       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 13, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1081
                          Lower Tribunal No. 10-2595
                             ________________


                 Diane N. Wells and Thomas O. Wells,
                                   Appellants,

                                        vs.

            Halmac Development, Inc. and Hector Castro,
                                    Appellees.



      An Appeal from the Circuit Court for Miami-Dade County, Sarah I. Zabel,
Judge.

     Wells & Wells and Diane Noller Wells, for appellants.

      Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel and Stuart
Sobel, for appellees.


Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

     EMAS, J.
      INTRODUCTION

      Diane N. Wells and Thomas O. Wells (collectively “Wells”) appeal the trial

court’s order denying their motion for attorney’s fees pursuant to section 57.105,

Florida Statutes (2012). We hold that the trial court erred in its legal determination

that Castro presented a “colorable claim” under Florida law and therefore, in

denying Wells’ motion for fees. Accordingly, we reverse and remand for the trial

court to enter an order granting entitlement and for a determination of the amount

of fees which should be awarded to Wells.

      BACKGROUND

      In 2008, Wells contracted with Halmac Development, Inc. (“Halmac”) for

general construction work at their home in Coral Gables. In August 2009, Wells

fired Halmac. Thereafter, Halmac recorded a claim of lien against the Wells’

property and brought a lawsuit to foreclose on the lien. Halmac also sought

damages for breach of contract, unjust enrichment, and quantum meruit.

      The parties agreed to arbitrate the dispute and at arbitration, Wells also

asserted their own claims against Halmac for breach of contract and

misappropriation of funds, as well as a claim against Halmac’s president, Hector

Castro, individually, for fraudulent lien. The parties agreed that the arbitrator

would determine the issue of prevailing party.




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      On August 17, 2011, the arbitrator entered an award (“Initial Award”)

finding in favor of Wells on the contract claim, and in favor of Halmac on its

counterclaim, and on Wells’ claim for misappropriation of funds. Further, the

arbitrator denied Wells’ claims against Halmac and Castro for the filing of a

fraudulent lien, noting that during the hearing, he granted Castro’s motion to

dismiss the claim brought against him by Wells.            Lastly, after a thorough

discussion of the claims and awards in the matter, the arbitrator concluded,

“[w]eighing the factors delineated by the Supreme Court in Trytek [v. Gale Indus.,

Inc., 3 So. 3d 1194 (Fla. 2009),] and the equities on both sides of this case, I find

that there is no prevailing party for the purposes of an award of attorney’s fees.”

      After the Initial Award, both Halmac and Wells filed motions to modify the

Initial Award for a correction of computational errors. Castro also filed a motion,

requesting that the Initial Award be modified to address the question of “who is the

prevailing party as between Castro and the Wells, and . . . that Castro be deemed

the prevailing party.” Wells responded to Castro's motion arguing that Castro was

attempting to have the merits re-determined, and that “[a] modification is limited to

the scope of AAA R–48 or Fla. Stat. § 682.14(1)(a), and the Arbitrator has

determined, in accordance with Florida law, that there is no prevailing party for the

purposes of attorneys' fees and costs in this action.” On September 23, 2011, the

arbitrator entered a Modification of Award (“Modified Award”), which increased



                                          3
the award amount due to Wells. The arbitrator also addressed Castro’s prevailing

party request, stating “[t]he Motion for Modification filed by Respondent Castro is

hereby denied.” Wells filed a Motion to Confirm and Enforce the Arbitration

Award against Halmac in the trial court, which was denied without prejudice. The

trial court gave the parties until November 16, 2011, to file motions to vacate,

modify or correct the arbitration award.

        One day prior to the deadline, Castro filed a motion to intervene in the trial

court case, which was subsequently granted. Additionally, Halmac and Castro

jointly filed, in the trial court, a Motion to Modify and Correct Award pursuant to

section 682.14, Florida Statutes (“Motion to Modify”). The Motion to Modify

sought what it characterized as a “technical correction in the form of the award,”

claiming that the Modified Award “failed to clarify, correct or modify the award to

include Castro as the prevailing party” as between Castro and Wells.

