[RPPTL-constructionlaw] Fees Question

Fri Feb 17 06:57:23 PST 2012

One more thing: my understanding of the present law is that, under the “significant issues” test, the Judge can decide that there is no prevailing party.

Andrea M. Fair-Purcell
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From: Andrea Fair
Sent: Friday, February 17, 2012 9:51 AM
To: RPPTL constructionlaw
Subject: RE: [RPPTL-constructionlaw] Fees Question

I agree with Lee but I suppose the argument could be made that the old tenant was not dropped or dismissed but, rather, the new tenant was substituted in because the new tenant is now “standing in the shoes” of the old tenant.  Perhaps, it’s similar to the situation where the lienor (sub) sues an owner for lien foreclosure but then the GC transfers the lien to security so now the lienor has to amend to pursue the 713.24 claim and the owner is dropped from the lawsuit.  Is the owner the prevailing party?  I doubt it.  How can that be?  Same question here.

Andrea M. Fair-Purcell
Board Certified Construction Attorney
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FAIR•LAW•PLLC
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13046 Racetrack Road #236
Tampa, FL 33626
(813) 412-1077 phone
(877) 879-4990 fax
www.fairconstructionliens.com<http://www.fairconstructionliens.com>

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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
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