MIAMI – Only a prevailing party is entitled to have appellate attorney fees paid, according to a 3rd District Court of Appeal ruling.

Justices Vance Salter, Barbara Lagoa and Ivan Fernandez ruled neither Jonathan Bauer and Vittoria Formentin Bauer nor Ready Windows Sales & Service Corp. are entitled to have their appellate fees paid since neither prevailed in a suit against the other.  

The initial disagreement began in 2013, when the Bauers contracted the purchase and installation, as well as the permit filing fees, with Ready Windows for a total of $24,804.05. A two-dimensional drawing of the doors and windows that were to be replaced were sketched by an unlicensed engineer and filed with Miami-Dade County Building Department, and the project was completed. 

But the Bauers were unhappy with the services provided, according to court records. The couple wrote Ready Windows noted all initial defects in the project and added to the list as additional defects that were found. The Bauers refused to pay the final bill and refused to let Ready Windows into their home to complete the remaining project punch list items and final inspection.

By January 2014, Ready Windows filed a Claim of Lien and a Complaint to Foreclose Mechanic’s Lien after being barred payment and job completion.  

“After a bench trial, the trial court entered a final judgment, which found that the contract was divisible into particular amounts for the products to be delivered, the permit filing fees, and the installation services,” according to the opinion.

Though the Bauers’ claimed the project failed since an unlicensed engineer drew plans, the trial court disagreed and deemed "the term ‘engineer’ was used in the contract colloquially,” and all the “products delivered were in their represented condition, were adequate and fit the spaces for the doors and windows,” according to the opinion. The trial court's ruling was the "the Bauers received the benefit of their bargain."

However, Ready Windows was still found in breach of contract "requiring installation services because it did not adequately, thoroughly, and properly install the doors and windows in the residence," according to the opinion, which said the company was not entitled to the $3,600 provision for installation. After the trial court entered final judgment in favor of Ready Windows for $9,039.05, both the company and the Bauers were denied motions for rehearing. 

The couple filed a notice of appeal from the final judgment, and the window company filed a notice of cross-appeal, which the appeals court also affirmed. Both the Bauers and Ready Windows filed motions for appellate fees, since the both claimed they were the prevailing party in the suit. But pursuant to Trytek v Gale Industries Inc., the appeals court said in the opinion that “each party lost on their appeal, while each party successfully defended that part of the judgment in their favor on the other party’s cross-appeal.”

"Because both parties prevailed on significant issues, this Court finds that appellate fees are not warranted for either party," the appeals court ruled. 

All motions for appellate fees are denied.

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Florida Third District Court of Appeal
2001 Southwest 117th Avenue
Miami, FL 33175

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