Florida/Georgia Personal Injury & Workers Compensation

...2d DCA 1969) and Broward Atlantic Plumbing Co. v. R.L.P., Inc., 402 So.2d 464 (Fla. 4th DCA 1981). Both cases, however, are inapposite. They involve subcontractors who were deemed to be in privity with the owners and, therefore, not subject to the notice to owner requirement. See § 713.05, Fla....

...owner are in fact providing improvements to the property. Because the purpose of serving notice is to alert the owner to guard against double payment, such notice will be excused only when privity exists between the owner and the subcontractor. See § 713.05, Fla....

...prerequisite for a person seeking affirmative relief under the statute.'"). I concur with part II of the opinion dealing with attorney's fees. Because I cannot agree with part I, I respectfully dissent. SHAW, C.J. and OVERTON, J., concur. NOTES [1] Section 713.05, Florida Statutes (1987), provides in pertinent part: 713.05 Liens of Persons in Privity....

...oidable to the extent that such failure or delay is shown to have been prejudicial to any person entitled to rely on it. F.S. § 713.08(4) (c), F.S.A. [9] F.S. § 713.21(3), F.S.A. [10] F.S. § 713.21(4), F.S.A. [11] F.S. § 713.22, F.S.A. [12] F.S. § 713.05, F.S.A....

...judgments entered by the trial court in favor of Jared Kane Company, Inc. ("JKC"). JKC sought foreclosure of a construction lien against the Thompsons' home after disputes arose during the home's construction. The claim of lien was filed pursuant to section 713.05, Florida Statutes (1997), which allows for the creation of a lien where the lienor is in privity with the owner....

...tion, the proposal failed as a binding agreement. Second, the trial court erred in barring Martin's claim for punitive damages. It was clear that the homeowner could not be responsible to the contractor for the full $107,208.60 lien on the property. Section 713.05, Florida Statutes (1993) states in part: [A] contractor who complies with the provisions of this part shall, subject to the limitations thereof, have a lien on the real property improved for any money that is owed to him for labor, ser...

...A contractor, such as Hobbs, who complies with the provisions of the Florida Mechanics' *674 Liens Law, Chapter 713, Fla. Stat., has a lien on the improved real property for any money that is owed to him for labor, services, materials, or other items required by, or furnished in accordance with, the direct contract. Section 713.05, Fla....

...1966), 185 So.2d 697. [2] (Fla.App.2d 1967), 193 So.2d 440. [3] Section 84.01, et seq., F.S. 1961. [4] See Richard Store Company v. Florida Bridges and Iron (Fla. 1955), 77 So.2d 632. [5] (Fla.App.3d, 1969), 219 So.2d 475. [6] Section 84.051, F.S. 1963, now § 713.05, F.S....

...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. Section 713.05, entitled "Liens of persons in privity," specifically refers to section 713.06(3)(d): "A lienor, except a laborer or materialman, who is in privity with the owner and claims a lien under this section shall furnish the contractor's affidavit required in s....

...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. Thus, because of the privity between Abray and Hodusa, Abray was required by section 713.05 to furnish Hodusa a contractor's affidavit....

...On the other hand, in Cross State Development Company v. Indepco Construction Company, Inc., 346 So.2d 127 (Fla. 1st DCA 1977), this court held that storage of a piece of machinery at the job site does not constitute the furnishing of services or labor within the intendment of section 713.05....

...e with Florida Statute § 713.08(5). A contractor in privity with the owner is granted a lien on the improved real property in the amount owed him for labor, services, materials or other items furnished in accordance with the direct contract. F.S.A. § 713.05....

...Subsequently a bench trial was held and a final judgment entered in favor of the contractor. Appellants allege that the trial court erred in entering judgment in favor of appellee, since appellee failed to serve the contractor's affidavit at least five days before instituting its lawsuit. We disagree and affirm. Section 713.05, Florida Statutes (1985), provides, in pertinent part, "A lienor ......

...maining with respect to entitlement to sue is whether the claimant has perfected his lien. Cf., Hardee v. Richardson, supra . Here, Nicholson had clearly perfected its lien by recording a claim of lien, and by giving the contractor's affidavit. See, section 713.05....

