From Casetext: Smarter Legal Research

Winnie v. Buckhalter

District Court of Appeal of Florida, First District
Oct 3, 1978
362 So. 2d 1014 (Fla. Dist. Ct. App. 1978)

Summary

holding that the defendant who successfully resisted the mechanics' lien action but did not prevail on the counterclaim was entitled to an award of fees under the mechanics' lien statute for services rendered incident to the mechanics' lien aspect of case

Summary of this case from Carrollwood Cove at Emerald Greens Condo. Ass'n v. Carrollwood Cove, LLC

Opinion

No. HH-498.

October 3, 1978.

Appeal from the Circuit Court, Alachua County, Theron A. Yawn, Jr., J.

Herbert M. Webb, Gainesville, for appellants.

No appearance for appellee.


This is an appeal from an order which denied attorney's fees under Section 713.29, Florida Statutes (1975). Buckhalter brought suit against Winnie to foreclose a mechanics' lien. Winnie answered denying that the mechanics' lien law had been complied with and counterclaimed for damages alleging in part a material breach of contract. The trial court determined that neither party had established his claim by a preponderance of the evidence. Further, the trial court held that each party should be responsible for his own attorney's fees.

Section 713.29, Florida Statutes (1975) of the mechanics' lien law provides:

In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as a part of his costs.

Winnie was entitled to recovery of attorney's fees under Section 713.29 as the prevailing party since he successfully resisted the mechanics' lien foreclosure action and was not found otherwise liable for damages in the same case. See, e.g., Charter Development Corp. v. Eversole, 342 So.2d 143 (Fla.1st DCA 1977); Falovitch v. Gunn Gunn Construction Co., 348 So.2d 560 (Fla.3d DCA 1977); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla.3d DCA 1975); Dominguez v. Benach, 277 So.2d 567 (Fla.3d DCA 1973); H.D. McPherson, Inc. v. Metro Electric of Orlando, Inc., 253 So.2d 878 (Fla.4th DCA 1971). Contrast, Emery v. International Glass Mfg. Inc., 249 So.2d 496 (Fla.2d DCA 1971). However, Winnie is only entitled to attorney's fees for the services rendered incident to the mechanics' lien aspect of the case. Kinard Enterprises, Inc. v. Johnson, 308 So.2d 593 (Fla.1st DCA 1975); Planas Franye Engineers, Inc. v. Padilla, 310 So.2d 354 (Fla.3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla.2d DCA 1974).

Accordingly, that portion of the final judgment denying Winnie attorney's fees is reversed and the cause is remanded for a determination by the trial court of a reasonable fee for Winnie's attorney's services incident to the mechanics' lien aspect of the case.

McCORD, C.J., and MILLS, J., concur.


Summaries of

Winnie v. Buckhalter

District Court of Appeal of Florida, First District
Oct 3, 1978
362 So. 2d 1014 (Fla. Dist. Ct. App. 1978)

holding that the defendant who successfully resisted the mechanics' lien action but did not prevail on the counterclaim was entitled to an award of fees under the mechanics' lien statute for services rendered incident to the mechanics' lien aspect of case

Summary of this case from Carrollwood Cove at Emerald Greens Condo. Ass'n v. Carrollwood Cove, LLC

In Winnie, the owner's claim was asserted via a counterclaim in the lien foreclosure suit; in Snaidman, the owner's claim was asserted by a separate action which was consolidated with the lien foreclosure.

Summary of this case from Ferrell v. Ashmore
Case details for

Winnie v. Buckhalter

Case Details

Full title:JOHN S. WINNIE AND ELIZABETH ANN WINNIE, HIS WIFE, AND FRANK SARVER, D/B/A…

Court:District Court of Appeal of Florida, First District

Date published: Oct 3, 1978

Citations

362 So. 2d 1014 (Fla. Dist. Ct. App. 1978)

Citing Cases

T.A.S. Heavy Equipment v. Delint, Inc.

In entering judgment on remand the trial court should determine and award to Delint a reasonable attorney's…

Stout Jewelers, Inc. v. Corson

Florida recognizes the general rule that when there is a dismissal of a complaint and a counter-claim, the…