Florida/Georgia Personal Injury & Workers Compensation

...ailed to provide Hodusa with the contractor's affidavit referred to in section 713.06(3)(d)1, Florida Statutes (1987). Abray on the other hand claims that it was not required to furnish the affidavit, because subdivision improvements are governed by section 713.04, Florida Statutes, and that section does not include an affidavit requirement applicable to a lienor in privity with the owner. It is true that the contractor's affidavit requirement is not found in section 713.04 but in section 713.06, entitled "Liens of persons not in privity; proper payments." Hence, at first blush it would seem that no part of section 713.06 would be applicable in the presence of privity; that, however, is not the case....

...vity with the owner and claims a lien under this section shall furnish the contractor's affidavit required in s. 713.06(3)(d)." In recognition of the interplay of the various sections of the mechanics' lien statutes, our court has held that sections 713.04 and 713.06 must be interpreted together....

...Davis Water and Waste Industries, Inc., 455 So.2d 1164 (Fla. 2d DCA 1984); Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc., 454 So.2d 701 *1101 (Fla. 2d DCA 1984). As Judge Boardman wrote in Sewer Viewer, 454 So.2d at 702: ... we consider that the purpose of section 713.04 is simply to provide less restrictive notice requirements for persons who, regardless of privity, are entitled to a lien for subdivision improvements, and to make provision for the attachment of such liens on abutting properties where the improvements are to lands dedicated to the public. We do not consider that the legislature intended to create a separate category of lien for subdivisions in regard to the manner, amount, and extent of a lien perfected under section 713.04....

...The surety defended on the grounds that the plaintiff had failed to effect a legally sufficient notice to the owner and that the claim as against the surety was untimely due to untimely joinder. The trial court held that the materials supplied were used for "subdivision improvements" as that term is defined in section 713.04, Florida Statutes (1973), [1] and that therefore no notice to the owner was required....

...Secondly, the petitioner argued that it should not be held liable on its bond because its joinder as defendant was not timely under section 713.22(1), Florida Statutes (1973). [2] The district court held that a lienor, not in privity with the owner, who furnishes materials for subdivision improvements under section 713.04, is not required to serve a notice on the owner....

...1st DCA 1978). The court certified that its decision on the notice issue passed on a question of great public interest, and framed the question as follows: Is a lienor, not in privity with the owner, who furnishes materials for subdivision improvements under § 713.04 of the Florida Statutes (1975) required to serve a notice on the owner as directed by § 713.06(2) of the Florida Statutes (1975)? We affirm the district court and adopt its reasoning on both issues. Section 713.04, dealing with subdivision improvements, establishes a class of liens separate from the others provided for in chapter 713, part I. There is no requirement of serving notice on the owner under section 713.04....

...statute or prejudice the surety in any way. The certified question is answered in the negative. The decision of the district court is approved. It is so ordered. *166 ENGLAND, C.J., and ADKINS, OVERTON, SUNDBERG and ALDERMAN, JJ., concur. NOTES [1] Section 713.04 contains no requirement of a notice to the owner of the land and provides in part as follows: 713.04 Subdivision improvements....

...In the case at bar, materials were furnished for subdivision improvements by a lienor not in privity. Chapter 713.02 Fla. Stat. (1975) defines eight different classes of potential lienors and the ensuing sections chronologically deal with each class. Thus, § 713.03 concerns itself with liens for professional services, § 713.04 applies to subdivision improvement lienors, § 713.05 deals with lienors in privity, and § 713.06 discusses liens of persons not in privity....

...We agree with the trial judge, but concede that the statutory language is confusing because these successive sections of the chapter, quoted *226 above, do not handle the question of notice to owner, uniformly. Thus we see that: (1) § 713.03 specifically states that no notice is required. (2) § 713.04 is silent on whether notice is required or not. (3) § 713.05 again states that no notice is required. (4) § 713.06 states that notice to owner is required. From the above four line analysis, it should be easy to conclude that, because § 713.04 (the one we are here concerned with, re subdivision improvements) does not require notice to owner, the legislature did not intend that such had to be given under that section....

