October 30, 2013
Always Consider Whether Attorney’s Fees are Available
In Jomar Properties, LLC (“JOMAR”) v. Bayview Construction Corp. (“BAYVIEW”), Case No. 4D12-3081 (Fla. 4th DCA September 25, 2013), Senior Appellate Counsel Shirley Jean McEachern, was successful in defending against JOMAR’s appeal from a Final Summary Judgment in favor of the firm’s client BAYVIEW with respect to JOMAR’s underlying Complaint for Writ of Prohibition and Injunctive Relief. The Appellate Court treated JOMAR’S “Appeal” as a Petition for Certiorari, denied the Petition and granted BAYVIEW’S Motion for Appellate Attorneys Fees, pursuant to §713.29 and §713.31(2)(c), Fla. Stat. BAYVIEW’s prior counsel did not seek an award of attorney’s fees in the underlying action notwithstanding victory on the Motion for Summary Judgment.
In Florida, attorney’s fees are awarded only if a party is successful on a claim brought pursuant to a contract or statute that provides for an award of attorney’s fees to the prevailing party (this is known as the “American Rule”). JOMAR‘s Complaint was not brought pursuant to such a contract or statute. However, JOMAR filed the underlying Complaint against BAYVIEW and an arbitrator in regard to the parties’ related construction dispute that had been submitted to binding Arbitration arising from a lien foreclosure. Based thereon, Ms. McEachern successfully argued that JOMAR’s Petition for Certiorari, and the underlying claim for Writ of Prohibition and Injunctive Relief, arose out of the lien which included a statutory right to fees.
In the underlying Award the Arbitrator declared BAYVIEW the prevailing party on its claims for breach of contract and foreclosure of BAYVIEW’s lien property pursuant to Chapter 713.001, Fla. Stat., et. seq.. The arbitrator also denied JOMAR’s counterclaim, which included a claim for fraudulent lien brought pursuant to §713.31, Fla. Stat.. Sections 713.29 and 713.31(2)(c), respectively, award attorney’s fees to the prevailing party in a claim for foreclosure of a construction lien and in a claim for fraudulent lien.
Based on the foregoing the Appellate Court determined that BAYVIEW was entitled to an award of its appellate attorney fees. The Court also denied JOMAR’s Motions for Rehearing and for Certification to the Florida Supreme Court. It is always important to evaluate whether an award of fees is available, especially in appellate matters where the right to fees may be based upon the claims asserted in the underlying lawsuit.