[CLC-Discussion] QUESTION RE: FEES UNDER 713.29

[Jason Brazelton]

Hi Andrea,

 

My understanding is that generally an owner is the prevailing party when there is a dismissal in a lien foreclosure action. However, there is the argument that an owner cannot be the prevailing party where there is a dismissal without prejudice done prior to the statute of limitations because the lienor can technically re-file the lawsuit. Certainly, you could argue that the owner did not prevail on the “significant issues” as well. 

 

I think you are right on that the owner can only recover fees after the filing of the lawsuit. 

 

If you dispute entitlement to fees, the owner can recover for litigating on that issue but not for litigating the amount. See, State Farm Fire v. Palma 629 So.2d 830 (Fla. 1993).  As such, I would stipulate that they are entitled to fees and offer them a couple hundred to go away. If they want to fight over the amount, make them go to an evidentiary hearing. 

 

Hope this helps.

Jason A. Brazelton, Esquire
Moody and Shea, P.A.
14501 Walsingham Road
Largo, Florida 33774
(727) 596-3000
(727) 596-3006 - Fax

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-----Original Message-----
From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Andrea Fair
Sent: Wednesday, June 20, 2012 11:35 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] QUESTION RE: FEES UNDER 713.29

 

I represent a subcontractor in a lien foreclosure, etc. lawsuit against the owner and the GC.  My client negotiated a settlement directly with the GC and not with the owner.  No release or stip was entered so the issue re: fees under 713.29 remained “open.”  The lawsuit was dismissed with prejudice before the owner even responded to the Complaint but after the owner transferred the lien per 713.24.   We stipulated to the release of the security but the owner is seeking fees under 713.29.  Does the owner have a valid claim for fees under 713.29?  My understanding is that the owner first has to establish that it prevailed on the significant issues (and there were no issues) and then the owner would also only be entitled to recover those fees that were incurred after suit was filed (and only minimal fees could possibly have been incurred between filing and dismissal --- though they did send me their time sheets totaling over $4000).  In addition, isn’t it true that the owner cannot recover fees for establishing the amount of fees? Thank you in advance for your input. ---Andrea

 

 

Andrea M. Fair-Purcell

Board Certified Construction Attorney


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