“Prevailing Party” in Construction Lien Actions

Prevailing party attorney’s fees factor into many construction lien actions. A lienor wants to recoup 100% of the attorney’s fees they incurred as the “prevailing party.”

If you have read this blog before, however, you know that the prevailing party in a construction lien action is determined by the trial court determining which party prevailed in the significant issues in the dispute.  And, the trial court has discretion to determine that neither party prevailed in the significant issues in the dispute, meaning neither party gets to recoup attorney’s fees from the other party.   This same discretion applies at the appellate level when an appellate court is determining appellate attorney’s fees. An appellate court can also find that neither party prevailed in the significant issues in the appeal for purposes of awarding appellate attorney’s fees.

A lienor should consider the discretion a court has in determining which party prevailed in the significant issues before holding tight that they want 100% of their attorney’s fees to resolve the dispute.  Sometimes, being practical and flexible makes sense!

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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