CopyCited 57 times | Published | Supreme Court of Florida
...) whether the record showed special or peculiar equities in plaintiff's favor sufficient to support an equitable lien, as found by the trial judge; and (2) whether the appellate court erred in its interpretation of § 84.061(2) (a), Fla. Stat. 1965 (§ 713.06(2) (a), Fla....
...merely because he was entitled to but failed to perfect his statutory materialman's lien. The second question that the parties have presented and argued here has to do with the interpretation of § 84.061(2) (a), Fla. Stat. 1965 (carried forward as § 713.06(2) *150 (a), Fla....
...eir claims to the extent of such balance due the contractor; provided, this shall not be construed to permit any claim or demand whatsoever by said persons failing to serve timely notice against the owner." Sec. 84.061(3) (c)4, Fla. Stat. 1965 (Sec. 713.06(3) (c)4, Fla....
CopyCited 36 times | Published | Supreme Court of Florida | 1991 WL 188305
...A general denial is not one "made specifically and with particularity." In Hodusa Corp. v. Abray Construction Co.,
546 So.2d 1099 (Fla. 2d DCA 1989), the defendant sought to have a mechanic's lien *225 suit dismissed for failure to provide the contractor's affidavit required by section
713.06(3)(d)(1), Florida Statutes (1987)....
CopyCited 23 times | Published | Florida 4th District Court of Appeal
...ctitious names, and interlocking management, the defendant is the owner/developer and general contractor of the Lavers Racquet Club project. The trial court also found that "[p]laintiff properly served its Notice to Owner pursuant to Florida Statute Section 713.06, upon the defendant on May 29, 1981." While the testimony and evidence contained in the record on appeal is deplorably scanty, we find the trial court was not "clearly erroneous" nor "totally without any substantial evidence" to support its findings of fact....
...Symons sent a Notice to Owner by certified mail to "Lavers Delray Racquet Club" at 755 Dotterel Road, Delray Beach, Florida and also to "Tartan Dev." at 2350 Jaeger Drive, Delray Beach, Florida. The second Notice to Owner was sent to "Tartan Dev." in an attempt to satisfy the requirement set out in Section 713.06(2)(a), Florida Statutes, that "a sub-subcontractor or materialman to a subcontractor shall serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien." However,...
...Section
713.08, Florida Statutes, in subsection (4)(a) specifically states that: The omission of any foregoing details or errors in such claim of lien shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error. Though Section
713.06, Florida Statutes, pertaining to Notice of Owner does not contain a comparable provision, reading the statutes in pari materia would allow a similar construction on the Notice to Owner. Of interest is subsection (3)(a) under Section
713.06, which states that if the description of the property in the notice of commencement prescribed by Section
713.13, mandating that owners must record a notice of commencement before beginning improvement of any real property, is incorrec...
...Furthermore, Symons' position runs afoul of the cardinal rule that the mechanics' lien statute must be construed strictly. See Sheffield-Briggs Steel Products, Inc. v. Ace Concrete Service Co.,
63 So.2d 924 (Fla. 1953). The requirements for the notice to owner are found in section
713.06(2)(a), Florida Statutes (1983), which provides in pertinent part: All lienors under this section, except laborers, as a prerequisite to perfecting a *1263 lien under this chapter and recording a claim of lien, shall be required to serv...
...mail for the Tartan companies at the Dotterel Road address. Mr. Venable testified only that Amy Stern was not an employee or agent, or otherwise affiliated with Tartan Construction Company. [2] See 1963 Amendment to 1935 Mechanic's Lien law. [3] See § 713.06(2)(a), Fla....
...[5] Under the present statutory scheme, the only time at which a lienor can be paid, without first timely serving a notice to owner, is when the materialman is listed in the contractor's final affidavit and the materialman's time for service notice has not expired. See § 713.06(3)(d)(2), Fla....
CopyCited 19 times | Published | Supreme Court of Florida | 1992 WL 18569
...As a statutory creature, the mechanics' lien law must be strictly construed. Home Elec. of Dade County, Inc. v. Gonas,
547 So.2d 109, 111 (Fla. 1989). As a prerequisite to perfecting a mechanics' lien, all lienors who are not in privity with the owner, except for laborers, must serve a notice on the owner. §
713.06(2), Fla....
...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, . .. the direct contract... . No lienor under this section shall be required to serve a notice to owner as provided in s. 713.06(2)......
CopyCited 18 times | Published | Supreme Court of Florida | 13 Fla. L. Weekly 539, 1988 Fla. LEXIS 960, 1988 WL 93747
...Carol's Care Center, Inc.,
460 So.2d 1001 (Fla. 5th DCA 1984). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The issue concerns a contractor's failure to serve an affidavit stating that all bills have been paid, in accordance with the *302 provisions of section
713.06(3)....
...To correct an inadequate legal description, the petitioner filed a second lien on August 29, 1985. In December, 1985, the petitioner filed a complaint seeking to foreclose the mechanic's lien. Bonefish moved to dismiss, alleging that petitioner failed to comply with section 713.06(3)(d)1, Florida Statutes (1985), which states: (d) When the final payment under a direct contract becomes due the contractor: 1....
...Three days before the final hearing, the contractor mailed to the owner, for the first time, the affidavits showing the amounts owed to unpaid lienors and payment to all other lienors. The owner then moved to dismiss the complaint for noncompliance with section 713.06(3)(d)1....
..."clearly a condition precedent to maintaining a suit," but concluded that the trial judge should have granted the parties leave to amend. Id. at 1022-23. The Fifth District followed that decision in Askew v. County of Volusia . The clear purpose of section 713.06(3)(d)1 is to protect the owner against the risk of having to pay for the same services or materials more than once, and to allow the owner an opportunity to make proper payment before suit is filed....
CopyCited 17 times | Published | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 1510, 1989 Fla. App. LEXIS 3545, 1989 WL 67500
...subcontractors' claims of lien. Kalbes v. Cal. Fed. Sav. & Loan Ass'n,
497 So.2d 1256 (Fla. 2d DCA 1986). It is unclear whether the Kalbes decision recognized a theory in negligence as well as theories based upon breach of contract and violation of section
713.06(3), Florida Statutes (1983)....
CopyCited 16 times | Published | Florida 3rd District Court of Appeal | 1975 Fla. App. LEXIS 14914
...Three days before the final hearing, Mardan mailed Bruns, for the first time, an affidavit stating the names *770 of and amounts owed to unpaid lienors and payment to all other lienors, and submitted a copy thereof to the court together with a motion to amend the complaint to reflect compliance with § 713.06(3)(d)1, Fla....
CopyCited 16 times | Published | Florida 2nd District Court of Appeal | 66 A.L.R. 3d 1083
...McGee, Sr., of McGee, Merritt & High, Brooksville, for appellee. GRIMES, Judge. Plaintiff-appellee brought an action to foreclose a mechanic's lien against the defendants. The defendants moved to dismiss on the ground that the complaint failed to allege that the affidavit required by F.S. 713.06(3)(d)1, F.S.A....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal
...The sole issue in this appeal is whether the court erred in entering a final judgment foreclosing the mechanic's lien where the plaintiff, Gunn and Gunn Construction Company, failed to allege that it had furnished the defendant with a contractor's affidavit at least five days before instituting suit, as required by Section 713.06(3)(d)(1), Florida Statutes....
...Defendant Falovitch moved to dismiss the complaint on the ground that it did not state a cause of action. The trial court denied the motion. At a later date and prior to trial, defendant filed another motion to dismiss on the ground that the plaintiff had failed to comply with Section 713.06(3)(d)(1), Florida Statutes, as a prerequisite to the institution of suit. This motion was also denied. Section 713.06(3)(d)(1) provides that as a prerequisite the institution of any suit to enforce a lien under Chapter 713, the contractor must execute and deliver to the owner at least five days before instituting suit an affidavit stating that all lie...
CopyCited 14 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 19, 1986 Fla. LEXIS 3076
...e Logan and Clark's financial difficulties caused it to abandon the project. At the time of abandonment Florida Steel had not been paid for a portion of the steel it had supplied, and in June 1981 it filed a timely claim of a lien in accordance with section 713.06(2)(a), Florida Statutes (1981)....
...o fund out of which the supplier could be paid. The supplier countered that it should be paid out of the fund remaining at the time of abandonment before the funds could be directed toward completion. We found the owner entitled to the protection of section 713.06, Florida Statutes (1971), [3] provided he strictly complied with the requirements of the statute....
...In March Adaptable stopped making payments to Logan and Clark and began looking for a replacement contractor. Neither Adaptable nor Logan and Clark informed Florida Steel of these developments although both knew that Florida Steel was still making deliveries to the job site. Subsections 713.06(d)(3)6 and 713.06(3)(e) provide that upon abandonment of a project before completion the owner should determine the amount due each lienor who has given notice and pay or prorate that amount....
...the plaintiff's property. As interest is merely another element of pecuniary damages, once it has been determined that a defendant is liable for a plaintiff's damages, interest should follow as a matter of law.
474 So.2d at 215. [11] In conclusion, section
713.06(1) provides that a materialman has a lien for any money *1237 that is owed to him....
...rior lienholders and thereby reduce the amount of recovery of junior lienholders. If junior lienholders are to be so affected under this chapter, it should be by explicit legislative action and not by this Court's inferential construction. NOTES [1] § 713.06(2)(a) provides in part: "All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner......
...(1981), requires an owner to record a notice of commencement in the county where the realty which is improved or to be improved is located. It is important that the owner file the notice, especially if the improvements involve subcontractors and laborers not in privity with the owner. [3] Under §
713.06 the total amount of liens of persons not in privity with the owner is limited by the total contract price of the direct contract if the owner follows the procedures mandated in the statutes. [4] §
713.07(4) states: If construction ceases before completion and the owner desires to recommence construction, he may pay all lienors in full or pro rata in accordance with s.
713.06(4) prior to recommencement in which event all liens for the recommenced construction shall take priority from such recommencement; or the owner may record an affidavit in the clerk's office stating his intention to recommence construction and that all lienors giving notice have been paid in full......
CopyCited 14 times | Published | Florida 5th District Court of Appeal | 1984 Fla. App. LEXIS 12664
...Therefore, the order dismissing the complaint is reversed and the cause remanded for further proceedings. We recognize that our holding herein is in conflict with the rationale of Saleh v. Watkins,
415 So.2d 858 (Fla. 5th DCA 1982), even though that case concerned section
713.06(3)(d), Florida Statutes (1981)....
CopyCited 13 times | Published | District Court, S.D. Florida | 1974 U.S. Dist. LEXIS 7707
...in privity with the owner, must serve a notice on the owner setting forth the lienor's name and address, a description of the real property sufficient for identification, and the nature of the services or materials furnished or to be furnished. F.S. § 713.06(2) (a), F.S.A....
...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. and F.S. §
713.07(2), F.S.A. [13] F.S. §
713.06(1), F.S.A....
CopyCited 13 times | Published | Florida 3rd District Court of Appeal | 1982 Fla. App. LEXIS 21886
...struction project. PENINSULAR'S Notice to Owner, a prerequisite to perfecting a lien under the Mechanics' Lien Statute, Florida Statutes, Chapter 713 (1979), was invalid because it was not filed within 45 days from the first furnishing of materials. §
713.06, Fla. Stat. (1979). The trial court dismissed the complaint to impress an equitable lien upon the undisbursed construction funds for the stated reason that there was no perfected statutory lien. [2] Section
713.06 painstakingly limits its application to perfection of a statutory lien [3] and section
713.30 provides that the remedies provided by that section shall not be an exclusive remedy....
...Reversed and remanded for further proceedings. NOTES [1] Butler, the plumbing subcontractor, now insolvent, is not a party to this appeal. [2] The order granting appellees' motion to dismiss states, inter alia: The position of C.B. Day and Haskell on the effect of Section 713.06(2)(a), Florida Statutes (1977), on this action has been summarized by them as follows: The 1977 Amendments To The Florida Mechanics Lien Law, And Particularly The Amendment To Section 713.06 Thereof, Which Amendments Took Effect July 1, 1978, Categorically Rejected The Holding In Crane Co....
...The Court having so found, and finding that it is therefore unnecessary to reach the other grounds asserted in the motion to dismiss of C.B. Day and Haskell, it is hereby: ORDERED: The Motion to dismiss of defendants C.B. Day and Haskell is granted and this action is dismissed with prejudice as to those defendants only. [3] § 713.06(2)(a), Fla....
CopyCited 11 times | Published | United States Bankruptcy Court, M.D. Florida | 1984 Bankr. LEXIS 4538, 12 Bankr. Ct. Dec. (CRR) 529
...General deposited the Debtor's check on or about April 19, 1982. Both parties agree that General would not have completed performance absent the payment of the sums due and owing. At the time of the default, General had preserved its mechanic's lien right and its right of action against the bond pursuant to §
713.06 and §
713.23 Fla.Stat....
...This Court is satisfied that the question must be answered in the affirmative for the following reasons: Under the law of Florida, a subcontractor or materialman may preserve his lien right and his direct right of action against a surety, if the project is bonded, by timely serving a proper notice pursuant to §§
713.06 and
713.23 Fla.Stat....
...protections accorded to materialmen, subcontractors or laborors if the lienor strictly complies with the statutory requirements i.e., notice; perfection, etc. In this case, General preserved its lien rights by timely filing its notices pursuant to §§
713.06 and
713.23 Fla.Stat....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 1991 WL 85552
...e-Way's notice to owner was untimely served, and that all claims of lien filed by Rite-Way were therefore invalid and unenforceable. Rite-Way's count in quantum meruit was dismissed for failure to state a cause of action. MECHANIC'S LIEN FORECLOSURE Section 713.06, Florida Statutes (1987), requires, as a prerequisite to perfecting a lien, that a subcontractor not in privity with an owner serve notice on the owner not later than forty-five days from commencing to furnish services or materials. The failure to timely serve the notice constitutes a complete defense to the enforcement of a lien. § 713.06(2)(a), Fla....