        Wells then filed a Renewed Motion to Confirm and Enforce the Arbitration

Award Against Plaintiff Halmac Development, Inc. and a Response to

Halmac/Intervenor's Motion for Modification under section 682.14, arguing that

the Modified Award must be confirmed because Halmac and Castro had no good

faith basis to vacate or further modify the award under sections 682.131 and 682.142,

Florida Statutes (2012).

1   Section 682.13(1) provides:


                                           4
         On January 31, 2012, following a hearing, the trial court entered an order

granting the Renewed Motion to Confirm as between Wells and Halmac. On that

same date, the trial court entered an order directing “the arbitrator to determine

         (1) Upon motion of a party to an arbitration proceeding, the court
         shall vacate an arbitration award if:
         (a) The award was procured by corruption, fraud, or other undue
         means;
         (b) There was:
         1. Evident partiality by an arbitrator appointed as a neutral arbitrator;
         2. Corruption by an arbitrator; or
         3. Misconduct by an arbitrator prejudicing the rights of a party to the
         arbitration proceeding;
         (c) An arbitrator refused to postpone the hearing upon showing of
         sufficient cause for postponement, refused to hear evidence material
         to the controversy, or otherwise conducted the hearing contrary to s.
         682.06, so as to prejudice substantially the rights of a party to the
         arbitration proceeding;
         (d) An arbitrator exceeded the arbitrator's powers;
         (e) There was no agreement to arbitrate, unless the person participated
         in the arbitration proceeding without raising the objection under s.
         682.06(3) not later than the beginning of the arbitration hearing; or
         (f) The arbitration was conducted without proper notice of the
         initiation of an arbitration as required in s. 682.032 so as to prejudice
         substantially the rights of a party to the arbitration proceeding.
2   Section 682.14(1) provides in pertinent part:

         (1) Upon motion made within 90 days after the movant receives
         notice of the award pursuant to s. 682.09 or within 90 days after the
         movant receives notice of a modified or corrected award pursuant to s.
         682.10, the court shall modify or correct the award if:
         (a) There is an evident miscalculation of figures or an evident mistake
         in the description of any person, thing, or property referred to in the
         award.
         (b) The arbitrators have awarded upon a matter not submitted in the
         arbitration and the award may be corrected without affecting the
         merits of the decision upon the issues submitted.

                                            5
[the] prevailing party between Wells and Castro.” Subsequently, on February 14,

2012, the arbitrator issued an Order of the Arbitrator on Remand (“Remand

Order”) stating:

             The AWARD previously in this case tracks current
             Florida case law on this question so that will not be
             revisited here. Weighing that case law, as well as that
             cited for the first time in this case in the briefs of the
             parties, I find that neither Mr. Castro nor the Wells is
             a prevailing party for the purpose of an award of
             attorneys' fees.
(Emphasis added).
      Thereafter, Wells filed a motion for attorney’s fees against Castro, Halmac

and its attorneys, pursuant to section 57.105, Florida Statutes (2012), asserting they

knew or should have known their claim that Castro was a prevailing party was not

supported by the facts or the law.

      On March 20, 2012, the trial court again heard the parties regarding the

Motion to Modify. The trial court “deferred” ruling on the motion, instead giving

Castro “90 days from Feb. 14, 2012 to move to modify, correct and/or vacate [the]

arbitrator award” (emphasis added).       However, instead of filing a motion to

modify, correct and/or vacate the arbitral award, Castro filed, in the trial court, a

Motion to be Determined the Prevailing Party (“Prevailing Party Motion”), asking

the trial court to declare that Castro was the prevailing party and thereby entitled

to an award of attorney’s fees. Specifically, Castro argued that the trial court was


                                          6
required to enter an order finding him to be the prevailing party because the

arbitrator “failed to determine a prevailing party” in its Remand Order. In support

of this proposition, Castro cited to the case of Hollub v. Narula, 704 So. 2d 689

(Fla. 3d DCA 1997), and told the court that the Hollub case involved “the exact

issue” raised in the instant case.

