Ferrell v. Ashmore, BN-168
| Decision Date | 14 May 1987 |
| Docket Number | No. BN-168,BN-168 |
| Citation | 507 So.2d 691,12 Fla. L. Weekly 1226 |
| Parties | 12 Fla. L. Weekly 1226 Carl E. FERRELL, Jr., Appellant, v. Robert E. ASHMORE, Jr. and Dianne E. Ashmore, Appellees. |
| Court | Florida District Court of Appeals |
Richard E. Benton and Claire A. Duchemin of Young, Van Assenderp, Varnadoe & Benton, P.A., Tallahassee, for appellant.
John K. Folsom of Vickers and Muldoon, Tallahassee, for appellees.
This appeal involves a dispute between the owners and general contractor over the construction of a home in Leon County. The appellant/contractor appeals from the final judgment wherein the trial court, sitting as trier of the fact, awarded the appellees/owners damages on their counterclaim.
On January 10, 1983, the parties entered into a contract for the construction of a custom built home. Appellant agreed to construct the appellees' home at an approximate cost of $300,000 plus a contractor's fee of 15% of cost and 5% of cost for overhead. During the course of construction, several problems arose regarding the quality of workmanship. On January 24, 1984, the appellees terminated appellant's services. Thereafter, the appellant, in July of 1984, filed a two-count complaint against the appellees. Count I of the complaint sought damages for breach of the construction contract and count II sought foreclosure of a mechanic's lien.
Appellees answered the complaint and filed a counterclaim containing three counts. Count I of the counterclaim alleged a breach of the construction contract by the appellant. Count II alleged negligence in the construction of the home and count III sought recovery under Florida's Deceptive and Unfair Trade Practices Act, Chapter 501, Part II, Florida Statutes (1983).
The court found that the appellant, under his claim of lien, was entitled to the sum of $10,819.45, for unpaid labor and materials furnished through the date he was fired. The court also found that the appellees were entitled to recover from appellant the sum of $31,128.92 for remedial work which had been performed by others after appellant was fired. 1 The final judgment awarded the net sum of $20,309.47 to appellees and reserved jurisdiction for the purpose of assessing attorney's fees and costs in favor of appellees and against appellant.
Five issues have been presented on this appeal:
I. WHETHER THE EVIDENCE OF DAMAGES PRESENTED BY APPELLEES WAS COMPETENT.
II. WHETHER THE TRIAL COURT'S FINDING THAT THE EARLY TERMINATION OF THE CONSTRUCTION CONTRACT WAS JUSTIFIED IS SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE.
III. WHETHER THE TRIAL COURT ERRED IN AWARDING APPELLEES ATTORNEY'S FEES.
IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO AWARD APPELLANT PREJUDGMENT INTEREST ON HIS DAMAGES.
V. WHETHER THE TRIAL COURT ERRED IN AWARDING DUPLICATIVE DAMAGES TO APPELLEES.
After reviewing the record, we find no reversible error regarding issues I, II and III. However, we find that the trial judge erred in failing to award appellant prejudgment interest on his damages, and in awarding appellees duplicative damages. Accordingly, we reverse as to issues IV and V, which we will discuss herein along with issue III.
Although the final judgment does not state the basis on which the award of attorney's fees was made, the trial court apparently relied upon the Mechanic's Lien Law, Chapter 713, Florida Statutes. The only other possible ground would be the Deceptive and Unfair Trade Practices Act claim under count III of the counterclaim. However, inasmuch as the evidence in this case clearly did not support appellee's Chapter 501 claim, we will assume that attorney's fee award was bottomed upon a finding that appellees were the "prevailing parties" within the meaning of Section 713.29 of the Mechanic's Lien Law.
Section 713.29, Florida Statutes (1983) provides:
713.29 Attorney's fees.--In any action brought to enforce a lien under part I, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney for trial and appeal, to be determined by the court, which shall be taxed as part of his costs, as allowed in equitable actions.
Section 713.29's deceptively simple phrase, "prevailing party", has been a fertile source of litigation. The question of which party is the prevailing one in an action to enforce a mechanic's lien has arisen in a variety of situations. The one with which we are confronted is where the lien claimant's effort to foreclose an otherwise valid mechanic's lien is defeated by judgment entered in favor of the owner whose recovery on a counterclaim for damages caused by the lien claimant's breach of the construction contract exceeds the amount of the lien claim. We hold that the owner is, under such circumstances, the prevailing party under Section 713.29.
In Kinard Enterprises, Inc. v. Johnson, 308 So.2d 593 (Fla. 1st DCA 1975), the contractor brought a mechanic's lien foreclosure suit against the owners. The owners counterclaimed for damages based upon breach of the construction contract by reason of inferior workmanship. The owners had seen fit to fire the contractor and hire another to correct the deficiencies in the work already performed and to finish the project. This court affirmed the trial court's finding that the contractor had been overpaid when the damages caused by his breach were taken into account, and that the owner was therefore the prevailing party and entitled to a fee under the statute.
In Houdaille-Duval-Wright Co. v. Charldon Construction Co., 266 So.2d 106 (Fla. 3rd DCA 1972), a subcontractor, who had fabricated and delivered concrete roof spans to the job site, filed a mechanic's lien foreclosure suit against the owner and general contractor claiming a balance due on its subcontract. The general contractor filed a counterclaim alleging delay in delivery of the materials and claiming damages therefor in an amount exceeding the plaintiff's claim. At trial, the right of the plaintiff to recover the amount sought under its lien claim was conceded. On the trial of the counterclaim, the court found in favor of the counterclaimant/contractor, awarded damages in excess of the plaintiff's lien, and awarded the counterclaimant an attorney's fee. On appeal, the Third District held that the contractor was not entitled to a fee under the statute because the plaintiff's lien was being asserted against the owner, not the contractor. However, the court further held that the owner would be entitled to an attorney's fee under the statute. We note that in Charldon the lien claimant's concededly valid lien was effectively defeated by the contractor's counterclaim. However, we do not see why the result should be any different under the circumstances of the instant case, i.e., where the owner's counterclaim effectively defeats enforcement of the contractor's otherwise valid lien.
We believe that Winnie v. Buckhalter, 362 So.2d 1014 (Fla. 1st DCA 1978) and Snaidman v. Harrell, 432 So.2d 809 (Fla. 1st DCA 1983), relied upon by appellant, are materially distinguishable from the instant case. Both cases involved situations where the contractor brought a mechanic's lien foreclosure suit and the owner filed a claim for damages for breach of the subject contract. 2 In both cases, both the contractor and the owner lost their respective claims (in the vernacular, a "dogfall"). On appeal in both cases, this court held that since the contractor failed to prove a valid mechanic's lien, it was error for the trial court to deny the owners attorney's fees as prevailing parties under Section 713.29 notwithstanding the fact that the owners had failed to prove their common-law counterclaims. Both Winnie and Snaidman held that it was not necessary for the owner to prevail in the "whole litigation", i.e., both the foreclosure action and the counterclaim, in order to be entitled to a fee under the statute. But both cases made it clear that the services rendered in connection with the owner's unsuccessful counterclaims could not be considered in the fee awarded under the statute and that the fee award was limited to the services in connection with the owner's successful defense ...
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