Moody and Shea, P.A.

Are Attorney's Fees Recoverable?

In addition to the lien amount, as discussed in more detail, above, the prevailing party in a lien foreclosure lawsuit is entitled to recover its reasonable attorney’s fees and costs incurred in the foreclosure lawsuit. The Florida Supreme Court has ruled that the “prevailing party” in a construction lien foreclosure lawsuit is not simply the party who recovers a net judgment in its favor, but, is the party who prevails on the “significant issues” in the litigation. This determination is made by the trial court on a case by case basis which injects uncertainty in the process, even after judgment on the principal claim has been rendered. Further complicating matters, the trial court can find that there is no prevailing party and rule that each party bears its own fees and costs. A lot of discretion is afforded the trial judge. In determining which party should recover attorneys’ fees (if any), a court will look at the issues litigated, the amount of the claim of lien versus the amount recovered, the owner’s setoffs or counterclaims, and amounts offered prior to the litigation.

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DISCLAIMER AND CAUTION: THESE MATERIALS ARE PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED NOR SHOULD THEY BE CONSTRUED AS LEGAL ADVICE AS TO ANY PARTICULAR SET OF FACTS OR CIRCUMSTANCES. DUE TO THE COMPLEXITY OF THE CONSTRUCTION LIEN LAW STATUTES AND THE CASES INTERPRETING AND APPLYING THE STATUTES, IT IS RECOMMENDED THAT COMPETENT LEGAL COUNSEL BE CONSULTED IN REGARD TO ANY QUESTIONS AS TO THE APPLICABILITY OF CONSTRUCTION LIEN LAW TO ANY SET OF PARTICULAR FACTS.

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