FRANK J. TRYTEK, ET AL. v. GALE INDUSTRIES, INC., ETC.
CASE NO. SC07-1641

FLORIDA SUPREME COURT
TUESDAY, SEPTEMBER 9, 2008

>> A FEE DRIVEN LITIGATION
AND IF THE JUDGE HAD THE
ABILITY TO NOT AWARD FEES TO
EITHER PARTY, I'M SURE THE
JUDGE WOULD HAVE.
>> SO, SO WHAT YOU ARE TELLING
ME, IS THAT YOU END UP WITH AN
ASSESSMENT OF 50 -- 53 OR
55,000, IN FEES, BECAUSE THE
CASE DIDN'T GET SETTLED BECAUSE
YOU COULDN'T HAVE -- ARRIVE AT
AN AGREEMENT ABOUT THE FEES.
>> IS THAT CORRECT.
>> LET ME FOLLOW-UP ON THAT,
BECAUSE --
NEITHER OF YOU RAISED THE ISSUE
UNDER 713.21 -- 29, THERE CAN
BE A DECISION NOBODY IS THE
PREVAILING PARTY.
DO YOU CONTEND AND JUDGE --
THIS JUDGE SEEMED TO THINK
THERE HAS TO BE A PREVAILING
PARTY UNDER 713.29?
>> I BELIEVE THAT IS
CORRECT.
YOUR HONOR, THE STATUTE ITSELF
SAYS THAT THERE SHALL BE AN
AWARD OF FEES AND THERE HAS
BEEN -- THERE WAS A -- ONE OF
THE APPELLATE DECISIONS CITED
IN BOTH PARTIES' BRIEFS
INVOLVED A CASE WHERE THE TRIAL
JUDGE TRIED TO DO JUST THAT,
AND WAS REVERSED AND WAS FOUND
TO HAVE ABUSED HIS --
>> DIDN'T THE JUDGE QUESTION
WHETHER THAT COULD BE DONE,
BUT, JUST WAS NOT BEFORE THE
COURT?
>> WELL, YES.
>> OKAY.
.
NOW WHAT MY QUESTION REALLY IS,
SEEMS TO ME, THAT -- YOU
STIPULATED, BOTH STIPULATED TO
$55,000, OF -- OR ATTORNEYS
FEES.
>> THAT'S CORRECT.
>> AND WE DON'T HAVE THE
REASONABLENESS.
BUT IS YOUR CONTENTION,
BECAUSE YOU ARE HERE NOW,
SAYING THAT THE 5th DISTRICT,
THE EFFECT OF THE 5th
DISTRICT'S OPINION WOULD BE
THAT THE CONTRACTOR WOULD GET
THE -- $65,000 IN ATTORNEYS
FEES?
>> WELL, THE CONTRACTOR WOULD
GET WHATEVER THEIR COUNSEL HAD
CHARGED THE CONTRACTOR FOR THE
-- LIENOR FOR THE COURSE OF THE
LITIGATION.
>> DID ANYONE LOOK AT THIS
ISSUE AND LET'S JUST ASSUME WE
AGREE TO THE -- I MIGHT AGREE
THAT THE HOMEOWNERS -- SINCE
YOU DID NOT PREVAIL ON THE LIEN
CLAIM BECAUSE THERE WAS A
JUDGMENT IN FAVOR OF THE
CONTRACTOR.
FOR $1500 BUT THAT BECAUSE OF
ALL OF OUR CASE LAW, IT WAS --
WOULD SEEM TO ME THIS ONLY FEES
THEY WOULD BE ENTITLED TO, IF
THEY DIDN'T PREVAIL ON THE
SIGNIFICANT ISSUES AT TRIAL,
WOULD HAVE BEEN ANYTHING TO
ESTABLISH THEIR LIEN, WHICH IN
THIS CASE WOULD BE VIRTUALLY
NOTHING.
WAS THAT ARGUMENT EVER MADE?
IN OTHER WORDS, I DON'T -- I
DON'T SEE WHY IT HAS TO BE AN
ALL OR NOTHING SITUATION
BECAUSE AN ABSURD ALTERNATIVE
RESULT WOULD BE FOR THE
CONTRACTOR TO GET THEIR FEES
FOR LITIGATING UNSUCCESSFULLY
LITIGATING A COUNTER
CLAIM?
I AGREE WITH THAT AND I
THINK THAT IS PART OF THE
ARGUMENT WE ARE RAISING IS THIS
TRIAL JUDGE SHOULD HAVE THE
FLEXIBILITY TO DO EQUITY IN
THIS CASE AND CERTAINLY, EQUITY
WOULD NOT BE SERVED BY HAVING A
JUDGMENT ENTERED IN FAVOR OF A
CONTRACTOR WHO NEGLIGENTLY
PROVIDED SERVICES.
>> WHY WOULDN'T EQUITY BE TO
SAY THERE HAS TO BE A RULE AND
THE RULE IS NONE OF THE OTHER
CASES INVOLVE A SITUATION WHERE
THE HOMEOWNER DID NOT -- IN
OTHER WORDS IF YOU HAD GOTTEN
YOUR 18,000 YOU WOULD BE
GETTING FEES AS I CAN SEE IT
UNDER THESE CASES.
BUT YOU DIDN'T FEED OUT THE
AMOUNT OF THE LIEN AND
THEREFORE THERE WAS A JUDGMENT
IN FAVOR OF THE CONTRACTOR.
ON THE OTHER HAND, BECAUSE THAT
JUDGMENT WAS -- LIEN WAS
STIPULATED TO, THERE REALLY
SHOULD BE NO ATTORNEYS FEES,
YOU WOULDN'T GET UNDER MY
THEORY, YOU WOULDN'T GET ANY
BECAUSE YOU ARE NOT -- YOURS IS
A CONTRACTUAL COUNTERCLAIM AND,
YOU KNOW, AGAIN SOMEONE ELSE
MAY LOOK AT IT DIFFERENTLY.
YOU COULDN'T HAVE GOTTEN IT IF
YOU BROUGHT YOUR CASE
SEPARATELY FROM THE LIEN, THERE
WOULD BE NO ATTORNEYS KNEES AND
THEY DENT GET IT BECAUSE THEY
DIDN'T PREVAIL ON ANYTHING AT
TRIAL THEY ONLY COULD HAVE
GOTTEN IT IF THEY LITIGATED THE
LIEN CASE AND YOU OFFERED $700,
YOU KNOW, EARLY ON, TO
HAVE THE CASE GO AWAY.
>> THAT IS CORRECT AND I THINK
WOULD BE AN EQUITABLE WAY TO
RESOLVE THE MATTER.
UNFORTUNATELY THE WAY THE CASES
READ NOW, THEY SAY THAT IF THE
LIENOR IS SUCCESSFUL IN EVEN
GETTING A JUDGMENT OF 1 PENNY,
THEY AN TITLED TO ALL OF THEIR
FEES AND THAT ENDS THE
ANALYSIS.
>> EXCEPT THIS COURT'S CASES,
BOTH MORITZ AND THE PROSPERI
TALK IN TERMS OF THERE BEING
TAKEN INTO CONSIDERATION THE
OVERALL ISSUES OF ATTORNEYS
FEES.
AND THE WAY THAT I WOULD
CONSTRUE THAT AND I WANT YOU
AND YOUR OPPONENT TO SPEAK TO
THIS, IS THAT WHAT WE'RE REALLY
DEALING WITH IN THE STATUTE IS
AN ENTITLEMENT TO ATTORNEYS
FEES.
THE "MUST" LANGUAGE IN THE
STATUTE, I WOULD SAY, IS A
PROCEDURAL ISSUE, AS TO WHEN
THEY HAVE TO BE ASSESS FIRE
DEPARTMENT THEY ARE GOING TO BE
ASSESSED.
THEY HAVE TO BE -- MUST BE PART
OF THE FEE, OF THE COST.
BUT THAT THE ENTITLEMENT ISSUE,
THIS COURT HAS HELD, IS DONE ON
THE BASIS OF TAKING INTO
CONSIDERATION ALL OF THE
CONDITIONS AND ISSUES THAT
SURROUND THE ENTITLEMENT TO
FEES AND ONE OF WHICH IS
WHETHER THOSE FEES WERE
NECESSARY IN ORDER TO -- FOR
THE PARTLY THAT -- TO PREVAIL
ON WHATEVER ISSUE IS BEING
PRESENTED.
AND WHERE YOU'VE GOT BOTH SIDES
PREVAILING ON SOME ISSUES, IT
SEEMS TO ME, YOU HAVE AN
ABILITY TO EQUITABLY WEIGH
THOSE ISSUES.
>> THAT IS EXACTLY WHAT WE ARE
ADVOCATING, JUSTICE WELLS.
THAT IS PRECISELY HOW I READ
MORITZ AND THEN TAKING THE NEXT
STEP, TO PROSPERI ANSWERING THE
QUESTION IN THE AFFIRMATIVE
SAYING DOES THE MORRIS TEST --
MORITZ DOESN’T APPLY.
>> DOESN'T IT LEAD TO THE
CONCLUSION THE TRIAL COURT
COULD ENTER NO FEES AND ALL
THESE CONDITIONS BALANCE EACH
OTHER TO AN EXTENT....
>> I THINK THAT IS A POSSIBLE
RESOLUTION BUT COULD ONLY COME
AFTER AN OPINION FROM THIS
COURT, THAT WOULD QUESTION THE
OTHER DECISIONS FROM DISTRICT
COURTS THAT HAVE SAID THAT A
TRIAL JUDGE ABUSES HIS
DISCRETION IF HE DOES NOT FIND
ONE PARTY TO BE THE PREVAILING
PARTY, UNDER THIS PARTICULAR
STATUTE.
>> YOU HAVE BEEN FORTHRIGHT IN
THE AND I WANTED TO BE SURE
BECAUSE THE RECORD IS A LITTLE
SLIM BUT MIGHT HELP US IF WE --
WRITE A DECISION.
THE LIEN WAS ALWAYS $12,725.
>> CORRECT.
>> IS THAT CORRECT?
AND NOTHING WAS PAID AT THAT
POINT, THE CONTRACTOR
NEGLIGENTLY CAUSED DAMAGE TO
THE ELECTRIC WIRING.
>> THAT'S CORRECT.
>> AND YOUR CLIENT HAD A
SEPARATE BUSINESS, AND SO THEY
WENT AHEAD AND THEY PREPARED
THIS NEGLIGENCE CAUSED BY THE
CONTRACTOR'S WORK.
>> EXACTLY.
>> THEY BUILD -- ISSUED A BILL
FOR $11,200, AND AT SOME POINT,
THEY DELIVERED A CHECK OR --
FOR $736 BACK TO THE
CONTRACTOR?
>> CORRECT.
>> THAT WAS -- WOULD HAVE BEEN
THE DIFFERENCE BETWEEN 1270 --
OKAY.
SO THAT IS IN THE RECORD AND
I'VE GOT IT HERE.
>> AND THAT WAS REJECTED.
>> AND THE MOST THAT THE
CONTRACTOR EVER WAS WILLING TO
TAKE OFF OF THE LIEN WAS
BETWEEN 320 AND $3200.
>> THAT IS CORRECT.
>> SO, WHEN YOU SAY THIS WAS
DRIVEN BY FEES --
IT LOOKS TO ME LIKE IT WAS ALSO
DRIVEN BY THE CONTRACTOR
DEVALUING THE WORK THAT WAS
DONE BY YOUR CLIENT'S COMPANY,
IN THE VERY WORK -- I MEAN, THE
VERY DAMAGE THEY HAVE CAUSED.
>> CORRECT AND I --
>> I -- I MEAN, IT SEEMS
TO ME THAT IF -- IT WOULD BE
DIFFERENT IF THEY HAD OFFERED
SOMETHING CLOSE TO SAYING,
LISTEN, YOU KNOW, LIKE HAD
OFFERED 1500, SEEMS LIKE YOU
ARE CLOSE AT HAVING OFFERED 730
TO THE CASE, THE CASE THAT SAYS
IF THERE HAS BEEN A SETTLEMENT,
BASICALLY AN OFFER TO SETTLE,
YOU KNOW, YOU CAN'T -- NO ONE
PERSON CAN GET FEES.
SO, WHY IS THAT NOT -- TELL ME
WHEN THE FEES BECAME THE ISSUE,
AS OPPOSED TO THE FACT THAT
GALE REFUSED TO PAY ANYTHING
MORE -- I MEAN, TAKE ANYTHING
OFF THEIR LIEN MORE THAN
BETWEEN 320 AND 3200 --.
>> IF -- IT'S MY BELIEF AND
THIS IS ARGUMENT OF COUNSEL,
THAT GALE TOOK A POSITION THAT
WE ARE NOT GOING TO PAY YOU THE
FULL VALUE OF THE SERVICES THAT
YOU PROVIDED, AND WE ARE GOING
TO OFFER YOU A SMALL AMOUNT,
RANGE BETWEEN BEING 320 --
$3200, KNOWING FULL
WELL IF MY CLIENT WERE TO
REJECT THAT AND THE CASE WERE
TO PROCEED THROUGH TRIAL, THAT
THEY HAD A FEE AWARD WAITING
FOR THEM --
>> YOU ARE SAYING RATHER THAN
-- YOU SAY THE CASE IS DRIVEN
BY FEES AND LET ME MAKE SURE,
YOU SAY IT WAS DRIVEN BY FEES
ON THE PART OF THE CONTRACTOR.

