By: Gabriel Grafton
According to Florida law, the prevailing party in a suit brought to enforce a lien or claim against a bond is entitled to recover reasonable fees for the services of an attorney used for trial, appeal or arbitration. However, there are a couple of important caveats:
- You must be the “prevailing party” to recover attorney’s fees; and
- The court will determine the amount of the fee.
Who is the “prevailing party”?
The most important question is: who is the prevailing party? Perhaps you each had some victories during the course of the litigation. Does that mean neither of you are entitled to attorney’s fees?
In 2009, the Florida Supreme Court adopted the “significant issues test” for determining the prevailing party. The significant issues test requires a judge to hold an evidentiary hearing and make a legal determination as to which party prevailed on the significant issues of the litigation. Interestingly, the Florida Supreme Court has held that there need not be a prevailing party, and that with respect to fees the court may find that neither party prevailed.
In some cases, courts have found in favor of the owner even where money was found to be owed to a lienor. For example, where an owner has counterclaimed against the lienor and been awarded a judgment larger than the claim of the lien, the owner has been found to be the prevailing party. Similarly, where a jury returns a verdict holding neither an owner nor lienor liable to the other, an owner has been entitled to recover reasonable attorney’s fees as the prevailing party on the lien claim.
As these examples demonstrate, an award of attorney’s fees is not automatic. Instead, it is based on a variety of factors. Therefore, before pursuing litigation to foreclose a lien, it is important to talk to an attorney experienced in construction law about your chances of success in recovering attorney’s fees. Otherwise, your victory may be a costly one.