Jackson v. Hatch
| Decision Date | 25 January 1974 |
| Docket Number | No. 73--324,73--324 |
| Citation | 288 So.2d 564 |
| Parties | Ronald JACKSON and Joanne V. Jackson, his wife, Appellants, v. Glenn H. HATCH, Appellee. |
| Court | Florida District Court of Appeals |
Frank A. McClung, Brooksville, for appellants.
Richard E. McGee, Sr., of McGee, Merritt & High, Brooksville, for appellee.
Plaintiff-appellee brought an action to foreclose a mechanic's lien against the defendants. The defendants moved to dismiss on the ground that the complaint failed to allege that the affidavit required by F.S. 713.06(3)(d)1, F.S.A. had been furnished by the plaintiff. By its order of February 22, 1972, the Circuit Court granted the motion to dismiss and gave the plaintiff ten days in which to file an amended complaint. The amended complaint was based solely on contract and quantum meruit, thereby abandoning the mechanic's lien foreclosure. Three days before the trial was to begin, the plaintiff voluntarily dismissed the action pursuant to FRCP 1.420(a)(1), 30 F.S.A. The defendants thereupon filed a motion to tax costs, including attorney's fees, pursuant to F.S. 713.29, F.S.A. This appeal is from an order denying defendants' motion.
The appellee argues that the court below properly denied attorney's fees because the defendants-appellants were not 'prevailing parties' within the meaning of F.S. 713.29, F.S.A. 1 The appellee relies on Sharpe v. Ceco Corp., Fla.App.3rd, 1970, 242 So.2d 464, 465, wherein it is said that 'the prevailing party is regarded as that party who has affirmative judgment rendered in his favor at the conclusion of the entire case.' From this, the appellee argues that the defendants below were not 'prevailing parties' because the case was disposed of by dismissal rather than by an 'affirmative judgment' being rendered for the defendants. We cannot agree.
The language quoted from Sharpe was not intended to have the meaning assigned to it by appellee. In that case, it was argued that Ceco was not a prevailing party because it got a judgment for a lesser sum than it sought. In describing the prevailing party as the one who had 'affirmative judgment rendered in his favor', the court was, in effect, answering this contention by saying that a litigant need not win every point in order to be a prevailing party. Cf. H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., Fla.App.4th, 1971, 253 So.2d 878; Potter v. Rowan, Fla.App.2nd, 1972, 266 So.2d 121.
Appellee's reliance on Emery v. International Glass & Mfg., Inc., Fla.App.2nd, 1971, 249 So.2d 496, is likewise misplaced insofar as appellee would totally deny the awarding of attorney's fees to appellants. While the defendants in that case successfully defended against the impression of a lien, judgment was rendered against them on a contract claim arising out of the same circumstances. The court observed that it would be untenable to allow recovery of attorney's fees to a party who did not ultimately prevail in the legal aspect of a case merely because he prevailed in the mechanic's lien aspect. The distinguishing factor in the case at bar is, of course, that the defendants here did prevail in all aspects. Our opinion in Emery should not be construed to mean that one who successfully defends a mechanic's lien foreclosure cannot recover an attorney's fee under Section 713.29.
In Lion Oil Co., inc. v. Tamarac Lakes, Inc., Fla.App.4th, 1970, 232 So.2d 20, the court affirmed an order awarding the defendant an attorney's fee following the filing by the...
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