>> THAT'S CORRECT.
>> AND YOUR POLICY ARGUMENT IS
IF WE ALLOW THIS, SOMEONE
GATHER A DOLLAR AWARD AND GET
ALL THE FEES FOR THE LITIGATION
WE ARE ACTUALLY DRIVING
LITIGATION AND NOT SOLVING IT.

>> EXACTLY.
EXACTLY.
>> AND I THINK THAT IS A
LOGICAL STEP FORWARD WHEN YOU
LOOK AT THE MORITZ OPINION, AND
THEN LOOK AT THE PROSPERI
OPINION SAYING DOES THE MORITZ
TEST, WHO PREVAILED ON THE
SIGNIFICANT ISSUES APPLY IN A
713.29 CASE?
IF I AGREE THAT I DON'T THINK
UNDER THIS EQUITIES OF THE
CASE, GALE OUGHT TO GET ANY
FEES, THAT IS WHERE I SEE IT,
I'M STILL HAVING PROBLEMS HOW
YOU GET FEES, UNDER THE
CIRCUMSTANCE THAT I GUESS I'M
HUNG UP -- BY THIS BEING A
SEPARATE COUNTERCLAIM FOR
SERVICES AND THAT IF YOU
BROUGHT IT, LET'S SAY, YOU GUYS
HAD TAKEN CARE OF -- PAID THE
WHOLE AMOUNT, THE $12,000, AND
THEN YOU DISCOVERED THE PROBLEM
WITH THE ELECTRIC -- YOU KNOW,
WHAT THEY HAD DONE TO YOUR
ELECTRIC WIRING, AND THEN YOU
-- THEY WOULDN'T PAY THE 11,700
AND YOU SUED THEM, FOR BREACH
OF AN AGREEMENT, YOU AGREED YOU
WOULDN'T GET FEES.
>> I DO AND --
>> I DON'T KNOW HOW, BECAUSE,
IT RAISED AS A -- NOT REALLY
RAISED AS A DEFENSE, AS IT IS
RAISED AS A COUNTERCLAIM, I
WONDER, AND OF -- CASES WITHOUT
BEING A PREVAILING PARTY
PROVISION, YOU CAN -- AND
AGAIN, BECAUSE YOU DIDN'T
DEFEAT THE LIEN.
HOW YOU CAN GET ATTORNEYS FEES.

