W.W. Plastering, Inc. v. Chism Construction, Inc.

898 So. 2d 276, 2005 Fla. App. LEXIS 4960, 2005 WL 831357

Opinion

PER CURIAM.

This is an appeal from an order awarding attorney’s fees to the defendants in an action to foreclose a mechanic’s lien. We conclude that the order was entered in the absence of a motion for fees and therefore we reverse as to this fee award. Although it is true that the defendants filed a motion for attorney’s fees on October 17, 2001, that motion was made in connection with an earlier action, which had been voluntarily dismissed. The effect of the motion could only have been to recover fees incurred to that point in the litigation. The plaintiff subsequently filed an amended complaint against the same defendants. The amended complaint was ultimately dismissed with prejudice, but the defendants never filed a motion for fees for the work done in that case. The trial judge concluded that the initial motion for fees carried forward to the new case, but we think the error in this reasoning is that the defendants had not yet prevailed in the second action.

The appeal also presents an issue relating to court costs, but we find no error in the assessment of costs.

Affirmed in part and reversed in part.

ALLEN, VAN NORTWICK and PADOVANO, JJ., concur.