DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LEMARTEC CORPORATION, et al.,

Appellants,

v.

EAST COAST METAL STRUCTURES CORP.,

Appellee.

No. 4D2023-0601

[May 15, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Scott R. Kerner, Judge; L.T. Case No. 50-2017-CA-010645-

XXXX-MB.

Joy Spillis Lundeen, Felix X. Rodriguez, and Kelly R. Melchiondo of 

Bilzin Sumberg Baena Price & Axelrod LLP, Miami, for appellants.

Thomasina F. Moore of GrayRobinson, P.A., Tallahassee, for appellee.

DAMOORGIAN, J.

Lemartec Corporation (“Contractor”), Tellus Products, LLC (“Project 

Owner”), Philadelphia Indemnity Insurance Company (“Philadelphia”), and 

Suretec Insurance Company (“Suretec”) (collectively “Defendants”) appeal

the order denying their motion for attorney’s fees and the subsequent final 

judgment awarding prevailing party attorney’s fees to East Coast Metal 

Structures Corp. (“Subcontractor”). For the reasons discussed below, we 

reverse the award of attorney’s fees to Subcontractor in its entirety and 

remand for entry of an award of attorney’s fees to Defendants.

Background

The genesis of this appeal is a dispute arising out of the construction 

of a sugarcane bagasse processing facility located in Belle Glade, Florida 

(“the Project”). Our analysis of the issues related to the award of attorney’s 

fees in this appeal necessarily requires a brief discussion of the underlying 

facts which led to the dispute.
2

Project Owner hired Contractor to design and construct the Project, 

which consisted of three separate buildings: an office building, a molding 

building, and a pulping building. Contractor thereafter issued bid 

drawings to prospective bidders for the steelwork to be completed on the 

three buildings. Contractor ultimately provided Subcontractor with 

Letters of Intent (“LOIs”). Each LOI identified the name of the building 

requiring work and a lump sum price to be paid for the work, and included 

express language that subcontracts were forthcoming. Shortly thereafter, 

Contractor sent Subcontractor three subcontracts, one for each building, 

providing for the fabrication, installation, and delivery of structural steel 

and miscellaneous metals. Unlike the LOIs, each of the subcontracts 

included a cross-default provision providing that if Subcontractor 

breached any of the subcontracts, Contractor could “offset all costs to 

complete the Work from this Subcontract Agreement and/or other 

contracts . . . to recompense the Contractor.”

It is undisputed that Subcontractor did not sign the subcontracts. 

Nonetheless, the parties proceeded as if the subcontracts had been 

executed, with Subcontractor completing all of the steelwork for the office 

and molding buildings, and part of the work for the pulping building, 

pursuant to the subcontracts. Subcontractor failed, however, to supply 

and install the stairs in the pulping building, as required under the 

pulping building subcontract.

Project Owner eventually took over the Project from Contractor and 

assumed the three subcontracts with Subcontractor. After several months

of delay, Project Owner began searching for a replacement subcontractor 

to complete the stairs and requested a deductive change order from 

Subcontractor. In response, Subcontractor provided a deductive change 

order for $12,300, which was less than the original estimated value of the 

stairs at the time of Subcontractor’s bid. After Subcontractor refused to 

negotiate its proposed credit for the stairs, Project Owner sent 

Subcontractor a notice of default and eliminated the stairs from 

Subcontractor’s scope of work. Subcontractor did not respond to the 

notice of default or attempt to cure the default; instead, Subcontractor 

recorded a claim of lien.

Project Owner thereafter hired a new subcontractor to complete the 

stairs at a cost of nearly $127,000. In light thereof, Project Owner refused 

to pay Subcontractor the balance owed on the subcontracts, including the 

retainages on the molding and office building subcontracts, pursuant to 

the cross-default provisions.
3

The Lawsuit

Subcontractor then sued Defendants for the remainder of the balance. 

Subcontractor’s operative complaint also disputed the validity of the 

unexecuted subcontracts and argued the LOIs should govern instead.

Subcontractor’s complaint included five counts. Count I alleged claims 

against Contractor and its surety Philadelphia on the original payment 

bond pursuant to section 713.23, Florida Statutes. Count II alleged 

claims against Project Owner and its surety Suretec on the transfer 

payment bond pursuant to section 713.23, Florida Statutes. Count III

alleged claims against Contractor and Project Owner for breach of contract 

on the pulping building, and sought $63,935.40. Count IV alleged claims 

against Contractor and Project Owner for breach of contract on the office 

and molding buildings, and sought $28,011.30 for the molding building 

and $10,065 for the office building. Finally, Count V alleged alternative 

quantum meruit claims against Contractor and Project Owner. In total, 

Subcontractor sought $102,011.70 in damages.

