March 11, 1975. Rehearing Denied April 22, 1975.
Appeal from the Circuit Court for Dade County, James H. Earnest, J.
Pettigrew Bailey and Eugene E. Stearns, Miami, for appellant.
Ronald S. Golub, Miami, for appellees.
Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
The plaintiff in a mechanic's lien foreclosure brings this appeal from an order allowing an attorney's fee for the defendant after plaintiff's failure to establish a lien. The basis for an attorney's fee in such instances is Fla. Stat. § 713.29. Plaintiff concedes that it is liable for a reasonable fee but urges that inasmuch as the mechanic's lien foreclosure aspect of the litigation was dismissed with prejudice prior to trial, the trial court erred as to the amount of the fee allowed. The trial judge did not have the benefit of the opinion in Jackson v. Hatch, Fla.App. 1974, 288 So.2d 564, which holds that an attorney's fee should be awarded only with respect to the lien foreclosure aspect of the case. We find that the decision in that case is governing and reverse with directions to conduct such additional hearings and take such additional testimony as may be necessary to enter an order in conformity with the law as therein declared.
Appellee suggests that the court may have intended the fee allowed to be compensation only for the mechanic's lien foreclosure portion of the action. This suggestion is untenable in view of the inappropriate size of the fee as compared with the amount of legal effort expended in obtaining an early dismissal of the lien aspect of the case.
Reversed and remanded for proceedings in accord with the view herein set out.