Gordon v. Warren Heating & Air Conditioning, Inc.
| Decision Date | 17 December 1976 |
| Docket Number | No. 76-1584,76-1584 |
| Citation | 340 So.2d 1234 |
| Court | Florida District Court of Appeals |
| Parties | S. R. GORDON, Appellant, v. WARREN HEATING & AIR CONDITIONING, INC., etc., Appellee. |
Kenneth J. Scherer, Law Offices of Robert S. Levy, West Palm Beach, for appellant.
Gregory B. Dickenson of Warwick, Paul & Campbell, Palm Beach, for appellee.
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):
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...
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