FOXBILT ELECTRIC, INC., A FLORIDA CORPORATION, APPELLANT,
v.
ARTHUR BELEFANT AND RITA BELEFANT, HIS WIFE, APPELLEES
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Foxbilt Electric sought to foreclose a mechanic's lien against the Belefants, who countered claiming damages for dissatisfactory work. The trial court awarded attorney's fees to the defendants despite finding in plaintiff's favor on the lien foreclosure. The appellate court reversed, holding that under Florida's mechanic's lien statute, attorney's fees must be awarded to the prevailing party and may include appellate fees.
The trial court erred in awarding attorney's fees to defendants and in denying attorney's fees to plaintiff, the prevailing party. Attorney's fees under § 713.29 are not limited to the trial level but extend to appellate services, and the statute requires that the prevailing party be made whole by recovering reasonable attorney's fees.
[1] Under Florida Statute § 713.29, the prevailing party in a mechanic's lien foreclosure action is entitled to a reasonable attorney's fee.
[2] A party who successfully forecloses a mechanic's lien is the prevailing party for the purpose of recovering attorney's fees.
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Join FLexlaw to unlock all legal intelligence“It was error to award attorney's fees to defendant's counsel and likewise error to deny attorney's fees to counsel for plaintiff, the prevailing party.”
Establishes the core holding that attorney's fees must go to the prevailing party in mechanic's lien foreclosures.
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Join FLexlaw to unlock all legal intelligenceFoxbilt Electric filed a mechanic's lien foreclosure action against Arthur and Rita Belefant. The defendants filed a counterclaim seeking damages due …
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The court below entered a judgment for the plaintiff who sought foreclosure of a mechanic’s lien. By their counterclaim defendants asked for damages, due to their dissatisfaction with the work. The judgment was for a lesser amount than plaintiff claimed, because of deductions by the lower court from the amount claimed, but an award was made to the defendant as attorney’s fees; no judgment was entered on the counterclaim.
The point on appeal is whether there was error in the award of attorney’s fees in view of the statute, F.S. § 713.29, F.S.A., providing for a reasonable fee for the prevailing party.
Similar circumstances existed in the case of Sharpe v. Ceco Corporation, Fla.App. 1970, 242 So.2d 464, and that case controls here. It was error to award attorney’s fees to defendant’s counsel and likewise error to deny attorney’s fees to counsel for plaintiff, the prevailing party.
Plaintiff’s motion for attorney’s fees for services in connection with this appeal is granted. Although the cases of John T. Wood Homes, Inc. v. Air Control Products, Inc., Fla.App.1965, 177 So.2d 709, and Babe’s Plumbing, Inc. v. Maier, Fla.App.1966, 194 So.2d 666, deny the award of attorney’s fees in mechanic’s lien foreclosures for services on appeal, both reasoning that the statute does not provide for fees to an appellee for defending an appeal, the language of § 713.29 does not distinguish between trial and appellate attorney fees; fees are not limited to the lower court. To make such a distinction would defeat the apparent intended purpose of the statute to make the prevailing party whole. In Emery v. International Glass & Mfg., Inc., Fla.App.1971, 249 So. 2d 496, in discussing the purpose of the mechanic’s lien law it was said, “The entire statute [Ch. 713, F.S.1969] is essentially for the benefit of a claimant, not a defendant; and the section providing for attorneys’ fees is primarily calculated to preclude any diminution of the claimant’s full compensation for which he is suing while, at the same time, discouraging specious claims or defenses.” And in Empress Homes, Inc. v. Levin, Fla., Fla.App.1967, 201 So.2d 475, the mortgage therein considered contained a provision substantially that the mortgagor would pay to the mortgagee all costs including reasonable attorneys’ fees which the mortgagee might incur in collecting any sums secured whether by foreclosure or otherwise. In finding one of the issues to be whether a contractual provision for attorneys’ fees contained in a mortgage included an allowance for legal services rendered upon appellate review, the court commented that, “Not only would denial of attorney’s fees on appeal be contrary to the intention of the parties to the note and mortgage, but denial would defeat the very purpose of such a provisi on,” and granted appellees’ motion for attorney’s fees on appeal.
That portion of the final judgment which awarded attorney’s fees to defendant *30is reversed and this cause is remanded for the entry of an award of attorney’s fees to plaintiff’s counsel for services at the trial level and for services on this appeal.
Reversed, in part, and remanded.
WALDEN and OWEN, JJ., and WARREN, LAMAR, Associate Judge, concur.
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Peter Marich & Assocs., Inc. v. Powell, 365 So. 2d 754 (Fla. 2d DCA 1978)…an affirmative judgment is rendered. This is true despite the fact that the judgment is for less than initially sought in the complaint. R. F. Driggers Construction Co. v. Bagli, 313 So. 2d 450 (Fla.2d DCA 1975); Foxbilt Electric, Inc. v. Belefant, 280 So. 2d 28 (Fla.4th DCA 1973); Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla.3d DCA 1970). Therefore, appellant was entitled to a reasonable attorney’s fee even though it did not recover the entire amount sought in its complaint.1 Though there was a bona fide que…
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Sunbeam Enters., Inc. v. Mr. and Mrs. Walter Upthegrove, 316 So. 2d 34 (Fla. 1975)…of Potts, 199 So. 2d 319 (Fla.App. 2, 1967), the DCA-2 held that the fact that a statute authorizes the trial court to allow fees does not ipso facto warrant the allowance of fees on appeal. However, the DCA-4 in Foxbilt Electric, Inc. v. Belefant, 280 So. 2d 28 (Fla.App. 4, 1973) held, as follows: “Plaintiff’s motion for attorney’s fees •for services in connection with this appeal is granted. Although the cases of John T. Wood Homes, Inc. v. Air Control Products, Inc., Fla.App.1965, 177 So. 2d 709, and Ba…
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Hegeman-Harris Co., Inc. v. ALL State Pipe Supply Co., Inc., 400 So. 2d 1245 (Fla. 5th DCA 1981)…te assurance of being fully compensated for his labor, services and material. The section for attorney’s fees, section 713.29, is primarily calculated to prevent any diminution of the claimant’s full compensation. Foxbilt Electric, Inc. v. Belefant, 280 So. 2d 28 (Fla. 4th DCA 1973); Emery v. International Glass & Mfg., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971). The lienor on a job on which the contractor has furnished a payment bond needs, and should be entitled to, full payment for his labor and material und…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- B. Irwin Emery et ux. v. Int'l Glass & MFG., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971)
- Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. 3d DCA 1970)
- Babe's Plumbing, Inc. v. Emil P. Maier and Hildegarde M. Maier, 194 So. 2d 666 (Fla. 2d DCA 1966)
- John T. Wood Homes, Inc. v. AIR Control Prods., Inc., 177 So. 2d 709 (Fla. 1st DCA 1965)
- Moore v. State, 201 So. 2d 475 (Fla. 3d DCA 1967)