Defendants answered the complaint and raised several affirmative 

defenses seeking to avoid payment to Subcontractor for various reasons, 

including a claim for “set-off against any moneys owed to [Subcontractor]” 

for the cost of completing the stairs. Project Owner also filed a 

counterclaim against Subcontractor for breach of the pulping subcontract, 

and sought damages incurred as a result of Subcontractor’s failure to 

complete the stairs. Subcontractor answered the counterclaim and 

asserted several affirmative defenses, including that Project Owner “failed 

to satisfy all conditions precedent to bringing this action.”

The matter ultimately proceeded to a ten-day bench trial. Prior to trial, 

the parties filed a joint pretrial stipulation wherein they listed the following 

relevant disputed issues of fact for determination at trial:

1. Whether the parties ever entered into written subcontract 

agreements for the office building, molding building and 

pulping building . . . .

2. Whether the parties’ actions provided assent to the 

unsigned subcontracts for the office building, molding 

building, and pulping building.

3. Whether the Defendants breached the parties’ agreements 

related to the office building, molding building and pulping 

building . . . .
4

4. Whether [Subcontractor] breached the parties’ agreements 

by not supplying and installing the stairs at the pulping 

building in a timely fashion.

5. The amount of damages sustained on account of any 

breach of the contract by any party.

6. The reasonable value of the pulping stairs.

7. Whether [Subcontractor] has perfected and is entitled to 

foreclose its mechanic’s lien.

Final Merits Judgment

Following the bench trial, the trial judge—Judge Howard Coates—

entered a detailed 35-page final judgment. The final judgment was divided 

into two parts: the first part addressed whether the LOIs or unexecuted 

subcontracts governed, and the second part addressed damages.

Regarding whether the LOIs or subcontracts governed, the trial judge

began his analysis by noting that “the primary dispute is over which 

contract controls.” The trial judge ultimately concluded the LOIs were not 

enforceable, and that the subcontracts were enforceable and governed 

despite the lack of signatures.

Regarding the amounts owed between the parties, the trial judge found 

Subcontractor was entitled to $10,065 for the office building, $28,011.30 

for the molding building, and $33,821.40 for the pulping building, for a 

total of $71,897.70. The trial judge also found Subcontractor failed to 

perfect its claims against the bonds, and therefore could not collect on the 

payment bonds. On the counterclaim, the trial judge found Subcontractor 

was properly defaulted and breached the pulping building subcontract by 

failing to install the stairs, and awarded Project Owner $42,414 for the 

reasonable value of the stairs. The trial judge also found Project Owner 

was entitled to offset the $42,414 against the $71,897.70 awarded to 

Subcontractor pursuant to the cross-default provisions, leaving 

Subcontractor with a total award of $29,483.70 (or $36,304.51 after 

interest).

Based on these findings, the trial judge entered judgment on each of 

the complaint’s five counts and the counterclaim as follows.
5

As to Counts I and II, which sought to collect on the payment bond and 

transfer payment bond, the trial judge entered judgment in favor of 

Defendants.

As to Count III, which sought damages against Contractor and Project 

Owner for breach of the pulping subcontract, the trial judge stated that 

although it awarded Subcontractor $33,821.40 in damages on that count, 

“this amount was completely setoff [by the amount] due to [Project Owner] 

in the amount of $42,414.00 (all of which arises out of [Subcontractor’s] 

failure under the pulping subcontract).” Therefore, the trial judge entered 

judgment in favor of Project Owner and Contractor on count III.

As to Count IV, which sought damages for breach of the office and 

molding subcontracts, the trial judge setoff the remaining $8,592.60 due 

to Project Owner against the $38,076.30 awarded to Subcontractor. “As 

such, after applying the amount of the remaining setoff and determining 

that it is not sufficient to set off in its entirety the amounts due to 

[Subcontractor] under either the office or molding subcontracts, the Court 

enters judgment in favor of [Subcontractor].”

As to Count V, which alleged alternative quantum meruit claims, the 

trial judge entered judgment in favor of Project Owner and Contractor 

based on its finding that the subcontracts were enforceable.