...However, the lienor in our case was also not in privity with the owner and accordingly the appellant argues that he is therefore also covered by § 713.06, which does require the notice. Nonetheless, it is still our conclusion that notice is not required in this case. The first sentence of § 713.04 begins, "Any lienor who, regardless of whether in privity ... furnishes material to real property for the purpose... ." (emphasis supplied). It is our opinion that by reason of this language, the lienor in the instant case falls squarely under § 713.04 and not § 713.06. The appellant also argues that since both § 713.03 and § 713.05 specifically state that no notice is required, the concomitant failure to so state in § 713.04 should be interpreted to mean that it is required under this latter section....

...Accordingly, we certify the following determinative question to the Supreme Court of Florida, deeming it to be a question of great public interest: IS A LIENOR, NOT IN PRIVITY WITH THE OWNER, WHO FURNISHES MATERIALS FOR SUBDIVISION IMPROVEMENTS UNDER § 713.04 OF THE FLORIDA STATUTES (1975) REQUIRED TO SERVE A NOTICE ON THE OWNER AS DIRECTED BY § 713.06(2) OF THE FLORIDA STATUTES (1975)? The appellant also argues that the joining of the surety company as a defendant in the action was untimely; t...

...not for foreclosure of a mechanic's lien. Therefore the judgment as to the amount of damages is affirmed. The judgment as to the award of attorney's fees is reversed. CROSS and SHARP, JJ., and BROWNLEE, JACKSON O., Associate Judge, concur. NOTES [1] Section 713.04, Fla....

...No privity of contract existed between appellant and the owner. After completing its work, appellant submitted bills totaling $6,280.90 to the contractor for payment, which was not forthcoming. Appellant timely recorded its claim of lien against appellee's property under section 713.04, Florida Statutes (1981), and brought the instant foreclosure action as a subcontractor providing labor and materials for subdivision improvements....

...ining due the general contractor. After a nonjury trial, the court below entered a final judgment which limited appellant's recovery to $3,880 and denied appellant's claim for attorney's fees and court costs. Appellant argues that we should construe section 713.04, Florida Statutes (1981), to determine its relationship with the remainder of chapter 713, part I....

...the total amount of all liens held by persons not in privity with the owner to the price *702 fixed in the direct contract, apply to lienors making subdivision improvements. We conclude that they do. In so concluding, we consider that the purpose of section 713.04 is simply to provide less restrictive notice requirements for persons who, regardless of privity, are entitled to a lien for subdivision improvements, and to make provision for the attachment of such liens on abutting properties where the improvements are to lands dedicated to the public. We do not consider that the legislature intended to create a separate category of lien for subdivisions in regard to the manner, amount, and extent of a lien perfected under section 713.04. Our supreme court in American Fire & Casualty Co. v. Davis Waste & Water Industries, Inc., 377 So.2d 164 (Fla. 1979), a decision which construed a prior version of section 713.04 as exempting lienors making subdivision improvements from the requirement of serving a notice to owner, adopted the reasoning of the Fourth District in American Fire & Casualty Co. v. Davis Waste & Water Industries, Inc., 358 So.2d 225 (Fla. 4th DCA 1978), that section 713.04 "establishes a class of liens separate from the others provided for in chapter 713, part I." 377 So.2d at 165. [2] Accord Mershon v. Buckles-Thompson, Inc., 383 So.2d 280 (Fla. 5th DCA 1980) (section 713.04 creates "subdivision exception" to notice to owner requirement); Baumgartner Construction Co. v. Harrell, 364 So.2d 802 (Fla. 1st DCA 1978) (reading section 713.04 in pari materia with section 713.06 mandates the conclusion that untimeliness of notice to owner served by lienor furnishing labor and materials for subdivision improvements did not bar recovery under section 713.04)....

...Raymundo, 447 So.2d 324 (Fla. 4th DCA 1984), that the general contractor's failure to furnish the owner a contractor's affidavit pursuant to section 713.06(3)(d)(1), Florida Statutes (1981), did not bar the contractor's recovery on a lien arising under section 713.04. All of the above-cited cases, however, deal with the less restrictive procedural requirements of section 713.04, and not the "quality" or "quantity" of lien acquired. See Pembroke Villas at 325-327 (Walden, J., concurring specially) (legislature did not intend to create new class of lienors through enactment of section 713.04; statute merely attempts to ameliorate particular problems inherent in subdivision development)....