CopyCited 11 times | Published | Supreme Court of Florida | 1991 WL 101183
...uch lien as against one who has not been adversely affected by such omission or error"); Blinn v. Dumas,
408 So.2d 683 (Fla. 1st DCA 1982) (same); Mid-State Contractors, Inc. v. Halo Dev. Corp.,
342 So.2d 1078 (Fla. 2d DCA 1977) (same); [2] see also §
713.06(2)(c), Fla....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 1989 WL 75737
...Thus, it would appear that Pearlstein I and Pearlstein II stand for the proposition that the complaint in this case should be dismissed with prejudice, because the notice of intent to litigate was not served prior to the filing of the complaint. However, when we look to similar statutes, such as sections
768.28(6) and
713.06(3)(d)(1), [4] Florida Statutes (1987), we find that although there are notice requirements as conditions precedent to instituting suits in both of those statutes, the supreme court in each case has permitted the filing of the notice required by section
768.28(6), Florida Statutes (1987) or affidavit under section
713.06(3)(d)(1), Florida Statutes (1985) subsequent to the filing of the complaint so long as the notice or affidavit is filed within the statute of limitations....
...me of dismissal, and it was therefore possible to comply with the statute prior to the case being barred by the statute of limitations. Most recently the supreme court, in Holding Electric, Inc. v. Roberts,
530 So.2d 301 (Fla. 1988), held that under section
713.06(3)(d)(1), Florida Statutes (1987), delivery of the contractor's affidavit is not jurisdictional, although it is a prerequisite to maintaining the action and must be completed within the statutory limitation period....
...We are concerned, however, that such a holding strikes at the very heart of the pre-suit screening process. We note that this particular statute is significantly different in its requirements prior to filing suit than either section
768.28, Florida Statutes (1987), to which it is frequently compared in the case law, and section
713.06(3)(d)(1), Florida Statutes (1987)....
...I also agree with the *1389 discussion of the case authority except for the majority's comment that our holding today "strikes at the heart of the pre-suit screening process" and that section 768.57 is significantly different in its pre-suit requirements from either section
768.28 or section
713.06(3)(d)1....
..."
539 So.2d at 495. It is therefore unclear whether or not the Second District thought it made a mistake in its statutory reference. However, both statutes permit a 90 day period for the plaintiff's attorney to investigate the prospective claim. [4] Section
713.06(3)(d)(1) provides: (d) When the final payment under a direct contract becomes due the contractor: 1....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1996 WL 549370
...ild their house; and that he had not received full payment of the contract price when he filed suit, within a year of recording the claim of lien. The Westers admitted that he served them on June 11, 1992, with the contractor's affidavit required by section 713.06(3)(d), Florida Statutes (1991), certifying that he had paid all potential lienors, and that he recorded and served them personally with a copy of his claim of lien on June 16, 1996....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal
...Goldworn and Daniel J. Spiegel, Miami, for appellant. James V. Johnstone, Miami, for appellees. Before PEARSON, C.J., and CHARLES CARROLL and HENDRY, JJ. PEARSON, Chief Judge. The controlling question in this appeal is whether the notice indicated by F.S. § 713.06 (3) (d) 1, F.S.A., of the mechanic's lien law must be given by a sub-contractor who claims under a mechanic's lien....
CopyCited 10 times | Published | District Court, M.D. Florida | 1992 U.S. Dist. LEXIS 10221, 1992 WL 164197
...1348, 1356,
89 L.Ed.2d 538 (1986). However, "(t)he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255,
106 S.Ct. 2505, 2513,
91 L.Ed.2d 202 (1986). Florida Statute Section
713.06(3)(d) provides that when final payment becomes due under a contract: The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full, or if the fact be...
...n to enforce his lien under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any lienors working under him or not. Fla.Stat. § 713.06(3)(d)....
CopyCited 9 times | Published | Supreme Court of Florida
..."Under the circumstances of this case it was error to award the materialman the entire value of the materials furnished to the improvement. * * *" The foregoing decisions are in accord with the provisions of the mechanic's lien law, and specifically, Florida Statutes § 713.06(1), F.S.A., which provides: "(1) A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor who complies with the provisions of part I of this chapter and is subject to the limitations thereof, shall have...
...e amount of the contract price fixed by said direct contract except as provided in subsection (3) of this section. " (Emphasis supplied.) The fact that Alton Towers is a property owner who has also done its own contracting does not alter the rule of § 713.06 limiting the owner's liability to the contract price fixed in the direct contract....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal
...Su-Jak Enterprises, Inc., which contracted with Boux for plastering. Boux contends that he is in privity with the owner under these circumstances and that his failure to file the notice to owner, required of those not in privity by Florida Statutes § 713.06(2), F.S.A....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal
...such time as the Trustees had paid Knowles the full *417 amount of the contract price. Nunamaker cross-appeals the granting of the offset against its claim. As a prerequisite to perfecting a lien against the real property of one not in privity, F.S. § 713.06, F.S.A., requires a subcontractor to serve upon the owner a notice of his intention to claim a lien....
...rectly to a subcontractor at the peril of being charged twice upon their failure to do so solely because one of their number signed the subcontract as president of the contracting firm? We think not. The recommended form of notice prescribed by F.S. § 713.06(2)(c), F.S.A., includes the following language: "... Florida law prescribes the serving of this notice and restricts your right to make payments under your contract in accordance with § 713.06, Florida Statutes... ." Florida Statute § 713.06(3)(c) 1, F.S.A., provides that when any payment except the final payment becomes due to the contractor: "1....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1991 WL 24854
...At trial, however, the Zalezniks were able to produce cancelled checks to Lundstrom that totalled only $232,896. As a result, the trial court found that $16,814 of the Monarch contract price remained unpaid. [1] The Zalezniks refused to pay these subcontractors, maintaining that they had no obligation to pay them under section 713.06, Florida Statutes (1985)....
...We reverse this aspect of the final judgment. IV. GULF COAST ROOFING'S MECHANICS' LIEN The Zalezniks argue that Gulf Coast Roofing did not perfect its mechanics' lien under chapter 713 because it failed to timely serve them with a notice to owner. § 713.06(2)(a), Fla. Stat. (1985). We agree. Section 713.06(2)(a) requires a lienor such as Gulf Coast Roofing to serve a notice on the owners not later than 45 days from the day the lienor commences its services. The section further states that the lienor's "failure to serve the notice, or to timely serve it, shall be a complete defense to enforcement of a lien by any person." § 713.06(2)(a), Fla....
...Gulf Coast Roofing relies heavily on the trial court's finding that it had "substantially complied" with the notice provisions and that the Zalezniks had not been prejudiced by the technical error in notice. This finding appears to be based on the 1987 legislative enactment of section 713.06(2)(d), which permits the imposition of a mechanics' lien if the lienor has "substantially complied" with the statute and the owner has not been adversely affected by any omission or error....
...obligated to pay the lienors under the original contract only their pro rata share of a fund consisting of the amount due under the contract when it was abandoned and any amount unspent out of the original contract price when the job is finished. §§ 713.06(3)(e), .07(4), Fla....
...The Zalezniks did not attempt to authenticate the copies of these checks through a different witness. [2] The mechanics' lien statutes provide that the owner may designate "a person in addition to himself to receive a copy of such lienor's notice." § 713.06(2)(b), Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal
...the plaintiff "furnished materials to the job site for a total value of $8,244.01 of which $5,330.75 remains unpaid." Plaintiff further alleged service of a preliminary notice to the owner [required of a materialman not in privity with the owner, by § 713.06 Fla....
CopyCited 7 times | Published | Florida 4th District Court of Appeal
...inst the transfer bond. Thereafter, final judgment was entered in favor of Hughes against all defendants with Hughes being awarded the sum of $41,730.08. Tuttle/White and Federal petitioned for rehearing, which was denied. This appeal then followed. Section 713.06(1), Florida Statutes (1977), provides that persons not in privity with the owner may establish a lien on the owner's real property to the extent necessary to guarantee payment for labor, services or materials furnished in accordance with contract. Subsection (2) of Section 713.06 requires that the prospective lienor serve a notice on the owner setting forth certain specified information either (1) before commencing to furnish services or materials; (2) not later than 45 days from commencing to furnish services or materials; or (3) any time before the furnishing of the contractor's affidavit under Section 713.06(3)(d)(1), Florida Statutes, or abandonment, whichever shall first occur....
...ilable after payment has been made to "priority" lienors. Moretrench Corp. v. Bronson & Veal Enterprises, Inc., supra . Priority lienors are those lienors who either have given proper notice or whose time for serving such notice has not yet expired. Section 713.06(3)(c)(4), Florida Statutes....
...A contract remains "uncompleted" when funds remain due under a contract to which the lienor would be entitled. Appellee-Hughes claims it is entitled to participate in any progress payments made by appellant after Hughes filed its tardy notice. Proper payment of progress payments is governed by Section 713.06(3)(c)(1), Florida Statutes, which provides: The owner shall pay or cause to be paid ......
...Section
713.01(19), Florida Statutes. Since appellee's notice was not served within the statutory period, such notice cannot be said to be duly served. Any right of appellee to participate in progress payments must be governed by the provisions of Section
713.06(3)(c)(4), Florida Statutes, which provides: 4....
...Thus, in the absence of such affidavit, Hughes would have no right to participate in progress payments because of its failure to give timely notice. The Mechanic's Lien Statute also establishes a mechanism to facilitate payment of lienors from the final payment due to a contractor under a direct contract. Section 713.06(3)(d)(5), Florida Statutes, specifies that the owner shall retain the last *563 payment due to a contractor under a direct contract, or ten per cent of the original contract price, whichever is larger....
...This sum may not be disbursed to a contractor until the contractor has filed an affidavit of lienors wherein the contractor is required to list all lienors to whom an amount remains due, whether such lienors have given notice or not. Upon receipt of this affidavit, the owner is empowered, pursuant to Section 713.06(3)(d)(2), Florida Statutes, to pay all lienors from this retained fund. Section 713.06(3)(d)(2), Florida Statutes, provides: "If the contractor's affidavit ......
...Lienors listed in said affidavit not giving notice may be paid nevertheless." (Emphasis added.) If the amount retained by the owner is insufficient to pay all lienors, whether they have given notice or not, the burden is placed squarely on the contractor to provide the difference by subsection (3) of Section 713.06(3)(d), Florida Statutes, which provides: If the balance due is not sufficient to pay in full all lienors listed in the affidavit given by the contractor at that time and other lienors giving notice, the owner shall pay no money to anyone until such time as the contractor has furnished him with the difference......
...If the contractor fails to provide the difference within ten days, the owner is then required to disburse these retained funds by paying all lienors properly giving notice in full with the remainder to be distributed on a pro rata basis to the remaining lienors pursuant to Section 713.06(3)(c)(4). Once the owner has distributed the retained funds according to this plan and paid any balance remaining to the contractor, he is then relieved of any further liability under the direct contract. Section 713.06(3)(d)(5), Florida Statutes....
...ment once the amount funded under a particular subcontract has been disbursed, not only violates the express purpose of the Mechanic's Lien law, to-wit: insuring the lienor's right to receive payment, but also ignores the express language adopted in Section 713.06, Florida Statutes, which creates a fund at the conclusion of the direct contract to ensure that all lienors will receive their due....
...Therefore, the final judgment is reversed and the cause remanded to the trial court for determination of whether or not the materials supplied by Hughes were delivered to or incorporated into Suncoast Village, Hughes' priority status, the availability of monies pursuant to the provisions of Section 713.06(3)(d)(2) and (3), Florida Statutes (1977), and assessment of Hughes' damages accordingly. Reversed and remanded. DOWNEY, C.J., and DAUKSCH, J., concur. NOTES [1] Section 84.061, F.S., was subsequently renumbered Section 713.06, F.S.
CopyCited 7 times | Published | Supreme Court of Florida | 20 Fla. L. Weekly Supp. 479, 1995 Fla. LEXIS 731, 1995 WL 273933
...HARDING, Justice. We have for review a district court decision certifying the following question to be of great public importance: DOES A SUBCONTRACTOR BEGIN TO FURNISH SERVICES, FOR THE PURPOSE OF TIMELY PROVIDING A NOTICE TO OWNER IN ACCORDANCE WITH SECTION 713.06(2)(a), FLORIDA STATUTES (1991), WHEN, WITHOUT ANY BINDING CONTRACTUAL OBLIGATION TO DO SO, HE OR SHE BEGINS TO SELECT MATERIALS AT SOME LOCATION OFF THE JOB SITE, FOR FUTURE INSTALLATION ON THE JOB SITE? Gazebo Landscape Design, Inc....
...We have jurisdiction based on article V, section 3(b)(4) of the Florida Constitution. We answer the certified question in the negative because a binding contract is necessary to file a mechanic's lien. We also hold that the forty-five-day period for giving notice to the owner of a possible lien claim under section 713.06, Florida Statutes (1991), starts when a subcontractor begins to furnish services or materials at the job site....
