Author Archives: Leonardo Ortiz

GMPF Framing, LLC, v. Villages at Lake Lilly Associates, LLC, 2012 WL 5364649 (Fla. 5th DCA November 2, 2012). Holding:  Award of attorney fees under Section 713.29 was premature where contractor had pending claims to be resolved.

Facts:  GMPF Framing (“Contractor”) recorded a claim of lien on property owned by Villages at Lake Lilly (“Owner”).  Contractor filed suit against Owner to enforce the lien, quantum meruit, and equitable lien.  The trial court discharged the lien claim and Owner filed motion for entry of final judgment of attorney fees pursuant to Section 713.29.  The trial court held an evidentiary hearing and entered a final judgment in favor of Owner as the prevailing party under Section 713.29.

On appeal, Contractor argued that the award of attorney fees and costs was premature because significant issues remained pending in the lawsuit.  The Fifth District noted that under Section 713.29 the prevailing party is the party that prevails on “significant issues” in the case.   The Court cited Trytek v. Gale Industries, Inc., 3 So.3d 1194 (Fla. 2009) and noted that an owner may not be entitled to recover attorney fees under Section 713.29 despite successfully defending a lien claim but is held liable in damages for breach of contract.  The Court reversed the award of attorney fees because the Contractor’s claims for quantum meruit and equitable lien involved the same transaction and, therefore, should have been considered in the trial court’s determination of the prevailing party under Section 713.29.

Continental Casualty Company v. A. W. Baylor Versapanel Plastering, Inc., 37 Fla. L. Weekly D2167 (Fla. 5th DCA October 12, 2012). Holding:  Section 713.29 controlled subcontractor’s entitlement to attorney fees on payment bond claim.

Facts:  Continental Casualty Company (“Surety”) furnished a payment bond under Section 713.23, to Aviation Constructors, Inc. (“Contractor”) for a large commercial project.  A.W. Baylor (“Subcontractor”) was a subcontractor on the Project.  Disputes arose and Subcontractor filed suit against Contractor and Surety on the payment bond.  The parties were ordered to arbitration based on an arbitration clause in the subcontract.  Prior to arbitration hearing, the parties entered into a stipulation requesting that the panel determine right to attorney fees under Section 713.29 as well as the amount of any award.

The arbitration panel ruled in favor of Subcontractor but the damages awarded were substantially less than the amount of its claim.  Subcontractor requested that the arbitration panel award attorney’s fees under Section 713.29 and Sections 627.756 and 627.428.  The arbitration panel declined to award fees under Section 713.29 and determined that they were not authorized to address fees under Sections 627.756 and 627.428.

Subcontractor then filed a motion with the Circuit Court seeking attorney fees under Sections 627.756 and 627.428 arguing the statutes provided an alternative basis to award fees.  The Circuit Court ruled that Subcontractor was entitled to recover attorney fees under Sections 627.756 and 627.428.  The appellate court reversed Circuit Court’s ruling and held that Section 713.29 was the controlling statute because Subcontractor’s action against Surety was to enforce a payment bond claim.  The Court also noted that the parties acknowledged that Section 713.29 was the controlling statute for purposes of awarding attorney fees in the pre-arbitration stipulation.