...Section 713.06(1) provides: The total amount of all liens allowed under part I for furnishing labor, services, or material covered by any certain direct contract shall not exceed the amount of the contract price fixed by the direct contract except as provided in subsection (3). Section 713.04 is obviously contained in part I of chapter 713....

...ng to liens acquired in regard to subdivisions. Section 713.23 again makes reference to part I. The payment bond authorized under that section is required to be "in at least the amount of the original contract price." Thus, it seems clear to us that section 713.04 was not meant to allow the cumulative total of liens thereunder to exceed the contract price where there is a contract price, except as provided in section 713.06(3). However, even though we hold that the limitations of section 713.06(1) do apply to liens arising under section 713.04, a factual question requires our reversal of the trial court's judgment....

...CASE SUMMARY The appellants (Baumgartners) appeal from a final judgment foreclosing a mechanics lien in favor of appellee (Harrell). We affirm in part and reverse in part. FACTS The Baumgartners contracted with "M" Enterprises ("M") to make their real property suitable for improvements as defined in Section 713.04, Florida Statutes (1975)....

...ty with them and pursuant to Section 713.06(2), Florida Statutes (1975), and Booth v. Lombardi, Inc., 309 So.2d 51 (Fla. 2d DCA 1975), he was required to file and serve notice to owners in order to perfect his lien. Harrell contends that pursuant to Section 713.04, Florida Statutes (1975), and American Fire & Cas....

...Co., supra, and reject that of Booth. Notice to owners need not be given when the materials furnished relate to subdivision improvements. Harrell (lienor) furnished materials for subdivision improvements to the Baumgartners (owners) with whom he was not in privity. Section 713.04 which applies to subdivision improvement lienors does not require notice to owners. Section 713.06(2) which applies to lienors not in privity with owners requires the notice to owners. However, only Section 713.04 applies here because its first sentence clearly states that it applies to lienors, regardless of privity, who furnish materials for subdivision improvements....

...concludes that the notice be filed as provided in Section 713.13, Florida Statutes (1975). However, Section 713.13(4), Florida Statutes (1975), clearly states that Section 713 does not apply to an owner who is constructing improvements described in Section 713.04....

...Although the trial court was correct in its holding that under Section 713.07(1), Harrell's lien being the first recorded, attached and took priority at that time, it would make no difference because the Baumgartners failed to plead and prove a setoff against Harrell's lien. Section 713.07(1) states that liens under Section 713.04 shall attach at the time of recordation and shall take priority at that time....

...The lower court heard the evidence of the parties on the issue or privity and resolved the conflicts therein in favor of the appellees Lombardi. We have carefully reviewed the evidence and can find no legal reason for overruling the chancellor's conclusion that no such privity existed. Appellant contends that under § 713.04 of the Mechanics' Lien Law, in order to perfect his claim of lien he does not have to be in privity with the owner or give notice to the owner under § 713.06(2)....

...of the filing of said notice which are not consumed by other claimants having greater priority. Finally, we note appellee's contention that he was not required to file notice to owner because his work which involved hauling, etc., brought him under Section 713.04, Florida Statutes (1977). We believe appellee's position to be erroneous. Section 713.04, by its very term, applies to subdivision improvements....

...First, appellants argue that the trial court erred by granting a materialman's lien based upon a pro rata formula pursuant to section 713.06(4)(b), Florida Statutes (1981), when the construction project in question involved a subdivision development governed by sections 713.04 and 713.07, Florida Statutes (1981)....

...nt against appellants based on pro rata distribution. We find that the trial court did not err by ordering pro rata distribution according to section 713.06(4)(b), Florida Statutes. Appellants essentially argued that subdivision liens under sections 713.04 and 713.07 are independent of the other provisions of chapter 713, part I, so that the pro rata distribution provisions of section 713.06(4)(b) could not apply. There is no merit to this argument. Sections 713.04 and 713.07 provide for less restrictive notice requirements for subdivision liens and a means for attaching liens where the improvements were on lands dedicated to the public. Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc., 454 So.2d 701 (Fla. 2d DCA 1984). There is no alternative method of distribution described in section 713.04, nor 713.07. The rest of chapter 713, part I, except as excluded by sections 713.04 and 713.07, applies to subdivision liens....