>> THE WAY THE DISTRICT COURTS
HAVE CONSTRUED 713.29, THEY
HAVE CONSTRUED IT IN THE
FOLLOWING MANNER.
THERE MUST BE A PREVAILING
PARTY.
THEY HAVE NO DISCRETION TO --
>> YOU ARE SAYING -- NOW, LET'S
STEP FORWARD AND WE SAY NO.
>> NOT TRUE.
>> INTEREST ARE CIRCUMSTANCES.

>> THIS IS THE PERFECT EXAMPLE
OF A CASE WHERE THERE WAS NOT A
A PREVAILING PARTY AND IF THE
COURT WERE TO DETERMINE REALLY
UNDER THE FACTS OF THIS CASE,
NEITHER PARTY WAS ENTITLED TO
FEES, THEN THAT IS CERTAINLY
SOMETHING THAT THIS COURT CAN
DO.
BUT, THAT WOULD BE YOU A CHANGE
IN THE LAW AND THAT IS WHY THAT
HAS NOT HAPPENED IN THE PAST,
IF THIS COURT ISSUED AN OPINION
SAYING, UNDER THESE
CIRCUMSTANCES, THAT IS WITHIN
THE DISCRETION OF THE TRIAL
JUDGE, TO SAY UNDER THE
EQUITIES, REALLY, NEITHER PARTY
DESERVES FEES.
>> -- WITH A NET
JUDGMENT IN THIS CASE.
>> I'M SORRY.
>> WHO ENDED UP WITH A NET
JUDGMENT?
>> GALE.
1,000 -- 1,500 --.
>> THE CONTRACTOR ENDED UP WITH
A NET JUDGMENT.
>> THAT'S CORRECT.
>> IS THAT CORRECT.
>> THAT'S CORRECT.
>> WHY SHOULDN'T THE CONTRACTOR
THEN BE ENTITLED TO SOME FEES?

THE CONTRACTOR SHOULD NOT BE
ENTITLED TO SOME FEE BECAUSE
THE CONTRACTOR WENT ONTO MY
CLIENT'S PROPERTY, AND NEGLIGENTLY
PERFORMED THEIR SERVICES.
>> LET'S STOP THERE FOR A
MINUTE.
THEY MAY HAVE NEGLIGENTLY
PERFORMED THE SERVICES BUT NOW
THERE HAS BEEN A DETERMINATION
THAT THEIR NEGLIGENCE CAUSED
DAMAGES THAT WERE LESS THAN THE
AMOUNT THEY WERE OWED.
>> THAT'S RIGHT.
>> WHY, WHY -- IN OTHER WORDS,
-- EVEN IF YOU HAVE ACCEPTED
THE PROPOSITION THAT YOU COULD
ENTANGLE THESE THINGS TOGETHER,
SEEMS TO ME THE LEGISLATURE
REALLY IS TAKING SORT OF A
MODEL CASE WHEN THEY PASS
LEGISLATION LIKE THIS.
A SIMPLE CASE.
YOU ARE SAYING, A CONTRACTOR
WORKS ON A PROJECT, THE -- HE'S
NOT PAID, OR SHE'S NOT PAID,
WHATEVER AND THEN THEY FILE A
LIEN AND HAVE TO SUE TO HAVE
THE LIEN ENFORCED AND IF THEY
PREVAIL, THEY'LL GET FEES, TOO.

IF THEY --
>> THAT'S CORRECT.
>> HAD TO DO THAT AND THAT IS A
VERY SIMPLE, EASY ONE YOU KNOW
-- ONLY WHEN YOU THEN HAVE IT
ENTANGLED WITH, A COUNTERCLAIM,
OF THE HOMEOWNER, OR THE OWNER
OF THE PROJECT, THAT WE HAVE TO
SEPARATE THESE THINGS OUT.
>> I AGREE THERE IS --
>> BUT NO MATTER WHAT THE
BOTTOM LINE HERE WAS THAT THE
CONTRACTOR PREVAILED.
IS THAT CORRECT.
>> THE CONTRACTOR HAD A
JUDGMENT ENTERED IN THE
CONTRACTOR'S FAVOR BUT I DON'T
THINK THAT --
>> I'M NOT TALKING ABOUT WHAT
THE AMOUNT OF FEES MAY BE.
>> RIGHT.
>> BUT IF THE PROPERTY OWNER,
FOR INSTANCE, SAYS, WELL, I --
I KNOW HOW MUCH MY DAMAGES ARE
AND YOU'LL HAVE TO SUE ME TO
ENFORCE YOUR LIEN OR WHATEVER,
BECAUSE YOU DAMAGED MY PLACE,
TOO.
AND REFUSES TO PAY.
AND IT IS ONLY AFTER -- THEY
GET INTO LITIGATION.
THAT IT TURNS OUT TO BE, YOU
KNOW, WHATEVER AMOUNT THE TRIAL
COURT IN THIS CASE,
PARTICULARLY, WORKED OUT.
WHY SHOULDN'T THE CONTRACTOR IN
THAT SITUATION, SINCE THE
HOMEOWNER IS REFUSING TO PAY,
THAT IS, THE HOMEOWNER MAY
ADMIT THAT THERE IS A VALID
CLAIM, EVEN THE AMOUNT OF THE
VALID CLAIM.
BUT THEY ARE NOT PAYING IT
BECAUSE THEY ARE CLAIMING THAT
-- IN ESSENCE THEY ARE ENTITLED
TO A CREDIT, AND IN THIS CASE
THEY CLAIM THEY WERE ENTITLED
TO A CREDIT THAT THE COURT
FOUND WAS NOT JUSTIFIED.
EVEN THOUGH IT WAS THE -- YOU
KNOW, NOT A VERY LARGE AMOUNT.

>> THE REASON IS, JUDGE ANSTEAD
--
>> LET ME COME BACK TO WHY
SHOULDN'T THE CONTRACTOR HAVING
SECURED THEN A JUDGMENT,
BECAUSE ALTHOUGH PART OF THE
HOMEOWNER'S DEFENSE OR
COUNTERCLAIM WAS FOUND VALID,
THEY ARE STILL WITH A NET
JUDGMENT FOR THE CONTRACT.
>> BECAUSE THE JUDGMENT FOR THE
CONTRACTOR WAS PURSUANT TO AN
AGREED ORDER.
THERE WAS A MOTION FOR SUMMARY
JUDGMENT AND AN AGREED ORDER
ENTERED IN FAVOR OF THE
CONTRACTOR, WHERE MY CLIENT
STIPULATED TO THE FACT THAT THE
LIEN WAS PROCEDURAL PROPER AND
SUBSTANTIVELY CORRECT AND THAT
JUDGMENT WAS ENTERED --
>> HOW CAN YOU CALL IT AN
AGREED ORDER WHEN THE HOMEOWNER
AT ALL TIMES SAID NO, I DON'T
HAVE TO PAY THIS CONTRACTOR
ANYTHING.
BECAUSE THE AMOUNT OF MY CLAIM
EXCEEDS THE AMOUNT OF THE
CONTRACTOR'S CLAIM.
>> I CALL IT AN AGREED ORDER,
JUSTICE BECAUSE IT WAS AN
AGREED ORDER.
COUNSEL AGREED TO THE LANGUAGE
OF IT --
>> BUT PART --
>> I AGREE THERE WAS A DISPUTE
PRIOR TO THAT AS TO THE AMOUNT.

