Construction Lien and Arbitration Provision – Can a contractor recover attorney fees in a lien foreclosure action where the contract contains an arbitration provision?

Yes, however it is critical for the contractor to file its lien foreclosure action in court.  In Snell v. Mott’s Contracting Services, Inc., 141 So. 3d 605 (Fla. 2d DCA 2014), Snell hired Mott’s to perform remodeling working.  The contract contained an arbitration provision but no provision for prevailing party attorney fees.  A dispute arose and Mott’s recorded a construction lien.  Snell filed a complaint in county court to contest the validity of the lien.  Mott’s moved to stay the action and compel arbitration – but never filed a lien enforcement action.  The county court granted the motion to stay and compelled arbitration.

The arbitration award was in favor of Mott’s and held that Mott’s was entitled to a reasonable attorney’s fee award.  Mott’s filed the arbitration award and moved the court to confirm the award and enter final judgment determining Mott’s entitlement to attorneys’ fees.  The county court confirmed the arbitration award as to the amount awarded to Mott’s but found that Mott’s was not entitled to attorneys’ fees under section 713.29, Florida Statutes, because it failed to take any action to foreclose the claim of lien within the statutory time period.

On appeal, the Second District Court of Appeal affirmed the county court’s decision.  The court held that 713.29, Florida Statutes, only authorizes an award of attorneys’ fees where a contractor brings an action to enforce a construction lien “in a court of competent jurisdiction” within the statutory time requirements.  Arbitration is not a “court of competent jurisdiction”.  Since Mott’s failed to satisfy the requirements of the statute, it could not recover its attorneys’ fees.