In short: Yes. After an arbitrator twice found no prevailing party in a construction lien dispute, opposing counsel kept asking the circuit court to declare his client the winner. The Third DCA held that position was unsupported by existing law and reversed the denial of section 57.105(1)(b) fees, ordering fees paid by the attorney, not the client.
The Facts
Diane and Thomas Wells hired Halmac Development, Inc. in 2008 for construction work on their Coral Gables home and fired the company in 2009. Halmac recorded a construction lien and sued to foreclose it. The parties agreed to arbitrate. The Wellses counterclaimed against Halmac and asserted a fraudulent lien claim against Hector Castro individually, which the arbitrator dismissed during the hearing. The parties agreed the arbitrator would decide who, if anyone, was the prevailing party.
The arbitrator found no prevailing party, relying on the Florida Supreme Court’s decision in Trytek v. Gale Industries, and a modified award denied Castro’s request to be declared the prevailing party. When the trial court sent that question back, the arbitrator again found neither Castro nor the Wellses prevailed. Castro then asked the circuit court to declare him the prevailing party, relying on Hollub v. Narula, and the court did. The Third DCA quashed that order on mandamus in 2013 (Wells v. Castro). The Wellses then sought section 57.105 fees, but the trial court denied them, finding Castro had a colorable claim and reasoning that fees are inappropriate when a party wins at trial but loses on appeal.
The Decision
The Third District reversed. It explained that Hollub does not require a prevailing party in every construction lien case, and that Trytek had rejected that idea and held Hollub does not control when the parties agree to let an arbitrator decide prevailing-party status. Because Trytek was settled law well before the arbitration, and the arbitrator expressly relied on it, Castro’s counsel knew or should have known that asking the court to declare Castro the prevailing party was not supported by existing law.
The trial court’s colorable-claim finding was legal error, and its view that fees are never appropriate when a party wins below but loses on appeal skipped the required analysis. The court directed entry of an order granting the Wellses entitlement to fees under section 57.105(1)(b) from February 14, 2012, the date of the arbitrator’s remand order, with the amount to be set by the trial court and paid solely by Castro’s counsel.
The Law
Under section 57.105(1)(b), Florida Statutes, a court must award fees when a losing party or its lawyer knew or should have known that a claim or defense would not be supported by the application of then-existing law to the material facts. Section 57.105(3)(c) bars a (1)(b) award against a represented party, which is why the fees here were taxed only against counsel. Section 57.105(3)(a) protects good-faith arguments to extend or change the law that have a reasonable expectation of success.
In construction lien cases, section 713.29 awards fees to the prevailing party, but Trytek holds a court is not required to find one in every case. Once parties agree that an arbitrator will decide prevailing-party status, the award can be modified or vacated only on the narrow grounds in Florida’s arbitration code, now sections 682.13 and 682.14.
Current law (2026): Sections 57.105, 713.29, 682.13 and 682.14 remain in effect in 2026 in substantially the same form for purposes of this post.
Lessons
- If you agree to let an arbitrator decide who prevailed, expect that decision to be final except on narrow statutory grounds.
- Lawyers who press a position that settled law forecloses risk personal liability for the other side’s fees under section 57.105(1)(b).
- "Colorable claim" and good faith are not the test under (1)(b); the question is whether existing law supported the position.
- A construction lien case can end with no prevailing party, and no fee award, for either side.
Source: Wells v. Halmac Development, Inc., No. 3D15-1081 — Fla. 3d DCA (April 13, 2016).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
§57.105 Sanctions After Arbitration: Was the Fee Motion Frivolous? | Wells v. Halmac, 3D15-1081
Go Deeper
- When a Lawyer Misses Deadlines: Sanctions, Show-Cause Orders, and What Clients Can Do
- Why Florida Judges Are Rushing to Close Cases: Rule 1.200 and the New Case Management
Frequently Asked Questions
Can a Florida lawyer be personally sanctioned for a frivolous position?
Yes. Section 57.105(1)(b) authorizes fees when a lawyer knew or should have known a claim or defense was not supported by existing law. A represented client cannot be charged for a (1)(b) violation, so in Wells v. Halmac the entire award was assessed against the opposing attorney.
Must there always be a prevailing party in a Florida construction lien case?
No. The Florida Supreme Court in Trytek v. Gale Industries held courts are not required to find a prevailing party in every lien case. In Wells v. Halmac, the arbitrator found no prevailing party, and the Third DCA held there was no legal basis to override that finding.
Can a court overturn an arbitrator's attorney's fee or prevailing party ruling?
Only on narrow grounds. When the parties submit prevailing-party status to the arbitrator, the award can be modified or vacated only as Florida’s arbitration code allows, such as for fraud, evident partiality, or the arbitrator exceeding his powers. Disagreement with the result is not enough.
When do section 57.105 fees start to run?
From the point the claim or defense became unsupported. In Wells v. Halmac, the Third DCA set entitlement from February 14, 2012, the date the arbitrator’s remand order again found no prevailing party, and left the amount to the trial court.
Talk to a Florida civil litigation and appeals lawyer
Weidner Law, P.A. has handled Florida civil litigation and appeals for more than 25 years. If you need a civil litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
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