BUT, THERE WAS NO LITIGATION --

>> YOUR CLIENT DID NOT PREVAIL
ON THE ISSUE OF -- THAT THE
AMOUNT OF THEIR CLAIM OR
COUNTERCLAIM AGAINST THE
CONTRACTOR EXCEEDED THE AMOUNT
THAT THEY OWED THE CONTRACTOR,
IS THAT CORRECT.
>> THAT IS CORRECT BUT THEY
PREVAILED ON THE SUBSTANTIAL
ISSUES THAT WERE TRIED TO THE
COURT AND THAT IS THE LANGUAGE
OF THIS COURT AND PROSPERI AND
IT'S IMPORTANT BECAUSE THIS
LIEN WAS IN THE TRIED TO THE
COURT.
IT WAS NOT LITIGATED THROUGH TO
A CONCLUSION.
IT WAS THE SUBJECT OF A
STIPULATED ORDER.
>> I THOUGHT THE ISSUE ALL
ALONG WAS THE AMOUNT OF THE
OFFSET, THAT IS, FROM YOUR
STANDPOINT, THE AMOUNT OF THE
OFFSET WOULD EXCEED THE AMOUNT
OF THE LIEN CLAIM FROM THE
CONTRACTOR'S POINT OF VIEW, THE
AMOUNT OF THE OFFSET WOULD BE
LESS THAN THE AMOUNT OF THE
LIEN --
>> THAT IS --
>> THE ISSUE --
>> IS THE ISSUE THAT WAS TRIED.

>> AND THEY PREVAILED.
>> I GUESS IT DEPENDS --
>> I'M NOT TALKING ABOUT
AMOUNT.
>> NO, I UNDERSTAND THAT AND I
GUESS THE ISSUE IS, WHETHER THE
TRIAL COURT AND THIS IS WHERE
THERE ARE TWO DIFFERENT
STANDARDS OF REVIEW TO APPLY,
DID THE TRIAL JUDGE ABUSE HIS
DISCRETION IN DETERMINING THAT
MY CLIENTS WERE THE PREVAILING
PARTIES?
AND I DON'T BELIEVE THAT THE --
THAT HE DID BECAUSE, IN
ESSENCE, THE CONTRACTOR WAS
SEEKING TO RECOVER $12,700 AND
THE CONTRACTOR ENDED UP
RECOVERING $1500.
>> AND THANKS -- THANKS TO OUR
QUESTIONS WE'RE USING UP YOUR
REBUTTAL TIME, SO PROBABLY
SHOULD PAUSE.
>> OKAY.
THANK YOU.
>> THANK YOU.
>> PLEASE THE COURT, GOOD
MORNING, YOUR HONORS, EDWARD BAIRD,
I REPRESENT THE RESPONDENT,
GALE INDUSTRIES.
>> LET ME FOLLOW UP ON JUSTICE
ANSTEAD'S QUESTION.
NOW, YOU REPRESENTED THE
LIENOR.
>> THAT'S CORRECT AND YOUR
CLIENT PLACED A LIEN ON THE
TRYTEK PROPERTY, 12,700 --.
>> 725 I BELIEVE, YOUR HONOR.

>> AND YOU WOULD YOU AGREE THE
REASON THIS CASE DIDN'T GET
SETTLED WAS BECAUSE OF THE
DISPUTE OVER FEES?
>> IN PART, YOUR HONOR, I WAS
PRESENT AT THE ACTUAL MEDIATION
AND I MAY NEED GUIDANCE FROM
THE COURT AS TO EXACTLY HOW
MUCH I NEED TO TALK ABOUT WHAT
HAPPENED, BUT...
>> YOUR CLIENT IS -- BUT DIDN'T
-- THE JUDGE ENTERED AN ORDER
WHICH SAID THAT YOU WERE
ENTITLED TO, WHAT, $1500.
>> YES, YOUR HONOR, ROUGHLY
$1500 ON THE LIEN, CORRECT.
>> RIGHT.
AND SO WHAT ONE -- THE
LITIGATION WAS ABOUT, WAS THE
AMOUNT OF THE LIEN, RIGHT I
MEAN, THAT WAS IN ESSENCE WHAT
THE WHOLE LITIGATION WAS ABOUT.

>> THE LIEN HOLDER GALE NEVER
HAD A FORECLOSEABLE INTEREST,
BECAUSE IN THIS CASE IT TURNED
TON A TRANSFER BOND NEVER HAD A
RIGHT TO RECOVER AGAINST THE
BOND UNLESS AND UNTIL THE
COUNTERCLAIM WAS LIQUIDATED AND
THE LIEN IS THE ISSUE?
THE WHOLE ISSUE WAS THE AMOUNT
OF THE LIEN.
>> LIEN, THAT'S CORRECT.
>> AND SO, IF YOU HAVE LIENED A
PROPERTY, FOR $12,000, AND YOU
ONLY RECOVER $1500, HOW CAN IT
BE THAT YOU ARE THE PREVAILING
PARTY.
>> BECAUSE, THERE ARE AMPLE AND
ADEQUATE PROTECTIONS IN PLACE
FOR AN OWNER TO PROTECT HIMSELF
IN THAT SITUATION.
>> BUT YOU DIDN'T PREVAIL ON
GETTING THE AMOUNT OF YOUR
LIEN, CORRECT.
>> THE LIEN HOLDER PREVAILED
THAT'S PREVAILING PARTY, YOUR
HONOR.
>> HOW?
HOW?
IF YOU HAVE GOT A -- YOU ARE
FORECLOSING A LIEN AND TRYING
TO ENFORCE A LIEN, IN WHICH THE
AMOUNT IS $12,000, AND YOU ONLY
RECEIVE $1200, OR $1500, IT JUST
SEEMS TO ME THE PLAIN MEANING
OF "PREVAILING" IS THAT THE
PARTY THAT WAS CONTESTING THE
AMOUNT OF THE LIEN PREVAILED.
>> WE HAVE CASE LAW TO GUIDE US
THERE, YOUR HONOR, NOT ONLY DID
GALE NEED TO RECOVER
AFFIRMATIVELY ON THE LIEN WHICH
IT DID, IN ACCORDANCE WITH THE
DECISION CITED IN THE BRIEFS,
BUT, ALSO RECOVERED MORE THAN
WAS EARLIER OFFERED IN
SETTLEMENT BY THIS OWNER AND
THAT IS A KEY POINT BECAUSE THE
OWNER HAS THAT AT HIS DISPOSAL
AND CAN INSULATE HIMSELF BY
SIMPLY OFFERING THAT AMOUNT
DURING LITIGATION OR
PRE-LITIGATION --
>> WAIT.
WAIT.
NOW I WANT TO UNDERSTAND THAT.

BECAUSE WHAT WE ARE TALKING
ABOUT IS THAT IT SEEMS IF YOUR
CLIENT HAD NEGLIGENTLY CAUSED
DAMAGE TO THE HOMEOWNER, IT
WASN'T ANY ISSUE THAT YOUR WORK
-- I MEAN, YOUR WORK,
INSULATION WORK, CAUSED THEM
DAMAGE.
WOULD YOU AGREE, AND THEN --
THEY WERE NEVER SAYING AND
MAYBE IS A MATTER OF HOW WE TALK, THEY
WERE NEVER DISPUTING THE AMOUNT
OF YOUR LIEN.
THEY ALWAYS AGREED IT WAS
$12,725.
>> NOT WHAT THEIR PLEADINGS
SAY, THE AFFIRMATIVE DEFENSE
SAYS THE LIEN WAS FRAUDULENT.
>> BUT THAT -- WAS THAT TRIED,
WHETHER -- I THOUGHT IT WAS --
I THOUGHT THEY END UP, WHATEVER
THEY SAID IN THE PLEADING,
BEFORE TRIAL, THEY STIPULATED
YOUR LIEN WAS VALID.
>> PRIOR TO TRIAL, THAT'S
CORRECT.
>> THAT IS AN AGREED-ON SUMMARY
JUDGMENT.
>> ULTIMATELY.
>> AND THE LIEN AMOUNT FROM MY
POINT OF VIEW WAS NOT DISPUTED.

