[RPPTL-constructionlaw] Fees Question

Fri Feb 17 06:41:31 PST 2012

Lee raises a good practice point, but my opinion is you are correct that the old tenant did not "prevail" - the old tenant simply is no longer a party to the dispute.  The more interesting question to me is whether the contractor has a basis for asserting a lien claim against the new tenant, given that the contractor is not in privity with the new tenant.

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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Weintraub, Lee
Sent: Friday, February 17, 2012 9:28 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

I never dismiss or excuse a party in a lien foreclosure for any reason unless I first get either a stipulation or court order that each side bears their own fees.  Although I don't know any law on point, I wouldn't be comfortable that it's a foregone conclusion that the dismissed old tenant did not prevail.

 Becker & Poliakoff<http://becker-poliakoff.us/graphics/logo_120.gif> <http://www.becker-poliakoff.com/>

Lee A. Weintraub
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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Friday, February 17, 2012 9:22 AM
To: constructionlaw at lists.flabarrpptl.org
Subject: [RPPTL-constructionlaw] Fees Question

(Hopefully) Quick/easy question for the brain trust:

Contractor has improvements contract with tenant, is not paid.  Contract contains no prevailing-party fees provision.

Contractor sues landlord and tenant under Lien Law to foreclose construction lien.  (Assume lien is good against landlord.)

Prior to trial, landlord evicts tenant and re-leases property to another tenant.

Learning of the eviction, Contractor amends complaint to substitute new tenant for old tenant.

My stupid question:  Is the old tenant now the prevailing party under §713.29 as to the contractor?

I would think absolutely not, that this has to have come up before, and that the applicable law would be relatively easy to identify, but not so/yet.  Any cites or insights you could offer would be appreciated.

  <http://www.kirwinnorris.com/>

Bryan L. Capps
Partner | Florida Board Certified in Construction Law

Kirwin Norris, P.A.
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