FLORIDA CITY DEVELOPMENT CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
BENRUS CONSTRUCTION, INC., A FLORIDA CORPORATION, APPELLEE
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Florida City Development Corporation appealed the trial court's denial of attorney's fees in a case where it prevailed on a mechanic's lien counterclaim. The appellate court reversed, holding that under Florida Statute § 713.29, the prevailing party in a mechanic's lien action is entitled to recover reasonable attorney's fees.
The trial court erred in denying attorney's fees to the prevailing party. Under § 713.29, the prevailing party in any action brought to enforce a lien under Part I of Chapter 713 is entitled to recover a reasonable attorney's fee to be determined by the court and taxed as costs.
[1] A failure to record a hearing does not preclude appellate review if the error is apparent on the face of the available record.
[2] Legal services rendered in the successful defense of a counterclaim to cancel a lien are considered part of the prevailing party's action to enforce the lien for the purp…
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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.”
Statutory language of § 713.29 establishing the entitlement to attorney's fees for prevailing parties in mechanic's lien actions
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Join FLexlaw to unlock all legal intelligenceThe trial court conducted a bench trial in which Florida City Development Corporation brought an action for damages and injunctive relief against Benr…
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PER CURIAM.
This is an appeal from that portion of a final judgment which denied plaintiff an attorney’s fee in an action brought by plaintiff for damages and injunctive relief wherein the defendant answered and asserted a counterclaim for foreclosure of a mechanic’s lien under the provision of Chapter 713, Florida Statutes (1977).
Upon trial without a jury, the trial court entered the following final judgment:
“THIS ACTION was tried before the Court and on the evidence presented,
“IT IS ADJUDGED:
“1) That Defendant, BENRUS CONSTRUCTION, INC. prevail on the Plaintiff, FLORIDA CITY DEVELOPMENT CORPORATION’S Complaint and accordingly Plaintiff take nothing by reason of its Complaint, and
“2) That Plaintiff, FLORIDA CITY DEVELOPMENT CORPORATION prevail on the Defendants, BENRUS CONSTRUCTION, INC.’s Mechanics Lien Counterclaim and accordingly Defendant take nothing by reason of its said Counterclaim, and
“3) That the Plaintiff is denied its attorney’s fees as prevailing party and Defendant is denied attorney’s fees and each party stand their respective costs of this litigation.
“4) That the Lis Pendens filed by each of the parties to this action in this cause and in Case No. 72-25588 in this Court are hereby cancelled and the Clerk of this Court shall duly note the same among the Public Records of Dade County, Florida.”
The sole point on appeal is whether the trial court erred in denying plaintiff an attorney’s fee as provided for in Section 713.29, Florida Statutes (1977). The statute is as follows:
“Attorney’s fees. — 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.”
The plaintiff/appellant was the prevailing party in the mechanic’s lien foreclosure counterclaim, therefore, it was error for the trial court to deny plaintiff an award of attorney’s fees for defending the counterclaim. 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).
Accordingly, we reverse that portion of the final judgment under review that denied plaintiff’s request for attorney’s fees; and we remand the cause with directions to enter a proper award to plaintiff for attorney’s fees for the defense of the counterclaim for foreclosure of the mechanic’s lien.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- H. D. McPHERSON, Inc. v. Metro Elec. OF Orlando, Inc., 253 So. 2d 878 (Fla. 4th DCA 1971)
- Preston v. State, 277 So. 2d 567 (Fla. 3d DCA 1973)
- Vicente F. Dominguez v. Bienvenido M. Benach, Jr., 277 So. 2d 567 (Fla. 3d DCA 1973)