THE ONLY ISSUE WAS, THAT YOU
CAUSED THEM DAMAGE.
SO YOU CAUSED THE HOMEOWNER TO
HAVE TO GO DO SOMETHING.
>> THAT'S CORRECT.
>> AND HOMEOWNERS COULD EITHER
HAVE SAID, I'LL PAY THE
$12,725, OR -- THEN I WONT HAVE
ANY THREAT OF HAVING TO PAY
ATTORNEYS FEES, BUT, YOU ARE
GOING TO PAY FOR EVERY CENT OF
WHAT YOU DAMAGE WHICH IS AT
LEAST $11,000.
AND MAYBE UP TO $18,000.
SO WHY ISN'T WHAT WAS TRIED NOT
THE AMOUNT OF THE LIEN BUT HOW
MUCH YOU DAMAGED THE HOMEOWNER
BY YOUR NEGLIGENCE.
>> BECAUSE CANNOT RESOLVE ONE
OUT THE OTHER, THERE IS NO
JUDGMENT AT THE END OF THE DAY
AFTER A TRIAL --
>> WELL, YOU COULD.
I MEAN, YOU KNOW, PERSONAL
INJURY CASES THERE ARE COUNTER
CLAIMS AND SOMETIMES THEIR
COUNTER CLAIMS AND SOMETIMES
THERE ARE NOT COUNTER CLAIMS
AND THE LIEN -- AND WAS A
JUDGMENT AND COULD HAVE
ELECTED, I GUESS -- YOU ARE
SAYING A COMPULSORY
COUNTERCLAIM, CORRECT.
>> YES.
>> THAT COMPULSORY COUNTERCLAIM
WAS SO, THEREFORE, NOW, I'LL GO
BACK TO THIS, IF IT'S A
COMPULSORY COUNTERCLAIM IT IS
PART OF THE LIEN ACTION, THEN
WHY ISN'T WHAT THE JUDGE DID,
IS TO SAY, IF -- THERE HAS TO
BE A PREVAILING PARTY YOU
CERTAINLY, BY ONLY RECOVERING
$1500, MY FINDING THAT ALMOST
EVERY PENNY OF THEIR ORIGINAL
BILL WAS VALID AND ENFORCEABLE,
YOU DIDN'T WIN.
YOU LOST.
>> BECAUSE THIS OWNER HAD AN
OPPORTUNITY TO PROTECT ITSELF
THROUGH EITHER AN OFFER OF
JUDGMENT PURSUANT TO 768.79
WHICH IT NEVER DID OR
SETTLEMENT OFFER WHICH EQUALLED
OR BETTERED THE JUDGMENT --
>> UNDER CU.
>> I'M SORRY.
>> UNDER THE CU CASE THEY COULD
HAVE OFFERED AN AMOUNT?
BUT THAT DECISION WAS BASED ON
EQUITY, CORRECT?
DON'T YOU SEE THAT ALL OF OUR
CASES, WHERE I AM HAVING
TROUBLE, BECAUSE WE ARE
SUPPOSED TO CONSTRUE PREVAILING
PARTY ACCORDING TO A STATUTE
AND ALL OUR CASES SEEMS TO GO
OFF ON, WE WANT TO DO EQUITY
AND THAT IS WHAT IT LOOKS LIKE.

>> OF COURSE THE JUDGMENT IN
THE AMOUNT TESTS GIVEN THE
OWNER PROTECTIONS PROVIDES A
LEVEL PLAYING FIELD AND IS
EQUITABLE TO BOTH PARTIES AND
THEY HAVE AN OPPORTUNITY TO SET
THEMSELVES UP FOR A FEE AWARD.

>> WHY ISN'T IT MORE EQUITABLE
IN THIS SITUATION TO FIND THAT
YOUR CLIENT IS NOT THE
PREVAILING PARTY, SINCE YOUR
CLIENT REALLY ONLY OFFERED THEM
AT MOST $3500 FOR THIS WORK,
AND THEY REALLY PREVAILED GUY
GETTING -- BY GETTING 11,000
FOR THE WORK.
>> ACTUALLY, YOUR HONOR, I
THINK THE RECORD SPEAKS TO THE
EXACT AMOUNT BUT GALE DID IN
FACT SERVE AN OFFER OF
JUDGMENT, PROPOSAL FOR
SETTLEMENT DURING THE COURSE OF
THE LITIGATION AND I RECALL IT
WAS A LARGER DISCOUNT THAN THE
APPROXIMATE 3200 --.
>> WHY DIDN'T THE JUDGE LOOK
AT THAT, THAT IS NOT IN HIS
ATTORNEYS FEE ORDER AND I DON'T
SEE THAT IN THE RECORD.
IS IT IN THE RECORD.
>> IT IS IN THE TRIAL
PLEADINGS.
>> IF IT IS PART OF SOMETHING
AND I HADN'T READ THAT IN
ANYBODY'S BRIEF, YOU KNOW, YOU
OUGHT TO MOVE TO SUPPLEMENT.
>> FROM MY PERSPECTIVE, YOUR
HONOR WE NEVER HAVE TO GET
THERE.
>> MAYBE FROM OUR PERSPECTIVE
YOU MIGHT WANT TO --
>> I'LL BE GLAD TO SUPPLEMENT
WHATEVER THE COURT WOULD LIKE.

>> BUT THE RECORD ACTUALLY
SAYS, AT MOST, YOU ARE WILLING
TO OFFER $3500.
>> 32 -- 3600 --.
>> WHATEVER THAT AMOUNT IS.
BUT THEY ACTUALLY PREVAILED ON
GETTING $11,000.
SO, IT SEEMS TO ME, WHEN YOU
ARE BALANCING THE EQUITIES
HERE, THAT THE TRYTEK REALLY
PREVAILED UNDER SIGNIFICANT --
ON THE SIGNIFICANT ISSUE, THEY
GET $11,000 AND YOU ONLY
OFFERED 3600.
>> WELL, THIS IS WHY THE
SIGNIFICANT ISSUES TEST IS SO
RIDDLED WITH COMPLICATIONS, AND
SUBJECT TO MANIPULATION AND
THIS IS A PERFECT EXAMPLE OF
HOW IT OCCURRED.
THE TRYTEK'S THEORY IS THE ONLY
SIGNIFICANT ISSUE, QUOTE, TRIED
BEFORE THE COURT, THAT IS IN
FRONT OF THE JUDGE AT THE TRIAL
WAS THE VALUE OF THE
COUNTERCLAIM, SIMPLY BECAUSE
THE LIEN WAS STIPULATED TO AND
CARVED OUT OF THE LITIGATION.
>> WHAT IS WRONG WITH THAT.
>> IT SEEMS TO ME THAT THAT IS
ALL THAT HE HAD TO TRY, BECAUSE
THERE WAS NO ISSUE AS TO THE
AMOUNT OF THE LIEN.
>> THAT'S A PROBLEM, BECAUSE
THERE IS NO DISCRETION IN THAT
INSTANCE.
IF THE SOLE SIGNIFICANT ISSUE
IN FRONT OF THE JUDGE WAS ONLY
THE COUNTERCLAIM, THERE WAS
ONLY ONE ISSUE HE COULD PICK
FROM AS TO WHO THE PREVAILING
PARTY WAS AND HAD NO DISCRETION
TO A SAY GALE THIS IS
PREVAILING PARTY AND IF THE
SOLE ISSUE WAS THE CORE CLAIM
ITSELF, AND THE AMOUNT OF THE
BACK CHARGE THE ONLY THING THAT
HE HAD TO GO ON, THE SOLE ISSUE
WAS THE COUNTERCLAIM AND HE HAD
TO CHOOSE THE TRYTEK --
>> LET ME GO BACK TO REALLY
PERCEIVED TO SOME DEGREE TO BE
THE ORIGINAL QUESTION TO YOUR
POINT.
AND IT REALLY IS SORT OF A
QUESTION OF, YOU KNOW, WHY IN
THE WORLD ARE WE HERE?
THAT IS THAT YOU -- YOUR
OPPONENT HAS STIPULATED TO BOTH
THE LIEN AND THE AMOUNT THE
LIEN.
AND YOUR CLIENT HAS SAID WE ARE
AT FAULT.
WE DID CAUSE YOU DAMAGE.
OKAY?
AND OUR ONLY DISAGREEMENT IS
ABOUT THE EXTENT OF THAT.
WHAT THE -- HOW YOU WOULD
MEASURE THAT IN THE -- AND THE
DOLLAR AMOUNT.
WHY IN THE WORLD COULDN'T TWO
LAWYERS THEN, EITHER WORK IT
OUT BETWEEN THEMSELVES, OR --
AND I REAL LAYS -- REALIZE THE
MEDIATION LAWS HERE, BUT, OR GO
TO A TRIAL JUDGE AND SAY,
JUDGE, THIS IS NOT A VERY
COMPLICATED MATTER.
AND WE WANT TO -- AT ALL -- WE
WANT TO BE VERY ETHICAL AND
PROFESSIONAL LAWYERS, AND SAVE
OUR CLIENT MONEY, AND ALL WE
HAVE FOR YOU TO TRY IS WHAT YOU
JUST DESCRIBED.
THAT IS, THAT THEY'VE AGREED ON
THE AMOUNT THAT THEY OWE US,
AND WE HAVE OFFERED THEM
SOMETHING ON THEIR
COUNTERCLAIM, BUT WE DO AGREE
THAT WE DAMAGED -- WE CAUSED
THIS DAMAGE, AND IF YOU COULD
JUST HEAR SOME BRIEF TESTIMONY
ABOUT THAT ISSUE, YOU REALLY
COULD RESOLVE THIS CASE FOR US.

