S. R. GORDON, APPELLANT,
v.
WARREN HEATING & AIR CONDITIONING, INC., ETC., APPELLEE
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A mechanic's lien foreclosure plaintiff voluntarily dismissed its action and immediately refiled against the same defendant. The trial court denied the defendant's motion for attorney's fees and costs, deferring the award pending the new action's outcome. The court reversed, holding that the defendant as prevailing party was entitled to immediate costs and attorney's fees in the dismissed action, not deferred to subsequent litigation.
The defendant is the prevailing party entitled to recover reasonable attorney's fees and costs under Section 713.29, Florida Statutes, when a mechanic's lien claim is dismissed. These fees and costs must be assessed and judgment entered in the dismissed action immediately, not deferred pending the outcome of a new action based on the same claim.
[1] A party against whom a mechanic's lien claim is brought is the "prevailing party" entitled to attorney's fees and costs when the claim is voluntarily or involuntarily dis…
[2] Costs in a dismissed action must be assessed and judgment for costs entered in that dismissed action.
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“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.”
Establishes statutory entitlement to attorney's fees for the prevailing party in mechanic's lien actions under Section 713.29, Florida Statutes.
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Join FLexlaw to unlock all legal intelligenceWarren Heating & Air Conditioning, Inc. (plaintiff/appellee) brought an action to foreclose a mechanic's lien against S. R. Gordon (defendant/appellan…
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ALDERMAN, Judge.
The appellee, plaintiff below, brought an action to foreclose a mechanic’s lien. Eventually appellee voluntarily dismissed the action and immediately instituted a new lawsuit based on the same mechanic’s lien. The trial court entered an order denying the appellant’s motion for attorney’s fees and costs, “without prejudice to claim the same” in the new action. The issues before us are whether the appellant is entitled to attorney’s fees and costs for the dismissed action, and if so whether a judgment for those fees and costs must be entered as soon as the original action is dismissed rather than as a part of the new action.
The controlling legislation is Section 713.-29, Florida Statutes (1975):
“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 conjunction with the preceding we must also consider Fla.R.Civ.P. 1.420(d):
“Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.”
We hold, in accord with previous judicial interpretations of Section 713.29, Florida Statutes, that where a mechanic’s lien claim is voluntarily or involuntarily dismissed, the party against whom the claim was brought is the “prevailing party” and is entitled to recover attorney’s fees and costs. Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla.3d DCA 1975); Jackson v. Hatch, 288 So. 2d 564 (Fla.2d DCA 1974); Lion Oil Co., Inc. v. Tamarac Lakes, Inc., 232 So. 2d 20 (Fla.4th.DCA 1970).
Secondly, the appellant should have been awarded costs and attorney’s fees immediately following dismissal of the first action. The trial court has no authority to defer a ruling on costs pending the outcome of another action. Keener v. Dunning, 238 So. 2d 113 (Fla.4th DCA 1970). Fla.R.Civ.P. 1.420(d) states unequivocally that, “Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.” (Emphasis supplied.) Furthermore, the same rule makes it mandatory, where a new action is brought on the previously dismissed claim, for the trial court to stay proceedings in that new action until its order for payment of costs of the claim previously dismissed has been complied with. This rule has the obvious salutary effect of discouraging repeated lawsuits on the same claim by exacting payment of costs before the party whose claim was dismissed is allowed to proceed with a new edition of the identical cause of action.
REVERSED and REMANDED for further proceedings consistent with this opinion.
MAGER, C. J., and DOWNEY, J., concur.
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Citator
Cited By (31 total)
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Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. OF Martin Cnty., 493 So. 2d 1136 (Fla. 4th DCA 1986)…an incorrect understanding of the current status of the law on this question. [*1137] Initially, we point out that when a plaintiff takes a voluntary dismissal the defendant is the prevailing party. Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976); McKelvey v. Kismet, Inc., 430 So. 2d 919 (Fla. 3d DCA 1983); Dolphin Towers Condominium Ass’n v. Del Bene, 388 So. 2d 1268 (Fla. 2d DCA 1980). Next, we hold that after a voluntary dismissal by plaintiff the trial court does ha…
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Simmons v. Lawrence Schimmel, M.D., 476 So. 2d 1342 (Fla. 3d DCA 1985)…er under both statutes. . This issue was not presented in Rowe where the plaintiff-patient clearly “prevailed” by obtaining a final judgment in her favor. . We note that the line of cases emanating from Gordon v. Warren Heating & Air Conditioning, 340 So. 2d 1234 (Fla. 4th DCA 1976) are not applicable in the present case. The attorney’s fee statute involved in Gordon expressly provided that the fees were to be taxed as costs. See § 713.29, Fla.Stat. (1975). The attorney’s fee statute involved in the present…
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Galbraith v. Inglese, 402 So. 2d 574 (Fla. 4th DCA 1981)…nterpreted Section 713.29, Florida Statutes (1979), which grants reasonable attorney’s fees to the prevailing party in any action brought to enforce a mechanics’ lien. Mac-Bain expressly relies upon Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976), which states: Where a mechanic’s lien claim is voluntarily or involuntarily dismissed, the party against whom the claim was brought is the “prevailing party” and is entitled to recover attorney’s fees and costs. Id., at 1235.…
Previewing 3 of 31 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ronald Jackson and Joanne v. Jackson, 288 So. 2d 564 (Fla. 2d DCA 1974)
- Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975)
- Lion OIL Co., Inc. v. Tamarac Lakes, Inc., 232 So. 2d 20 (Fla. 4th DCA 1970)
- Keener v. Lavonia A. Dunning, 238 So. 2d 113 (Fla. 4th DCA 1970)