Significant Issues Test to Determine Prevailing Party Attorney’s Fees in Construction Lien Action

The prevailing party in a construction lien action is entitled to recover their reasonable attorney’s fees.  But, how you do determine which party is the prevailing party?  Is it the party that ultimately wins even if that party only recovers an amount that pales in comparison to what that party was seeking?  No!

Courts employ the significant issues test in order to determine which party is the prevailing party in a construction lien action.  The objective is to step away from which party wins or loses the litigation, and focus on other factors such as:

the issues litigated, the amount of the claim of lien versus the amount recovered on the lien, the existence of setoffs and counterclaims… and the amounts offered by either party to resolve the issues prior to the litigation, assuming that those negotiations were not otherwise confidential either by agreement or statute.

Trytek v. Gale Industries, Inc., 3 So.3d 1194, 1203 (Fla. 2009).

Unfortunately, however, by employing this significant issues test, there is no bright-line or objective standard to determine whether a party will be deemed the prevailing party.  In fact, a court may find that neither party is the prevailing party under the significant issues test meaning neither party recovers their attorney’s fees.

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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