AND WE CAN GET OUT OF THIS CASE
WITH A MINIMUM OF LEGAL
SERVICES OR LEGAL FEES.
NOW WHY IN THE WORLD DIDN'T
THAT HAPPEN IN THIS --
>> YOUR HONOR I'M NOT PROUD TO
BE STANDING HERE TALKING ABOUT
THAT ISSUE, IN ALL HONESTY I
THINK THE CASE WAS FILED IN
2001 AND I INHERITED IT AS ONE
OF THE FIRST CASES THAT I TOOK
ON WHEN I BECAME A MEMBER OF
THE FLORIDA BAR.
ALL I CAN SAY IS THAT ON BEHALF
OF MY CLIENT, THE EFFORT WAS
MADE AND UNFORTUNATELY, IT WAS
UNABLE TO COME TO FRUITION.
AND THE EFFORT WAS DEFINITELY
MADE TO DISPOSE OF THE CASE.
>> LET ME UNDERSTAND, IF WE GO
WITH THE 4th AND 5th DISTRICTS,
LET'S SAY THAT YOUR ATTORNEYS
FEES ARE AS MUCH AS THEIRS,
$55,000, STIMULATED AMOUNTS,
ARE WE REALLY HAVING A RULE OF
LAW IN THIS STATE THAT WOULD
SAY THAT YOUR LIEN -- WELL,
BOTH -- $12,725, YOU RECOVER
$1525, AND IF YOU HAD RECOVERED
$500 YOU WOULD BE ENTITLED TO
55,000 IF THEY HAD BEAT
THIS LIEN AND GOTTEN A JUDGMENT
INSTEAD OF $11,000 --
$11,200, IF THEY GOT A JUDGMENT
OF $12,725, NO LIEN, THEY'D GET
$55,000 OR IF THEY BEAT THE
LIEN, AND GOTTEN A NET JUDGMENT
OF A THOUSAND, THEY'D GET
$55,000.
DO WE REALLY THINK THAT THAT --
DOES THAT MAKE SENSE TO YOU.
>> ACTUALLY IT DOES GIVE THIS
PROTECTS OF THE PARTIES, YOUR
HONOR.
>> IT DOES, AN ALL -- SHOULD BE
AN ALL OR NOTHING SITUATION.
>> IT SHOULD, 713.29 IT IS
MANDATORY, THE CASES CITED IN
THE BRIEFS.
>> LET ME ASK YOU A QUESTION
WITH REGARD TO THE STATUTE, AND
WHERE IT GOES.
THE STATUTE, WITH REGARD TO
LABORERS LIENS AND MECHANICS
LIENS AND THOSE KIND OF THINGS,
IS, EQUITABLE IN NATURE, IS IT
NOT BECAUSE IT GIVES A LIEN
WHICH IS AN EQUITABLE REMEDY.
>> THE LIEN LAW ITSELF IS TO BE
CONSTRUED LIBERALLY IN THE
LIENOR'S FAVOR.
>> THAT WAS HISTORICALLY BUT
WASN'T THERE AMENDMENT AT ONE
POINT TO THE LEGISLATION THAT
WOULD INDICATE IT OUGHT NOT TO
BE INTERPRETED IN FAVOR OF
EITHER PARTY?
>> I'M NOT CERTAIN WHAT THE
LEGISLATION YOUR HONOR IS
REFERRING TO, BUT I DO KNOW THE
LIENOR DOES NOT HAVE HEY -- NOT
HOLDING ALL THE CARDS IN THE
SITUATION, LIENORS ARE REQUIRED
TO JUMP THROUGH ALL KIND OF
PROCEDURES.
>> I AGREE, BUT THAT IS TRUE,
AND THERE ARE MECHANISMS TO
PROTECT THE HOMEOWNER OR THE
OWNER OF THE PROPERTY AS WELL.

>> ON COMMON LAW BASIS.
>> BUT IF WE ARE LOOKING AT --
THIS WAS ORIGINALLY DESIGNED TO
BE AN EQUITABLE REMEDY, TO
PROTECT UNDER THE
CIRCUMSTANCES, YOU HAVE TO
FOLLOW THE RULES AND WE
UNDERSTAND THAT, THEN, IF WE
ARE INTERPRETING THE STATUTE,
WHY, THEN, IS IT NOT
REASONABLE, LOGICAL, AND A
NORMAL LEGAL FOLLOW THAT YOU
WOULD USE EQUITABLE PRINCIPLES
IN APPLICATION OF A MATTER OF
FEES, AND IT DOESN'T REALLY
MAKE ANY DIFFERENCE IN THE CASE
WHETHER IT IS A COUNTERCLAIM OR
DISPUTE ON THE AMOUNT.
BECAUSE, REALLY WE ARE TALKING
ABOUT WHAT IS OWED, WHAT WILL
BE ULTIMATELY OWED IN THE CASE,
ISN'T IT?
>> WELL, SURE.
>> ISN'T THAT WHERE WE ARE.
>> AT THE END OF THE DAY,
EQUITABLE PRINCIPLES ARE IN
PLACE IN A JUDGMENT -- LIKE I
SAID THERE IS A LEVEL PLAYING
FIELD THERE AND BOTH PARTIES
KNOW THE RULES GOING IN AND
THERE IS PREDICTABILITY AN
CONSISTENCY IN THE DECISIONS OF
TRIAL COURTS IF THEY HAVE A SET
OF RULES TO FOLLOW.
AND IF --
>> LET'S SAY, IN THIS CASE IT'S
NOT A COUNTERCLAIM BUT IT IS A
CLAIM ON BEHALF OF THE LABORERS
OR THE MECHANIC, THAT I HAVE --
WE HAVE WORKED AND WE'RE OWED
$20,000.
AND IN THE NATURE OF A
COUNTERCLAIM CLAIM, THERE
IS -- COUNTERCLAIM AND THERE IS
NO DAMAGE AND THE OWNER OF THE
PROPERTY, SAYS, SORRY, YOU'RE
NOT AND THE MAXIMUM AMOUNT YOU
SHOULD BE DUE REMAINING BECAUSE
THE CONTRACTORS CHANGE ORDERSES
AND ALL KIND OF STUFF GOES
THROUGH AND AT THE END OF THE
DAY WE ARE DOING AN ACCOUNTING
AND THEY SAY NO YOU ARE NOT
ENTITLED TO MORE THAN $2,000
AND THAT IS LITIGATED, AND THE
CONTRACTOR RECEIVES $500.
WHY UNDER THOSE CIRCUMSTANCES
-- DOESN'T HAVE TO BE A
COUNTERCLAIM, TOTALLY UNDER THE
LIEN LAW, SHOULD WE NOT TAKE A
LOOK AT THAT PHRASE, PREVAILING
PARTY, IN OTHER THAN JUST
DOLLAR AMOUNTS BECAUSE YOU HAVE
TO ANALYZE WHAT THE PROBLEM WAS
ABOUT.
WHAT IS WRONG WITH THAT TYPE OF
REASONING THAT THOUGHT PROCESS?