      Wells responded to Castro’s motion, asserting that the arbitrator had already

and properly determined there was no prevailing party, pursuant to the Florida

Supreme Court’s opinion in Trytek. In addition, Wells filed its second motion for

section 57.105 sanctions against Castro, Halmac and its attorneys for its continued

efforts to overturn the arbitrator’s decision despite binding authority that there was

no legal basis for Castro’s counsel to pursue such efforts.

      After a hearing, the trial court entered an order granting Castro's Prevailing

Party Motion, stating that “Hector Castro is the prevailing party as between

Defendants, Diane N. Wells and Thomas O. Wells and Hector Castro” (“October

22 order”). Castro then filed a motion for prevailing party attorney’s fees.

      Wells filed a petition for writ of mandamus in this court to compel the trial

court to confirm the arbitration award. Wells v. Castro, 117 So. 3d 1233 (Fla. 3d

DCA 2013).      This court granted the petition, finding that the trial court was

required to confirm the arbitration award, which determined there was no

prevailing party as between Wells and Castro, and that the trial court “had no legal



                                          7
basis” to enter the October 22 order. Id. at 1238. Thus, this Court quashed the

October 22 order and directed the trial court to confirm the Initial Award as

modified by the February 14, 2012 Remand Order. In addition, this court denied

Castro’s motion for attorney’s fees and, importantly, granted Wells’ motion for

appellate attorney’s fees pursuant to section 57.105.

      The trial court, in compliance with this court’s mandate, vacated the October

22 order and confirmed the arbitrator’s award, as modified. Wells then filed a

motion for attorney’s fees against Castro and his counsel, in accordance with their

first two motions for 57.105 fees, and sought fees and costs incurred from

November 23, 20113, not including time spent on appellate matters. After an

evidentiary hearing, the trial court denied Wells’ motion for 57.105 fees, finding

Castro “had a legitimate good faith belief that he was the prevailing party in the

arbitration proceedings . . . [and] that he was entitled to attorney’s fees as the

prevailing party under Florida Statute §713.31.”4 Further, the court found, Castro

3 This is the date counsel for Wells wrote to counsel for Castro, asking him to
withdraw his motion to modify the arbitration award, and attaching Wells’ first
motion for 57.105 fees.
4 Section 713.31(2)(c), Florida Statutes (2012) provides:



      An owner against whose interest in real property a fraudulent lien is
      filed, or any contractor, subcontractor, or sub-subcontractor who
      suffers damages as a result of the filing of the fraudulent lien, shall
      have a right of action for damages occasioned thereby. The action
      may be instituted independently of any other action, or in connection
      with a summons to show cause under s. 713.21, or as a counterclaim
      or cross-claim to any action to enforce or to determine the validity of

                                          8
“brought a colorable claim to be determined the prevailing party under the

authority of Hollub . . . and Florida Statute § 713.31.”     Finally, the court found

that if “attorney fees sanctions are not appropriate where a party presents a

colorable claim and loses on the pleadings or on a summary judgment, attorney

fees are certainly not appropriate as a sanction under Florida Statute § 57.105

where the party prevails at the trial level and ultimately loses on appeal.” The

court also denied Wells’ later filed motion for rehearing. This appeal followed.

      ANALYSIS

      Generally, we review a trial court’s order denying attorney’s fees for an

abuse of discretion. However, to the extent the trial court’s determination on a

motion for attorney’s fees is based on an issue of law, our standard of review is de

novo. Blue Infiniti, LLC v. Wilson, 170 So. 3d 136 (Fla. 4th DCA 2015).

      Under section 57.105(1), Florida Statutes (2012):




      the lien. The prevailing party in an action under this paragraph may
      recover reasonable attorney's fees and costs. If the lienor who files a
      fraudulent lien is not the prevailing party, the lienor shall be liable to
      the owner or the defrauded party who prevails in an action under this
      subsection in damages, which shall include court costs, clerk's fees, a
      reasonable attorney's fee and costs for services in securing the
      discharge of the lien, the amount of any premium for a bond given to
      obtain the discharge of the lien, interest on any money deposited for
      the purpose of discharging the lien, and punitive damages in an
      amount not exceeding the difference between the amount claimed by
      the lienor to be due or to become due and the amount actually due or
      to become due.

