County Civil Court:  ATTORNEY'S FEES—Construction Lien—Section 713.29, Florida Statutes provides that the prevailing party in action to enforce a construction lien is entitled to reasonable attorney's fees for trial and appeal.  Trial court did not abuse discretion when it determined that evidentiary hearing not necessary to determine prevailing party because parties settled in mediation.  Upon de novo review, there was no error in the trial court's determination of entitlement to attorney's fees and no abuse of discretion in finding there was no "prevailing party."  Order denying Appellee's motion for appellate attorney's fees vacated and attorney's fees awarded to Appellee.  Judgment affirmed, remanded for determination of amount of appellate attorney's fees.  The Diaz/Fritz Group, Inc. v. Hassan, No. 09-000027AP-88A (Fla. 6th Cir. App. Ct. June 4, 2010) (op. on rehearing).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

 IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

THE DIAZ/FRITZ GROUP, INC., a

Florida corporation, d/b/a DIAZ

FRITZ ISABEL,

                        Appellant,                                           Appeal No. 09-000027AP-88A

                                                                                    UCN: 522009AP000027XXXXCV

 

v.                                                                                

 

                                                                                   

KAZI HASSAN, an individual; FLORIDA

PAIN MANAGEMENT, INC., a Florida

corporation; and 54th AVENUE EAST

REALTY CORP., a Florida corporation,

 

                        Appellees.

______________________________________/

 

Opinion On Rehearing Filed  ______________

 

Motions for Rehearing on Appeal

from Final Judgment

Pinellas County Court

Judge Edwin B. Jagger

 

John J. Thresher, Esq.

Attorney for Appellant

 

Mark D. Tinker, Esq.

Attorney for Appellees

 

ORDER AND OPINION ON REHEARING

THIS MATTER is before the Court for consideration of a motion for rehearing filed by Appellant the Diaz/Fritz Group, Inc. d/b/a Diaz Fritz Isabel which requests reconsideration of the "Order and Opinion" of this Court dated February 19, 2010.  This Court, acting in its appellate capacity, affirmed the order of the Pinellas County Court which found that neither party was a “prevailing party” entitled to attorneys’ fees in this construction lien litigation.  Appellees, Kazi Hassan, Florida Pain Management, Inc., and 54th Avenue East Realty Corp., in the "Motion for Rehearing as to Entitlement to Recover Appellate Attorney's Fees" request that this Court reconsider the portion of the Order and Opinion which denied their motion for appellate attorney's fees.

Appellant's Motion

            In part, Appellant argues that this Court in its appellate capacity reviewed the County Court decision under the wrong standard of review.  It is asserted that a de novo standard of review should have been applied on appeal to determine if the trial court's ruling on the issue of entitlement to fees was correct.  The February 19, 2010, Order and Opinion states that an abuse of discretion standard was used.

            Appellant is correct that when entitlement to attorney's fees is based on the interpretation of contractual provisions as a pure matter of law a de novo standard of review is used on appeal.  See also Civix Sunrise, GC, L.L.C. v. Sunrise Road Maintenance Ass'n, Inc., 997 So.2d 433, 435 (Fla. 2d DCA 2008)(citing Gibbs Construction Co. v. S.L. Page Corp., 775 So. 2d 787, 790 (Fla. 2d DCA 2000)).  Further, the courts have held that when entitlement to attorney's fees is based on the interpretation of a statute it is a pure matter of law and a de novo appellate standard of review is to be used.[1]  See Save On Cleaners of Pembroke II Inc. v. Verde Pines City Ctr. Plaza LLC, 14 So. 3d 295, 297 (Fla. 4th DCA 2009); Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A., 971 So. 2d 955, 956 (Fla. 5th DCA 2007) (citing Allstate Ins. Co. v. Regar, 942 So. 2d 969, 971 (Fla. 2d DCA 2006)).  In the present case, attorney's fees were sought both pursuant to a contract and pursuant to section 713.29, Florida Statutes (2006).  Therefore, a de novo review of the County Court's decision as to entitlement to fees should have been conducted.  Rehearing is granted in part to conduct such a de novo review.  In all other respects Appellant's motion for rehearing is denied.

De Novo Review

            This Court now reviews de novo the trial court's evaluation of Plaintiff/Appellant's entitlement to attorney's fees under the contract and under section 713.29.  We conclude that the trial court properly found that under the contract or under the statute the party it determined to be the "prevailing party" would be entitled to attorney's fees.  There was no error in the trial court's determination concerning entitlement.

            The trial court did not make a finding that there was no entitlement to attorney's fees as is urged by Appellant in its motion.  After making the determination concerning entitlement, the trial court properly conducted an analysis to evaluate whether there was a "prevailing party."  As this Court previously held in the February 19, 2010, Order and Opinion, the trial court did not abuse its discretion in determining there was no "prevailing party."

Appellees' Motion

            Appellees claim that this Court erred when it denied their motion for appellate attorney's fees.  Upon further review, this Court agrees that Appellees prevailed on appeal and are entitled to their appellate attorney's fees under the contract or under section 713.29.  Therefore, Appellees' motion for rehearing is granted, the order denying Appellees' motion for appellate attorney's fees is vacated, the Appellees' motion for appellate attorney's fees is granted, and this case is remanded to the County Court to determine the amount of fees to be awarded.

 

            Therefore, it is

            ORDERED AND ADJUDGED that Appellant's motion for rehearing is GRANTED IN PART AND DENIED IN PART as discussed above.  The Order of the County Court entered March 24, 2009, is AFFIRMED.  It is further,

            ORDERED that Appellees’ motion for rehearing is GRANTED.  The portion of the February 19, 2010, "Order and Opinion" of this Court denying Appellees' motion for appellate attorney fees is VACATED.  It is further,

            ORDERED that Appellees' motion for appellate attorney's fees is GRANTED, and this matter is REMANDED to the County Court to determine the amount of appellate attorney's fees to be awarded to Appellees.

            DONE AND ORDERED in Chambers at St. Petersburg and Clearwater, Pinellas County, Florida, this ____ day of ______________, 2010.

 

Original order entered on June 4, 2010 by Circuit Judges Pamela A.M. Campbell, George W. Greer, and John A. Schaefer.

 

 

Copies to:

 

Judge Edwin B. Jagger

 

Mark D. Tinker, Esq.                                      John J. Thresher, Esq.

Banker Lopez Gassler, P.A.                            Thresher P.A.

501 1st Ave. N., Suite 900                              400 N. Tampa St., Suite 1320

St. Petersburg, FL  33701                               Tampa, FL  33602

 



[1]   However, review of an order granting attorney's fees as a sanction pursuant to section 57.105(1),(3), Florida Statutes is subject to an abuse of discretion standard of review on appeal.  See Salazar v. Helicopter Structural & Maint., Inc., 986 So. 2d 620, 623 (Fla. 2d DCA 2007).