...Two days later, on December 7, Gazebo planted the trees sent from Turner Tree and Landscape. Gazebo tried unsuccessfully to notify the Stunkels on January 15, 1991, of an impending claim of lien. On January 18, 1991, Gazebo posted a notice to owner on the gate of the Stunkel residence. Section 713.06(2)(a) requires a notice to owner to be posted within forty-five days after a subcontractor begins to furnish services or materials....
...After Gazebo presented its case, the trial court entered an involuntary dismissal against Gazebo's claim of lien after finding that Gazebo did not serve the Stunkels with a notice to owner within forty-five days after commencing to furnish services or materials, as required by section 713.06(2)(a)....
...n they first select materials off the job site even though there is no binding contractual obligation to do so. A contract is essential to a mechanic's lien. See Viking Communities Corp. v. Peeler Constr. Co.,
367 So.2d 737, 739 (Fla. 4th DCA 1979); §
713.06(1), Fla....
...Without a contractual obligation, a subcontractor cannot bring a claim of lien against the owner. Thus, we answer the certified question in the negative. We also take this opportunity to clarify that a subcontractor begins to furnish services or materials for the purpose of giving notice to the owner under section 713.06(2)(a) when the services or materials are delivered to the job site....
...No attorney's fees can be awarded until the trial court determines a prevailing party in the underlying action in accordance with our remand and any subsequent appeal is decided. V. CONCLUSION Accordingly, we answer the certified question in the negative and hold that the forty-five-day period for notice under section 713.06(2)(a) begins when the services or materials are furnished at the job site....
...We disapprove Arlington to the extent that it is inconsistent with this opinion. In addition, we remand for proceedings consistent with this opinion. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, KOGAN and WELLS, JJ., concur. ANSTEAD, J., recused. NOTES [1] Section 713.06(2)(a), Florida Statutes (1991), provides in relevant part: All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, must serve a notice on the owner setti...
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 459, 1986 Fla. App. LEXIS 6481
...tificate of occupancy prior to final payment. Furthermore, we note that final payment must be retained by the owner until the contractor furnishes the owner with an affidavit stating that all lienors under his direct contract have been paid in full. § 713.06(3)(d)(5), Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal
...BOARDMAN, Acting Chief Judge. Plaintiffs Sarasota Commercial Refrigeration & Air Conditioning, Inc. (Sarasota) et al. appeal a final summary judgment in favor of appellees/defendants Schooley and Watts. The order of summary judgment was predicated on the requirement of Section 713.06(2)(a), Florida Statutes (1977) that mechanics' lienors serve a notice to owners of real property in order to be entitled to a mechanics' lien on the property. We hold that Section 713.06(2)(a), Florida Statutes (1977), as amended effective July 1, 1978, is not applicable to appellants, and we reverse....
...After the original complaint was *1143 filed, numerous cross-claims and counterclaims were filed by the remaining appellants. The trial court ruled that appellants take nothing by their actions against Schooley and Watts. The court ruled pursuant to Section 713.06(2)(a), Florida Statutes (1977), effective July 1, 1978, that appellants had not timely served their notices to owner on Schooley and Watts and that the failure to serve timely notices to the owners was a complete defense to this action....
...In addition, three of appellants, Sarasota, Nokomis Septic Tank, Inc. (Nokomis), and Venice Fill & Shell, Inc. (Venice), requested leave to amend their pleadings in order to seek relief on an equitable lien theory. The trial court denied leave to amend. These appeals followed timely. The issue presented is whether Section 713.06(2)(a), Florida Statutes (1977) is applicable here or whether the applicable statute is Section 713.06(2)(a), Florida Statutes (1975)....
CopyCited 7 times | Published | United States Bankruptcy Court, M.D. Florida | 1990 Bankr. LEXIS 2751, 1990 WL 256463
...On February 14, 1988, a Notice of Commencement regarding the construction contract was recorded in the Public Records of Sarasota County, Florida. Thereafter, the Debtor commenced construction. On November 2, 1988, Garry Battaglia, president of the Debtor, executed a Final Contractor's Affidavit pursuant to Fla. Stat. § 713.06(3)(d), stating that the Affidavit was executed "for the purpose of obtaining a final payment from Mr....
...Thus, if the Debtor had a legal or equitable interest in the holdback as of the commencement of the case, the holdback is property of the estate. American Residential argues first that the Debtor has no interest in the funds and, thus, the funds are not property of the estate, based on Fla.Stat. § 713.06(3)(d)(2), which provides that an owner may pay subcontractors directly under certain circumstances and thereby deduct those payments from the total amount owing to the general contractor....
...Thus, under Florida law, an owner may withhold and deduct from the ultimate amount due under a construction contract certain amounts if the contractor's affidavit recites any outstanding bills for labor, services or materials and if the owner provides *658 the contractor with ten days' notice. Fla.Stat. § 713.06(3)(d)(2); see also, St....
...Transcoastal Maintenance & Supply Co., Inc.,
377 So.2d 995, 996 (Fla. 2d DCA 1979); Meredith v. Lowe's of Florida, Inc.,
405 So.2d 1061 (Fla. 5th DCA 1981). This record is devoid of any evidence that the Gerrings ever gave the notice to the Debtor required by Fla.Stat. §
713.06(3)(d)(2) of their intent to hold back funds for payment of subcontractors....
...lman was decided based on principles of subrogation and the rights of sureties. The holding in Pearlman does not convince this Court that the funds are not property of the estate, especially in light of the Gerrings' failure to comply with Fla.Stat. § 713.06(3)(d)(2)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...work in the nature of pouring concrete, incident to a construction project. The plaintiffs alleged performance of such services on January 27, 1971, for which they claimed $1,883.60 was due and unpaid. A preliminary notice to owner, provided for by § 713.06, Fla....
...effective for recovery by the lienor (pro rata with others similarly situated) out of funds represented by progress payments or final payment not made prior to the filing of the preliminary notice (or which were not properly paid under the lien law. § 713.06(3) Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...al or workmanship or breaches of the contract. Hobbs argues that section
713.08(1)(c), Fla. Stat. (1981), would allow it to claim the "value" of its labor, services or materials, rather than be restricted to the contract price. This argument ignores section
713.06(1), Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1976 Fla. App. LEXIS 14472
...which, in turn, was still another subcontractor under the general contractor, Phillips-Whitten Construction Company, Inc. Having received no payment for the labor furnished to T.R. Contractors, Inc., the appellant filed a proper notice to owner pursuant to § 713.06(2), F.S....
...e owners. That court examined the act as a whole, noting that an owner is now protected against "hidden liens" of persons not in privity with him and concluded that the only logical definition of the term "subcontractor" as it appears in the present § 713.06(1) and its predecessors back to 1963 must include sub-subcontractors as well....
...here and include a sub -sub-subcontractor. Accordingly, we recede from Driver, supra, and subscribe to the views of our sister court as expressed in Ceco Corp. v. Goldberg, supra . We therefore read the term "subcontractor" within the provisions of § 713.06(1), supra, to include anyone not in privity with the owner performing a portion of a contract to enhance realty; and we see no sense in drawing an arbitrary line cutting off would-be lienors, based on degrees of remoteness from privity, assuming the protective notice requirement for perfecting a lien pursuant to § 713.06(2)(a), supra....
...[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. 1975. [7] Section 84.061, F.S. 1963, now §
713.06, F.S. 1975. [8] Section 84.061(2)(a), F.S. 1963, now §
713.06(2)(a), F.S....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...rmance of all conditions precedent to maintain the action, and a prayer for foreclosure of its lien or rendition of a judgment for the amount due. The complaint contained no allegation that appellant had furnished appellees the affidavit required by Section 713.06(3)(d), Florida Statutes (1975)....
...e a mechanics lien. At the close of appellant's case in chief, appellees moved for a directed verdict on the grounds that appellant had not proven a cause of action because it had failed to prove it furnished appellees with the affidavit required by Section 713.06(3)(d) (1975)....
...ce shows there were no other subcontractors, laborers or materialmen under appellant who were unpaid. While we concede that there are circumstances where one can plead a cause of action to foreclose a mechanic's lien without alleging compliance with 713.06(3)(d) [1] , this is not such a case....
...The principle announced there relevant to this inquiry *1280 is that privity of contract between the lien claimant and the owner when the owner acts as his own contractor obviates the necessity of the lien claimant filing a notice of claim of lien and not the affidavit required by
713.06(3)(d) (which used to be found in 84.04(3), Florida Statutes (1959)). The fact that the owner is also acting as his own general contractor does not excuse a lien claimant who is a "contractor" within the meaning of Section
713.01(2), Florida Statutes (1975), from furnishing the affidavit required by Section
713.06(3)(d), Florida Statutes (1975)....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 1514, 1989 Fla. App. LEXIS 3594, 1989 WL 67458
...s lien. The trial judge ultimately entered final judgment in favor of Abray. Hodusa now contends that the trial court should have dismissed Abray's suit on the ground that Abray failed to provide Hodusa with the contractor's affidavit referred to in section 713.06(3)(d)1, Florida Statutes (1987)....
...e 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. 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.
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....
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...Sanchez perceives error in finding it guilty of breach of contract and awarding damages of $10,637.20. The thrust of Fidelity's assignment of error is that Accel, Inc. neither alleged nor proved that it had furnished the owner with the notice required by Section 713.06(2)(a), Florida Statutes (1975) and thus Fidelity was entitled to a dismissal of the complaint at the conclusion of the plaintiff's case....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...f approximately $3,000. Appellee Goodwin filed a claim of mechanic's lien against the owners pursuant to Section
713.08, Florida Statutes (1975), but he did not previously serve a notice to the owners of his intention to claim a lien, as required by Section
713.06(2)(a)....
...d. The trial judge gave Goodwin judgment against the owners and their surety for $3,625, and retained jurisdiction to assess attorneys' fees. We reverse. Goodwin's failure to give notice to the owners within 45 days of beginning work, as required by Section 713.06(2)(a), bars his claim for a valid mechanic's lien....
...I find no basis in this record or the law for this Court to brush aside such judicial determination by engaging in an implication, based upon an inference not supported by the record, that the trial court played the role of Solomon and gave a half a loaf to half a laborer. NOTES [1] Section 713.06(2)(a) provides: All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner setting forth the lienor's name...
CopyCited 6 times | Published | Florida 4th District Court of Appeal
...However, as this argument was not pursued below, it may not now be raised on appeal. See, Ronal Builders, Inc. v. Powell Brothers, Inc.,
328 So.2d 869 (Fla. 4th DCA 1976), cert. denied,
339 So.2d 1171 (Fla. 1976). Likewise, Gesco's argument that Nezelek did not comply with the affidavit requirements of Section
713.06(3)(d)(1), Florida Statutes, was not raised below and is therefore deemed waived for purposes of appeal....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 14 Fla. L. Weekly 899, 1989 Fla. App. LEXIS 1892, 1989 WL 33999
...In June, 1987, Capital filed mechanic's liens against the two pieces of property. The following month, Mrs. Rubinson filed an action for declaratory relief to vacate the liens because Capital had failed to serve her with the notice of lien required by section 713.06(2)(a), Florida Statutes (1987)....
...its annual fee and, thus, lacked capacity to contract in *750 May, 1986, or to enforce any claims that arose between its dissolution and reinstatement. [1] The second ground for the motion was Capital's failure to serve a notice of lien pursuant to section 713.06(2)(a)....
...[2] We affirm that portion of the order of final summary judgment which vacated the liens. Capital was not in privity with Mrs. Rubinson and was barred from enforcing its liens under the Florida Mechanic's Lien Statute because it failed to provide Mrs. Rubinson with a notice of lien required by section 713.06(2)(a)....
...3d DCA 1986) (mere delivery of goods to construction site does not establish privity between subcontractor and contractor). Because no privity existed between Mrs. Rubinson and Capital, Capital's failure to serve a notice of claim to Mrs. Rubinson barred enforcement of its claim of lien. Section 713.06, Florida Statutes (1976) ("......
CopyCited 6 times | Published | United States Bankruptcy Court, M.D. Florida | 1986 Bankr. LEXIS 6293
...ed to serve a notice on the owner of the property ". . . setting forth the lienor's name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished." F.S.A. § 713.06(2)(a)....
...to protect an owner from the possibility of paying over to his contractor sums which ought to go to a subcontractor who remains unpaid." Boux v. East Hillsborough Apartments,
218 So.2d 202 (Fla. App. 2 Dist.1969). Where that purpose is fulfilled, the Florida Courts have waived the technical requirements of Florida Statute §
713.06....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1980 Fla. App. LEXIS 17569
...Consequently, we find no error in the trial court's order denying appellants' motion for change in venue from Dade to Broward County. PROPER PAYMENTS DEFENSE Upon recording of the notice of commencement, pursuant to Section
713.13, Florida Statutes (1977), and compliance with the requirements of Section
713.06, Florida Statutes (1977), an owner may make payments to lienors under direct contracts for amounts due and may deduct such payments from the balance due to the contractor under a direct contract. Payments made in accordance with the above cited sections allow an owner to assert the defense of proper payments and limits the owner's liability as set forth in Section
713.06, Florida Statutes (1977)....
