Hub Cap Heaven, Inc. v. Goodman , 431 So. 2d 323 ( 1983 )

431 So.2d 323 (1983)

HUB CAP HEAVEN, INC., Appellant,
v.
Harvey GOODMAN and Linda C. Goodman, His Wife, Appellee.

No. 82-1173.

District Court of Appeal of Florida, Third District.

May 17, 1983.

Schoninger, Jankowitz, Siegfried & Kipnis and Tom Hall, Miami, for appellant.

Blank, Rome, Comisky & McCauley and Jeffrey A. Sarrow, Miami, for appellee.

Before HENDRY, BARKDULL and JORGENSON, JJ.

PER CURIAM.

When a claimant in a mechanic's lien action recovers a judgment in any amount,^[1] a trial court errs in not finding the lienor the "prevailing party" and awarding attorney's fees pursuant to Section 713.29 of the Florida Statutes. American Insulation of Fort Walton Beach, Inc. v. Pruitt, 378 So.2d 339 (Fla. 1st DCA 1980); Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978); Sharpe v. Ceco Corporation, 242 So.2d 464 (Fla. 3d DCA 1971).

The final judgment under review is reversed with directions to the trial court to find that the plaintiff was the "prevailing party" and therefore entitled to be awarded attorney's fees after due consideration as to the amount actually recovered by the litigation. We find no merit in the cross-appeal.

Reversed and remanded with directions.

NOTES

[1] Even though the amount is only $5.00 in excess of that tendered by the defendant.