Thursday, July 9, 2009

Fee Award Reversed Due to Failure to Conduct Evidentiary Hearing

In Vose v. Gulfside Construction Services, Inc. (2D08-1890), the Second DCA reversed because the trial court did not hold an evidentiary hearing when it awarded attorneys fees.

"Where there are competing claims for attorneys' fees supported by separate legal bases of a construction lien claim and a breach of contract claim, the trial court’s discretion to award attorneys' fees should be determined after an evidentiary hearing. Sullivan v. Galske, 917 So. 2d 412 (Fla. 2d DCA 2006). Here, due to the competing nature of the claims, the court was required to conduct an evidentiary hearing. We also point out that, at the time of its ruling, the trial court did not have the benefit of the Florida Supreme Court's decision in Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla. 2009), which determined that when Prosperi is applied to the facts of a case, there is no mandatory requirement that a court determine that one party is the "prevailing party."


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