>> WELL, BECAUSE, IF YOU ARE
NOT SPEAKING SPECIFICALLY TO A
COUNTERCLAIM SITUATION IT
DIFFERENCE THAN HERE.
BUT IN A --
>> WHY?
BECAUSE AT THE UNDER OF THE DAY
IT IS JUST AN ACCOUNTING ON WHO
OWES WHO WHAT.
>> AND AN OWNER HAS AN
OPPORTUNITY AT ANY TIME,
PRE-LITIGATION, DURING THE CASE
AND TRIAL EVEN TO MAKE A
SETTLEMENT OFFER AND THE LIENOR
HAS TO BEAT THAT AND THAT IS
THE PUPS OF HAVING THE FACT
FINDER TO BEGIN WITH, TO
LIQUIDATE THE AMOUNT OF
ENTITLEMENTS.
>> YOU ARE ADDING ON TOP OF IT,
THOUGH, THE CONCEPT OF OFFERS
AND SETTLEMENT AND THOSE KIND
OF THINGS, THE STATUTE DOES NOT
TALK IN TERMS OF THAT.
>> WELL, 768.79 --
>> NO, NO, NO, UP 13, MECHANICS
LIENS STATUTE DOES NOT TALK IN
TERMS OF OFFERS OF JUDGMENT OR
OFFERS OF SETTLEMENT, DOES IT.

>> NO, THE CASE IS INTERPRETING
IT, THOUGH, DO, PENNINGTON
VERSUS EVANS AND HIDAL VERSUS
S & S DRYWALL CASE SPECIFICALLY
SPEAK TO THE CONTRACTORS'
REQUIREMENT TO RECOVER NOT ONLY
ONE DOLLAR OR ONE PENNY BUT TO
BEAT WHATEVER OFFERED AND WE
HAVE AN OPPORUNITY TO SAY
REASONABLE DEDUCTION TO BE X
AMOUNT.
>> JUSTICE LEWIS IS SAYING THE
LAW AS IT HAS DEVELOPED HAS
TAKEN ON A COMMON SENSE,
WHETHER YOU CALL IT COMMON
SENSE EQUITY BECAUSE THE CU
DECISION AN EVEN READ PROSPERI
THE OWNER SHOULD HAVE RECOVERED
AND GO AWAY AND IS NOT FAIR IN
THIS SITUATION AND THE CU CASE
THOUGH THERE WAS NOTHING TO DO
WITH AN OFFER OF JUDGMENT, THEY
SAY THAT IS NOT FAIR AND WE GO
BACK TO -- YOU ARE NOT
ADDRESSING FAIRNESS HERE.
ME, AT LEAST.
FAIRNESS AS TO WHY YOU SHOULD
GET $55,000 IN FEES.
>> WELL, YOUR HONOR BRINGS UP
THE PROSPERI CASE AND THERE
WAS TO LIEN AND A LENGTHY
DISCUSSION BUT NOT A LIEN THAT
WAS RECOVERED, THERE WAS A LOON
THE CONTRACTOR FAILED TO
FORECLOSE UPON AND HE SUBMITTED
FRAUDULENT AFFIDAVITS.
>> AND THEREFORE UNDER NORMAL
SITUATIONS, THE HOMEOWNER --
>> THE COURT STATED THAT,
ABSOLUTELY.
>> BUT THEY DIDN'T AND IMPOSED
EQUITY AND THEY -- BASICALLY
SAID HOMEOWNER, UNDER THESE,
CIRCUMSTANCES EQUITY WILL NOT EN --
CIRCUMSTANCES EQUITY WILL NOT
ENTITLED YOU TO FEES.
>> IN THE ABSENCE OF A LIEN,
THE RULE CAME IN AS A FACTOR
AND BECAME IN THE --
>> ALL WE ARE DOING AGAIN IS
EVOLVING INTO WHAT SEEMS FAIR
UNDER ALL THE CIRCUMSTANCES,
SO, WITH THAT, THE JUDGE LOOKS
AT THIS AND SAYS, I THINK THIS
IS WHAT IS FAIR UNDER ALL OF
THE CIRCUMSTANCES, AND BOTH OF
YOU ARE SAYING, SOMEBODY HAS TO
WIN, AND HE SAID IF SOMEONE HAS
TO WIN I THINK THEY SHOULD WIN
AND WHY ISN'T THAT, IF WE
ACCEPT THAT THE TRIAL COURT DID
EXERCISE DISCRETION AND LOOKED
AT THE ISSUES, WHY ISN'T IT
APPROPRIATE TO AFFIRM THE TRIAL
COURT.
>> IF WE HAVE' LIEN IN PLACE AS
WE DO HERE, AND USE THE
SIGNIFICANT ISSUES TEST, AND AS
I CITE IN THE BRIEF WILL SET UP
A FRAMEWORK FOR OWNERS TO
EITHER IN THE PLEADINGS, ADMIT
TO THE PROCEDURAL ASPECT OF THE
LIEN OR HERE, STIPULATE TO THE
PROCEDURAL SUFFICIENCY AN CARVE
IT OUT AS A, QUOTE, SIGNIFICANT
ISSUE IN THE CASE.
>> WHAT IS YOUR CONSTRUCTION OF
THE LAST PHRASE IN THE -- IN
7:-- 713.29 WHERE IT SAYS AS IN
EQUITABLE ACTIONS, WHAT DOES
THAT MEAN?
>> YOUR HONOR, IN THE BRIEFS
ALSO CITED TO SHALL BE TAXED AS
COSTS AS ALLOWED IN EQUITABLE
ACTIONS.
AND TO ME, THAT TOOK ME TO THE
COST STATUTE, 57.041.
AND THERE IS A SECTION IN THE
BRIEF CONTAINING ARGUMENT ON
THAT POINT WHICH, STATES THE
PARTY RECOVERING JUDGMENT SHALL
BE AWADDED ITS COSTS AND READ
THE PHRASE A LITTLE BIT -- FEW
MORE WORDS INTO IT, THAT THE
LOON, THE LIENOR'S FEES,
PREVAILING PARTY'S FEES WILL BE
TAXED AS COSTS AS ALLOWED IN
EQUITABLE ACTIONS.
>> IF YOU GO BACK TO JUSTICE
LEWIS'S EXAMPLE, WHERE YOU HAVE
A LIENOR WHO AS A -- HAS A LIEN
-- SAYS HE HAS A LIEN OF
$20,000, THE HOMEOWNER DISPUTES
WITHOUT A COUNTERCLAIM, SAYING
THIS IS $2,000, AND THIS LIENOR
ENDS UP WITH $500.
UNDER THOSE CIRCUMSTANCES, YOU
ARE TELLING US THAT THE LIENOR
SHOULD GET FEES.
>> IF THE OWNER HAS -- I WANT
TO BE SURE I UNDERSTAND.
>> $55,000, LIKE WE HAVE HERE,
IS THE AMOUNT OF FEES, THE
LIENOR SHOULD GET $55,000 IN
FEES, EVEN THOUGH, HE OR SHE
ONLY RECOVERED $500.
>> UNLESS THE OWNER OFFERED
MORE THAN THAT IN SETTLEMENT
PREVIOUSLY, IF THE OWNER
OFFERED $500 OR $501, THE CASE
IS -- IT CANNOT BE THE
PREVAILING PARTY.
>> ANYWHERE IN MECHANICS LIEN
STATUTE IT SAYS WHAT YOU SAID.