Finally, as to the counterclaim, the trial judge entered judgment in favor 

of Project Owner “in the amount of $42,414.00, which amount shall be 

applied in setoff of the amounts due [Subcontractor] as provided herein.”

Subcontractor thereafter appealed the final merits judgment, and we 

per curiam affirmed. See E. Coast Metal Structures, Corp. v. Lemartec 

Corp., 357 So. 3d 116 (Fla. 4th DCA 2023).

Denial of Defendants’ Motion for Attorney’s Fees

Following entry of the final merits judgment, Subcontractor moved for 

attorney’s fees pursuant to the prevailing party fee provision in the 

subcontracts.

Defendants, in turn, moved for attorney’s fees under three separate 

grounds. First, Defendants moved for attorney’s fees pursuant to the 

prevailing party fee provision in the subcontracts. Second, Defendants 

moved for attorney’s fees pursuant to section 713.29, Florida Statutes

(2017), which provides for prevailing party fees in any action brought to 

enforce a claim against a bond. Lastly, Defendants moved for attorney’s 
6 

fees under section 768.79, Florida Statutes (2021), pursuant to a rejected 

joint proposal for settlement for $62,000 which they had served on 

Subcontractor five months prior to trial. The proposal was made on behalf 

of all Defendants for the purpose of resolving all claims, including the 

counterclaim, with Project Owner offering to pay the entire $62,000 

settlement amount and Contractor and the two sureties each offering to 

contribute $0.00. 

After the parties filed their motions, Judge Coates, who had presided 

over the trial and issued the final merits judgment, rotated out of the 

division, and Judge Scott Kerner rotated in as successor judge. Following 

a hearing on the competing motions, the successor judge entered an order 

granting Subcontractor’s motion for attorney’s fees pursuant to the 

prevailing party fee provision in the subcontracts, and denying 

Defendants’ motion for attorney’s fees in its entirety. 

Regarding entitlement to attorney’s fees under the subcontracts, the 

successor judge concluded Subcontractor was the prevailing party. In so 

concluding, the successor judge primarily relied on the fact that

Subcontractor “achieved some of the benefit it [s]ought in bringing suit by 

recovering a money judgment for work it completed on the Project,” and 

Contractor and Project Owner “failed on their affirmative defenses to 

entirely avoid payment to [Subcontractor] altogether.” The successor 

judge also rejected the contention that a significant issue in the litigation 

upon which Defendants had prevailed was whether the subcontracts were 

enforceable, reasoning that was “not an issue which determined the overall 

outcome of this action, nor the amount of damages the Court awarded.” 

Regarding Defendants’ request for attorney’s fees under section 768.79, 

Florida Statutes (2021), the successor judge concluded Defendants were 

not entitled to an award of attorney’s fees under the statute for two primary

reasons. First, the successor judge concluded Defendants’ proposal for 

settlement was not made in good faith because it “was served only after 

the instant action had been pending for more than three years and was 

already on the trial docket,” and because Defendants thereafter sought to 

amend their affirmative defenses to assert an “argument that would 

materially reflect how they perceived [Subcontractor’s] damages in this 

case.” Second, citing our holding in Hoang Dinh Duong v. Ziadie, 153 So. 

3d 354 (Fla. 4th DCA 2014), the successor judge concluded none of the 

Defendants were entitled to recover attorney’s fees under the joint proposal 

because the amount offered by Contractor—$0—was not 25% more than 

the amount recovered by Subcontractor. 
7

Finally, regarding Defendants’ request for prevailing party attorney’s 

fees under section 713.29, Florida Statutes (2017), the successor judge 

concluded that although Subcontractor did not prevail on its claims to 

enforce against the payment bonds, “[i]t would be inequitable to award 

attorney’s fees to the Defendants on the lien counts when [Subcontractor] 

prevailed on its claim for the payment for its completed work.”

Following another hearing to determine the amount of Subcontractor’s 

attorney’s fees, the successor judge entered a final judgment awarding 

Subcontractor a total of $446,628.65 in attorney’s fees and costs. This 

appeal follows.

Analysis

“The standard of review of a trial court’s ruling on the issue of 

entitlement to prevailing party attorney’s fees is abuse of discretion. The 

trial court has broad discretion to determine which party prevailed in the 

litigation.” Skylink Jets, Inc. v. Klukan, 308 So. 3d 1048, 1051 (Fla. 4th 

DCA 2020) (internal citation omitted).