...Hoenstine filed a mechanic's lien and then sued to foreclose on the lien. A judgment for $9,700 plus $3,311.65 attorney fees was entered for Hoenstine. At the close of Hoenstine's case, Sowers moved for a directed verdict on the ground that Hoenstine failed to comply with sections 713.05 and 713.06(3)(d)(1), Florida Statutes (1979). Section 713.05 provides in relevant part that: A lienor, except a laborer or materialman, who is in privity with the owner and claims a lien under this section shall furnish the contractor's affidavit required in § 713.06(3)(d)....

...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....

...e 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....

...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....

...emphasis supplied). The lienor before us is not subject to that SECTION. The final puzzling question then, is: If each section is separate and stands alone and only § 713.06(2) mandates a notice to owner, why did the legislature under § 713.03 and § 713.05, specifically include language excusing the filing of any such notice? We believe the answer is that it was an unnecessary precaution....

...ella's intent, whether or not he willfully exaggerated the amount of the mechanic's lien. We disagree. When a contractor is owed money for either labor, services, materials, or other items used to improve real property in accordance with a contract, section 713.05, Florida Statutes (1993), allows a contractor to assert a claim of lien on the real property that he has improved....

...First Industrial Technology Corp. [FIT], the defendant below, cross-appeals from an adverse jury verdict. We affirm on the main appeal based on our conclusion that Miller does not have a valid mechanics' lien pursuant to either section 713.03, Florida Statutes (1987), or section 713.05, Florida Statutes (1987)....

...The enforcement of the mechanics' lien claim was heard by the trial court. The trial court found that Miller did not have a valid mechanics' lien. Miller contends that as a "design-builder", it has a valid mechanics' lien pursuant to either section 713.03, Florida Statutes (1987), or section 713.05, Florida Statutes (1987)....

...Section 713.01(7), Florida Statutes (1987), [4] which defines "improve", and section 713.01(8), Florida Statutes (1987), [5] which defines improvement, indicate that the sole act of furnishing drawings does not improve real property. Miller also asserts that the mechanics' lien is valid pursuant to section 713.05, Florida Statutes (1987), which provides in pertinent part as follows: "a contractor who complies with the provisions of part I shall, subject to the limitations thereof, have a lien on the real property improved for any money that is owed to him for labor, services, materials, or other items required by, or furnished in accordance with, the direct contract." § 713.05, Fla. Stat. (1987) (emphasis added). Section 713.05 also requires that the real property be improved....

...Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412 (Fla. 4th DCA 1980). Regis' second point on cross-appeal has two subparts. First, Regis contends that the trial court erred in awarding Plaza $3,110.00 in damages on its breach of contract claim. Regis, relying on section 713.05, argues that the trial court should have set off $4,387.60 from Plaza's award because Plaza owed said amount to its subcontractors. Section 713.05 states that: A contractor may claim a lien for any labor, services, or materials furnished by another lienor for which he is obligated to pay the lienor, regardless of the right of the lienor to claim a lien; but if the lienor claims a...

...transfer and is subject to subordination. Florida law requires all parties who are not in privity with the owner of the property file a notice of filing claim of lien with the owner and if appropriate with the contractor or subcontractor. Fla.Stat. § 713.05; Fla....

...ntum meruit, and no mechanics' lien could be enforced. Appellant contends that the trial court erred in refusing to enforce the construction lien. We hold that a construction lien cannot be based on a contract implied in law and as a result, affirm. Section 713.05, Florida Statutes (1997) states: a contractor who complies with the provisions of this part shall, subject to the limitations thereof, have a lien on the real property improved for any money that is owed to him or her for labor, servic...

...ecorded lien does not intervene in the proceedings, and if such proceedings are prosecuted to a judicial sale of the property described in said notice of lis pendens, the said property shall be forever discharged from all such unrecorded liens... ." § 713.05, Florida Statutes, upon which Giffen relies for its mechanic's lien expressly provides that, "No lien under this section shall be acquired until a claim of lien is recorded." Giffen contends that under the mechanic's lien law, its interest relates back to the date of the filing of the notice of commencement of construction, but the above quoted portion of § 713.05, construed in conjunction with the lis pendens statute, clearly reveals that since Giffen had not recorded the mechanic's lien at the time the lis pendens notice was filed, enforcement of its subsequently acquired lien is barred by § 48.23, Florida Statutes....

...ttorney's fees after a defendant has exercised a right of redemption as to the original final judgment, which liquidated principal and interest, but reserved jurisdiction over attorney's fees and costs. Whitaker sought to foreclose a lien created by section 713.05, Florida Statutes (1999)....