>> IN THE STATUTE ITSELF, NOT
IN THE LANGUAGE.
>> IT'S NOT THERE.
>> IN THE CASES INTERPRETING
THE STATUTE, THAT'S CORRECT.
>> NOT IN THE STATUTE,
CERTAINLY AT ALL.
AND LET ME ASK YOU THIS
QUESTION.
IS THERE SUCH A THING AS A LIEN
IN THE ABSTRACT OR DOES A LIEN
ALWAYS HAVE TO HAVE AN AMOUNT
ATTACHED TO IT.
>> LIENS AS FAR AS -- I HAVE
NEVER SEEN ONE WITHOUT AN
AMOUNT RECORDED IN THE PUBLIC
RECORD.
>> IF WE ACCEPT THAT, THE LIEN
AND THE AMOUNT OF THE LIEN IS
$20,000, YOU DON'T PREVAIL ON
THE $20,000 HOW ARE YOU A
PREVAILING PARTY ON THE LIEN.
>> IF YOU DON'T RECOVER EVERY
PENNY --
>> YOU SAID THE LIEN AMOUNT, IS
A STATED AMOUNT, AND FILED OF
RECORD, AND THAT IS THE LIEN
AMOUNT.
WHAT YOU ARE SAYING IS A LIEN
IS ANYTHING FROM ZERO OR --1 UP
TO THE TOTAL AMOUNT OF THE LIEN
AND I'VE NEVER SEEN A LIEN
RECOGNIZED IN THAT FASHION.
>> IT DOESN'T START AT 1, IT
STARTS AT 1 MORE THAN EARLIER
OFFERED TO THEM.
>> WELL, OKAY.
.
>> WHO RECEIVED THEIR COSTS IN
THE CASE?
>> NO ONE YET YOUR HONOR.
>> WHO DID THE JUDGE AWARD
COSTS TO.
>> I THINK THE FEES AND COSTS
JUDGMENT ORIGINALLY IN FAIR OF
TRYTEK.
>> AND YOU DIDN'T APPEAL THE
COST JUDGMENT.
>> I THINK THE -- IN THE 5th IT
WAS DISCUSSED.
>> SAYING FEES -- THEY'VE GOT
COSTS AND SHOULD GET FEES?
YOU CAN ANSWER --
>> NO, I'M SAYING, GALE SHOULD
BE ENTITLED TO RECOVER BOTH.
>> YOU DIDN'T -- DID YOU NOT --
I DIDN'T SEE, MAYBE I'LL LOOK
BACK, YOU DID NOT APPEAL THE
FACT THAT -- OR THE ISSUE IN
THE CASE, IS NOT WHO GOT COSTS.

>> I'LL BE GLAD TO SUPPLEMENT
AS WELL, YOUR HONOR, STANDING
BEFORE THE COURT, I DON'T KNOW.

>> AND WITH THAT, YOU HAVE USED
ALL OF YOUR TIME.
>> THANK YOU.
>> MAY I HAVE LEAVE TO
SUPPLEMENT AS TO THE OFFER OF
JUDGMENT AS THE COURT
REQUESTED?
>> WHY DON'T WE FIND OUT WHAT
THE... WHAT THE PETITIONER...
IS THIS OFFER OF JUDGMENT PART
OF THE RECORD?
>> IT'S NOT PART OF RECORD ON
APPEAL AS FAR AS I KNOW.
>> BUT WASN'T IT PART OF THE
5th DISTRICT.
>> NO, AND I NEVER BRIEFED IT
AT THE 5th, MORE DID I BRIEF IT
AT THIS LEVEL.
>> WE CAN -- THEN I THINK YOU
WOULD HAVE TO MOVE TO -- RELIEF
TO SUPPLEMENT AND THE COURT
WILL GO --...
>> THANK YOU.
I THINK THE COURT HAS BEEN
OBVIOUSLY MADE NUMEROUS
STATEMENTS TO THIS EFFECT, THIS
HAS TO BE ABOUT EQUITY AND
EQUITY CANNOT RESULT IN AN
AWARD OF FEES FOR A CONTRACTOR
WHO NEGLIGENTLY PROVIDES
SERVICES.
THE ONLY THING MY CLIENT DID
WRONG WAS
HIRED THE WRONG CONTRACTOR.
>> LET'S TAKE, THOUGH REVERSE
OF THAT, THIS DEVIL'S ADVOCATE
HERE IS THAT THIS WAS DESIGNED
SO THAT INDIVIDUALS -- A GUY
BRINGS HIS LADDER AND HAMMER
OVER AND BUILDS YOU A PORCH.
AND AT THE END OF THE DAY YOU
REFUSE PAY HIM.
AND THIS WAS DESIGNED TO GIVE
HIM A MECHANISM SO THAT YOU
COULD BE PAID AND FEED HIS
FAMILY AND REALLY WHERE IT GOES
BACK TO, THE FUNDAMENTAL STUFF,
MORE SOPHISTICATED NOW, I
UNDERSTAND, BUT, IT GOES BACK
TO THAT.
AND, IF YOU DON'T PAY HIM AND
HE'S ENTITLED TO SOMETHING,
THEN, HE OUGHT NOT, NOT ONLY
NOT BE PAID FOR HIS WORK AND
HAS TO GET A LAWYER AND PAY THE
LAWYER AND EAT UP EVERYTHING HE
HAS DONE.
>> FOR THE PURPOSE OF THE
STATUTE.
>> THAT THIS IS PURPOSE.
>> ABSOLUTELY AND THE ISSUE IS
IN THIS CASE, THAT IS THE RULE
OF LAW THAT THE JUDGE APPLIED,
THAT HE GETS TO FOLLOW PROSPERI
AND DETERMINE WHO PREVAILED ON
THE SUBSTANTIAL ISSUES TRIED IN
THE CASE, DOES THE JUDGE APPLY
THE CORRECT RULE OF LAW UNDER
THIS CIRCUMSTANCE AND --
>> YOU AGREE --
>> IF THIS GENTLEMAN COMES BY
THE HOUSE WITH A HAMMER AND
NAIL AND BUILDS A PORCH AND
CREATES DAMAGE TO OTHER
ELEMENTS OF THE PROPERTY THAT
IS AN ISSUE THAT I THINK THE
TRIAL JUDGE SHOULD BE ALLOWED
TO CONSIDER.
>> RULE OF LAW WE'RE DISCUSSING
IS NOT DAMAGING SOMEBODY'S
PROPERTY, WOULD YOU AGREE, WE
ARE REALLY TALK ABOUT --
>> EQUITY --
>> ANY DISPUTE WITH REGARD TO
THE AMOUNT OWED TO A PERSON WHO
CLAIMS A LIEN.
>> ABSOLUTELY.
>> OKAY.
.
LET'S USE IT, THOUGH THE
EXAMPLE THE MAN DIDN'T DAMAGE
ANYTHING, HE IS JUST -- A FIGHT
ABOUT THE AMOUNT.
>> THEN THE TRIAL JUDGE SHOULD
HAVE THE DISCRETION TO BE ABLE
TO DETERMINE WHICH OF THE
PARTIES PREVAILED ON THE
SUBSTANTIAL ISSUES THAT WERE
TRIED, RATHER THAN --
>> AND THAT JUDGE -- REFUSED
ATTORNEYS FEES.
>> I'M SORRY.
>> IS THE JUDGE REFUSED
ATTORNEYS FEES.
>> ONLY IF THE COURT ISSUES AN
OPINION SAYING THAT HE CAN.
I BELIEVE I'M OUT OF TIME,
THANK YOU VERY MUCH.
>> THANK YOU FOR YOUR ARGUMENTS
TODAY.
WITH THAT THIS COURT IS
ADJOURNED