...in a mechanic's lien foreclosure where the claim of lien had been transferred to a bond pursuant to section 713.24, Florida Statutes (1983). In deciding this appeal, we are again called upon to consider the interrelation and interaction of sections 713.04 and 713.06, Florida Statutes (1983), as we did in International Community Corporation v....

...Davis Water and Waste Industries, Inc., 455 So.2d 1164 (Fla. 2d DCA 1984) and Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc., 454 So.2d 701 (Fla. 2d DCA 1984). We find those cases controlling in regard to our decision here, and based partially on their authority and on the express language of section 713.04, we affirm....

...All payments had been made to the general contractor prior to appellant recording its claim of lien. Those payments, together with the necessary costs to complete the contract, exceeded the original contract price. Appellant argues that in enacting Florida Statute 713.04, entitled Subdivision Improvements, the legislature failed to make clear whether the "proper payment" requirements of 713.06 were applicable to 713.04. Section 713.04 does away with the notice requirements of 713.06, which require an owner to record a notice of commencement, and a lienor, not in privity with the owner, to send notice to the owner....

...hanic's lien statute are separate and distinct, or whether they are to be read and interpreted together. This argument is contrary to our holdings in International Community Corporation and in Sewer Viewer, wherein we specifically held that sections 713.04 and 713.06 must be interpreted together. It appears, as we held in those cases, that the primary intent of the legislature in enacting 713.04 was to provide for less restrictive notice requirements for subdivision liens....

...e to owner. Specifically, appellant argues that once the notice to owner was filed, even though not required, all payments made thereafter would be improper. Again, we cannot agree with appellant's argument. We cannot ignore the specific language of section 713.04, which unequivocably states that "[N]o lien under this section shall be acquired until a claim of lien is recorded. No notice of commencement shall be filed for liens under this section. No lienor shall serve a notice to owner for liens under this section." By reason of these mandatory provisions of section 713.04, the only operative action in regard to proper or improper payments is the recording of the claim of lien....

...Nash furnished water mains, drainage facilities, sewers and utilities at the park. Suter installed air conditioning units in the mobile homes. Since Nash's work benefited all the lots in the mobile home park, its mechanic's lien claim is governed by Florida Statute § 713.04 (subdivision improvements). Suter's work benefited only the individual lot on which improvements were made and it is in privity with debtor, therefore, its lien claim is governed by Florida Statute § 713.05 (liens of persons in privity). Both §§ 713.04 and 713.05 grant one who performs services or furnishes materials the right to a lien on the real property for any money that is owed for such services or materials. The difference between the two statutes is the time the lien attaches and takes priority. A lien based on Florida Statutes § 713.04 attaches and takes priority as of the date the claim of lien is recorded....

found the Appellant/Lienor to be subject to Section 713.04, Florida Statute (1975) as there is competent

...Appellee fell behind schedule and, with GDC’s permission, hired appellant and others to assist with the job. A dispute arose over how much money appellee owed appellant for the work, and *598 appellant filed a claim of lien against the subdivision property. See § 713.04, Fla....

...reclosure of Marks’ mechanics’ lien. We agree with Marks’ assertion that the trial court erred in failing to grant fore *257 closure of the mechanics’ lien on Park’s property. By statutory definition, the work performed by Marks fell under § 713.04, Fla.Stat....

...ll be entitled to a lien on the real property for any money that is owed to him for his services or materials. The work of making real property suitable as the site of any improvement shall include .... the paving of streets, curbs and sidewalks.... § 713.04, Fla.Stat. (1985). We conclude that the trial court erred by improperly applying the proper payments provisions of § 713.06(3), Fla.Stat. (1985), to the provisions of § 713.04, Fla.Stat. (1985). Section 713.04 is silent as to the applicability of the proper payments provisions of section 713.06, and we conclude the legislature did not intend for the proper payments provision to apply to section 713.-04....

...In American Fire & Casualty Co. v. Davis Water & Waste Industries, Inc., 358 So.2d 225 (Fla. 4th DCA 1978), approved, 377 So.2d 164 (Fla.1979), this court held that the provisions of § 713.06(2), Fla.Stat. (1975), do not apply to a lienor under § 713.04....