However, a party’s entitlement to receive attorney’s fees under a statute 

is generally reviewed de novo. See Spanakos v. Hawk Sys., Inc., 362 So. 

3d 226, 236 (Fla. 4th DCA 2023) (“Generally, a party’s entitlement ‘to 

receive attorney’s fees and costs pursuant to section 768.79 and rule 1.442

is reviewed de novo.’” (quoting Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 

2015))); Newman v. Guerra, 208 So. 3d 314, 317 (Fla. 4th DCA 2017) 

(stating, in the context of a fee award under section 713.29, Florida 

Statutes, that “[a] party’s entitlement to an award of attorneys’ fees under 

a statute or a procedural rule is a legal question subject to de novo 

review”).

1. Subcontracts

Defendants argue the successor judge abused its discretion when it 

determined Subcontractor prevailed on the significant issues in the 

litigation. Defendants maintain that by concluding Subcontractor was the 

prevailing party because it achieved “some of the benefit it [s]ought in 

bringing suit by recovering a money judgment,” the successor judge

improperly applied the “net judgment rule” and ignored the fact that 

Defendants prevailed on all but one of the counts. Moreover, the successor 

judge ignored the significant issues identified by the trial judge in the 

merits judgment and failed to appreciate the significance of the rulings 

therein, including the significance of the setoffs. We agree.
8

In Moritz v. Hoyt Enterprises, Inc., the Florida Supreme Court declared 

“that the party prevailing on the significant issues in the litigation is the 

party that should be considered the prevailing party for attorney’s fees.” 

604 So. 2d 807, 810 (Fla. 1992). The court explained that “the fairest test 

to determine who is the prevailing party is to allow the trial judge to 

determine from the record which party has in fact prevailed on the 

significant issues tried before the court.” Id. Ultimately, the Moritz court 

held the trial court in that case was within its discretion when it concluded 

that a contractor prevailed on the significant issues in the litigation, even 

though the owners who breached the contract recovered an amount which 

exceeded the damages awarded to the contractor on its counterclaim. Id. 

In so holding, the Moritz court disapproved of cases holding that the 

prevailing party is the one who recovers an affirmative judgment. Id. at 

809–10.

One year after deciding Moritz, the Florida Supreme Court considered 

the interplay between the “net judgment rule” in cases involving 

enforcement of a mechanic’s lien and the decision in Moritz. See Prosperi 

v. Code, Inc., 626 So. 2d 1360, 1362–63 (Fla. 1993). Ultimately, the court 

concluded:

Moritz now requires a more flexible application. The fact that 

the claimant obtains a net judgment is a significant factor but 

it need not always control the determination of who should be 

considered the prevailing party. We hold that in considering 

whether to apply the net judgment rule, the trial judge must 

have the discretion to consider the equities and determine 

which party has in fact prevailed on the significant issues.

Id. at 1363.

As Moritz and Prosperi make clear, the mere fact that a party recovers 

an affirmative judgment does not control the prevailing party 

determination, including in breach of contract cases.

Our holding in Skylink Jets, Inc. v. Klukan, 308 So. 3d 1048 (Fla. 4th 

DCA 2020), is particularly instructive. In that case, the plaintiff air carrier 

hired the defendant pilot. Id. at 1049. In connection with his employment 

with air carrier, pilot signed two agreements: (1) a personal loan agreement 

with air carrier’s president for $8,908.64 (representing flight training and 

related expenses), which was allegedly assigned to air carrier; and (2) a 

pilot training expense agreement with air carrier for $8,617.03, which 

included language providing that all previous contracts between air carrier 
9

and pilot were “null and void.” Id. Both agreements required pilot to repay 

the amounts if he quit or was terminated within the repayment period. Id.

Air carrier ultimately sued pilot after he resigned within the repayment 

period. Id. The operative complaint sought $20,419.73 in damages and 

included five counts, including two breach of contract counts (one for each 

agreement), one unjust enrichment count, one money lent count, and one 

promissory note count. Id. Prior to trial, the parties filed a joint pretrial 

stipulation wherein they stipulated: pilot executed both agreements; the 

president paid for pilot’s training as set forth in the personal loan 

agreement; air carrier paid for the training and related expenses as set 

forth in the pilot training expense agreement; and pilot did not reimburse 

air carrier for the cost of his training or make any payments on the 

personal loan agreement. Id. at 1049–50. The joint pretrial stipulation 

also stated the disputed issues for trial were the amount of air carrier’s 

damages and the validity of the assignment of the personal loan agreement 

from the president to air carrier. Id. at 1050.

