[RPPTL-constructionlaw] Fees Question

Fri Feb 17 06:53:09 PST 2012

I tend to agree with Lee.  I think that generally the tenant would not be able to establish that he prevailed, but technically he did and there may be facts to establish that the tenant should not have been involved (note likely).  Usually they are so happy to get a dismissal, understand the inequity about claiming prevailing party, and are pleased to stipulate to dismissal with parties bearing fees.  Absent a stipulation there is still the exposure you fear.

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
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e-mail:  leiby at mkpalaw.com

Board Certified in Construction Law
Fla. S. Ct. Certified Circuit Court Civil Mediator
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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.

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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.

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

Kirwin Norris, P.A.
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