...We recognize that this is a cogent and rational argument but find that it must fail in view of the proper construction of Part I, Chapter 713, Florida Statutes (1977). The terms "owner" and "contractor" are separately and distinctly defined by Section
713.01(2) and
713.01(12). Section
713.06(3), Florida Statutes (1977) only authorizes an "owner" to assert the proper payments defense....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...and the work was deficient. Well over a year after suit was commenced Magee moved to dismiss the amended complaint because the claim of lien was unsigned and the complaint failed to allege Bishop had furnished a contractor's affidavit as required by section 713.06(3)(d)(1)....
CopyCited 5 times | Published | Supreme Court of Florida | 1979 Fla. LEXIS 4873
...blic 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....
CopyCited 5 times | Published | Florida 5th District Court of Appeal
...The court entered judgment in favor of several of the lienors. Appellant appeals contending that the court failed to adjust the contract price by his reasonable costs of completion. The parties stipulated that the pre-abandonment contract price was $39,629.50 and that there had been proper payments under section 713.06, Florida Statutes (1979), in the sum of $20,570.15. The difference remaining was $19,059.35. Appellant contends that section 713.06 limits liability of an owner and his land under the Mechanic's Lien Law to the contract price and that the reasonable cost of completing the construction contract must be deducted from the contract price. Section 713.06(1) provides in relevant part: The total amount of all liens allowed under part I [Mechanic's Lien Law] 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)....
...Appellant introduced evidence establishing his cost of completion at $19,900 to $22,288.80 and therefore nothing remained for distribution because the difference between the pre-abandonment contract price and proper payment was $19,059.35 and the cost of completion $19,900, at the least. The limited liability section of 713.06(1), however, applies "except as provided in subsection (3)." Here, the trial court determined *1063 that section 713.06(3)(h) was applicable and therefore the limited liability protection was unavailable. Section 713.06(3)(h) provides: When the owner has properly retained all sums required in this section to be retained but has otherwise made improper payments, the owner's real property shall be liable to all ......
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1998 WL 210548
...Summerton thereafter sued the Mameles to foreclose a construction lien and for damages for breach of contract. The Mameles filed a motion to dismiss the construction lien claim, alleging that Summerton had failed to file a final contractor's affidavit as required by section 713.06(3)(d)1, Florida Statutes (1993)....
...The Mameles also argue that the trial court properly denied Summerton an award of prejudgment interest since his damages never became liquidated. In this regard, the Mameles contend that they never became obligated to make the final payment under the terms of the parties' construction contract because section 713.06, Florida Statutes (1993), provides that the owner shall retain final payment until the contractor's affidavit is furnished and here Summerton failed to present evidence demonstrating that he had filed a contractor's affidavit....
...nly for those services related to their defense to Summerton's action to enforce the lien. In all other respects, the final judgment is affirmed. AFFIRMED in part; REVERSED in part; REMANDED with directions. COBB and W. SHARP, JJ., concur. NOTES [1] Section 713.06(3)(d)1, Florida Statutes (1993), provides that the contractor shall file an affidavit stating that all lienors under his direct contract have been paid, or in the alternative, those lienors which have not been paid and the amount owed...
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Consequently, interest upon the contract *942 balance was determined to run from that date. We think the earliest date upon which the interest could begin to run was March 11, 1975, which was the date Wasco submitted its final affidavit to Blount under Section 713.06(3)(d)1, Florida Statutes (1973)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...[2] We previously addressed this question in a related context in Bishop v. James A. Knowles, Inc.,
292 So.2d 415 (Fla. 2d DCA 1974). In Bishop, one of the owners of *1392 certain land held in trust had knowledge of a subcontract through his capacity as president of the general contractor. The subcontractor sued under section
713.06, Florida Statutes (1973) (amended 1977, 1980), for monies due under the subcontract and sought to impose a mechanics lien on the land. Like the Little Miller Act, section
713.06 conditioned recovery under proper notice....
...e construction of their building. The notice of intent to claim a lien is a notification that pursuant to the statute the subcontractor is looking to the owner for payment. We think the reasoning of Bishop is applicable in the instant case. Although section
713.06 required a written and more detailed notice than section
255.05, the intent of the statutes appears the same that an owner or contractor know of a claim for payment....
...In the event such exemption is granted, the officer or officials shall not be personally liable to persons suffering loss because of granting such exemption. [2] It was undisputed that Mills did not receive McCain's notice to owner until August 7, 1981, well after the forty-five-day time period had run. [3] Section 713.06(2)(a): All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner setting forth the lienor's name and addre...
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...es. This Appellee provided the paving around the building and was one of the last, if not the last, providers of services and material. He came in just as the money ran out. Hardrives was not in privity with the owner and is entitled to a lien under Section 713.06, Florida Statutes (1975). The Appellant properly complied with all the requirements under Chapter 713, Florida Statutes and held back 10% of the original contract price as required under Section 713.06(3)(d)(5), Florida Statutes (1975) in order to pay Hardrives and all those similarly situated. The unfortunate part is that the 10% held back is not enough to cover the amount due Hardrives under contract and no improper payments by the owner were shown to have been made as contemplated in Section 713.06(3)(h), Florida Statutes (1975)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1975 Fla. App. LEXIS 14369
...against the appellees. The work was commenced on or about November 25, 1970 and completed sometime in February, 1971. Appellant did not file a notice of commencement or an affidavit that all subcontractors had been paid in accordance with Fla. Stat. § 713.06(2)(a) and (3)(d)(1), F.S.A....
...ppel. Before this court, appellant has re-asserted these grounds seeking to reverse the ruling of the trial court. The appellant argues that as a prerequisite to recovery it was not necessary that it strictly comply with the provisions of Fla. Stat. §
713.06, due to the fact that it was seeking to establish its right to a statutory lien under the provisions of Section
713.10....
CopyCited 5 times | Published | Florida 5th District Court of Appeal
...The lower court awarded the contractor/appellee, Cecil Watkins, d/b/a Marion Fence, the amount of the claim of the lien plus interest and costs. The owner moved to dismiss the cause on the ground that the contractor failed to comply with the requirements of section 713.06(3)(d)1, Florida Statutes (1981)....
...The trial court granted the owner's motion to dismiss, but allowed the contractor leave to file an amended complaint. At the hearing on the motion to dismiss, the trial court was aware that the contractor had not yet filed the required affidavit under section 713.06(3)(d)1, and that he intended to file the affidavit five days prior to filing his amended complaint which would allege service of the affidavit. The owner contends that the trial court erred in allowing the contractor leave to file an amended complaint because the contractor's noncompliance with section 713.06(3)(d)1 rendered such an amendment futile. We agree. Section 713.06(3)(d)1, Florida Statutes (1981) provides: (3) The owner may make proper payments on the direct contract as to lienors under this section, in the following manner: * * * * * * (d) When the final payment under a direct contract becomes due the contractor: 1....
...Mardan Kitchen Cabinets, Inc. v. Bruns,
312 So.2d 769 (Fla. Dist. Ct. App. 1975). Id. at 1109. Amendment of the complaint in the instant case would only have been proper if the contractor would have been able to allege service of the affidavit in compliance with section
713.06(3)(d)1....
...lege that the required affidavit was served at least five days before instituting the suit, the court should have dismissed the amended complaint because the amendment was futile. The evidence and the testimony of the contractor at trial showed that section 713.06(3)(d)1 had not been complied with and, therefore, the court should have granted the owner's motions to dismiss made at trial. Finally, because the contractor failed to prove at trial that he complied with section 713.06(3)(d)1, the lower court erred in entering judgment in favor of the contractor....
...attorney's fee. Falovitch v. Gunn & Gunn Construction Co.,
348 So.2d 560 (Fla. 3d DCA 1977). An owner who obtains a dismissal of a complaint for foreclosure of a mechanic's lien due to the contractor's failure to furnish the required affidavit under section
713.06(3)(d)1 is entitled to a reasonable attorney's fee....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...Marcelo Torres is a tile subcontractor who did work in the construction of a house owned by Alexander MacIntyre. When he was not paid, Torres filed a claim of lien. His suit to foreclose the lien was decided against him because his "notice to the owner" pursuant to Fla. Stat. § 713.06(2) was served more than 45 days after Torres commenced his work....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1647
...Moreover, different from the hospital lien, the warehouseman enforces his lien by selling those goods in his possession and there is no time limit as concerns its enforcement. Perhaps the closest analogy would be to a mechanics lien. However, a mechanics lien is patently distinguishable because § 713.06(2)(a) specifically states, "the failure to serve the notice, or to timely serve it, shall be a complete defense to enforcement of a lien by any person." [emphasis supplied] Upon full review, we are satisfied that the judgment on appeal is erroneous....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...Between April 6, 1970 and November 11, 1971 Associated Plastics, Inc. furnished the paint and paint supplies used on the project to Klein Painting. On June 18, 1970, shortly after Associated commenced supplying Klein, Associated filed a notice to owner (Saul J. Morgan Enterprises) pursuant to Section 713.06, Florida Statutes (1969); however, the notice contained the address and legal description of the property adjoining that of Morgan Enterprises....
...As a result, the notice to owner was placed in the Ives Tract file and Norman Cohen was unaware of its existence until after Associated filed its claim of lien and the instant foreclosure action. [2] Thus, it is apparent that Associated did not comply with the requisite requirements set down in Section 713.06(2)(a), Florida Statutes (1969) in that it failed to give a description sufficient for identification of the subject real property in its notice to owner....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...Although the court entered a money judgment for Atlantic against the corporate defendant, it refused to grant a mechanic's lien or to enter a judgment against the individual defendants. Its ruling was based on the finding that Atlantic had failed to serve a notice to owner as required by Section 713.06(2)(a), Florida Statutes (1975), and had failed to establish privity between the plaintiff/subcontractor and the defendant/owners....
...It then demanded payment and, when Robert Patron refused, Atlantic filed a claim of lien followed by a suit to foreclose its mechanic's lien and recover a money judgment against R.L.P. and the individual owners. Robert and Marvin Patron and Simon Konover raised an affirmative defense of failure to give notice to owner under Section 713.06(2)(a), Florida Statutes (1975)....
...for the amount claimed less a set off for work not completed. It refused, however, to foreclose the mechanic's lien on the owners' property or to enter judgment against the individual defendant/owners, finding that Atlantic had failed to serve the notice to owner which section 713.06(2)(a) requires materialmen and laborers not in privity with the owner to serve, or to establish such *466 privity between the plaintiff/subcontractor and the individual defendant/owners as would eliminate the notice requirement....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 1759
...uting its lawsuit. We disagree and affirm. Section
713.05, Florida Statutes (1985), provides, in pertinent part, "A lienor ... who is in privity with the owner and claims a lien under this section shall furnish the contractor's affidavit required in s.
713.06(3)(d)." Section
713.06(3)(d)1, Florida Statutes (1985), states the following: (d) When the final payment under a direct contract becomes due the contractor: 1....
...In the present case, Nicholson served the contractor's affidavit three days before it filed its lawsuit, and it filed its lawsuit on the last day permitted by statute. Thus, the issue presented is whether a suit filed prematurely because not filed at least five days after the serving of the contractor's affidavit under section
713.06(3)(d)1, can nevertheless be considered a timely filing in order to meet the 60-day requirement of section
713.22(2). We hold, as apparently did the trial judge, that the action was timely filed and that the five-day provision of section
713.06(3)(d)1 was of no significance once Coquina contested the claim. The essence of section
713.06(3)(d)1 is the requirement that a contractor's affidavit be furnished to the owner prior to the initiation of a foreclosure action....
...In the present case, by virtue of filing a notice of contest of lien, Coquina gave notice of its election not to pay Nicholson's claim for the cabinetry it built and installed in Coquina's shopping center. Once the owner has manifested its intention not to pay the claim, the five-day period provided by section 713.06(3)(d)1 loses its significance, and the only issue remaining with respect to entitlement to sue is whether the claimant has perfected his lien....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1993 WL 12398
...h by Prestige of the contract, we must reverse the judgment in favor of the Russells. Prestige also alleges that the trial court erred in dismissing its mechanic's lien claim for failing to prove service of the contractor's affidavit provided for in section 713.06(3)(d)(1), Florida Statutes....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...ndant to pay the amount of any lien established. We reverse upon a holding that there was a genuine issue of material fact. Appellee's first complaint was dismissed because it did not allege the giving of the forty-five day notice required by F.S.A. § 713.06....
...ent to pay in full the "priority" lienors. In Crane Co. v. Fine, Fla. 1969,
221 So.2d 145, the Supreme Court of Florida held *907 that the purpose of the mechanic's lien law was not to mandatorily require the forty-five day notice provided in F.S.A. §
713.06, but a lienor who failed to serve such a notice could establish a lien where: * * * * * * "......
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...Our task as a reviewing court is to afford a logical construction according to the general terms and intentions of the entire Mechanics' Lien Act. Sheffield-Briggs Steel Products, Inc. v. Ace Concrete Service Co., Fla. 1953,
63 So.2d 924. The trial court was convinced that since §
713.06 supra, (1967), does not specifically mention sub-subcontractors as a class of potential lienors, then such class of persons cannot be entitled to a lien....
...F.S.A. (1963); and, §
713.01(17) Fla. Stat., F.S.A. (1967). In conclusion then, we stand in agreement with the appellant's contention that the only logical conclusion to be drawn from the foregoing analysis is that the term, "subcontractor" as used in §
713.06(1) supra, also encompasses sub-subcontractors when the law is read as a whole....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1994 WL 681854
...mary judgment, finding that the furnishing of a photocopy of the contractor's affidavit did not comply with the mechanic's lien statute and, therefore, that Paulk had failed to meet a condition precedent to his action to foreclose a mechanic's lien. Section 713.06(3)(d), Florida Statutes (1987), provides in pertinent part: (d) When a final payment under a direct contract becomes due the contractor: 1....