Following a bench trial, the trial court entered judgment in air carrier’s 

favor based on pilot’s breach of the pilot expense training agreement, but 

denied recovery on air carrier’s remaining four counts. Id. The court ruled 

air carrier was entitled to $8,617.03 (the amount of training expenses 

expressly set forth in the pilot expense training agreement) plus interest, 

less a $2,000 credit that air carrier owed to pilot for four unpaid flights. 

Id. The court thereafter entered final judgment awarding air carrier 

$6,617.03 in damages plus $2,624.50 in interest, for a total of $9,241.53. 

Id. Air carrier thereafter moved for attorney’s fees pursuant to the 

prevailing party fee provision in the pilot expense training agreement. Id. 

The trial court ultimately determined air carrier did not prevail on the 

significant issues in the litigation and thus was not the prevailing party 

for purposes of an award of attorney’s fees. Id.

On appeal, air carrier argued it was entitled to attorney’s fees because 

it “prevailed on the breach of contract claim in Count I of the Amended 

Complaint which was a significant issue in litigation which achieved some 

of the benefit sought by [air carrier] in bringing suit.” Id. at 1051. In 

affirming the trial court’s determination that air carrier did not prevail on 

the significant issues in the litigation, we reasoned as follows:

Although [air carrier] established that [pilot] breached the 

Pilot Training Expense Agreement, [pilot’s] liability under the 

Pilot Training Expense Agreement was a relatively 

insignificant issue in the litigation. [Pilot] admitted in both 

the pretrial stipulation and in a deposition that he had not 
10

reimbursed [air carrier] for the training expenses that were the 

subject of the Pilot Training Expense Agreement.

The amount of damages was the real point of contention 

between the parties. [Air carrier] had sought over $20,000 in 

the litigation, but [air carrier] recovered only $6,617.03 

(excluding interest). Notably, [air carrier] sought damages 

under a voided agreement, failed to credit [pilot] for flights that 

reduced his debt, and sought an inflated amount of damages 

under the Pilot Training Expense Agreement.

. . . .

[Air carrier] failed to prevail on four out of five of its counts 

and only partially prevailed on Count I. Although [air carrier] 

prevailed on an issue of liability as to Count I, it was an issue 

that was not seriously contested and thus was not a 

significant issue in the litigation. [Pilot] largely prevailed on 

the significant issue of damages by defeating most of [air 

carrier’s] claimed damages, making the case a wash.

Id. at 1053–54 (footnotes omitted). In so holding, we reiterated that just 

because air carrier “recovered an affirmative judgment does not control the 

prevailing party determination” under Moritz. Id. at 1053.

Here, the parties did not dispute that Subcontractor completed the 

work on the office and molding buildings and failed to complete the stairs 

in the pulping building. Nor did the parties dispute the retainage amounts 

owed on the office and molding buildings. Rather, the real points of 

contention between the parties, and thus the significant issues in the 

litigation, concerned: (1) whether the subcontracts were enforceable, and 

thus whether Project Owner could apply the cross-default provisions to 

offset its damages against any amounts recovered by Subcontractor; 

(2) whether Subcontractor was properly defaulted on the pulping 

subcontract, and thus whether damages could be assessed against 

Subcontractor for the value of the stairs; (3) the reasonable value of the 

stairs; and (4) whether Subcontractor properly perfected its claims against 

the bonds. The amount of damages, therefore, was clearly a significant 

point of contention between the parties.

The trial judge ultimately found: the subcontracts, and thus the crossdefault provisions, were enforceable; Subcontractor breached the pulping 

subcontract and was properly defaulted; the reasonable value of the stairs 

was $42,414; and the claims against the bonds were not properly 
11

perfected. In light of the trial judge’s findings and application of the crossdefault provisions, Subcontractor failed to prevail on four out of five of its 

counts and only partially prevailed on Count IV (breach of the office and 

molding buildings) by obtaining a $29,483.70 judgment (excluding 

interest). Thus, as in Skylink, Defendants largely prevailed on the 

significant issue of damages by defeating most of Subcontractor’s claimed 

$102,011.70 in damages.

Yet in determining Defendants did not prevail on the significant issues 

in the litigation, the successor judge primarily relied on three factors. 

