H. D. MCPHERSON, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
METRO ELECTRIC OF ORLANDO, INC., A FLORIDA CORPORATION, FORMERLY MODERN ELECTRIC, A DISSOLVED PARTNERSHIP, APPELLEE
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The court held that the prevailing party in a mechanics' lien action is entitled to attorney fees, regardless of whether they are the plaintiff or defendant.
The defendants successfully defended a foreclosure action under the Mechanics' Lien Law and sought attorney fees. The trial court denied the motion, a…
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This is an appeal from an order denying defendants-McPhersons motion for attorney fees pursuant to his successful defense of a foreclosure action under the Mechanics’ Lien Law. We reverse.
Briefly, defendant argues that he is the prevailing party and as such, under Section 713.29, F.S.1969, F.S.A., he is entitled to attorney fees. That statute is as follows:
“Attorney’s fees. — In any action brought to enforce a lien under part I [part I is the mechanic’s lien law] of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.” (Emphasis added.)
Apparently the judge below, in denying the motion, interpreted that statute as allowing attorney fees only to a prevailing plaintiff. Since appellant was the defendant below he would not qualify. The order appealed from also cited cases which were based on an earlier version of the statute now in question, a version declared unconstitutional.
We hold that there was error below. Section 713.29, F.S.1969, F.S.A., contains no unconstitutional vestiges of its predecessor Section 218, F.S.1906. Further, we interpret “prevailing party” to be just that —the party who prevails. This is a common . sense interpretation and coincides with this court’s decision in Lion Oil Company, Inc. v. Tamarac Lakes, Inc., Fla.App.1970, 232 So.2d 20, and with Sharpe v. Ceco Corporation, Fla.App.1970, 242 So.2d 464, cert. denied at 247 So.2d 324, Fla., 1971.
In accordance with these views, the cause is reversed and remanded with directions to enter an order awarding attorney fees to the prevailing parties, McPhersons’ attorney.
Reversed and remanded.
CROSS and OWEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Ronald Jackson and Joanne v. Jackson, 288 So. 2d 564 (Fla. 2d DCA 1974)…dgment rendered in his favor”, the court was, in effect, answering this contention by saying that a litigant need not win every point in order to be a prevailing party. Cf. H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., Fla.App.4th, 1971, 253 So. 2d 878; Potter v. Rowan, Fla.App.2nd, 1972, 266 So. 2d 121. Appellee’s reliance on Emery v. International Glass & Mfg., Inc., Fla.App.2nd, 1971, 249 So. 2d 496, is likewise misplaced insofar as appellee would totally deny the awarding of attorney’s fees t…
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Winnie v. Buckhalter, 362 So. 2d 1014 (Fla. 1st DCA 1978)…unn & Gunn Construction Co., 348 So. 2d 560 (Fla.3d DCA 1977); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla.3d DCA 1975); Dominguez v. Benach, 277 So. 2d 567 (Fla.3d DCA 1973); H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., 253 So. 2d 878 (Fla.4th DCA 1971). Contrast, Emery v. International Glass & Mfg. Inc., 249 So. 2d 496 (Fla.2d DCA 1971). However, Winnie is only entitled to attorney’s fees for the services rendered incident to the mechanics’ lien aspect of the case. Kinard Enterp…
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Potter v. Rowan, 266 So. 2d 121 (Fla. 2d DCA 1972)…971, 249 So. 2d 496, Rowan from the very outset tendered the amount technically adjudged to be due Potter. He “prevailed” in every sense of the word. As Judge Walden said in H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., Fla.App.4th 1971, 253 So. 2d 878, “we interpret ‘prevailing party’ to be just that — the party who prevails.” This aspect of the judgment is erroneous. Affirmed in part and reversed in part. LILES, Acting C. J., and HOBSON, J., concur.…
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
- Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. 3d DCA 1970)
- Lion OIL Co., Inc. v. Tamarac Lakes, Inc., 232 So. 2d 20 (Fla. 4th DCA 1970)
- Kraus v. State, 247 So. 2d 324 (Fla. 1971)
- Sharpe v. Ceco Corp., 247 So. 2d 324 (Fla. 1971)