                                          9
             the court shall award a reasonable attorney's fee,
             including prejudgment interest, to be paid to the
             prevailing party in equal amounts by the losing party and
             the losing party's attorney on any claim or defense at any
             time during a civil proceeding or action in which the
             court finds that the losing party or the losing party's
             attorney knew or should have known that a claim or
             defense when initially presented to the court or at any
             time before trial:

             (a) Was not supported by the material facts necessary to
             establish the claim or defense; or

             (b) Would not be supported by the application of then-
             existing law to those material facts.

      However, under section 57.105(3), monetary sanctions may not be awarded

under paragraph (1)(b) “if the court determines that the claim or defense was

initially presented to the court as a good faith argument for the extension,

modification, or reversal of existing law or the establishment of new law, as it

applied to the material facts, with a reasonable expectation of success.”

      In this case, the trial court denied fees because it found that Castro’s position

was “arguably supported” under the authority of Hollub and section 713.31. We

disagree, and because we determine that Castro’s position was not “arguably

supported” under Hollub or any other valid authority in Florida, the trial court

erroneously denied Wells’ motion for attorney’s fees under section 57.105.




                                         10
      Contrary to the position taken by Castro, a careful reading of Hollub reveals

that it does not stand for the proposition that there must always be a prevailing

party in every mechanic’s lien case.5 In fact, at the time Castro filed his motion

requesting the trial court to declare him the prevailing party, the Florida Supreme

Court had already weighed in on this issue and had explicitly “reject[ed] the notion

that in every construction lien case the trial court is compelled to find a prevailing

party.” Trytek, 3 So. 3d at 1204 n. 13. The Trytek court further emphasized that

there might not always be a “prevailing party” in these types of suits and held that

“the possibility that neither party is a ‘prevailing party’ is consistent with an

application of the ‘significant issues’ test of Moritz and Prosperi.”6 Id. at 1203.

Most notably for our analysis, Trytek made it clear that Hollub and similar cases

should not be read to mean that a prevailing party must be declared in a

construction lien action:


5 Moreover, Hollub involved a determination of prevailing party status to be made
in the first instance by the trial court. In the present case, the parties agreed that
such a determination would be made by the arbitrator, thereby severely
restricting—if not altogether eliminating—the parties’ ability to seek, and the trial
court’s authority to grant, a modification of the arbitrator’s determination. See §
682.14(1), Fla. Stat. See also Cassara v. Wofford, 55 So. 2d 102, 105 (Fla. 1951)
(holding that an award of arbitration “cannot be set aside for mere errors of
judgment either as to the law or the facts; if the award is within the scope of the
submission, and the arbitrators are not guilty of the acts of misconduct set forth in
the statute, the award operates as a final and conclusive judgment, and—however
disappointing it may be—the parties must abide by it.”)
6 Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla. 1993); Moritz v. Hoyt Enters, Inc.,

604 So. 2d 807 (Fla. 1992).

                                         11
      We do not construe any of the appellate cases concerning prevailing
      party attorneys' fees to mandate that there be a prevailing party, only
      that where a “prevailing party” is determined, the entitlement to
      attorneys' fees is mandatory. See Pennington & Assocs., Inc. v. Evans,
      932 So.2d 1253, 1254 (Fla. 5th DCA 2006); Hollub Constr. Co. v.
      Narula, 704 So.2d 689, 690 (Fla. 3d DCA 1997); Grant v. Wester, 679
      So.2d 1301, 1308 (Fla. 1st DCA 1996); Sanfilippo v. Larry Giacin
      Tile Co., 390 So.2d 413, 414 (Fla. 4th DCA 1980). We reject the
      notion that in every construction lien case the trial court is compelled
      to find a prevailing party. See Kenmark Constr., Inc. v. Cronin, 765
      So.2d 129 (Fla. 2d DCA 2000) (declining to announce a bright-line
      rule that a trial court must find a prevailing party in every construction
      lien action).
Id. at 1204 n. 13.