First, the successor judge concluded Subcontractor “achieved some of the 

benefit it [s]ought in bringing suit by recovering a money judgment for 

work it completed on the Project.” However, the mere fact that 

Subcontractor recovered an affirmative judgment does not control the 

prevailing party determination, especially in a situation like here where 

Subcontractor did not come close to recovering the damages sought in the 

complaint.

Second, the successor judge concluded Defendants were unsuccessful 

in entirely avoiding payment to Subcontractor as the amount awarded to 

Project Owner for the reasonable value of the stairs ($42,414) was 

significantly less than requested ($127,000). This reasoning, however, 

ignores the fact that Defendants nonetheless defeated most of 

Subcontractor’s claimed damages. As our Skylink holding demonstrates, 

a defendant who successfully defeats most of a plaintiff’s claimed damages 

can be considered the prevailing party, especially when the amount of 

damages is a significant point of contention between the parties.

Third, the successor judge concluded the subcontracts’ enforceability 

was not a significant issue because that issue did not determine “the 

overall outcome of this action, nor the amount of damages the Court 

awarded.” This conclusion, however, is contrary to the trial judge’s finding 

in the merits judgment that “the primary dispute is over which contract 

controls.” Moreover, the enforceability of the subcontracts, and in turn 

the cross-default provisions, significantly impacted the amounts 

ultimately recovered by Subcontractor. For example, as a result of 

applying the $42,414 awarded to Project Owner on its counterclaim as a 

setoff against Subcontractor’s damages pursuant to the cross-default 

provisions, judgment was entered in favor of Contractor and Project Owner 

on Count III (breach of pulping subcontract). Likewise, as to Count IV 

(breach of office and molding subcontracts), Subcontractor received a 

reduced amount of damages after the remaining setoff was applied. Thus, 

as a result of the cross-default provisions, Subcontractor received none of 

the benefit which it had sought on Count III and received only a portion of 
12

the benefit which it had sought on Count IV. The enforceability of the 

subcontracts was therefore not only a significant issue in the litigation, 

but also significant to the prevailing party determination. See Hayward 

Baker, Inc. v. Westfield Ins. Co., 313 So. 3d 772, 775 (Fla. 2d DCA 2020) 

(holding that the ruling on the setoff issue “was pivotal to the prevailing 

party determination” because “[t]he result of applying the setoff against 

[plaintiff’s] damages award was that [plaintiff] received none of the benefit 

it sought in the litigation”).

Under these circumstances, we hold the successor judge abused its 

broad discretion in determining Defendants were not the prevailing party 

for purposes of an award of attorney’s fees under the subcontracts.

2. Section 713.29, Florida Statutes

Defendants next argue the successor judge erred in declining to award 

attorney’s fees to the two sureties, Philadelphia and Suretec, under section 

713.29, Florida Statutes (2017). We agree.

Section 713.29, Florida Statutes (2017), governs the award of attorney’s 

fees in actions to enforce a claim against a bond and states:

In any action brought to enforce a lien or to enforce a claim 

against a bond under this part, the prevailing party is entitled 

to recover a reasonable fee for the services of her or his 

attorney for trial and appeal or for arbitration, in an amount 

to be determined by the court, which fee must be taxed as part 

of the prevailing party’s costs, as allowed in equitable actions.

§ 713.29, Fla. Stat. (2017).

In determining which party prevailed for purposes of an award of 

attorney’s fees under section 713.29, courts apply the “significant issues” 

test set forth in Moritz. See Newman, 208 So. 3d at 317. In applying the 

“significant issues” test to section 713.29 attorney’s fees, courts have held 

that when a defendant successfully resists enforcement of a lien yet is 

nevertheless found liable in damages in the same case, the defendant is 

not considered the prevailing party for purposes of section 713.29

attorney’s fees. See Prosperi, 626 So. 2d at 1362 (“[I]t was obviously not 

the intent of the legislature to award attorneys’ fees to a defendant in a 

mechanics’ lien foreclosure merely because he successfully defends 

against the impression of a lien yet is nevertheless found liable in damages, 

in the same case, for labor and/or materials furnished for his benefit.” 

