County Civil Court: CIVIL PROCEDURE – Summary Judgment – Since Appellant was prevailing party for purposes of attorney fees, trial court erred when it refused to award mandatory fees for successful defense and prosecution of claims in arbitration.  Trial court’s order reversed and cause remanded. Motts Contracting Servicing, Inc. v. Snell, et al., No. 2012-AP-4-ES (Fla. 6th Cir. App. Ct. January 22, 2013).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

MOTTS CONTRACTING

SERVICING, INC.,     

                        Appellant,

 

v.                                                                     Appeal No:   512012AP000004XXXXES

Case No:       2012-AP-4-ES

L.T. No:         2011-CC-001277-ES         

MARCIA M. SNELL and

BRUCE SNELL,                                         

                        Appellees.                                                   

____________________________/

Appeal from Pasco County Court

County Judge Robert P. Cole

 

Michael V. Laurato, Esq.

for Appellant                                                                                            

 

Marcia and Bruce Snell, Pro Se

as Appellees

 

 

 

 

ORDER AND OPINION

Appellant raises two issues on appeal.  First, Appellant argues that the trial court misinterpreted the nature of the claims decided in arbitration.  Second, Appellant contends that the trial court misapplied the prevailing party standard of Florida Statute 713.29 and misapprehended the arbitrator’s authority to determine the prevailing party in failing to award appellant attorney fees.  Since Appellant was clearly the prevailing party for purposes of §713.29 attorney fee entitlement, the trial court erred when it refused to award the mandatory fees for successful defense and prosecution of §713 claims in arbitration even after it confirmed the arbitration award and entered judgment in favor of Appellant and against Appellees.  Therefore, the trial court’s order shall be reversed and this cause remanded, as set forth below.

 

 

FACTUAL BACKGROUND

            Marcia and Bruce Snell (Appellees) entered into a contract with Mott’s Contracting (Appellant) to perform remodeling work, which Appellant completed.  The contract contained a provision that provided for arbitration to resolve all disputes.  When Appellees refused to either negotiate or pay the remaining balance on the work performed by Appellant, Appellant filed a claim of lien on March 16, 2011, which Appellees contested by filing a complaint on March 30, 2011.  Appellees also filed a notice of contest of lien as an alternative attempt to have the lien dismissed, which gave Mott’s Contracting sixty days to file suit to enforce the lien.  In response to both actions, Appellant moved to dismiss or stay the actions on the contract and lien. 

            After a July 14, 2011 hearing, the trial court granted Appellant’s motion to stay the pending construction contract litigation and compelled arbitration pursuant to the contract’s arbitration clause.  In arbitration, Appellees filed a complaint pursuing several causes of action seeking rescission or cancellation of the contract and breach of contract.  Appellant filed a counter-claim alleging breach of contract, quantum meruit, and establishment and foreclosure of a construction lien. 

            On November 22, 2011, the arbitrator entered a final arbitration award in favor of Appellant and against Appellees in the amount of $1,903.90.  The award denoted the basis for Mott’s Contracting to recover from Appellees, and in doing so, enumerating the outstanding payments owed to Mott’s Contracting by Appellees.  The award specifically denied all of the Appellees’ claims for rescission, cancellation, and refund.  The award granted Appellant’s counterclaims, found that the factual conditions precedent for a lien had been established, and therefore, determined that Appellant was entitled to attorney fees and costs. 

            The arbitration award was filed with the trial court.  Appellant filed a motion pursuant to Florida Statutes §§682.12 and 682.15 to have a judgment entered on the award and to tax the costs and attorney fees.  In response, Appellees filed a motion seeking to modify the arbitration award under Florida Statute 682.13 or to vacate the award under 682.14.  Pursuant to §682.15, the trial court entered an order confirming the appraisal award, granting Appellant entitlement to attorney fees and costs, and reserving jurisdiction to determine the appropriate amount of such fees and costs.  The trial court entered a final judgment in favor of Appellant and against Appellees on the appraisal award. 

            Appellees filed a motion for rehearing alleging that the trial court was improperly induced to inadvertently and mistakenly sign the proposed orders.  The trial court granted Appellees’ motion for rehearing and entered an order prepared by Appellees on January 18, 2012, which found that Appellant did not take proper action to enforce the lien and retreats from the binding arbitration award finding Appellant to be the prevailing party.  Appellant filed a timely notice of appeal on February 3, 2012. 

