailing party’s costs, as allowed in equitable actions.

This section authorizes the award of attorney’s fees to a party who successfully defends a suit arising out of an attempt to foreclose a construction lien. In Cloutier v. Central Contracting, Inc., 418 So. 2d 1233, 1234 (Fla. 5th DCA 1982), this Court stated: “Since the court found appellee’s lien was unenforceable, appellants successfully resisted the claim and prevailed below. They were entitled to recover attorney’s fees under the statute.” In fact, in a construction lien suit, the award of fees to the prevailing party is mandatory. Heidle v. S & S Drywall & Tile, Inc., 639 So. 2d 1105 (Fla. 5th DCA 1994).

In addition to attorney’s fees, the prevailing party is also entitled to recovery of its costs pursuant to section 57.041, which provides: “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment....” In Michael David Ivey, Inc. v. Salazar, 903 So. 2d 329 (Fla. 5th DCA 2005), this Court held that the trial court lacked discretion to deny prevailing party costs.

We grant Evans’ amended motion for attorney’s fees on his cross-appeal. Accordingly, we reverse the final judgment only insofar as it denied attorney’s fees and costs to Evans both at trial and on appeal and remand for calculation of the amount of fees and costs to be awarded to Evans. In its determination of fees, the court should consider the customary hourly rate charged by attorneys doing similar work in that locality and the number of reasonable hours spent in the defense of the foreclosure action. In all other respects, the final judgment is affirmed.

ORFINGER and TORPY, JJ., concur.


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Citator

Cited By

  • Trytek v. Gale Indus., Inc., 3 So. 3d 1194 (Fla. 2009)
    …he appellate cases concerning prevailing party attorneys’ fees to mandate that there be a prevailing party, only that where a "prevailing party” is determined, the entitlement to attorneys’ fees is mandatory. See Pennington & Assocs., Inc. v. Evans, 932 So. 2d 1253, 1254 (Fla. 5th DCA 2006); Hollub Constr. Co. v. Narula, 704 So. 2d 689, 690 (Fla. 3d DCA 1997); Grant v. Wester, 679 So. 2d 1301, 1308 (Fla. 1st DCA 1996); Sanfilippo v. Larry Giacin Tile Co., 390 So. 2d 413, 414 (Fla. 4th DCA 1980). We reject the…
  • Wells v. Halmac Dev., Inc., 189 So. 3d 1015 (Fla. 3d DCA 2016)
    …e appellate cases concerning prevailing party attorneys’ fees to mandate that there be a .prevailing party, only that where a “prevailing party” is determined, the entitlement to attorneys’ fees is mandatory. See Pennington & Assocs., Inc. v. Evans, 932 So. 2d 1253, 1254 (Fla. 5th DCA 2006); Hollub Constr. Co. v. Narula, 704 So. 2d 689, 690 (Fla. 3d DCA 1997); Grant v. Wester, 679 So. 2d 1301, 1308 (Fla. 1st DCA 1996); Sanfilippo v. Larry Giacin Tile Co., 390 So. 2d 413, 414 (Fla. 4th DCA 1980). We reject the…

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