What are the risks of counterclaims, attorney fee-shifting under Florida Statute 57.105, and lien bond requirements in a construction suit?
Construction suit counterclaim risks come in three forms. In a business dispute, the other side may respond with its own claims, and a recorded lien can affect how a property matter proceeds. Each risk turns on the contract, the lien history and the papers already filed.
Many people see a lawsuit as one claim. In practice, it’s often several claims pointing in both directions. A payment demand can start a fight over delay, defective work and what the lien is really worth.
This page is general information, not legal advice. Eduardo A. Maura is the responsible lawyer for this page. The firm handles construction litigation for businesses in Hillsborough County and the Tampa Bay area.
If you've been served with a construction suit or a lien notice, you may be facing deadlines you didn't choose. Reach out to our team to talk through your contract and filing dates. Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
How counterclaims arise in contractor and subcontractor disputes
A counterclaim is a claim the defendant files back against the party that sued. In a construction dispute, it often starts with money: who owes what, and who caused the cost.
Common subjects include:
- Unpaid balances versus backcharges. One side deducts costs it says the other caused.
- Defective or incomplete work. One side says the work did not meet the contract.
- Delay damages. One side claims extra cost from missed dates.
- Lien foreclosure defenses. A defense can turn into a claim for money of its own.
Each counterclaim can add dollars, parties and discovery. That means more depositions, more records and more cost. Plan for the case to grow, not shrink.
Contract terms also limit which claims survive. Florida courts have held that when an express contract covers the same subject matter, claims from that relationship generally can’t proceed as unjust enrichment, as Williams v. Johnson explains.
For a broader view, see our construction litigation guide.
How attorney fee-shifting under Florida Statute 57.105 works
Under Fla. Stat. § 57.105, when the court makes the required findings, it shall award the prevailing party a reasonable attorney’s fee, including prejudgment interest, paid in equal amounts by the losing party and its lawyer. The court must find that a claim or defense lacked support in the material facts, or in then-existing law, and that the party or lawyer knew or should have known it.
Fee shifting is the exception, not the rule. Florida follows the American Rule: each side generally pays its own attorney fees unless a contract or statute says otherwise, as the Florida Supreme Court explained in Price v. Tyler.
Two details matter most:
- The 21-day window. A sanctions motion must be served first. It can’t be filed with the court unless the challenged paper is not withdrawn or corrected within 21 days after service.
Contract language can also shift fees. If a contract lets a party recover fees for enforcing it, the court may allow fees to the other side when that side wins, whether as plaintiff or defendant. This applies to contracts made on or after October 1, 1988.
How lien bond requirements affect a construction suit
A recorded lien can cloud a property. It can make a sale or loan harder while the dispute is open. Owners often ask whether a bond can clear it so the property can move forward. The answer requires a look at the lien, the contract and what is recorded.
Pinellas County’s lien law information notes that a lien can pose risks to an owner’s property. Find out early which of these documents exist.
Protecting your position early in a construction suit
The most useful early step is to write down the date you were served. Then calendar every response deadline from that date.
Gather the core records: contracts, change orders, pay applications, daily logs, emails, texts and photos. Keep them in one place with a simple timeline. Organized records help when counterclaims or a fee motion arrive.
Avoid informal admissions. A text saying “we’re behind on payment” or “the work was bad” can be used later. Route questions about the dispute through a single, documented channel.
License status also matters early.
Can I be ordered to pay the other side’s attorney fees?
A court may order fees under Florida Statute 57.105 when it finds the losing party or its attorney knew or should have known that a claim or defense was not supported by the material facts or by then-existing law, with the fees paid in equal amounts by the losing party and its attorney. The statute also sets out situations where monetary sanctions may not be awarded, so whether fees apply depends on the facts of each case. A court can also award the moving party damages for its reasonable expenses, which may include attorney’s fees, when the moving party proves by a preponderance of the evidence that an action was taken primarily for the purpose of unreasonable delay.
Do I have to pay my own attorney fees?
Generally, yes. Each side usually pays its own fees unless a contract or statute says otherwise.
What is the 21-day window?
After a sanctions motion is served, the challenged paper can be withdrawn or corrected within 21 days. If it is, the motion cannot be filed.
If you’ve been served with a construction suit or a lien notice, you may be facing deadlines you didn’t choose. Reach out to our team through the contact page or call (305) 570-2208 to talk through your contract and filing dates.