(alteration in original) (citation omitted)).
13

In the present case, the sureties successfully resisted enforcement of 

Subcontractor’s lien against the payment bonds, thereby prevailing on the 

only claims asserted against them. Moreover, the sureties were not 

otherwise found liable to Subcontractor for damages, unlike Contractor 

and Project Owner, and thus the sureties were the prevailing party for 

purposes of entitlement to attorney’s fees under section 713.29, Florida 

Statutes (2017). See AAA Sod, Inc. v. Weitzer Corp., 513 So. 2d 750, 750–

51 (Fla. 4th DCA 1987) (holding that although the plaintiff contractor 

obtained a money judgment against the owner, the contractor did not 

prevail on its claim against the surety to enforce its lien against the bond 

and therefore the surety was entitled to prevailing party attorney’s fees 

under section 713.29, Florida Statutes); M & P Concrete Prods., Inc. v. 

Woods, 590 So. 2d 429, 430 (Fla. 4th DCA 1991) (reiterating that the 

reason why the surety in AAA Sod, Inc. was entitled to prevailing party 

attorney’s fees was because “like the owner, it was successful in defeating 

the contractor’s claim of lien but, unlike the owner, the judgment for 

damages against the owner was not likewise against the surety” and “[s]o 

the surety was the prevailing party under the lien statute”).

Accordingly, we hold the successor judge erred in denying the sureties 

attorney’s fees under section 713.29, Florida Statutes (2017).

3. Section 768.79, Florida Statutes

Defendants lastly argue the successor judge erred in denying their 

request for attorney’s fees under section 768.79, Florida Statutes (2021). 

We agree.

Section 768.79, Florida Statutes (2021), creates a mandatory right to 

attorney’s fees where a plaintiff refuses to accept a proposal for settlement 

from the defendant and the ensuing final judgment is either one of no 

liability or is at least 25% less than the defendant’s offer to the plaintiff. 

§ 768.79(1), Fla. Stat. (2021). “[T]he offer-of-judgment statute operates to 

penalize a party who refuses to accept a good-faith, reasonable proposal 

for settlement as reflected in the ensuing final judgment.” Coates v. R.J. 

Reynolds Tobacco Co., 365 So. 3d 353, 356 (Fla. 2023).

We first address the successor judge’s finding that the proposal for 

settlement was not made in good faith due to the temporal proximity of the 

offer to the trial date, and the fact that Defendants later moved to amend 

their affirmative defenses to purportedly assert an “argument that would 

materially reflect how they perceived Plaintiff’s damages in this case.”
14

Section 768.79(7)(a), Florida Statutes (2021), permits a trial court to 

disallow an award of attorney’s fees if it finds the offeror did not make its 

offer in good faith. A good faith determination, in turn, “rests on whether 

the offeror has a reasonable foundation on which to base the offer. ‘[S]o 

long as the offeror has a basis in known or reasonably believed fact to 

conclude that the offer is justifiable, the good faith requirement has been 

satisfied.’” Arrowood Indem. Co. v. Acosta, Inc., 58 So. 3d 286, 289 (Fla. 

1st DCA 2011) (alteration in original) (internal citations omitted). 

“Whether the offeror has a reasonable basis to support the offer is 

‘determined solely by the subjective motivations and beliefs of the offeror.’” 

Id. (citation omitted).

Regarding the timing of the offer, no evidence suggests the mere timing 

of the offer diminished Defendants’ reasonable foundation upon which 

they based their offer. See Liggett Grp., Inc. v. Davis, 975 So. 2d 1281, 

1285 (Fla. 4th DCA 2008) (holding that the timing of the offer “in and of 

itself was insufficient proof to warrant further discovery on the issue of 

good faith”); Progressive Select Ins. Co. v. Kagan Jugan & Assocs., P.A., 348 

So. 3d 1168, 1173 (Fla. 2d DCA 2022) (“Progressive’s offer reflected its 

legally correct belief that it was not liable. The timing of the offer did not 

diminish Progressive’s reasonable foundation upon which it based its 

offer.”). If anything, Defendants apparently were attempting to 

compromise on the setoff amount in an effort to avoid further litigation, 

which is the very purpose of the statute. See Kuhajda v. Borden Dairy Co. 

of Ala., LLC., 202 So. 3d 391, 395 (Fla. 2016) (“The purpose of section 

768.79 is to ‘reduce litigation costs and conserve judicial resources by 

encouraging the settlement of legal actions.’” (citation omitted)).

