Bauer v. Ready Windows Sales & Service Corp.
221 So. 3d 761
| Fla. Dist. Ct. App. | 2017Background
- In August 2013 the Bauers contracted with Ready Windows for replacement of doors and windows for $24,804.05; contract listed separate amounts for products, permit fees, and installation and stated “engineering and permit included.”
- Ready Windows used an unlicensed drafter (not a licensed engineer) to prepare a two-dimensional plan filed for a building permit; Miami‑Dade did not require a licensed engineer for this job.
- Installation occurred in October 2013; the Bauers later served Chapter 558 defect notices and withheld final payment, alleging defective installation and other problems.
- Ready Windows filed a claim of lien under Chapter 713 and sued to foreclose the lien; after a bench trial the court found the contract divisible and awarded Ready Windows $9,039.05 but disallowed the $3,600 allocated for installation due to breach.
- Both parties appealed (Bauers appealed the award to Ready Windows for products; Ready Windows cross‑appealed the setoff for installation). This Court affirmed the trial court on both appeal and cross‑appeal.
- Both parties moved for appellate attorney’s fees under Fla. R. App. P. 9.400 and section 713.29; the court denied both motions, finding neither party was the prevailing party under the controlling test.
Issues
| Issue | Plaintiff's Argument (Bauers) | Defendant's Argument (Ready Windows) | Held |
|---|---|---|---|
| Whether either party is the prevailing party entitled to fees under §713.29 | Bauers: they prevailed on appeal regarding product defects and should recover appellate fees | Ready Windows: prevailed on the products claim and argued it was prevailing for fees | Neither party awarded fees; under the Moritz/Prosperi significant‑issues test the court exercised discretion and found both prevailed on different significant issues so neither is sole prevailing party |
| Whether failure to use a licensed engineer breached the contract | Bauers: “engineering” meant a licensed engineer should seal/sign plans; breach entitles them to relief | Ready Windows: “engineer” used colloquially; county did not require licensed engineer for this permit | Court rejected Bauers’ contention; no breach for lack of licensed engineer |
| Whether products (doors/windows) conformed to contract | Bauers: products defective or not as promised | Ready Windows: products were as represented and fit the spaces | Court found products were adequate; Ready Windows entitled to amounts for products |
| Whether installation breached the contract | Bauers: installation was defective and warranted withholding final payment and setoff | Ready Windows: completed scope except minor punchlist; Bauers prevented completion | Court found Ready Windows breached installation obligation and disallowed the $3,600 installation amount (setoff to Bauers) |
Key Cases Cited
- Trytek v. Gale Indus., Inc., 3 So. 3d 1194 (Fla. 2009) (adopts Moritz/Prosperi ‘‘significant issues’’ test for prevailing party under §713.29 and recognizes possibility that neither party prevails)
- Moritz v. Hoyt Enters., Inc., 604 So. 2d 807 (Fla. 1992) (party prevailing on significant issues is the prevailing party for attorney’s fees)
- Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla. 1993) (trial court has discretion to consider equities in determining prevailing party)
- Emery v. Int’l Glass & Mfg., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971) (legislature did not intend mechanics’ lien fees where defendant defeats lien but remains liable for related labor/materials)
Motions for appellate attorney’s fees denied for both parties.