Jackson v. HatchJackson v. Hatch
Plaintiff-appellee brought an action to foreclose a mechanic‘s lien against the defendants. The dеfendants moved to dismiss on the ground that the complaint failed to allege that the affidavit requirеd by
The aрpellee argues that the court below properly denied attorney‘s fees becаuse the defendants-appellants were not “prevailing parties” within the meaning of
The language quoted from Sharpe was not intended to have the meaning assigned to it by appellee. In that case, it was argued that Cеco was not a prevailing party because it got a judgment for a lesser sum than it sought. In describing thе prevailing party as the one who had “affirmative judgment rendered in his favor“, the court was, in effеct, answering this contention by saying that a litigant need not win every point in order to be a prevailing party. Cf. H.D. McPherson, Inc. v. Metro Electric of Orlando, Inc., Fla.App.4th, 1971, 253 So.2d 878; Potter v. Rowan, Fla.App.2nd, 1972, 266 So.2d 121.
Appellee‘s reliance on Emery v. International Glass & Mfg., Inc., Fla.App.2nd, 1971, 249 So.2d 496, is likewise misplaced insofar as appellee would totally deny the awarding of attorney‘s fees to appellants. While the defendants in that case successfully defended against the impression of a lien, judgmеnt was rendered against them on a contract claim arising out of the same circumstances. The court observed that it would be untenable to allow recovery of attorney‘s fees tо a party who did not ultimately prevail in the legal aspect of a case merely beсause he prevailed in the mechanic‘s lien aspect. The distinguishing factor in the case at bar is, of course, that the defendants here did prevail in all aspects. Our opinion in Emery should not be construed to mean that one who successfully defends a mechanic‘s lien foreclosurе cannot recover an attorney‘s fee under Section 713.29.
There is still the question of whether the bаsis of the award should be the entire proceeding below or only that portion of the proceeding up to the dismissal of the foreclosure suit.
Statutes authorizing the award of attorneys’ fees are considered in derogation of common law so as to require strict constructiоn. Kittel v. Kittel, Fla. 1967, 210 So.2d 1. The Legislature has seen fit for the prevailing party in a mechanic‘s lien foreclosure аction to be awarded his attorney‘s fees. It would constitute an undue extension of legislative intent to hold that simply because one portion of a lawsuit involved the foreclosure of a mechanic‘s lien, the prevailing party should be entitled to collect his attorney‘s fees for all aspects of the case. See Houdaille-Duval-Wright Co. v. Charldon Construction Co., Fla.App.3rd, 1972, 266 So.2d 106.
Applying these principles to the instant case, attorney‘s fees should be awarded only with respect to the lien foreclosure aspect of the case and not for the separate claims sounding in contract or quantum meruit.
The order in question is reversed. The case is remanded for the purpose of holding a hearing directed to the award of attorney‘s fees to the defendants-appellants according to the directions herein.
HOBSON, A.C.J., and BOARDMAN, J., concur.