Regarding Defendants’ actions after the offer was rejected, the record 

reflects that the day prior to trial, Defendants moved to amend one of their 

affirmative defenses. Specifically, they sought to amend their preexisting 

setoff defense to clarify “that under either legal or equitable theory [they] 

would be entitled to setoff” for the pulping stairs. The trial judge denied 

the motion to amend, reasoning, in part, that the amendment did not 

appear necessary. From these actions, the successor judge concluded 

Defendants’ offer was not made in good faith because the amendment 

sought “to materially reflect how they perceived Plaintiff’s damages in this 

case.” This conclusion is simply not true, as the amendment merely 

sought to clarify Defendants’ preexisting setoff defense and did not 

otherwise seek to change how Defendants perceived Subcontractor’s 

damages.

We next address the successor judge’s finding that none of the 

Defendants were entitled to recover attorney’s fees under the joint proposal 
15

because the amount offered by Contractor—$0—was not 25% more than 

the amount recovered by Subcontractor.

Florida Rule of Civil Procedure 1.442(c) governs the form and content 

of a proposal for settlement. In relevant part, rule 1.442(c)(3) allows joint 

proposals under certain conditions and requires that the proposal “state 

the amount and terms attributable to each party.” Generally, in order to 

obtain attorney’s fees under a rejected joint proposal for settlement, the 

verdict as to each defendant/offeror must be of no liability or at least 25% 

less than the amount offered by each individual offeror. See Hoang Dinh 

Duong v. Ziadie, 153 So. 3d 354, 360 (Fla. 4th DCA 2014) (holding, in the 

context of an “all of nothing” joint proposal, that “if the verdict for any of

the claimants was not twenty-five percent higher than the amount of that 

claim in the settlement proposal, then none of the claimants could obtain 

attorney’s fees under its terms”).

In the present case, although the amount offered by Contractor—$0—

was not 25% more than the amount Subcontractor recovered against 

Contractor, Defendants were nonetheless entitled to attorney’s fees under 

section 768.79, Florida Statutes (2021). This is because Subcontractor 

sought the same indistinguishable amount of damages from each 

Defendant. Moreover, Contractor’s liability in this case was strictly 

technical considering Project Owner previously assumed the subcontracts 

and all liabilities thereunder, and the sureties’ liability was strictly 

vicarious. Under these circumstances, Defendants were not required to 

apportion the offer amount in their joint proposal, let alone demonstrate 

that the individual amounts set forth in the proposal for each Defendant 

was at least 25% more than the judgment amount. See Fla. R. Civ. P. 

1.442(c)(4) (“Notwithstanding subdivision (c)(3), when a party is alleged to 

be solely vicariously, constructively, derivatively, or technically liable, 

whether by operation of law or by contract, a joint proposal made by or 

served on such a party need not state the apportionment or contribution 

as to that party.”); Webjet Linhas Aereas S.A. v. ZGA Aircraft Leasing, Inc., 

No. 3D22-1736, 2024 WL 1183572, at *3 (Fla. 3d DCA Mar. 20, 2024) 

(“When, as here, a plaintiff alleges that one of the two defendants being 

sued is solely constructively liable for damages caused by the other named 

defendant’s conduct, apportioning a joint proposal’s settlement offer 

between the two offerors is entirely unnecessary and serves no meaningful 

purpose.”); Strahan v. Gauldin, 756 So. 2d 158, 161 (Fla. 5th DCA 2000)

(holding plaintiff “could not logically apportion his offer among the [two 

defendants] because each of the individual defendants were liable for the 

entire amount of damages”), abrogated on other grounds by Allstate Ins. 

Co. v. Sarkis, 800 So. 2d 6 (Fla. 5th DCA 2001).
16

Accordingly, as the total amount awarded to Subcontractor 

($36,304.51 inclusive of interest) was at least 25% less than the total 

proposal amount ($62,000), Defendants were entitled to an award of 

attorney’s fees under section 768.79, Florida Statutes (2021).

Conclusion

For the reasons set forth in this opinion, we reverse the entitlement 

order and fee judgment, and remand for the successor judge to: (1) enter 

an order awarding attorney’s fees and costs to all Defendants pursuant to 

section 768.79, Florida Statutes (2021), to Contractor and Project Owner 

pursuant to the subcontracts, and to Philadelphia and Suretec pursuant 

to section 713.29, Florida Statutes (2017); and (2) conduct further 

proceedings to determine the reasonable amounts of attorney’s fees and 

costs to award Defendants.

Reversed and remanded.

GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.