...in an amount to be determined by the court, which fee must be taxed as part of the prevailing party's costs, as allowed in equitable actions. § 713.29, Fla. Stat. (1999). Attorney's fees and costs awarded under section 713.29 are included within the lien created by section 713.05....

...Ace Cabinets of Clearwater, Inc., 700 So.2d 15, 17-18 (Fla. 2d DCA 1997) (examining section 713.06(1)). Zalay held that section 713.29 attorney's fees are included within the lien created by section 713.06(1), Florida Statutes (1999). See id. at 18. The language creating the lien in section 713.05 is almost identical to the lien creating language in section 713.06(1)....

...McMahan Construction Company, Inc. (McMahan) appeals from the dismissal of its amended complaint against Carol's Care Center, Inc., for failure to deliver to the owner (appellee), five days before filing this suit, the affidavit required by sections 713.06(3)(d) and 713.05, Florida Statutes (1983)....

...led. Accordingly, the order appealed disallowing the filing of the second amended complaint and dismissing counts two and three of the amended complaint are reversed. REVERSED AND REMANDED. ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur. NOTES [1] Section 713.05 provides, in pertinent part, "A lienor ......

...Tompkins filed this appeal and assigned as error the trial court's finding that Tompkins and Edge came into privity during the course of construction, and the resulting judgment entered against Tompkins. Edge has filed a cross appeal alleging that the award of attorneys' fee was insufficient. Section 713.05, Florida Statutes (1973) provides in part as follows: "......

...713.01(8) as the one who contracts with the owner for the purpose of improving real property, such that it is the proper lienor and may be entitled to enforce the claim of lien. See § 713.01(18)(a) (defining “lienor” as a contractor); see also § 713.05 (explaining that a contractor, as defined in section 713.01(8), who conforms with certain requirements shall have a lien based upon the contract)....

...975), the "relation back" statute, to determine if there is any statutory provision which would save Ousley Sod Company's claim of lien from the operation of the lis pendens statute. Section 713.07(2), Florida Statutes (1975) provides: "Liens under ss. 713.05 [Liens of persons in privity] and 713.06 [Liens of persons not in privity] shall attach and take priority as of the time of recordation of the notice of commencement, but in the event a notice of commencement is not filed, then such liens shall attach and take priority as of the time the claim of lien is recorded." We note that this statute is concerned only with the priority of liens. It makes no reference to the acquisition or perfection of a claim of lien. Section 713.05, Florida Statutes (1975), provides that the type of lien at issue here, a lien claimed by a person in privity with the owner, is acquired when a claim of lien is recorded....

...Appellees assert that their interest acquired by a warranty deed has priority over that of appellant's who neglected to file its claim of lien until thirty days after the recording of the warranty deed. Appellees rely on two statutes to support the foregoing conclusion, to-wit: F.S. 713.05 which states that no lien under that section shall be acquired until a claim of lien is recorded, and F.S....

...rted from essential procedural requirements during the fact-finding process. See Chicken `N' Things v. Murray, 329 So.2d 302, 304 (Fla.1976). Under Florida law, a construction lien can arise only when a valid contract exists between the parties. See § 713.05, Fla....

...ith the general contractor in the work on the property. Thus, the membership of the general contractor in that joint venture did not provide a basis for arguing that there was privity between the subcontractor and the owner by reason of which, under section 713.05, no notice to owner would have been necessary....

...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. F.S.A. § 713.07(1). A lien based on Florida Statute § 713.05 attaches and takes priority as of the date a notice of commencement was recorded but if no notice was filed then the date the claim of lien is recorded....

...Section 546(b) protects those claimants who are protected under state law from the *183 general rule of priority, "first in time, first in right." In re Electric City, Inc., 43 B.R. 336, 338 (Bkrtcy., W.D.Wash.1984). The priority right given a mechanic's lien claimant under Florida Statutes §§ 713.05 and 713.07(2) who records a notice of commencement is that right which was intended by Congress in enacting § 546(b) to be exempt from the trustee's avoidance powers....

stretch of the imagination.” We also note that section 713.05 states that a contractor is permitted to have

...ial judge does not alone determine the lien to be fraudulent as a matter of law because the trial judge still has discretion to determine the intent and good or bad faith of the lienor.” Id. at 258 . This court further explained: We also note that section 713.05 states that a contractor is permitted to have a lien on real property for money that is owed “for labor, services, materials, or other items required by, or furnished in accordance with the direct contract.” The statute does not ma...