 

                    

LAW AND ANALYSIS

The trial court order was contrary to Florida law.  In its order, the trial court specifically stated that it disagreed with the arbitrator’s finding that Appellant had performed all conditions precedent to foreclosing its claim of lien and Appellant’s entitlement to attorney’s fees.  In holding that Appellant did not take the requisite action to enforce the claim of lien, and thus, the claim of lien should be extinguished, the trial court overlooked two significant points.  First, Appellees sought to cancel the lien in their complaint in arbitration pursuant to §713.29.  Second, Appellant’s counterclaim to enforce the lien was timely brought in arbitration proceedings pursuant to §713.29.  More importantly, it was well within the arbitrator’s jurisdiction to determine the validity of the claim of lien and determine the prevailing party’s entitlement to attorney’s fees.  After confirming the arbitrator’s award, the trial court was required to award attorney fees to Appellant as the prevailing party in arbitration.

Florida Statute 682.12 provides:

Upon application of a party to the arbitration, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in ss. 682.13 and 682.14.

The language of section 682.12 is mandatory. See, SEIU Fla. Pub. Servs. Union, CTW, CLC v. City of Boynton Beach, 89 So. 3d 960 (Fla. 4th DCA 2012) (“The language of section 682.12 is mandatory—the court must confirm the arbitration award unless a motion to vacate or modify has been filed within ninety days of delivery of the award.”).  Further, Florida Statute 682.15 provides:

Upon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and of the proceedings subsequent thereto, and disbursements may be awarded by the court.

The trial court does not have any discretion and must confirm the award unless one of the parties seeks to vacate, modify or correct the award within 90 days of delivery of the arbitrator's award, or unless there is an issue presented to the trial court in the motion to confirm which was not submitted to the arbitrator.  Moya v. Bd. of Regents, State Univ. Sys. of Fla., 629 So. 2d 282, 284 (Fla. 5th DCA 1993).  Here, Appellant met all the statutory requirements for confirmation and entry of final judgment.  The arbitration award in favor of Appellant was within the arbitrator’s authority, and the award operates as a final and conclusive judgment.  Charbonneau v. Morse Operations, Inc., 727 So. 2d 1017, 1020 (Fla. 4th DCA 1999).  As such, the entry of final judgment confirming the arbitration award was mandatory, as there was no legal basis for the trial court to alter the arbitrator’s findings.  See, Farmer v. Polen, 423 So. 2d 1035, 1036 (Fla. 4th DCA 1982).

In holding that “there is no statutory or contractual right to attorney’s fees notwithstanding the arbitration award as Mott’s was not the ‘prevailing’ party,” the trial court misapplied the prevailing party standard of Florida Statute § 713.29.  An award of attorney fees is authorized by §713.29, which governs the claim of lien filed by Appellant to secure payment for the work performed for Appellees.  Section 713.29 expressly provides for prevailing party fees for construction lien enforcement in arbitration:

In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party's costs, as allowed in equitable actions. (emphasis added).

 

Section 713.29 is also mandatory and requires the trial court to award attorney fees to the prevailing party.  Pennington & Assocs., Inc. v. Evans, 932 So. 2d 1253, 1254 (Fla. 5th DCA 2006).  The arbitrator acted within its jurisdiction to determine the prevailing party, which the arbitration award clearly denotes as Appellant.  Given these facts and the mandatory nature of the attorney fees award, the trial court was without discretion to refuse to award Appellant fees. 

Even though an arbitrator does not have the authority to award attorney fees absent an express stipulation to confer jurisdiction, the arbitrator does have authority to determine the prevailing party for purposes of court awarded fees.  Moser v. Barron Chase Securities, Inc., 783 So. 2d 231 (Fla. 2001).  Significantly and appropriately, the arbitrator’s award does not purport to determine the actual amount of fees; rather, the award finds the construction lien enforceable, denies Appellees’ claims, and determines Appellant to be the prevailing party.  As such, under §713.29, Appellant is entitled to reasonable court awarded attorney fees.  A-1 Duran Roofing, Inc. v. Select Contracting, Inc., 865 So. 2d 601, 603 (Fla. 4th DCA 2004).  The actual amount of fees to be awarded was properly left to the trial court to determine.  The trial court, however, erroneously stated in its order that Appellant had no statutory right to attorney’s fees.  The trial court was without discretion to deny Appellant attorney’s fees and costs where Appellant was the prevailing party on the claim of lien.  Since the trial court had no basis not to award Appellant attorney’s fees and costs, the trial court’s order must also be reversed on this basis.  It is therefore,

            ORDERED that the trial court’s order is hereby REVERSED and this cause is remanded as consistent with this opinion.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 22nd day of January 2013.

 

Original order entered on January 22, 2013 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.

 

 

 

 

 

 

 

 

 

 

 

 

 

Copies to:

Michael V. Laurato, Esq.

Marcia and Bruce Snell