Jonathan Bauer and Vittoria Formentin Bauer, Appellants/Cross-Appellees,
Ready Windows Sales & Service Corporation, Appellee/Cross-Appellant.
final until disposition of timely filed motion for rehearing.
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
M. Rosen, for appellee/cross-appellant.
LAGOA, SALTER, and FERNANDEZ, JJ.
FOR APPELLATE ATTORNEY'S FEES
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.
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."
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
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.
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.
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
the Bauers and Ready Windows filed motions for appellate fees
pursuant to Rule 9.400 and section ...