Plaza Builders, Inc. v. Regis

• Decision Date: 06 November 1981
• Citation: 12 Fla. L. Weekly 177,502 So.2d 918
• Parties: 12 Fla. L. Weekly 177 PLAZA BUILDERS, INC., Appellant, v. Dean M. REGIS, as Trustee of that certain Declaration of Trust of the Revocable Living Trust Agreement of Dean M. Regis, dated
• Court: Florida District Court of Appeals

Page 918

502 So.2d 918

12 Fla. L. Weekly 177

PLAZA BUILDERS, INC., Appellant, v. Dean M. REGIS, as Trustee of that certain Declaration of Trust of the Revocable Living Trust Agreement of Dean M. Regis, dated November 6, 1981, Appellee.

Nos. 85-2308, 86-83.

District Court of Appeal of Florida Second District.

Dec. 30, 1986.

Rehearing Denied Feb. 18, 1987.

George J. Felos of Felos & Felos, Dunedin, for appellant.

Margot Pequignot of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clearwater, for appellee.

RYDER, Acting Chief Judge.

On January 5, 1984, Dean Regis (Regis) contracted with Plaza Builders (Plaza) to construct a warehouse on Regis' property. Plaza was to build the warehouse in compliance with Regis' architectural plans and was to receive $80,000.00 upon completion. Regis, at its election, could perform certain contractual work for specified reductions in the contract price.

Plaza was incorporated as a construction company. Plaza's vice president, T.J. Fulkerson, a licensed general contractor, was to transfer his license from his current corporation, Citation Construction Co., to Plaza. Plaza, however, was unable to acquire Fulkerson's license. Consequently, Plaza arranged with Fulkerson to act as a licensed professional on the subject job. Fulkerson, with Regis' knowledge, constructed the warehouse.

On March 21, 1984, Regis removed Fulkerson from the job for defective construction and failure to comply with Regis' wishes as to the contract completion time. Plaza received $39,850.00 under the contract. It credited Regis $23,550.00 for work Regis elected to have other persons perform. Sixteen thousand six hundred dollars remained unpaid on the contract. Regis refused to pay the remaining $16,600.00 to Plaza and Plaza brought suit.

Plaza claimed that Regis owed it $16,485.00 because Plaza fully performed its contractual duties by furnishing labor, material or services. Plaza also sought to establish and foreclose a mechanic's lien against Regis' property. Regis answered and counterclaimed that Plaza breached the contract by doing defective work, failing to complete the job, and failing to have a contractor's license. Regis claimed it cost him $39,503.00 to complete the contracted for work and sought the same in damages against Plaza. The issues thus presented to the trial court for determination were complex and a great deal of testimony and documentary evidence was submitted by both sides.

The trial court, in its verbal opinion, found that Regis owed Plaza $17,000.00 on the contract. The trial court offset from that amount $14,300.00 for construction defects involving the concrete slab, doors and windows. The trial court awarded Plaza $3,110.00 on its contractual claim. The trial court discharged Plaza's mechanic's lien claim. The trial court held that although Plaza filed its lien within the ninety-day statutory time period, it failed to file the statutorily required contractor's affidavit within that same ninety-day period. The trial court awarded Regis attorney's fees on the theory that Regis was the prevailing party on the mechanics lien action and was entitled to an award of attorney's fees pursuant to section 713.29. The court awarded costs to both parties.

Plaza appeals from the trial court's final judgment awarding Plaza $3,110.00 on its construction contract with Regis; denying Plaza's mechanic's lien foreclosure action; and awarding Regis attorney's fees for prevailing on the mechanic's lien action. Regis cross-appeals from the trial court's denial of its motion for involuntary dismissal and from the trial court's award of $3,110.00 to Plaza.

Plaza raises three points on appeal. Regis raises two points on cross-appeal. We will deal with each in order.

Plaza contends that the trial court erred in awarding Regis attorney's fees and costs because he was not the prevailing party in the action. We agree. When a contractor fails to establish a mechanic's 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. Schabert v. Montaltos, 445 So.2d 1136 (Fla. 2d DCA 1984); General Development Corp. v. John H. Gossett Construction Co., Inc., 370 So.2d 380 (Fla. 2d DCA 1979); Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971). Accord, First Atlantic Building Corp. v. Neubauer Construction Co., 352 So.2d 103 (Fla. 4th DCA 1977).

In the instant case, Plaza brought a breach of contract action and sought to foreclose a mechanic's lien against Regis' property. Although Plaza lost on its mechanic's lien action, it succeeded on its breach of contract claim receiving $3,110.00. As a result, Regis could not be considered the prevailing party for purposes of awarding attorney's fees.

The cases which Regis cites for the proposition that a party is entitled to recovery of fees and costs when he successfully resists a lien foreclosure action are all factually distinguishable. Say Service, Inc. v. Willig, 473 So.2d 43 (Fla. 3d DCA 1985); Snaidman v. Harrell, 432 So.2d 809 (Fla. 1st DCA 1983); Saleh v. Watkins, 415 So.2d 858 (Fla. 5th DCA 1982); Sanfilippo v. Larry Giacin Tile Co., Inc., 390 So.2d 413 (Fla. 4th DCA 1980); Dynamic Builders, Inc. v. Tull, 365 So.2d 1032 (Fla. 3d DCA 1978). Falovitch v. Gunn & Gunn Construction Co., 348 So.2d 560 (Fla. 3d DCA 1977). Say Service, Snaidman, Saleh, Sanfilippo, and Falovitch solely involved the mechanic's lien issue. Dynamic, while concerning both a breach of contract claim as well as a mechanic's lien claim, is also distinguishable in that the contractor succeeded on the mechanic's lien action but had the mechanic's lien award set off by the contractee's damages for the contractor's defective construction. Accordingly, we reverse that part of the trial court's final judgment awarding Regis attorney's fees.

Plaza next contends that the trial court erred in discharging Plaza's mechanic's lien for not serving the contractor's affidavit within ninety days of the last furnishing of labor or materials. We agree. Section 713.08(5) provides that:

The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than ninety days after the final furnishing of the labor or services or materials by the lienor.

Section 713.06(3)(d)(1) provides that:

The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services, or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit. The contractor shall execute the affidavit and...