      The Trytek decision—issued in 2009— represented the settled law in

Florida well before the arbitration proceedings in this case, and the arbitrator

specifically relied upon and cited to Trytek in its determination that “there is no

prevailing party for the purposes of an award of attorney’s fees.” Therefore,

Castro’s counsel knew or should have known that any claim that Castro was

entitled to be declared the prevailing party, after the arbitrator clearly determined

there was no prevailing party, “[w]ould not be supported by the application of

then-existing law to those material facts.” § 57.105(1)(b), Fla. Stat. (2012). This

court has already and necessarily made this very determination when we held (in

the prior appeal) that the trial court had no legal basis upon which to overturn the

arbitrator’s determination (that there was no prevailing party) and to declare that

Castro was the prevailing party.



                                         12
      As a result, the trial court should have granted Wells’ motion for attorney’s

fees, under section 57.105(1)(b), from February 14, 2012—the date that the

arbitrator expressly determined that there was no prevailing party as between Wells

and Castro. See In re Forfeiture of 100,000 Euros, 170 So. 3d 810, 817 (Fla. 3d

DCA 2015) (reversing trial court’s denial of 57.105 fees where “neither the facts

nor the law supported in any fashion” the claims of the appellees.) See also

Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005) (holding that party is not

insulated from 57.105 fees just because they prevailed in the trial court). We

reverse the order denying Wells’ motion for attorney’s fees and remand for the trial

court to enter an order granting the motion, and thereafter determine the reasonable

amount of attorney’s fees to which Wells is entitled. The fee award shall be taxed

solely against counsel representing Castro at that time.         See § 57.105(3)(c)

(providing that an attorney’s fee award imposed under 57.105(1)(b) may not be

awarded against a party who is represented by counsel); Waddington v. Baptist

Med. Ctr. of Beaches, Inc., 78 So. 3d 114 (Fla. 1st DCA 2012).

      Finally, we address one last portion of the trial court’s order that appears to

conclude that fees under section 57.105 could not be awarded because the trial

court originally granted Castro’s motion. The trial court stated in its order:

      If attorney fees sanctions are not appropriate where a party presents a
      colorable claim and loses on the pleadings or on a summary judgment,
      attorney fees are certainly not appropriate as a sanction under Florida



                                          13
      Statute § 57.105 where the party prevails at the trial level and
      ultimately loses on appeal. (Emphasis added.)

      This is an erroneous and rather superficial analysis. While it is true that a

party is not necessarily entitled to section 57.105 fees simply because it prevailed

at the summary judgment stage, this does not compel the conclusion that attorney’s

fees “are certainly not appropriate” where a party prevails at the trial level and

ultimately loses on appeal. Such a conclusion ignores the analysis necessary to a

proper determination of entitlement under the statute. This case serves as an

appropriate example. Here, Castro argued that Hollub addressed “the exact issue”

presented in this case and required a declaration of a prevailing party. It appears

that the trial court’s decision to grant the motion and declare Castro the prevailing

party was based upon an acceptance of this premise. However, a careful reading of

Hollub and, more importantly, the subsequent decision in Trytek limiting Hollub,

rejects “the notion that in every construction lien case the trial court is compelled

to find a prevailing party.” Trytek, 3 So. 3d at 1204 n.13. Given Trytek’s clear

limitation of Hollub, and the express limitations for modification or vacation of an

arbitration award under sections 682.13 and 682.14, Castro’s counsel knew or

should have known that Castro did not have any reasonable basis in law to seek an

order from the trial court declaring Castro to be the prevailing party contrary to the

express determination of the arbitrator.      The trial court’s determination that




                                         14
Castro’s counsel raised a colorable claim was erroneous as a matter of law and its

decision to deny Wells their entitlement to fees was an abuse of discretion.

      CONCLUSION

      We reverse the trial court’s order and remand with instructions to enter an

order granting Wells entitlement to attorney’s fees beginning on February 14,

2012. The trial court shall determine the reasonable amount of attorney’s fees to

be awarded, an amount which shall be paid by Castro’s counsel.

      Reversed and remanded with directions.




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