NELSON'S, INC., A FLORIDA CORPORATION, APPELLANT,
v.
HALIFAX CONSTRUCTION COMPANY, A FLORIDA CORPORATION, APPELLEE
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Nelson's, Inc. appealed a trial court judgment awarding damages for breach of a construction contract and attorney's fees. The Third District Court of Appeal affirmed the damages award but reversed the attorney's fees award, holding that attorney's fees under Florida's lien statute are available only in lien foreclosure actions, not in simple breach of contract suits.
Attorney's fees under § 713.29 may be awarded only to a prevailing party in a lien foreclosure action, not to a prevailing party in a simple suit for money damages. A contractor must enforce its lien claim through the proper lien foreclosure procedure to be eligible for attorney's fees under the statute.
[1] Attorney's fees are recoverable under § 713.29, Fla.Stat., only in an action brought to enforce a lien under part I of Chapter 713, Florida Statutes.
[2] A money judgment entered in favor of a lienor in an action where no lien is found to exist does not entitle the lienor to attorney's fees.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Where no lien is found to exist in an action to foreclose a mechanic's, workman's, or materialman's lien under Ch. 713, Fla. Stat., but a money judgment is entered for the lienor, the court may not award the lienor attorney's fees.”
Establishes the core holding that attorney's fees are not available in simple breach of contract actions even if a money judgment is obtained.
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Join FLexlaw to unlock all legal intelligenceNelson's, Inc. performed work pursuant to a construction contract with Halifax Construction Company. Nelson's filed a notice of lien which was transfe…
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BARKDULL, Chief Judge.
By these consolidated appeals, we are called upon to review the propriety of a final judgment awarding damages to the plaintiff in the trial court for work performed pursuant to a construction contract and also a post final judgment which awarded the plaintiff attorney’s fees, allegedly pursuant to § 713.29, Fla.Stat. The plaintiff’s complaint was a simple complaint for damages upon alleged breach of contract; there was no claim to enforce a lien either against the real property or to impress a lien against a bond, which had been posted pursuant to § 713.24, Fla.Stat. A notice of lien had been filed by the plaintiff, but it had been transferred to bond; but the surety company on the bond was not even made a party-defendant. Kleinman v. Bal Harbour Towers, Inc., Fla.1967, 198 So. 2d 830.
We affirm the trial judge’s entry of a monetary amount as damages as to breach of the construction contract, but we reverse the award of attorney’s fees. Where no lien is found to exist in an action to foreclose a mechanic’s, workman’s, or materialman’s lien under Ch. 713, Fla. Stat., but a money judgment is entered for the lienor, the court may not award the lienor attorney’s fees. Ch. 713.29, Fla. Stat., provides:
“In any action brought to enforce a lien under part I 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.”
In Emery v. International Glass & Mfg., Inc., Fla.App.1971, 249 So. 2d 496, a lien claimant was unsuccessful in his foreclosure action, but a money judgment was entered in his favor. The Second District Court of Appeal, in reversing the award of attorney’s fees, held:
* * * * *
“ * * * a claimant is not entitled to attorneys’ fees under the section before us, notwithstanding that he ultimately prevails in the case, unless the mode and substance of his recovery is as expressly provided for within the lien law itself. * * * »>
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Attorney’s fees may be awarded only to a prevailing party in a lien foreclosure action, and not to a prevailing party in a simple suit for money damages. Jackson v. Hatch, Fla.App.1974, 288 So. 2d 564. Therefore, for the reasons stated, the final judgment in the amount of $3,265.95 be and the same is hereby affirmed, but the order awarding attorney’s fees in the amount of $1,875.00 be and the same is hereby reversed.
Affirmed in part; reversed in part.
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Mershon v. Buckles-Thompson, Inc., 383 So. 2d 280 (Fla. 5th DCA 1980)…can Fire and Casualty Co. v. Davis Water and Waste, 377 So. 2d 164 (Fla.1979). In order to be awarded attorney’s fees, the suit must be on a foreclosure of mechanic’s, workman’s or materialman’s lien, Nelson’s Inc. v. Halifax Construction Company, 305 So. 2d 840 (Fla.3d DCA 1974). A suit on an oral contract does not sustain an award of attorney’s fees. There is sufficient evidence to sustain the judgment on the oral contract but not for foreclosure of a mechanic’s lien. Therefore the judgment as to the amou…
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Encompass Inc. v. Alford, 444 So. 2d 1085 (Fla. 1st DCA 1984)…to recover attorney’s fees only in the event that he is successful in prosecuting his mechanic’s lien cause of action. Emery v. International Glass & Mfg. Inc., 249 So. 2d 496 (Fla. 2nd DCA 1971); cf. Nelson’s, Inc. v. Halifax Construction Company, 305 So. 2d 840 (Fla. 3rd DCA 1974); Mershon v. Buckles-Thompson, Inc., 383 So. 2d 280 (Fla. 5th DCA 1980); but cf. S. C.M. Associates, Inc. v. Rhodes, 395 So. 2d 632 (Fla. 2nd DCA 1981). In Emery, a lien claimant was unsucessful on his mechanic’s lien foreclosure…
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Atl. Gardens Landscaping, Inc. v. Boca Raton Land Dev., Inc., 360 So. 2d 1278 (Fla. 4th DCA 1978)…required by Section 713.06(3)(d), Florida Statutes (1975). Lastly, since appellant failed to recover on its complaint to enforce a mechanic’s lien, it was not entitled to an award of attorney’s fees. Nelson’s, Inc. v. Halifax Construction Company, 305 So. 2d 840 (Fla. 3rd DCA 1974). The judgment and order from which these appeals were taken are affirmed. AFFIRMED. DAUKSCH, J., and BURNSTEIN, MIETTE K., Associate Judge, concur. . Brown v. First Federal Savings & Loan Association of New Smyrna, 160 So. 2d…
Previewing 3 of 4 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)
- Ronald Jackson and Joanne v. Jackson, 288 So. 2d 564 (Fla. 2d DCA 1974)
- Kleinman v. BAL Harbour Towers, Inc., 198 So. 2d 830 (Fla. 1967)