...arily mean as a matter of law that a lien is not fraudulent. Here, UBuil-dlt did not perform labor or services constituting an improvement on Appellants’ property that would give UBuildlt a right to file a lien on the property. See §§ 713.02(3), 713.05, Fla....

...language of section 713.02(3), Florida Statutes, which states in pertinent part, “[p]ersons in privity with an owner and who perform labor or services or furnish materials constituting an improvement . . . shall have rights to a lien on real property as provided in § 713.05.” WHA’s motion below cited to section 713.05, which states that a “contractor who complies with the provisions of this part shall ....

...�s agent that Bonneville owned the real estate (Treetop Development). The trial court granted the summary judgment in favor of Brickell-banc and against King. The question of privity between King and Treetop is the key to the outcome of this matter. Section 713.05, Florida Statutes (1987) provides that if privity exists between the lienor and owner, the lien- or is not required to serve a notice to owner....

...Therefore, the entry of summary judgment by the trial court was error. Accordingly, the summary judgment issued by the trial court is reversed and this matter remanded for further proceedings. REVERSED and REMANDED. COBB and COWART, JJ., concur. . See § 713.05, Fla.Stat....

...hasis in original). The lienor before us is not subject to that SECTION. The final puzzling question then, is: If each section is separate and stands alone and only § 713.06(2) mandates a notice to owner, why did the legislature under § 713.03 and § 713.05, specifically include language excusing the filing of any such notice? We believe the answer is that it was an unnecessary precaution....

...owner are in fact providing improvements to the property. Because the purpose of serving notice is to alert the owner to guard against double payment, such notice will be excused only when privity exists between the owner and the subcontractor. See § 713.05, Fla....

...9  which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions. § 713.29, Fla. Stat. (2018). “Attorney’s fees and costs awarded under section 713.29 are included within the lien created by section 713.05.” Parsons v....

computation of damages. On appeal, Regis, relying on section 713.-05, argued that the trial court should have set

...Chapter 713, Part I, Florida Statutes, provides for mechanics’ liens. Section 713.02(5) provides (5) Any improvement for which the direct contract price is $2,500 or less shall be exempt from all other provisions of this part I except the provisions of s. 713.05. Section 713.05 relating to liens of mechanic lienors in privity provides in part that: ......

...This statute goes on to specify the contents required in the claim of lien and, in section 713.08(5), provides that the claim of lien must be recorded “not later than 90 days after the final furnishing of the labor or services or materials by the lienor.” The contractor admits that under section 713.05 he is required to file a claim *932 of lien although he has a direct contract and is in privity with the owners, but he asserts that because section 713.02(5) states that any such improvement shall be exempt from all provisions of part I except 713.05 he is not required to file his claim of lien within the 90 day period provided for in section 713.08(5)....

...even when the direct contract price is $2,500 or less. Section 713.02(5) provides that when the direct contract price is $2,500 or less, the improvement is exempt from the mechanics' liens law except as to the liens of lienors in privity provided by section 713.05; it does not provide that the lienor is exempt from complying with other statutory requirements for perfecting his lien including the requirements of section 713.08(5) which requires such a claim of lien to be timely filed....

...The circuit judge dismissed the lien claims against Weston Development because Marble had not served a notice to owner on Weston Development pursuant to section 713.06, Florida Statutes (2010). *288 A lienor who is in privity with the owner is not required to serve a notice to owner, as required by section 713.06. § 713.05, Fla....

...The parties subsequently submitted briefs outlining their arguments. 16. The Trustee argues that the $3,799.54 portion of Whitlock’s Claim of Lien is not lienable under Florida’s mechanics’ lien law. (Adv.Rec. 72). Trustee argues that Florida Statute section 713.05 requires that work must be performed for the charges to fall within the parameters of the construction lien law....

...The amended complaint contained a single count for foreclosure of a construction lien. Krips alleged that it was not required to serve a notice to owner upon the Scherfs because it had contracted directly with them. To support its position, Krips cited section 713.05, Florida Statutes, and Broward Atlantic Plumbing Co....