...er is that it was an unnecessary precaution. Had these two sections remained silent on the subject, the result should have been the same. American Fire & Casualty, 358 So.2d at 226 . The same logic applies in the instant case. Accordingly, since § 713.04 is silent as to the applicability of the proper payments provision, we conclude that the legislature did not intend for that requirement to apply to § 713.04. We acknowledge that our holding is in conflict with Southern Contractor Rentals, Inc. v. Broderick, 476 So.2d 1376 (Fla. 2d DCA 1985), wherein the Second District held that the proper payments provision of § 713.06 applied to § 713.04 because the two sections must be interpreted together....

PER CURIAM. Appellant appeals from the entry of a summary judgment which found for appellee Zephyr Egg Company in appellant’s action to enforce a mechanic’s lien. Appellant relies upon section 713.04, Florida Statutes (1983) to excuse its failure to serve a notice to owner as required by section 713.06, Florida Statutes (1983). Appellant’s improvements to the real property in question were not done in regard to subdivision improvements. The trial court, in granting summary judgment for appel-lee Zephyr Egg, ruled that section 713.04 was limited to subdivision improvements....

...2d DCA 1985); International Community Corporation —Tampa v. Davis Water and Waste Industries, Inc., 455 So.2d 1164 (Fla. 2d DCA 1984), and Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc., 454 So.2d 701 (Fla. 2d DCA 1984). While the text of section 713.04 does not specifically refer to subdivision improvements, section 713.02 makes it clear that section 713.04 is limited to liens for that kind of work....

...Following a dispute over a site development contract, appellee, the owner of the improved property, refused to pay the final draw. Appellant filed a claim of lien on February 11, 1983, less than ninety days after the completion of the last work on the project. See § 713.04, Fla.Stat....

...Pembroke appeals alleging that the plaintiff is not entitled to a lien because it failed to furnish Pembroke a contractor’s affidavit pursuant to Section 713.06(3)(d)(l), Florida Statutes (1981). There is no dispute that an affidavit was not furnished. Raymundo’s services fall within the category of lienors described in Section 713.04, Florida Statutes (1981)....

...That section of the Mechanic’s Lien Law is silent on whether or not a contractor’s affidavit is required. All other sections of the statute are very specific on whether or not the contractor’s affidavit is required. We hold that because the Legislature chose not to specifically require an affidavit under Section 713.04, no affidavit is required....

...We acknowledge that our holding is in conflict with Southern Contractor Rentals, Inc. v. Broderick, 476 So.2d 1376 (Fla. 2d DCA 1985), wherein the Second District held that the proper payments provision of Section 713.06, Florida Statutes (1985), applied to Section 713.04, Florida Statutes (1985), because the two sections must be interpreted together....

...(Davis) appeals an adverse final summary judgment entered on its Complaint to Foreclose a Mechanic’s Lien filed against appel-lee Embry Development Corp. (Embry). We find no error and affirm. The dispositive issue in this case involves construction of the phrase “abutting lands,” as the term is utilized in section 713.04, Florida Statutes (1989), a portion of the Florida Construction Lien Law....

...(Island Underground) to perform these improvements. Island Underground, in turn, purchased materials for such improvements from Davis. Davis is owed a balance of $6,547.47 by Island Underground. In its complaint for mechanic’s lien filed pursuant to section 713.04, Davis alleged that the materials it provided for the public sewer and water system “abutted and/or benefitted” the subdivision property owned by Embry....

...competent material of record, indicates that the public lands, otherwise described as the First Avenue Water Main Extension Project, are in actual physical contact with the Parkway North Subdivision. The applicable statutory provision is as follows: 713.04 SUBDIVISION IMPROVEMENTS (1) Any lienor who, regardless of privity, performs services or furnishes material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements shall be enti...

...When the services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land, the cost of the services *1359 and materials, if unpaid, may be the basis for a lien upon the abutting land, § 713.04, Fla.Stat....

...ly benefitted property, and fairly expansive procedural requirements are imposed by statute in the case of special assessments against benefitted property. §§ 170.02-170.08, Fla.Stat. (1989). Finding no error in the trial court’s construction of section 713.04, Florida Statutes (1989), we AFFIRM the final summary judgment in favor of Embry....