...d by simply denying the allegation that "all *774 conditions precedent under Chapter 713 have been satisfied." Prestige Development Group, Inc. v. Russell,
612 So.2d 691, 692 (Fla. 1st DCA 1993). In the case sub judice, Paulk alleged compliance with section
713.06(3)(d), as well as satisfaction of all conditions precedent....
CopyCited 5 times | Published | Florida 5th District Court of Appeal
...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). Section
713.06(3)(d) states in part that: When the final payment under a direct contract becomes due the contractor: 1....
...rms that were to be used. However, this did not alter Hoenstine's status as a "contractor" under section
713.01(2), since the contract between Sowers and Hoenstine was of the type that could have involved the use of sub-contractors. Therefore, under section
713.06(3)(d), an affidavit was required to be filed prior to institution of suit....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...(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....
...ndle 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....
...ot 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....
...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....
...mitant failure to so state in §
713.04 should be interpreted to mean that it is required under this latter section. We reject this argument. Each of these sections is separate and distinct and stands alone. The lienor in this case is not subject to §
713.06(2), which is the only one of these sections requiring notice to owner, because it says that it only applies to "lienors under THIS 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....
...ming 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; this because the joinder was not accomplished until 2 1/2 years after the recording of the claim of lien and 2 1/6 years after the transfer of the lien to bond....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 2387
...'s furnishing the final payment affidavit. We agree. See Atlantic Gardens Landscaping, Inc. v. Boca Raton Land Development, Inc.,
360 So.2d 1278 (Fla. 4th DCA 1978), and Antonelli Construction Company v. Sanfilippo,
449 So.2d 891 (Fla. 3d DCA 1984). Section
713.06(3)(d)(1), Florida Statutes (1985), requires same of a contractor having one or more subcontractors which are providing, as here, some of the services or materials....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1995 WL 621338
...We disagree with the trial court's legal conclusion that the Hanleys' commencement of an action pursuant to section
713.21(4), Florida Statutes (1993), resulted in a waiver of the requirement that Kajak file a contractor's final affidavit pursuant to section
713.06(3)(d)(1) as a condition precedent to the maintenance of a lien foreclosure action pursuant to Chapter 713. The fact that the lien foreclosure action was filed by Kajak as a counterclaim does not alter the statutory requirement of
713.06(3)(d)(1) nor excuse noncompliance....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 2168
...the owner borrowed $94,000 to build his personal residence pursuant to a contract previously entered into with a contractor. After the house was partially completed, the contractor abandoned the job. The owner alleged that the lender in violation of section 713.06(3), Florida Statutes (1983), had disbursed funds to the contractor after receipt from subcontractors of notices to owner....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1993 Fla. App. LEXIS 5743, 1993 WL 174893
...The parties have now submitted a final appealable order and we proceed to address the issues on the merits. We affirm in part and reverse in part. It is undisputed that appellant failed to serve a written notice to owner upon the Jennings in the form required by section 713.06(2)(b), Florida Statutes (1991)....
...y gave the warnings now required by that section. The trial court properly dismissed Count I of appellant's complaint for failure to *487 state a cause of action, in that appellant failed to substantially comply with the notice to owner provision of section 713.06(2)(c), Florida Statutes (1991), and thus failed to satisfy a prerequisite to perfecting a construction lien....
...paying his contractor monies which ought to go to a subcontractor who remains unpaid. Id. The 1991 amendments to Chapter 713 followed the findings of The Mechanics' Lien Law Study Commission contained in the Commission's 1990 Report to the Governor. Section 713.06(2)(c) was amended to provide in part: "The notice must be in substantially the following form...." Section 713.06(2)(c), Florida Statutes (1991) (emphasis added). This language indicates the legislature's intent that the notice include all of the several warnings contained in that section, in substantially the form provided. There is no indication that a proper notice could be "served" as required by section 713.06(2)(a), by being orally recited to the owner. Thus, the plain language of section 713.06 indicates the legislature's intent that service of a written notice which includes the warnings contained in section 713.06(2)(c) is a prerequisite to perfecting a lien under Chapter 713. Appellant had failed to provide this court with support for its assertion that orally reciting the warnings and information contained in section 713.06(2)(c) constitutes substantial compliance with that section....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1974 Fla. App. LEXIS 7283
...an action to foreclose a mechanic's lien. We affirm. Appellant contends that the appellee failed to designate the contractor, Arcus Dry Wall, Inc., to which it was providing paint and other supplies in a notice to owner in accordance with Fla. Stat. § 713.06, F.S.A....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal
...Appellant complains of the denial of attorneys' fees and costs despite its successful prosecution of a mechanic's lien foreclosure. Appellees attack the judgment of foreclosure on cross-appeal by contending that appellant failed to furnish the affidavit required by Fla. Stat. § 713.06(3)(d)1....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1977 Fla. App. LEXIS 15784
...ice of $79,725.00. Several of the critical events which must be kept in mind are: 1) Tamarac paid $15,315.08 to the general contractor prior to recording its notice of commencement; 2) Bates served its notice of intention to claim a lien pursuant to Section
713.06(2)(a) within 45 days of the time it commenced its work but 7 days after the general contractor abandoned the contract; 3) Tamarac had the construction completed, but it did not record a notice of recommencement as required by Section
713.07(4), Florida Statutes (1973)....
...8 payments were improper, Bates still cannot recover because the reasonable cost of completion exceeded the contract price and therefore there was no surplus fund to satisfy Bates's claim of lien; and (c) since Bates, contrary to the requirements of Section 713.06(2)(a), did not serve its Notice to Owner before the general contractor abandoned *25 the job, the lien is unenforceable....
...We disagree with all of Tamarac's contentions. If an owner fulfills all the duties the Mechanics' Lien Law places upon him, his liability for all mechanics' lien claims cannot exceed the contract price. [1] See Alton Towers, Inc. v. Coplan Pipe & Supply Co.,
262 So.2d 671 (Fla. 1972), and Section
713.06(1), Florida Statutes (1973)....
...iability for mechanics' lien claims may exceed the contract price. See, e.g., Renuart Lumber Yards v. Stearn,
95 So.2d 517 (Fla. 1957). We hold that the payments Tamarac made before it recorded its notice of commencement were improper payments under Section
713.06(3)(a), Florida Statutes (1973)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 1346
...rdrives Company. Appellee/cross appellant, Tri-County Concrete Products, supplied materials to a subcontractor under Hardrives. When that subcontractor became insolvent, Tri-County filed a claim of lien for the materials it had supplied. Pursuant to section 713.06(2), Florida Statutes (1985), Tri-County mailed a notice to owner to Richmond Health Care, and sent a copy of the notice to Hardrives....
...Boux v. East Hillsborough Apartments, Inc.,
218 So.2d 202 (Fla. 2d DCA 1969). At the same time, the statute protects owners from having to pay twice for the same labor or supplies. Morgan v. Goodwin,
355 So.2d 217 (Fla. 1st DCA 1978). To this end, section
713.06(2)(a) requires that a subcontractor or materialman not in privity with the owner timely serve a notice to the owner of its claim of lien. Additionally, the statute requires that a materialman to a subcontractor, such as Tri-County here, serve a copy of the notice on the contractor and the subcontractor. Section
713.06(2)(a) provides in part: (2)(a) All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner.......
...Care and mailed a copy of the notice to Hardrives within the statutory timeframe, it failed to mail a copy of the notice to Encorp, the contractor. We conclude that failure to serve a copy of the notice to owner on the contractor, as required under section
713.06(2)(a), bars a potential lienor's claim because of the statutory provision that such service is a "prerequisite to perfecting a lien." Additionally, section
713.01(19), Florida Statutes (1985), defines a "lienor giving notice" as "any lienor, except a contractor, who has duly and timely served a notice to the owner and, if required, to the contractor and subcontractor as provided, in s.
713.06(2)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...tural services against the surety, Cincinnati Insurance Company, appellant. The trial court correctly determined that appellee Putnam was not required to give notice of claim of lien to the owner, Royal Oak Properties, Inc., appellee, as provided by section
713.06(2), Florida Statutes, by virtue of an exemption granted for professional services as set forth in section
713.03(3), Florida Statutes....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1977 Fla. App. LEXIS 15981
...The foregoing facts are somewhat complicated, but a single issue is dispositive of this case. Specifically, the appellant argues that the appellee, Rickards Electric, is barred from enforcing its mechanic's lien because it failed to submit a contractor's affidavit under Section 713.06(3)(d)(1), Florida Statutes (1975)....
..."subcontractor" and the owner as the "general contractor;" however, notwithstanding this adaptation, the appellee falls within the definition of "contractor" under Section
713.01(2), Florida Statutes (1975), and is also subject to the provisions of Section
713.06(3), supra....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...than 1/6 of the alleged total payments and, thus, the Dumas are presumably aware of the nature and scope of the labor, services, or materials allegedly furnished, and, finally, that appellant contractor alleges delivery of the affidavit required by Section 713.06(3)(d), Florida Statutes (1980), which affidavit serves to protect the Dumas from any unknown lien claims from sub-contractors or materialmen....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 2282, 2011 WL 923967
...The accounts of the pertinent events offered by the parties in their depositions are not entirely consistent. In particular, the deposition testimony of Robert Fournier, the company's agent, differs from the statement of the facts presented here concerning a number of significant details. [3] See § 713.06, Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 12 Fla. L. Weekly 177
...ls. We agree. Section
713.08(5) provides that: The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than ninety days after the final furnishing of the labor or services or materials by the lienor. Section
713.06(3)(d)(1) provides that: The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor w...
CopyCited 4 times | Published | Florida 5th District Court of Appeal
...Failure of the lessee to make improvements under the lease in this case would not have constituted a breach of the lease entitling the lessor to a legal remedy. Appellant further claims it was excused from serving a notice to owner within the time provided in section 713.06(2)(a), Florida Statutes (1981), citing Robert L....
...ts. The lease must, expressly or impliedly, require such improvements to be made. Only in the latter instance may lienors dealing with the lessee be deemed to be in privity with the owner and not be required to give the "notice to owner" required by section 713.06(2)(a), Florida Statutes (1981)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal
...ttorney'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. Specifically, we are asked to decide whether the provisions of section
713.06(1), Florida Statutes (1981), which generally limit 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....
...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). The Fourth District also recently held in Pembroke Villas of Broward, Inc. v. 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....
...o create new class of lienors through enactment of section
713.04; statute merely attempts to ameliorate particular problems inherent in subdivision development). A close examination of other sections of chapter 713, part I, supports our conclusion. 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)....
...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....
...Apparently, appellee merely paid the general contractor for invoices submitted from time to time as work on the job progressed. Consequently, we find no *703 support in the sparse record before us for the trial court's conclusion that only $3,880 of the original contract price remains unpaid. While section
713.06(1) limits liens to a total not to exceed the contract price, section
713.01(3) defines "contract price" where no price is agreed upon, as meaning "the value of all labor, services, or materials covered by their contract......
...this opinion. OTT and LEHAN, JJ., concur. NOTES [1] The general contractor is not a party to this appeal. [2] While acknowledging the confusion inherent in the mechanic's lien statutes, our sister court concluded that each of sections
713.03 through
713.06 governs different classes of lienors; thus, the requirements of section
713.06(2), as to notice, should not be engrafted upon the other sections.
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1997 WL 428522
...The lienors' total attorneys' fees and costs in this case exceeded the amount of the claims for the work and services they provided. Although the record is somewhat unclear, we assume that the Zalays made no improper payments and that their property was entitled to the limitation of lien described in section 713.06(3)(h), Florida Statutes (1993), which provides: When the owner has properly retained all sums required in this section to be retained but has otherwise made improper payments, the owner's real property shall be liable to all laborers,...
...ienor, shall be held properly paid as to the lienor, and if any of the money shall be held not properly paid as to any other lienors, the entire benefit of its being held not properly paid as to them shall go to the lienors. The Zalays maintain that section
713.06(3)(h) limits the amount of the liens against their home to the unpaid balance on their contract with Charles Walker Corporation. They argue that the additional fees and costs may be reduced to a monetary judgment, but that no lien can be created against their homestead to assist in the collection of the judgment. The critical issue is whether the language of section
713.06 permits the attorneys' fees and costs ultimately awarded under section
713.29 to become a lien against the property. We conclude that the limitation in section
713.06(3)(h) is intended to define the extent of the lien for the lienor's materials or services prior to litigation, and is not intended to preclude a lien for costs and attorneys' fees in a lien foreclosure action. Although the Zalays' argument relies primarily on section
713.06(3)(h), it is instructive to examine section
713.06(1), Florida Statutes (1993): A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to the limitations thereof, ha...
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2008 WL 4058013
...The Association did not file a separate motion regarding its "emergency" request for clarification of the order dismissing the complaint. [2] These rights include, for example, the right to "bond off" the lien claim (section
713.24), and rights to a final affidavit (section
713.06), and a list of subcontractors and suppliers (section
713.165)....
