[RPPTL-constructionlaw] Fees Question

Fri Feb 17 07:01:54 PST 2012

Interesting case - the one obvious distinguishing factor is, under Bryan's facts, the lienor dismissed because the old tenant is no longer a proper party, although it was originally.  Thus, the dismissal is not because of a "meritorious affirmative defense", but because of a change in circumstances that could not have been anticipated or dealt with when the suit was filed.  In fact, one could argue the contractor is at risk of paying prevailing party attorney's fees to the old tenant if it refuses to dismiss the old tenant once it becomes clear there is no longer a basis to maintain suit against it.  See, e.g., sec. 57.105(1), F.S. (holding that losing party and losing party's counsel subject to award of fees when they knew or should have known that claim was not supported by material facts, etc., "when initially presented to the court or at any time before trial" (emphasis added)).

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From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of Donald R. Walters, Esq.
Sent: Friday, February 17, 2012 9:46 AM
To: 'RPPTL constructionlaw'
Subject: Re: [RPPTL-constructionlaw] Fees Question

See Alhambra Homeowners' Association, Inc. vs. Asad, 943 So.2d 316 (Fla. 4th DCA 2006)

http://www.4dca.org/Dec%202006/12-13-06/4D06-835.op.pdf

This involves voluntary dismissal of a suit without prejudice, but I imagine the same would result when a party is dropped.

- Don

Donald R. Walters, Esq.

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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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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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