[RPPTL-constructionlaw] Fees Question

Fri Feb 17 07:32:09 PST 2012

Thanks for everyone’s insights.  To elaborate, the procedure employed was effectively a substitution.  At the pretrial conference, the contractor announced in open court that, having just learned at the pre-trial attorneys’ conference that the tenant had been evicted and that a new tenant (an affiliate of the landlord no less) was in possession, the contractor intended to amend the complaint to “substitute” the new tenant for the old, to which neither tenant’s counsel nor the court voiced any objection.

Reese, I’ve encountered that converse situation you speak of, where a client is sued to foreclose, but the client has no interest in the property (due to a satisfaction of lien, or whatever).  So, if the client does not appear, and a default and default judgment of foreclosure is taken against him, is the plaintiff the prevailing party as to the client?  And if the client appears, answers, and disavows any interest, and is thereafter dropped as a party, is the client the prevailing party?  The way I see it, the risks of keeping a party in a foreclosure case who has no (or no longer has any) interest in the property being foreclosed are potentially as great as substituting them.

It is bizarre to me that this precise situation has (apparently) not come up many times before.

Bryan

From: constructionlaw-bounces at lists.flabarrpptl.org [mailto:constructionlaw-bounces at lists.flabarrpptl.org] On Behalf Of mromm at rommlaw.com
Sent: Friday, February 17, 2012 10:16 AM
To: RPPTL constructionlaw
Subject: Re: [RPPTL-constructionlaw] Fees Question

Bryan:  I don't mean to be critical here, but I would have only "added" the new tenants as additional defendants. You substituted the new tenants for the old only because of the eviction...what if the eviction were defective? Or what if there was an unknown agreement between Landlord and those Tenants?  Later you can always insist on a stip releasing the old tenants and have them sign off agreeing to waive fees and costs....

but in answer to your specific question:

Older cases like Pena say No fees awarded:

Pena-Alum Glass & Mirror v. Nationwide Terminals, Inc., 864 So.2d 461 (Fla. 3d DCA, 2003)

But the 4th DCA awarded fees in:

Boca Airport v. Roll-N-Roaster, 690 So2d 640 (Fla. 4th DCA, 1997).

But the Boca Airport case I think is now superseded by the Trytek case, I would not award fees if I were the Judge, because no prevailing party on significant issues under 

Trytek v. Gale Indus., 997 So. 2d 365; (Fla. 2008)

Thoughts anyone?

Michael Romm

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	-------- Original Message --------
	Subject: [RPPTL-constructionlaw] Fees Question
	From: "Bryan L. Capps" <blc at kirwinnorris.com <mailto:blc at kirwinnorris.com> >
	Date: Fri, February 17, 2012 9:22 am
	To: <constructionlaw at lists.flabarrpptl.org <mailto:constructionlaw at lists.flabarrpptl.org> >

	(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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Orlando, Florida 32801
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Facsimile: 407-740-6363
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