CopyCited 3 times | Published | United States Bankruptcy Court, M.D. Florida | 8 Fla. L. Weekly Fed. B 188, 1994 Bankr. LEXIS 1521, 1994 WL 526035
...ct 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. Stat. §
713.06(2)(a)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...In a prior action between the same parties, appellant had sought to foreclose its claim for a mechanic's lien on appellees' property. Upon trial of the foreclosure *195 suit, the plaintiff's evidence established that it had failed to furnish to defendant-owners the contractor's affidavit required under Fla. Stat. § 713.06(3)(d)(1) (1971), as a consequence of which the court dismissed the complaint with prejudice....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal
...13.01(9), Florida Statutes (1981). A "properly authorized contract" is one directly between the individual or entity claiming to be a "laborer" and either the owner, general contractor, subcontractor, sub-subcontractor or materialman on the project. Section 713.06(1), Florida Statutes (1981), provides in part: "A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of part 1 and is subject to the limitations thereof, shall have a lien on the real property improved for any money that is owed to him for labor, services, or materials furnished in accordance with his contract and with the direct contract." Section 713.06(1) grants to a laborer the right to place a lien on real property improved as a result of labor furnished in accordance with "his contract" and the "direct contract" permits the owner to make proper payments directly to laborers for labor "performed by them and covered by the direct contract......
...The Mechanics' Lien Law provides that a laborer not in privity with the owner "shall have a lien on the real property improved for any money that is owed to him for labor ... furnished in accordance with his contract and with the direct contract." § 713.06(1), Fla....
...at 841. The Act thus affords laborers protection which is not afforded to other lienors. For example, a laborer, unlike other lien claimants, need not give notice to an owner that he is working on a project as a predicate to filing a claim of lien. § 713.06(2)(a), Fla. Stat. (1981). And where an owner has made proper payments and there are inadequate funds to pay all lienors, laborers must be paid before any other lienor. § 713.06(4)(a), Fla. Stat. (1981). But although a laborer is specially protected by the Act, this special protection does not conflict with the protection given an owner who makes proper payments under the Act. If an owner complies with Section 713.06, Florida Statutes (1981), which details the method for making proper payment, and there are no funds remaining, the laborers will not be paid, and if there are insufficient funds to pay all laborers in full, then the laborers, as a class, will be paid a pro rata share of the ramaining funds, § 713.06(4)(a) and (b)....
...Only when the owner does not follow the statutory method for making proper payments does the property improved become subject to the full amount of all valid liens, either those "of which the owner has notice at the time the contractor furnished his affidavit," § 713.06(3)(d) 6, or laborers' liens, which are exempt from the notice requirement, § 713.06(2)(a)....
...Although it is unquestionably true that the collective bargaining agreement under which these laborers were employed called for their employer to pay these other items, the question of these plaintiffs' entitlement to a lien against the owner's property must be resolved by looking to the Mechanics' Lien Law. Section 713.06(1), Florida Statutes (1981), provides that a laborer's lien shall be "for any money that is owed him for labor......
...rs are the only proper plaintiffs in the suit and that the union and the trustees' claims must be dismissed. Therefore, I do not address whether this same result would obtain were the claims of lien held to include check-off and fringe benefits. See § 713.06, Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 13 Fla. L. Weekly 2428, 1988 Fla. App. LEXIS 4761, 1988 WL 114605
...Martin of Heidgerd & Martin, P.A., Fort Lauderdale, for appellee. PER CURIAM. In this action for breach of contract and consequent foreclosure of a mechanic's lien, it has been alleged that the prevailing subcontractor failed to furnish the contractor's affidavit required by section 713.06(3)(d)1., Florida Statutes (1987)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Whether a subdivision improvement lienor not in privity with the owner must file and serve notice to the owner in order to perfect his lien. The Baumgartners (owners) contend that Harrell (subdivision improvement lienor) was not in privity with them and pursuant to Section 713.06(2), Florida Statutes (1975), and Booth v....
...Whether Section
713.07(1), Florida Statutes (1975), affords the first subcontractor to file a lien against a subdivision a higher priority than that of other claimants under the same contract who timely file their claims. The Baumgartners contend that the priority of Harrell's lien is governed by Section
713.06(4), Florida Statutes (1975), rather than Section
713.07(1), Florida Statutes (1975)....
...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....
...he 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. Harrell's claim was the first recorded. Section
713.06(4) is not applicable to the facts of this case because the other lienors were not parties nor were their claims proved at trial....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1975 Fla. App. LEXIS 14331
...appellee Green and, therefore, such issues are still in the bosom of the trial court. The trial court held that appellant substantially complied with §
713.08, F.S. but that he was not in privity with the owner and that he had failed to comply with §
713.06(2) of the Mechanics' Lien Law....
...ng 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). We cannot agree with appellant that he *52 was not required to give notice to the owner under §
713.06(2)....
...Said section provides: "All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner... ." [emphasis supplied] The appellant, not having complied with § 713.06(2), was not entitled to any relief against the appellees Lobardi and, therefore, the judgment denying such relief is affirmed....
CopyCited 3 times | Published | District Court, M.D. Florida | 43 A.F.T.R.2d (RIA) 1173, 1977 U.S. Dist. LEXIS 16781
...Under the subcontract, Wynne was obligated to pay a portion of the money received from Tenneco to Phillips as a progress payment. On July 12, 1976, Keene sent a cautionary notice to the owner indicating its intention to pursue its rights under the Florida Mechanics Lien Law. Fla.Stat. § 713.06(2)(a)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...of same, if available (and if not available such information as will describe its physical location), a general description of the improvement, the name and address of the owner, the name and address of the contractor, and certain other information. Section
713.06(3)(a) provides: "(a) The owner shall not pay any money on account of a direct contract prior to recording of the notice provided in s.
713.13, and any amount so paid shall be improperly paid... ." Subsection
713.06(3)(h) provides that when the owner has made improper payments his real property shall be held liable to all laborers, subcontractors and materialmen complying with Chapter 713 to the extent of such improper payments. Subsection
713.06(3)(d)1 provides that when the final payment under a direct contract becomes due the contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, listing the name of each lienor who has not been paid in full, and the amount due or to become due to any such lienor. This affidavit is a prerequisite to the contractor's lien or right of action against the owner. Subsection
713.06(3)(d)5 provides that the owner shall retain the last payment due under a contract or ten percent of the original contract price, whichever is larger, and shall not disburse the same until the contractor's affidavit has been delivered to the owner....
...There are two reasons why this is not a valid argument to defeat appellant's claim. First, there is no evidence in the record that the lienor knew that the job was completed and that the owners were about or ready to pay the contractor. Secondly, under the express provisions of Section 713.06(2)(a), the lienor has forty-five days from the date of his commencing to furnish materials to the contractor to serve upon the owners a notice of his claim, or at least at a time prior to the contractor's giving of his affidavit as to the status of the lienors, if any....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 3042, 2002 WL 385046
...We affirm a final judgment in favor of Renar Development Company (Renar), enforcing *781 a construction lien on the Bells' property. In doing so, we conclude that the trial court did not err in finding that Renar's final contractor's affidavit complies with the requirements of section 713.06(3)(d)1, Florida Statutes (1999)....
...Renar, a general contractor, completed construction of a new home for the Bells. Renar filed a claim of lien for the balance claimed under the construction contract and forwarded a contractor's final affidavit to the Bells. Delivery of a contractor's final affidavit is mandated under section 713.06(3)(d)1, Florida Statutes, in securing the contractor's claim. Section 713.06(3)(d)1 requires that the contractor give the owner written assurance that potential lienors have been paid in full....
...ined in the Florida Statutes, had been paid in full except for the balance owed to Renar; it stated that the affidavit was made for the purpose of inducing the Bells and their lender to make full and final payment to Renar in compliance with chapter 713.06 and, finally, it was signed by the maker as an "Affiant." Although the sentence that affiant "did (did not) take an oath" is patently ambiguous, it is obvious that the notary simply failed to cross out the inapplicable language....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...ffice building for appellee, the owner. Therefore, appellant sought to impose a mechanic's lien against the appellee's building. Appellant's suit against the appellee was dismissed because of the failure to timely serve a notice to owner required by section 713.06(2), Florida Statutes (1979), and this court affirmed....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 9091, 2005 WL 1336410
...closure of the lien. Puya answered, asserting, among other affirmative defenses, that Superior failed to satisfy all conditions precedent to the lien foreclosure because it did not provide Puya with a contractor's final payment affidavit pursuant to section 713.06(3)(d)1., Florida Statutes (2003)....
...age to Puya's home), plus pre-judgment interest, costs, and attorney's fees, and granted the right to foreclose the lien on Puya's property. Puya first challenges the propriety of the judgment allowing Superior to foreclose on its contractor's lien. Section 713.06(3)(d)1....
...es due the contractor." The statute states that "[t]he contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit." § 713.06(3)(d)1....
...sal of the contractor's foreclosure suit. See Privas v. Brisson Custom Homes, Inc.,
817 So.2d 983, 984 (Fla. 4th DCA 2002); Bishop Signs, Inc. v. Magee,
494 So.2d 532, 533 (Fla. 4th DCA 1986); Paulk v. Peyton,
648 So.2d 772, 773 (Fla. 1st DCA 1994). Section
713.06(3)(c)5., makes the requirements of section
713.06(3)(d)1. applicable to this case. Section
713.06(3)(c)5....
...aph (d)1." Contrary to Superior's arguments, the statute required it to furnish a final payment affidavit to preserve its right to foreclose on its lien. See Hutton v. 3-L Enters., Inc.,
431 So.2d 277, 278-79 (Fla. 5th DCA 1983) (holding that, under section
713.06(3)(c)5., a contractor must comply with the final payment affidavit requirements set forth in
713.06(3)(d)1., even where the contract was terminated before completion and the owner's breach concerned non-payment of an installment)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...The trial court was correct in granting summary judgment denying appellant's mechanics lien claim. All work on the project, and the contract under which appellant commenced the furnishing of labor and materials on the job, post-dated the amendment to Section 713.06, Florida Statutes, effective July 1, 1978....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1983 Fla. App. LEXIS 22768
...Appellant (General Electric Company) supplied appliances (ranges, hoods, fans, refrigerators, etc.) to a contractor to be installed in homes being constructed in a subdivision owned by appellee (landowner). General Electric first filed a claim of lien (§
713.08, Fla. Stat. (1981)) and notice to owner (§
713.06(2)(a), Fla. Stat. (1981)). Apparently perceiving a limited balance due on the contract price available for prorata payment of lienors under section
713.06(4), Florida Statutes (1981), General Electric then filed a replevin action....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...ired to serve a notice under paragraph (2)(a) and who did not serve the notice and whose time for service has expired shall be entitled to be paid by the owner because he is listed in an affidavit furnished by the contractor under subparagraph (c)1. Section 713.06(3)(c)(4), Florida Statutes (1980 Supp.)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...ence in the record to support that finding and thus we must accept it. With regard to the mechanics lien, the trial judge stated the issue as whether the lien was valid in view of the fact appellee did not timely file his notice to owner pursuant to Section 713.06(2)(a), Florida Statutes (1977)....
...fficient fund remaining in the hands of the owner to cover appellee's lien and appellee was entitled to a judgment therefor. The appellants present a threefold challenge to the validity of the statutory mechanics lien. First, appellants contend that Section 713.06(2)(a), Florida Statutes (1977), amended by the Legislature in 1977, as reflected in Chapter 77-353, Section 5, Laws of Florida, precludes recovery on a statutory mechanics lien where the claimant untimely files a notice to owner....
...tatutes involved was inherently procedural or affected only the measure of damages for vindication of a substantive right."
344 So.2d at 243. It is the opinion of this court that Chapter 77-353, Section 5, Laws of Florida, the amendment which amends Section
713.06(2)(a), Florida Statutes (1977), and effectively abrogates one's right to recover on a statutory mechanics lien where the claimant untimely files the notice to owner, may not be applied retroactively....
...As such, the amendment could never be the subject of retroactive application. See: Sarasota Commercial Refrigeration and Air Conditioning, Inc. v. Schooley,
381 So.2d 1141 (Fla. 2d DCA 1980). In the alternative appellants argue that, assuming Chapter 77-353, Section 5, Laws of Florida, the amendment to Section
713.06(2)(a), Florida Statutes (1977), does not apply, appellee would nevertheless be precluded from recovery because appellee failed to timely file a notice to owner pursuant to Section
713.06(2)(a), Florida Statutes (1977)....
...1969), appellants assert that an equitable lien will only be imposed where special or peculiar equities exist and, since appellee did not plead or prove this special equity, he is foreclosed from recovering under this theory. Appellants have misconstrued the case law as applied to former Section 713.06(2)(a), Florida Statutes (1977)....
...v. Partin,
356 So.2d 264 (Fla. 1978), wherein it stated: In the leading case of Crane Co. v. Fine,
221 So.2d 145 (Fla. 1969), the Florida Supreme Court held that while a notice to the owner given in compliance with the time limitations provided in Section
713.06(2)(a) placed the lienor in a priority position, such a notice given after the expiration of the 45-day period could be the basis for perfecting a valid lien provided such notice was given within the requisite 90-day period and before t...
...Appellee's misfeasance in adhering to the statutory time for filing a notice to owner does not relieve or otherwise abrogate appellants' responsibility for timely filing a notice of commencement prior to payments made on the contract. Wool Wholesale Plumbing Supply, Inc. v. Abdo,
365 So.2d 216 (Fla. 4th DCA 1978). Section
713.06(3)(a), Florida Statutes (1977), provides that an owner may not pay any money on account of a direct contract prior to recording the notice of commencement provided for in Section
713.13, Florida Statutes (1977), and any amount so paid shall be deemed an improper payment....
