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Bauer v. Ready Windows Sales & Service Corp.

Florida Court of Appeals, Third District

June 21, 2017

Jonathan Bauer and Vittoria Formentin Bauer, Appellants/Cross-Appellees,
v.
Ready Windows Sales & Service Corporation, Appellee/Cross-Appellant.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County, Michael Hanzman, Judge. Lower Tribunal No. 14-702

          Jonathan Bauer and Vittoria Formentin Bauer, in proper persons.

          Steven M. Rosen, for appellee/cross-appellant.

          Before LAGOA, SALTER, and FERNANDEZ, JJ.

          LAGOA, J.

         MOTIONS FOR APPELLATE ATTORNEY'S FEES

         Both Appellants, Jonathan Bauer and Vittoria Formentin Bauer ("the Bauers"), and Appellee, Ready Windows Sales & Service Corp. ("Ready Windows"), move for appellate attorney's fees pursuant to Florida Rule of Appellate Procedure 9.400 and section 713.29, Florida Statutes (2016). We deny both motions.

         A brief factual history of the case is required before determining whether either party is the "prevailing party" entitled to an award of appellate attorney's fees. On August 7, 2013, the Bauers and Ready Windows entered into a contract for replacement of doors and windows at the Bauers' residence. The contract contained separate amounts for the purchase of the windows and doors, permit filing fees, and installation services, for a total amount due of $24, 804.05. The second page of the contract stated that "engineering and permit included."

         Ready Windows hired Eduardo Pacheco, who is not a licensed engineer, to prepare a plan for submission to the Miami-Dade County Building Department. The drawing, which was ultimately filed with the application for the building permit, is a two dimensional floor plan indicating the location of each window and door.

         In early October 2013, the existing doors and windows in the residence were replaced with doors and windows provided by Ready Windows. On October 21, 2013, the Bauers gave a written notice of claim pursuant to section 558.004, Florida Statutes (2013), to Ready Windows, identifying numerous defects in the project. The Bauers followed up with amendments to their initial Chapter 558 notice as they became aware of additional defects. Ready Windows returned to the premises on several occasions, but the Bauers claimed that the defects were not corrected and withheld final payment. Ready Windows claimed that it completed its scope of work, with some remaining punch list and post final inspection completion items remaining, but that the Bauers refused to permit them to return to the project.

         On November 20, 2013, Ready Windows filed a Claim of Lien pursuant to Chapter 713, Florida Statutes (2013). On January 9, 2014, Ready Windows filed a Complaint to Foreclose Mechanic's Lien and for Other Relief.

         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. The trial court rejected the Bauers' claim the "engineering" was required to be performed by a licensed engineer who could seal and sign plans-a requirement not imposed by Miami-Dade County for this job. The trial court agreed with Ready Windows that the term "engineer" was used in the contract colloquially and the failure to have a licensed engineer draw plans did not constitute breach of contract. Concerning the windows and doors, the trial court found that the products delivered were in their represented condition, were adequate and fit the spaces for the doors and windows, and that the Bauers received the benefit of their bargain. The trial court, however, found that Ready Windows breached the provision in the contract requiring installation services because it did not adequately, thoroughly, and properly install the doors and windows in the residence. As a result, Ready Windows was not entitled to the $3, 600.00 that the contract allocated for installation. The trial court entered final judgment in favor of Ready Windows in the amount of $9, 039.05. Both parties filed motions for rehearing, which were denied. The Bauers filed a notice of appeal from the final judgment, and Ready Windows filed a notice of cross-appeal. This Court affirmed the trial court with regard to both the appeal and cross-appeal.

         Both the Bauers and Ready Windows filed motions for appellate fees pursuant to Rule 9.400 and section ...


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