Court: District Court of Appeal of Florida; July 3, 1991; Florida; State Appellate Court
J.M. Beeson Company appeals a final summary judgment favoring Aetna Casualty Surety Company in a dispute arising from a construction contract with Ernesto Sartori. After multiple disputes during the construction of a shopping plaza, Beeson terminated the contract and filed two mechanic's liens against Sartori’s property. Sartori responded by transferring the liens to a surety bond, with Aetna as the surety insurer. Initially, the trial court ruled that Beeson had not substantially completed the work, awarded damages to Sartori, and discharged the surety bond. Beeson appealed, and the appellate court reversed this decision, remanding the case for further proceedings without addressing the surety bond.
On remand, the trial court refused to reinstate the bond, leading Beeson to add Aetna as a party and seek relief against them. Both Beeson and Aetna filed motions for summary judgment, with the trial court ultimately ruling in favor of Aetna, stating that the bond had been discharged and that Beeson had accepted this by failing to appeal the discharge. The court also denied Beeson’s claims for costs and attorney's fees, asserting that the action was not related to the discharged bond and that section 713.29 of the Florida Statutes was inapplicable.
In its second appeal, Beeson argues that the trial court misapplied the law of the case doctrine and failed to reinstate the bond. Aetna contends that Beeson cannot raise the bond issue again since it was not pursued in the first appeal. However, the appellate court disagrees, noting that Beeson did raise the bond issue in its initial appeal, arguing for the reinstatement of its mechanic's lien and related costs.
Appellant requested the reversal of the trial court's release of its Mechanics Lien and sought the reestablishment of the bond securing the lien. Although this issue was not explicitly stated as a separate point in the initial brief, it was included in the requested relief, and thus the issue was preserved for review. The court clarified that its reversal returned the matters concerning appellant's mechanic's lien, including the bond status, to prejudgment status, contrary to Aetna's assertion that such a return only occurs with reversals without directions. The court identified an error by the trial court for failing to reinstate the bond after the first appeal.
Appellant also claimed entitlement to attorneys' fees and costs under section 713.29, Florida Statutes, which provides for such fees to the prevailing party in actions to enforce a mechanic's lien. Aetna contested this, arguing the case related to reinstating a surety bond rather than enforcing a lien. The court determined that section 713.29 is applicable, and the trial court erred in denying appellant its attorneys' fees and costs. Consequently, the appellate court reversed the summary judgment favoring Aetna and remanded the case with directions to reinstate the surety bond and conduct further proceedings accordingly. The court acknowledged a recent amendment to section 713.29 that allows recovery of fees for arbitration as well as trial and appeal.