...priority over other lienors in the same category and the failure to serve the notice shall be a complete defense to payment by any person except a person with whom the lienor failing to serve the notice has a contract. [2] It must be remembered that Section 713.06(2)(a), Florida Statutes (1977), was effective until July 1, 1978, when Chapter 77-353, Section 5, Laws of Florida, became effective.
CopyCited 3 times | Published | Supreme Court of Florida | 1978 Fla. LEXIS 4795
...of $6,415. Preliminary notice to owner was mailed the same day. The claim was filed within 90 days from the final furnishing of material as is required by Section
713.08(5). Preliminary notice, however, was not made within the statutory time frame. Section
713.06(2)(a) states: ......
...notice must be served before commencing or not later than 45 days from commencing to furnish his services or materials ... Prior to receipt of notice, respondent paid all sums due under the contract except $1,164.46. Final payment was made without obtaining the statutorily required contractor's affidavit. See Section 713.06(3)(d)(1)....
...Petitioner counterclaimed for foreclosure and both parties moved for summary judgment. The trial judge ruled in favor of petitioner and ordered foreclosure. The Fourth District Court of Appeal reversed, holding that petitioner's failure to comply with Section 713.06(2)(a) prevented perfection of the lien....
...." Partin v. Konsler Steel Company, supra, at 685. We reverse the opinion of the District Court and adopt the opinion of the trial judge, which in essential part states: Neither the Plaintiff [owner] nor the Defendant [materialman] has complied with Section 713.06, F.S....
...icate them from their respective predicaments. * * * * * * In the leading case of Crane Co. v. Fine,
221 So.2d 145 (Fla. 1969), the Florida Supreme Court held that while a notice to the owner given in compliance with the time limitations provided in Section
713.06(2)(a) placed the lienor in a priority position, such a notice given after the expiration of the 45-day period could be the basis for perfecting a valid lien provided such notice was given within the requisite 90-day period and before t...
...ffective for recovery by the lienor (pro rata with others similarly situated) out of funds represented by progress payments or final payment not made prior to the filing of the preliminary notice ( or which were not properly paid under the lien law. Section 713.06(3) Fla....
...District Court of Appeal stated as follows: "If funds remained available after all lien-holders filing timely notice had been discharged, then the tardy lien-holder could also receive payment." In the instant case, the Plaintiff did not comply with Section 713.06(3)(d)(5), Florida Statutes, which requires that the owner shall retain the last payment due under a contract or ten per cent (10%) of the original contract price, whichever is larger, and further requires that said sum shall not be dispersed until the Contractor's affidavit required under Section 713.06(3)(d)(1), Florida Statutes, has been delivered to the owner. Section 713.06(3)(d)(6), Florida Statutes, provides that failure of the owner to comply with Section 713.06(3)(d)(5), supra, renders his property subject to the full amount of valid liens. However, Section 713.06(3)(d)(6)(h), Florida Statutes, specifically limits the liability of the owner's property only to the extent of retentions and improper payments. The contract price was $25,164.46 and the last payment was to be twenty per cent (20%) of such amount or $5,032.89. Under Section 713.06(3)(d)(5), supra, the amount of $5,032.89 should have been withheld by the Plaintiff owner until he received the final payment affidavit of the Contractor....
CopyCited 3 times | Published | District Court, S.D. Florida | 1988 U.S. Dist. LEXIS 1851, 1988 WL 20242
...The present Motion to Dismiss is essentially the same as the first except the first Motion to Dismiss raised one additional argument not repeated in the second, namely, that plaintiff's failure to file a contractor's affidavit pursuant to Florida statutes section 713.06(3)(d)(1) (1985) precludes the maintenance of an action to foreclose a mechanic's lien....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1999 WL 1259942
...le 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. See Zalay v. 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). The reasons Zalay articulates for including section
713.29 attorney's fees within the section
713.06(1) lien are equally applicable to the lien at issue in this case, and we expressly adopt them....
CopyCited 3 times | Published | Florida 5th District Court of Appeal
...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). [1] In its order, the trial court also denied McMahan's motion to file a second amended complaint wherein it alleged that an affidavit in compliance with section
713.06(3)(d) had been filed after the filing of this lawsuit, but more than five days before the motion to amend was filed....
...r, Inc. It alleged the work was completed on June 11, 1982, and a total of $99,296.54 was owed for extras and the balance due under the contract. However, McMahan failed to allege that any affidavit was delivered to the owner/appellee as required by section 713.06(3)(d)....
...than completion and regardless of whether the contractor has any lienors working under him or not. (Emphasis supplied). Consistent with established precedent, [2] the trial judge allowed McMahan to file an amended complaint alleging compliance with section 713.06(3)(d)(1)....
...We find the cross-appeal without merit. The amended complaint was filed on February 24, 1983. It contained three counts: one, for mechanic lien foreclosure; one for breach of contract; and one for unjust enrichment. In an effort to allege compliance with section 713.06(3)(d)(1), McMahan claimed its application and certificate for payment, prepared on an A.I.A. form, which it furnished appellee on September 2, 1982, complied with all the requirements of section 713.06(3)(d)(1)....
...But in addition, there is no statement under oath that all lienors under the contract have been paid in full. McMahan argues that representation should be inferred from the warranties made by McMahan in its construction contract with appellee. [3] We do not think the certificate meets the requirements of section 713.06(3)(d)....
...Attached to the motion was the second amended complaint wherein McMahan alleged that on January 21, 1983, it furnished appellee with a contractor's affidavit stating that all lienors working on the improvement had been paid. This belatedly served affidavit apparently fully complied with section 713.06(3)(d)(1)....
...5th DCA 1984), we held that the statutory notice required by the sovereign immunity statute [6] could be given after the suit was filed, and that the trial court should either have allowed an amended complaint to be filed, or a new suit to stand. Although Askew did not involve the affidavit required by section 713.06(3)(d)(1) of the mechanic lien law, we recognized that our holding was irreconcilable with Saleh v....
...REVERSED AND REMANDED. ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur. NOTES [1] Section
713.05 provides, in pertinent part, "A lienor ... who is in privity with the owner and claims a lien under this section shall furnish the contractor's affidavit required in s.
713.06(3)(d)." [2] Moore v....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1973 Fla. App. LEXIS 7079
...Further, even if such disbursements were "properly paid" it was incumbent upon Food Fair to retain 10 per cent (10%) of the contract price or the "larger" of the last payment due. [2] Gay concedes that he did not give the 45-day notice called for by F.S. 713.06(2)(a), F.S.A., but contends that such time is not important since no sums were "properly" paid by the owner....
...ir, it having already paid Evans in full for all services performed. We decline to establish a fictitious fund as urged by Gay. The judgment appealed is affirmed. JOHNSON, J., and NESBITT, Associate Judge, concur. NOTES [1] F.S.
713.13, F.S.A. [2] F.S.
713.06(3) (d) (5), F.S.A....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 9 Fla. L. Weekly 1956, 1984 Fla. App. LEXIS 14951
...damages against appellants for $4,736.89 in a mechanic's lien action. We affirm. Appellants raise several points on appeal. 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)....
..., and that there were outstanding liens of approximately $96,000. ICC-T claimed a set off for the cost to complete and correct against the balance held on the original contracts and intended to disburse the remaining balance pro rata on the basis of section 713.06(4)(b), Florida Statutes (1981)....
...On June 24, 1983, the court denied appellants' motion for leave to file supplemental affidavits and entered a final summary judgment 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 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. Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc . Therefore, the pro rata method of distribution described in section
713.06(4)(b) was properly applied by the trial court in this case....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 15728, 2011 WL 4578320
...K & A also delivered other miscellaneous building materials to the Project under a separate order made by Soares Da Costa. Subsequently, on September 12, 2005, K & A served Soares Da Costa with a Notice to Owner/Notice to Contractor pursuant to sections
713.06 and
713.23, Florida Statutes, stating that it was delivering rebar materials to the Project under an order given by Contract Management ("First Notice")....
...Alternatively, K & A argues that the Second Notice was sufficient to satisfy the requirements of section
713.23(1)(c) for purposes of the rebar material supplied after the Project recommenced. We address each argument in turn. A. First Notice i. The First Notice Created a Lien Governed by Section
713.06, not Section
713.23. Construction liens are purely creatures of statute and must be strictly construed. Aetna Cas. & Sur. Co. v. Buck,
594 So.2d 280, 281 (Fla.1992). Where a contractor does not have a statutory bond in place, section
713.06, Florida Statutes (2004), provides that a materialman, laborer or subcontractor who is not in privity with the owner may acquire a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract. See §
713.06(1), Fla. Stat. As a *317 prerequisite to perfecting a lien under section
713.06 and recording a claim of lien, all lienors must serve a notice on the owner setting forth the lienor's name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. See §
713.06(2)(a), Fla....
...Tartan-Lavers Delray Beach, Inc.,
456 So.2d 1254, 1259 (Fla. 4th DCA 1984)). In addition, a notice of commencement serves to determine the priority of liens under the Construction Lien Law. See §
713.07, Fla. Stat. (2005). Liens arising under sections
713.05 and
713.06, [2] Florida Statutes, attach and take priority as of the date the notice of commencement is recorded. §
713.07(2), Fla. Stat. A notice of commencement may be terminated only after completion of construction, or if construction ceases before completion, after all lienors have been paid in full or pro rata in accordance with section
713.06(4), Florida Statutes....
...Bridgeport-Strasberg Joint Venture,
940 So.2d 444, 447 (Fla. 5th DCA 2006). Section
713.23(1)(c) was, therefore, inapplicable to the First Notice, and the First Notice could only serve to perfect K & A's lien against the Owner and Soares Da Costa pursuant to section
713.06(1), not to satisfy conditions precedent to recovery under a section
713.23 payment bond....
...r, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in writing that the lienor will look to the contractor's bond for protection on the work. [2] Sections
713.05 and
713.06 involve unbonded liens....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2007 WL 4179674
...A "subcontractor" is one who is contractually obligated to perform a specific part of the contractor's contract, i.e., labor, services, or the furnishing of materials in accordance with the specifications of the primary contract. See §
713.01(27), Fla. Stat.; see also §
713.06(1)....
...713.01 who furnish labor, services, or materials for the prosecution of the work provided for in the contract." §
255.05(1)(a), Fla. Stat, (emphasis added). Subcontractors are persons defined in section
713.01 and may perform labor and services or furnish materials. See §§
713.01(27),
713.06(1), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2002 WL 1059536
...3, 1996contractor's affidavit dated and notarized. Sept. 6, 1996contractor amends complaint. The homeowners filed a motion to dismiss the complaint, and alleged that the contractor had failed to timely file and serve the contractor's affidavit, pursuant to section 713.06(3)(d), Florida Statutes....
...The homeowners filed an answer and affirmative defenses, once again raising the lack of a contractor's affidavit having been timely delivered prior to the filing of the action. The trial court heard the matter and entered a final judgment in favor of the contractor on July 19, 2000. Sections
713.06(3)(d) and
713.22 of the Florida Statutes govern the outcome of this case....
...who has not been paid in full. "The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his or her lien under this chapter...." § 713.06(3)(d), Fla....
CopyCited 2 times | Published | United States Bankruptcy Court, M.D. Florida | 1982 Bankr. LEXIS 4072
...r and services provided under the contract. Only Deem Cabinets and Construction Equipment, Inc. sent the notice to the owner informing him of the materials or services to be furnished, which is a prerequisite to a valid claim of lien under Fla.Stat. § 713.06(2)....
...e, they are invalid and unenforceable. In the case Construction Equipment, Inc., work was commenced on September 19, 1979 but the required notice to the owner was not served until December 17, 1979, outside of the 45 day period set down by Fla.Stat. § 713.06....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 13 Fla. L. Weekly 601
...The notice also provides the lienor current addresses to which a Notice to Owner would be sent. The statutes and case law also indicate that a properly filed Notice of Commencement protects an owner from double payment: "any amount [paid prior to the notice] shall be improperly paid." § 713.06(3)(a), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1990 WL 73298
...matter; there are no other subcontractors or lienors." The Adamses' answer to the complaint specifically denied the allegation of Paragraph 16 and, as an affirmative defense, raised Timbercraft's failure to comply with the statutory requirements of section 713.06, Florida Statutes....
...As to Timbercraft's second point on appeal, we find that the trial court did not err in dismissing Timbercraft's mechanics' lien foreclosure count on the basis that Timbercraft failed to furnish the Adamses with a contractor's final affidavit, pursuant to section 713.06(3)(d)(1), Florida Statutes, five days prior to the institution of the action....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 9363, 2009 WL 1703235
...e by failing to assert it specifically and with particularity. After judgment was entered in Hammer Head’s favor on both its contract and foreclosure claims, this appeal followed. For the reasons discussed hereafter, we affirm. Sections
713.05 and
713.06(3)(d), Florida Statutes (2008), provide that when final payment becomes due under a direct contract, the contractor must give the owner a *1191 final payment affidavit in substantially the form prescribed by the statute. Section
713.06(3)(d)l....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
...*832 Appellants' basic contentions are twofold. First, appellants contend that the trial judge erred in refusing to dismiss count I of appellee's complaint in that appellee violated the forty-five day period of serving a "notice to the owner" pursuant to Section 713.06(2)(a), Florida Statutes (1975). In addition, appellants contend that appellee failed to serve an affidavit on the owners, pursuant to Section 713.06(3)(d)(1), Florida Statutes (1975)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1988 WL 76011
...Delta's lien. The Bank and Fidelity bring this appeal alleging error in the trial court's finding that Delta complied with the mechanics' lien law. The issue to be resolved here is whether the trial court's finding that Delta complied with sections 713.06(2)(a) and 713.06(3)(d), Florida Statutes (1983), of the mechanics' lien statute were clearly erroneous or totally without support in the evidence....
