In a recent decision, Avatar Dev. Corp. v. DePani Construction Inc., 883 So.2d 344 (Fla. 4th DCA 2004), a Florida court held that a construction lien foreclosure claim was separate and distinct from the claim for loss of future profits. The prevailing party on each claim was entitled to attorney’s fees.
DePani, a stucco contractor, entered into a contract with Avatar to perform work on a residential development. After Avatar terminated the contract pursuant to the termination clause, DePani sued for breach of contract, future lost profits, foreclosure of a construction lien, and attorneys’ fees.
The parties settled the claim for foreclosure of a construction lien, including DePani’s entitlement to attorneys’ fees for that particular claim. DePani’s claim for future lost profits, however, hinged on the court’s interpretation of a termination clause, which stated that Avatar may terminate DePani’s services “at anytime for any reason by giving at least ten (10) days prior written notice”. In an earlier decision, the court held that clause enforceable. Avatar Dev. Corp. v. DePani Construction Inc., 834 So.2d 873 (Fla. 4th DCA 2002), rev. denied, 848 So.2d 1153 (Fla. 2003). Consequently, the court found that Avatar was the prevailing party as to the future lost profits claim, and awarded Avatar attorneys’ fees for the appeal, appellate costs, and even for attorneys’ fees associated with DePani’s request for Florida Supreme Court review.