         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


HOUGH ROOFING, INC.,

              Appellant/Cross-Appellee,

 v.                                                      Case No. 5D15-2878

DON FACCIOBENE, INC.
AND DIGIACINTO HOLDINGS, LLC,

              Appellees/Cross-Appellants.

________________________________/

Opinion filed July 21, 2017

Appeal from the Circuit Court
for Brevard County,
Charles M. Holcomb, Judge.

Ruth C. Rhodes, of Rhodes Law, P.A.,
Melbourne, for Appellant/Cross-Appellee.

Allan P. Whitehead, of Frese, Hansen,
Anderson,    Anderson,     Heuston    &
Whitehead,     P.A.,   Melbourne,    for
Appellee/Cross-Appellant Don Facciobene,
Inc.

No Appearance for Digiacinto Holdings,
LLC.

BERGER, J.

       Hough Roofing, Inc. (HRI), a licensed subcontractor, appeals and Don

Facciobene, Inc. (DFI), a licensed general contractor, cross-appeals the trial court's order

denying their respective motions for attorney's fees after a non-jury trial on HRI's breach
of contract claim against DFI and DFI's counterclaim against HRI. Because HRI was the

prevailing party on significant issues below, we reverse the order denying its request for

attorney's fees. As to DFI's cross-appeal, we affirm.

       The underlying case involved a breach of contract claim filed by HRI against DFI

for DFI's failure to pay HRI for roofing work it was subcontracted to perform and, in fact,

completed, as well as a counter-claim filed by DFI against HRI for work performed to

repair a leak in the roof due to faulty installation by HRI. The trial court denied both

parties' motions for attorney's fees finding that the subcontract's attorney's fees provision

cannot apply retroactively before the subcontract was executed and that when applied

prospectively neither party prevailed on significant issues. This was error.1

       Although there may be circumstances where neither party is the prevailing party,

that is not the case here. See Trytek v. Gale Indus., Inc., 3 So. 3d 1194, 1201 (Fla. 2009)

(quoting Prosperi v. Code, Inc., 626 So. 2d 1360, 1362 (Fla. 1993)); Hutchinson v.

Hutchinson, 687 So. 2d 912, 913 (Fla. 4th DCA 1997) (citing Lucite Ctr., Inc. v. Mercede,

606 So. 2d 492 (Fla. 4th DCA 1992)) (finding that in a breach of contract action one party

must prevail in the absence of compelling circumstances).

       At trial, HRI was the prevailing party based on the trial court's finding that DFI

breached the implied covenant of good faith and fair dealing and because HRI was

entitled to recover damages when it had been paid nothing by DFI before that point. While

DFI prevailed on its counterclaim, the $180 it was awarded was only a small fraction of




       1 In a separate appeal regarding the same subcontract and parties, we concluded
that the subcontract applied retroactively. Don Facciobene, Inc. v. Hough Roofing, Inc.,
No. 5D15-1527 (Fla. 5th DCA July 21, 2017). Based on that holding, the trial court abused
its discretion in determining that neither party prevailed under the attorney's fees clause.


                                             2
its $7378.80 request, and it was not substantial enough to override the outcome on HRI's

complaint. See id. (quoting Prosperi, 626 So. 2d at 1362); Scutti v. Daniel E. Adache &

Assocs Architects, P.A., 515 So. 2d 1023, 1024 (Fla. 4th DCA 1987); Kirou v. Oceanside

Plaza Condo. Ass'n, 425 So. 2d 650, 651 (Fla. 3d DCA 1983).

      Accordingly, we reverse the order denying HRI's motion for attorney's fees and

remand for the trial court to determine the amount. In all other respects, we affirm.

      AFFIRMED, in part, REVERSED, in part, and REMANDED.

WALLIS and LAMBERT, JJ., concur.




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