HOBSON, Acting Chief Judge.
This is an appeal from a final judgment entered in favor of the plaintiff/appellee in a proceeding initiated as an action to foreclose a statutory mechanic's lien. Beach Resorts, defendant and appellant herein, specifically assails that portion of the final judgment awarding the plaintiff, Clarmac, attorney fees pursuant to the mechanic's lien statute, Section 713.29, Florida Statutes (1975). We agree and reverse.
In January 1974, Clarmac, the contractor, had completed a ramp and overpass built under a direct contract with the property owner, Beach Resorts. The contract included
Beach Resorts also filed an application for order directing parties to proceed with arbitration. The trial court did not enter an order on the application, but Clarmac voluntarily proceeded to arbitration and in its demand claimed $16,046.10 plus interest. The arbitration was held and the arbitrator awarded Clarmac the sum of $10,682.60, with the parties bearing the administrative fees and expenses equally. Later the arbitrator ordered Clarmac to pay Beach Resorts $242.50 for that portion of the fees previously advanced by Beach Resorts to the Arbitration Association.
On February 5, 1975, Clarmac filed a motion for award of attorney fees and for entry of judgment upon arbitration award and at the same time noticed the motion for hearing before the court on March 3, 1975. In support of its motion, Clarmac submitted the affidavit of an attorney, John C. Dew, who stated that in his opinion a reasonable fee for all work done by Clarmac's attorney, including the arbitration proceedings, would be $3,500. At the hearing on March 3 Beach Resorts delivered a cashier's check to Clarmac in the amount of the award, and filed a notice of payment of arbitrator's award and motion whereby the court was notified that Beach Resorts had paid the award in full and the court was requested to declare the claim of lien void and deny Clarmac's motion for attorney fees. Clarmac refused to accept the tendered check as payment in full of all Beach Resort's obligations and the court took the matter under advisement, requesting memorandums on the subject.
On March 18, Clarmac accepted the check. On August 26, 1975, the court entered its judgment, including therein the full amount of the arbitration award, and an award of attorney fees in the amount of $2,250 and costs to Clarmac. Thereafter Clarmac filed a partial satisfaction of judgment, recognizing payment of the full amount of the arbitrator's award.
The sole issue for our determination is whether the trial court erred in awarding Clarmac attorney fees in its final judgment confirming the award of the arbitrator. Resolution of this close question necessarily requires an analysis of the Florida Arbitration Code, Sections 682.01 et seq., Florida Statutes (1975) as it relates to the operation of Florida Mechanic's Lien Law, Sections 713.01-713.36, Florida Statutes (1975).
It is clear that the proceedings below were initiated pursuant to the mechanic's lien statute. It is equally apparent that subsequently the parties proceeded to arbitration as required by the contract between them. The fruit of those arbitration proceedings was an award substantially less than that claimed in the lien action initiated by Clarmac. Such arbitration agreements are generally favored by the courts and every reasonable presumption is indulged to uphold the proceedings resulting in an award. Blood v. Shine, 2 Fla. 127 (1848); Knight v. H.S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1973). Nevertheless, procedures do exist for confirming, vacating, or modifying arbitrator's awards. See Sections 682.12, 682.13, and 682.14, Florida Statutes (1975). Provision is also made for the costs of these subsequent court proceedings. Section 682.15, Florida Statutes (1975).
The general rule in Florida is that attorney fees associated with arbitration proceedings are recoverable only by statute or by specific agreement. Codomo v. Emanuel, 91 So.2d 653 (Fla. 1956); Tassinari v. Loyer, 189 So.2d 651 (Fla. 2d DCA 1966);
In the case sub judice there was no award of attorney fees by the arbitrator nor was there any special agreement between the parties for payment of the same. Therefore, the remaining question is whether some other statute can be invoked to warrant the awarding of attorney fees attributable to the arbitration herein.
Section 713.29 of the Mechanic's Lien Law provides,
Clarmac asserts that this section authorizes the recovery of attorney fees in this situation. We disagree. Resolution of any conflict between the Arbitration Code, which prohibits attorney fees, and the Mechanic's Lien law, which specifically allows such costs, is determined by the nature of the recovery. Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971). In Emery, involving the construction of Section 713.29, we stated,
We think it was error for the trial judge to declare a lien in favor of Clarmac since the nature of the recovery was pursuant to the arbitration clause and not the mechanic's lien statute. This conclusion is necessary for several reasons. First, the parties were bound by a general arbitration clause,
A third and more critical reason for conclusion that Clarmac's recovery was governed by the Arbitration Code, and not the Mechanic's Lien Law, is the interpretation given the relationship of these two statutes in Mills v. Robert W. Gottfried, Inc., 272 So.2d 837
The plain meaning of this language is that the mechanic's lien statute, in cases initiated as lien foreclosures but submitted to mandatory arbitration, is not operative unless the judgment entered confirming, vacating or modifying the arbitration award must be enforced in favor of the plaintiff. This view is strengthened further by the statement in Mills that, "... [T]he plaintiff still retains the amount ultimately determined to be due by means of a mechanic's lien, if plaintiff is otherwise entitled to such a lien." (emphasis supplied)
Here there was no recalcitrance on the part of Beach Resorts to submit payment of the arbitration award to Clarmac. For that reason no enforcement was needed and the application of a mechanic's lien was unnecessary. Mills, supra. In fact, Clarmac accepted payment in the amount of the award, specifically reserving its claim to attorney fees. Payment of the arbitration award and acceptance of the same constituted settlement of the real controversy between the parties. Therefore, the mode and substance of Clarmac's recovery was defined by the Arbitration Code and not the Mechanic's Lien Law. Emery, supra.
This construction should not be deemed as an attempt to oust the trial court of its jurisdiction over the lien foreclosure. Instead, the operation of both the Arbitration Code and the Mechanic's Lien Law is interdependent and compatible. There was no reason to impose a mechanic's lien, as Beach Resorts was at all times ready and willing to comply with the decision of the arbitrator and the order of the trial judge in confirming the same. In the absence of a refusal to abide by the trial court's judgment,
A question remains as to whether any costs, excluding attorney fees, should have been awarded pursuant to Section 682.15 of the Arbitration Code.
REVERSED and REMANDED for further proceedings consistent with this opinion.
BOARDMAN, J., concurs.
SCHEB, J., dissents with opinion.
SCHEB, Judge (dissenting).
The majority concludes that Clarmac was entitled to enforce its claim of lien through foreclosure proceedings. I agree. I think Clarmac was therefore entitled to an award of attorney's fees under Section 713.29, Florida Statutes, since it prevailed in that proceeding, notwithstanding that it was proper to have the amount of its entitlement determined through arbitration. Unlike Emery, supra, the trial court found