...ns to excuse the failure to serve notice. Bishop v. James A. Knowles, Inc., 292 So.2d 415 (Fla. 2d DCA 1974); Approved Dry Wall Construction Co. v. Morgan Properties, Inc., 263 So.2d 243 (Fla. 3d DCA 1972). A complaint alleging a claim of lien under Section 713.05, Florida Statutes (1977), while not requiring notice by the claimant, must contain an allegation that the claimant was in privity with the owner at the time of the claim. Although appellant’s amended complaint did not specify under which provision of the statute it intended to proceed with its claim of lien, we find that its claim is deficient whether filed under Section 713.05 or Section 713.06....

06(2)(a), Fla.Stat. (1979). We conclude that Section 713.05, which requires no such notice, is instead

...d, that an owner (or general contractor) should not be subjected to double liability. In this regard, we note our footnote to the citation, which states. “We do not consider protection against double recovery as inconsistent with the provisions of section 713.05, Florida Statutes.” Glick, 667 So.2d at 867 ....

...Equity Contracting Co., 695 So.2d 383, 389 (Fla. 4th DCA 1997). With respect to protecting against double payment claims, we note that chapter 67-210, Laws of Florida, amended the 1963 version of the mechanic’s lien law relied on in Morris & Esher. The current statute, section 713.05, Florida Statutes (1997), expressly authorizes contractors to make a claim on behalf of unpaid subcontractors and suppliers....

recovery as inconsistent with the provisions of section 713.05, Florida Statutes.

...Jared Kane Co., 872 So.2d 356 (Fla. 2d DCA 2004). *65 [Appellee Jared Kane Company, Inc. ("JKC")] sought foreclosure of a construction lien against the Thompsons' home after disputes arose during the home's construction. The claim of lien was filed pursuant to section 713.05, Florida Statutes (1997), which allows for the creation of a lien where the lienor is in privity with the owner....

...llateral estoppel. In light of the undisputed fact that Deem did not give notice to the Brancatos, Deem’s lien claim cannot be sustained unless the evidence presented by Deem established that there was “privity” between Deem and the Brancatos. Section 713.05 Fla.Stat....

...McMahan Construction Company, Inc. (McMahan) appeals from the dismissal of its amended complaint against Carol’s Care Center, Inc., for failure to deliver to the owner (appellee), five days before filing this suit, the affidavit required by sections 713.06(3)(d) and 713.05, Florida Statutes (1983)....

...be filed. Accordingly, the order appealed disallowing the filing of the second amended complaint and dismissing counts two and three of the amended complaint are reversed. REVERSED AND REMANDED. ORFINGER and FRANK D. UP-CHURCH, Jr., JJ„ concur. . Section 713.05 provides, in pertinent part, “A lienor ......

...4th DCA 1992) (treating the portion of the appeal challenging an order granting a motion to discharge a lien as a petition for writ of certiorari and denying the petition). A recorded claim of lien is what establishes a construction lien capable of enforcement. See § 713.05 ("No lien under this section shall be acquired until a claim of lien is recorded.")....

713.06(2), Florida Statutes (1995), because section 713.05, Florida Statutes (1995), provides that a lienor

...Prior to the commencement of this Chapter 13 case, White Sands contracted with Debra Lee Madden (Debtor) to construct the Debtor’s principal residence located in DeSoto County, Florida. White Sands properly recorded a Notice of Commencement in the public records of DeSoto County. Thus, by virtue of § 713.05, Florida Statutes, it was in privity with the Debtor and had a lien on the home it constructed to secure any monies that were due and owing it for labor, services, and materials required and furnished by White Sands to build the residence of the Debtor, pursuant to the contract....

...Rinker continued the litigation, demanding costs and attorney’s fees. Appellants’ sole defense was that their property is exempt from Part I of the Mechanics’ Lien Statute pursuant to Section 713.02(5), Florida Statutes (1983), since the contract price was for less than $2,500, and Section 713.05 permits recovery only if the owner is in privity with the materialman....

...Rinker. Section 713.02(5), Florida Statutes (1983), provides that “[a]ny improvement for which the contract price is $2,500 or less shall be exempt from all other provisions of this part I [relating to mechanics’ liens] except the provisions of s. 713.05 [relating to liens of persons in privity].” An “improvement” means “any building, structure, construction, demolition, excavation, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit.” § 713.01(8), Fla.Stat....

PER CURIAM. We affirm all matters except the trial court’s failure to reduce the lien claim of the general contractor by the amount of the subcontractor’s lien pursuant to section 713.05, Florida Statutes (1987)....