M & P Concrete Products, Inc. v. Woods

• Decision Date: 03 July 1991
• Docket Number: No. 90-2444,90-2444
• Parties: M & P CONCRETE PRODUCTS, INC., Appellant, v. Dr. Blaine R. WOODS and Janice H. Woods, Appellees. 590 So.2d 429, 16 Fla. L. Week. D1731
• Court: Florida District Court of Appeals

Page 429

590 So.2d 429

M & P CONCRETE PRODUCTS, INC., Appellant, v. Dr. Blaine R. WOODS and Janice H. Woods, Appellees.

No. 90-2444.

590 So.2d 429, 16 Fla. L. Week. D1731

District Court of Appeal of Florida,

Fourth District.

July 3, 1991.

Charles D. Franken of Charles D. Franken, P.A., Plantation, for appellant.

Elisabeth D. Koslow of Siegfried, Kipnis, Rivera, Lerner, De La Torre & Mocarski, P.A., Coral Gables, for appellees.

DOWNEY, Judge.

This case involves the entitlement to prevailing party attorney's fees in a multi-count suit for damages and to foreclose a mechanics' lien.

Appellant, M & P Concrete Products, Inc. (subcontractor) filed a claim of lien against property owned by appellees, Dr. Blaine R. Woods and Janice H. Woods, (owners) for improvements made to their property. The owners filed a complaint for, among other things, damages for breach of contract and to vacate said lien. After a bench trial, the court entered final judgment, wherein it found that the subcontractor had failed to properly perfect its lien, so the lien was vacated and the owners were declared to be the prevailing parties on the lien claim and entitled to attorney's fees. The judgment further found for the owners on the subcontractor's counterclaim for an equitable lien. Finally, the judgment awarded the subcontractor $2,500 on its counterclaim for damages based on unjust enrichment.

In a post-trial hearing the trial court determined the owners were entitled to attorney's fees of $5,625 as the prevailing party on the mechanics' lien claim made by the subcontractor. From the order allowing attorney's fees, the subcontractor perfected this appeal.

The sole question presented is whether section 713.29, Florida Statutes (1987), authorizes an owner to recover attorney's fees against a lien claimant who failed to recover on his lien claim but who does recover judgment on a related claim for damages.

In the present case the trial court judge found for the owner and against the subcontractor on the latter's claim of a mechanics' lien, but for the subcontractor and against the owner in the amount of $2,500 on the count of the complaint for a money judgment. Under these circumstances the owner cannot be the prevailing party and, therefore, is not entitled to attorney's fees under the statute. Of course, the subcontractor is not entitled to attorney's fees either because he failed to recover on his lien claim. If he had a contract with the owner providing for attorney's fees, he would be entitled to recover contractual attorney's fees, but apparently there was no such contract involved herein.

In a similar case, Schabert v. Montaltos, 445 So.2d 1136 (Fla. 2d DCA 1984), an owner sued the contractor seeking damages for the filing of a fraudulent lien and for slander of title. The contractor counterclaimed seeking foreclosure of a mechanics' lien in Count I and for damages for breach of contract in Count II. The court found that the contractor's lien was not timely filed nor was it fraudulent. However, it found for the contractor on the claim for breach of contract in Count II. The judge there held that the owner was the prevailing party and awarded the owner attorney's fees. The appellate court reversed, stating:

We find that there was sufficient evidence in the record to support the trial court's findings that appellants' claim of lien was untimely filed and was not fraudulent. Further, the appellees did not waive their rights under the contract requiring that any changes therein be in writing. However, we agree with the appellants' contention that the trial court erred in awarding attorney's fees to the appellees [owner] on the basis that they were the prevailing party in the mechanics' lien proceeding. When a contractor fails to establish a mechanics' lien, but obtains a money judgment in the same case, for labor or materials, or both, furnished for the landowner's benefit, the landowner is not entitled to an award of attorney's fees under section 713.29, Florida Statutes (1979). General Development Corp. v. John H. Gossett Construction Co., 370 So.2d 380 (Fla. 2d DCA 1979); Emery v. International Glass and Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971).

445 So.2d at 1137.

The same principle was applied by this court in AAA Sod, Inc. v. Weitzer Corporation, 513 So.2d 750 (Fla. 4th DCA 1987), where the contractor sued in both foreclosure of a lien and for a money judgment against the owner and his surety. The trial court found for the contractor on the count for money judgment and against him on the lien claim. It found for the owner and surety on the lien claim and against the owner on the contractor's claim for money judgment. With regard to attorney's fees the court denied fees to the contractor, denied fees to the owner, and awarded fees to the surety. The rationale apropros here is that the contractor cannot recover fees because he did not recover on the count claiming a lien. The owner cannot recover fees because he was not the prevailing party in view of the contractor's recovery of a money judgment under his counterclaim. The surety recovered attorney's fees because, like the owner, it was successful in defeating the contractor's claim of lien but, unlike the owner, the judgment for damages against the owner was not likewise against the surety. So the surety was the prevailing party under the lien statute.

Finally, the applicable rule in this scenario is...