A party’s right to recover attorney’s fees incurred over the course of litigation hinges directly on whether one is deemed by the court to be the “prevailing party” at the conclusion of the case.

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 for the purpose of a contractual attorney’s fee provision is the party that prevails on the significant issues in the litigation.

In essence, there are two possible types of theories of liability in construction litigation – those arising in tort, and those arising in contract. In tort cases, the primary theory of liability would be in negligence. Contract related disputes are more commonplace at the courthouse.

Construction contracts and construction-related statutes generally provide the prevailing party with recovery of its incurred attorneys’ fees.