...law, could be mailed to either City National Bank of Miami, in Miami, or to George Heaton, at the office address of Heaton Development Corporation in Fort Lauderdale. Shortly after contracting with HDC, Delta mailed a notice to owner, as required by section 713.06(2)(a), Florida Statutes (1983), to the HDC office in Fort Lauderdale....
...HDC refused to pay the balance due, and thereafter, Delta proceeded to establish its lien on the property to recover the amount of the final invoice. The two sections of the mechanic's lien law the appellant challenges, as insufficiently met by Delta, are sections 713.06(2)(b) and 713.06(3)(d), Florida Statutes (1983)....
...name "George Heaton" on the notice to owner and did not list the words "Trustee for # 5006261" on the final affidavit, Delta is not entitled to over $43,000 worth of work that the appellant admits Delta performed, and would otherwise be entitled to. Section 713.06(2)(a), Florida Statutes (1983), requires that a notice to owner be served on the owner by certified mail and that it identify the real property and the services or materials furnished or to be furnished by the person supplying the notice....
...Tartan-Lavers Delray Beach,
456 So.2d 1254 (Fla. 4th DCA 1984); George J. Motz Construction Crop. v. Coral Pines, Inc.,
232 So.2d 441 (Fla. 4th DCA 1970); Blinn v. Dumas,
408 So.2d 683 (Fla. 1st DCA 1982); S & S Air Conditioning Co. v. Cantor,
343 So.2d 923 (Fla. 3d DCA 1977). Section
713.06(3)(d), Florida Statutes (1983), requires service of a final affidavit on an owner by a contractor, which indicates that all lienors under direct contract with the contractor have been paid in full or otherwise indicates those who have...
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 1378, 2000 WL 159071
...In the meantime, Strickland stopped payment on its check to Newman. Seven days after the delivery of the generator, which was also seven days after the homeowner made her progress payment, Newman filed its notice to owner under the *122 Construction Lien Law. See id. § 713.06, Fla....
...Newman sued the homeowner, contending that under the Construction Lien Law, the homeowner must pay the unpaid balance on the Onan generator. Newman reasoned that after delivering the generator it had forty-five days to serve its notice to owner, see id. § 713.06(2)(a), and thus its notice to owner in this case was timely....
...truction Lien Law and that she owed nothing further to Newman. The trial court entered summary final judgment in favor of Newman, and the homeowner has appealed. The homeowner and Newman are not in privity, and thus their relationship is governed by section 713.06, Florida Statutes, (Supp.1998)....
...The homeowner first points out that in order for the supplier, Newman, to be entitled to a lien, it is necessary that the materialsthe generatorbe "furnished in accordance with [the supplier's] contract and with the direct contract [between the homeowner and Strickland]. ..." Id. § 713.06(1) (emphasis added); see also id....
...yment of $19,409.50 and then a progress payment of $19,409.50 upon delivery of the generator. [1] When delivery took place, Newman had not served a notice to owner, and did not do so until seven days after the progress payment had already been made. Section 713.06, Florida Statutes, provides with regard to progress payments (except the final payment), "The owner shall be under no obligation to any lienor, except laborers, from whom he or she has not received a notice to owner at the time of making a payment." Id. § 713.06(3)(c)1. [2] The owner's statutory *123 duty to lienors with respect to progress payments is confined to those lienors "giving notice prior to the time of the payment." Id. § 713.06(3)(c)1....
...Buzzett, and Deborah Kaveney Kearney, Construction Lien Law Reform: The Equilibrium of Change, 18 Fla. St. U.L.Rev. 257, 272 (1991). Under the previous statute, a payment was not "proper" on a direct contract if it was made prior to recording a notice of commencement. See § 713.06(3)(a), Fla....
...have been able to press its claim to those amounts. That analysis does not survive the 1990 statutory amendments. The "boldest and most far-reaching [legislative] change" in 1990 was elimination of the definition of "proper payment" contained in subsection 713.06(a)....
...Although Newman's notice to owner had no effect on previously-made progress payments, it was served within forty-five days and therefore was timely with respect to any subsequent payments coming due. However, under the Construction Lien Law an owner's liability cannot exceed the total contract price. See id. § 713.06(4)(a); Alton Towers, Inc....
...t then due under the direct contract among the lienors giving notice pro rata in the manner prescribed in subsection (4). Lienors receiving money shall execute partial releases, as provided in s.
713.20(2), to the extent of the payment received. Id. §
713.06(3)(c) (Supp.1998). Newman argues that the reference in subparagraph 1 to "subparagraph 2" is a reference to subsection
713.06(2), which is the provision allowing, among other things, a supplier forty-five days in which to serve the notice of commencement. Newman contends that thereby a forty-five-day waiting period has been written into the just quoted paragraph
713.06(3)(c)....
...e Arabic numbers enclosed by parentheses; paragraphs, by lowercase letters enclosed by parentheses; subparagraphs, by whole Arabic numbers followed by a period...." Id. The reference to "subparagraph 2" is a reference to the just-quoted subparagraph
713.06(3)(c)2., not subsection
713.06(2). [3] The 1989 statute provided, "The owner shall not pay any money on account of a direct contract prior to recording of the notice provided in s.
713.03, and any amount so paid shall be held improperly paid." §
713.06(3)(a), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal
...owner a sworn statement of the kind referred to above, which is required by the section of the Mechanics' Lien Law relating to contractors, requiring such sworn statement to be given by a contractor when final payment is due under a direct contract. Section 713.06(3)(d)1, Florida Statutes 1975....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 14 Fla. L. Weekly 1914, 1989 Fla. App. LEXIS 4565, 1989 WL 90483
...ber 3, 1987. The initial delivery of materials by appellant to the Vaughn job site occurred on November 16. Contractor Riggs failed to pay appellant for the materials used in the Vaughn job. Thereafter, in an attempt to comply with the provisions of section 713.06(2)(a) in claiming a lien on the improved property, appellant sent a "notice to owner" to Vaughn on December 23, 1987. On December 15 and December 23, 1987, Vaughn made payments to Riggs totaling $10,000. In appellant's subsequent suit against Riggs and Vaughn on the claim of lien, appellant alleged that it had notified Vaughn as required by section 713.06....
...later payments made by Riggs. The trial court correctly denied appellant's complaint to foreclose the claim of lien on the grounds that appellant had failed to timely serve the "notice to owner" and had failed to demand a designation of account. [1] Section 713.06(2)(a) clearly provides that as a prerequisite to perfecting a lien under chapter 713, all lienors must serve a notice to the owner "before commencing, or not later than 45 days from commencing, to furnish his services or materials " (e...
...incorporation of such materials in the improvement." Contrary to *729 appellant's contention, however, that provision does not establish that delivery of materials to the job site is the only act that may be classified as furnishing materials under section
713.06(2)(a). Clearly, section
713.01(6) and
713.06(2)(a) establish that the furnishing of any materials which are incorporated in the improvement commences the running of the 45-day time period....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1981 Fla. App. LEXIS 20751
...quired to perform the contract. The evidence shows that plumbing material charges of approximately $93,000 were posted on the books of Tropical for this project. During the initial phases of construction Tropical served a Notice to Owner pursuant to Section 713.06, Florida Statutes (1977) to protect itself should it later be found necessary to file a claim of lien....
...ent (10%) of the contract price until the final Contractor's Affidavit was received. Plaintiff's position is that all payments made, whether by joint check or the two payments made directly to the contractor, were improper payments in the context of Section 713.06 and, therefore, do not satisfy Defendant's obligations to Plaintiff....
...That law does provide a security device in the form of a mechanic's lien to secure the payment of sums otherwise due and owing. It further isolates a source of funds for such payment, the balance due under the contract, where improper payments as defined in Section 713.06 have been made....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...he facts in the light most favorable to the party against whom the judgment was granted. 2 Fla.Jur. Appeals § 307 (1963). Basically, there is no question that the appellant WESCO did not furnish timely notice to the owner of its mechanic lien. F.S. § 713.06 F.S.A....
...nt falls. However, appellant countered with the fact that the owner made improper payments in that it made a payment of approximately $500,000 on the contract to the general contractor *811 prior to the filing of the notice of commencement (see F.S. § 713.06(3)(a) F.S.A.) and also after WESCO filed its notice to owner of furnishing materials on November 17, 1970, the owner continued to make payments, these payments not being made on a prorata basis....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1983 Fla. App. LEXIS 19794
...ORFINGER, Chief Judge. This is an appeal from a final judgment entered in favor of the general contractor in a mechanics' lien foreclosure action. We reverse. The complaint fails to allege the delivery to the owner of the contractor's affidavit required by section 713.06(3)(d)(1), Florida Statutes (1981), and the owner's motion to dismiss the complaint because of this omission was denied....
...mpt from the requirements of furnishing the affidavit by virtue of section
713.03(3), Florida Statutes (1981), which provides, in essence, that persons who perform services as engineers (and certain others) need not furnish the affidavit required by section
713.06(3)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1989 WL 62423
...This is an appeal by a sub-subcontractor, Roof Structures, Inc., from a judgment for the owner in a suit to enforce a mechanic's lien. The judgment was based upon the failure of the sub-subcontractor to serve a copy of the notice to owner on the true general contractor, Construction Services Company, as required by section 713.06(2)(a), Florida Statutes....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1991 WL 22530
...Appellees raised the affirmative defense of untimeliness because of section
713.22(2), Florida Statutes (1989), then moved for summary judgment on this ground and also on the ground that appellant failed to serve the Notice to Owner properly as required by section
713.06(2)(a)....
...untimeliness, but that appellant had complied with the notice to owner requirement. Appellant claims its actions were not barred under section
713.22(2) and appellees cross-appeal the finding that appellant had met the Notice to Owner provisions of section
713.06(2)(a)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...Appellant perfected a claim of lien, claiming approximately $19,350 due under the contract, and this action ensued. Appellees filed a motion to dismiss because of appellant's failure to file a contractor's affidavit five days prior to institution of the suit as required by § 713.06(3)(d)(1), F.S....
...to allege the service of the affidavit of the contractor upon the defendant-owners five days prior to the institution of the action, which is a prerequisite to plaintiff's institution of its [sic] suit to enforce a lien pursuant to Florida Statutes § 713.06(3)(d)1." Section 713.06(3), F.S....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1999 Fla. App. LEXIS 9508, 1999 WL 525442
...nse to Chapman's suit to enforce a construction lien against Gulfside's property. Because we hold that the defect in Gulfside's notice of commencement did not excuse Chapman from complying with the applicable provisions of the construction lien law, section 713.06, Florida Statutes (1993), which required Chapman to serve a statutorily prescribed notice on owner, we reverse the judgment in favor of Chapman....
...ainst the subject property in compliance with the requirements of Florida's construction lien law. On appeal, Gulfside argues that Chapman failed to comply with the construction lien law because Chapman did not serve a notice to owner as required by section 713.06; that Gulfside's failure to sign the notice of commencement as owner did not excuse Chapman's service of a notice to owner; and that Chapman's failure to make any effort to serve the notice to owner is a complete defense to the action seeking enforcement of its claim of lien....
...easonably relied upon the alleged misinformation contained in Gulfside's notice of commencement. We agree with Gulfside that the defective notice of commencement did not excuse Chapman from the requirement that it serve a notice to owner pursuant to section 713.06, and that the invoices sent to Willis did not constitute the notice to owner expressly set forth in the construction lien law....
...Tartan-Lavers Delray Beach, Inc.,
456 So.2d 1254, 1259 (Fla. 4th DCA 1984), the construction lien law itself now provides other methods for the lienor to obtain the information necessary to file a notice to owner in the absence of a notice of commencement. See *607 §
713.06(2)(e), Fla....
...ice to owner and made no good faith effort to ever serve such a notice on Gulfside. The notice to owner is a separate requirement of the construction lien law. As an entity not in privity with the owner, Chapman's rights to a lien are as provided in section
713.06. See §
713.02(4), Fla. Stat. (1993). As a prerequisite to perfecting a lien and recording a claim of lien, Chapman had to serve a notice on Gulfside in substantial compliance with the form set forth in section
713.06(2)(c) (Notice to Owner) before commencing (or no later than 45 days after commencing) to furnish the services or materials. See §
713.06(2)(a), Fla. Stat. (1993). The "failure to serve the notice, or to timely serve it, is a complete defense to enforcement of a lien by any person." §
713.06(2)(a), Fla....
...We also reject Chapman's alternative argument, i.e., that his invoices and job proposal, as faxed to Willis, constituted a proper notice to owner. It is undisputed that Chapman failed to serve a written notice to owner upon Gulfside in the form required by section 713.06(2)(c). Chapman's alternative argument that its facsimile transmission of an invoice and proposal constituted a notice to owner is without merit. "[T]he plain language of section 713.06 indicates the legislature's intent that service of a written notice which includes the warnings contained in section 713.06(2)(c) is a prerequisite to perfecting a lien under Chapter 713." Mirror and Shower Door Prods., Inc....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1994 WL 7699
...ay. We agree. In Rite-Way Painting & Plastering, Inc. v. Tetor,
582 So.2d 15 (Fla.2d DCA), rev. dismissed,
587 So.2d 1329 (Fla. 1991), this court applied rule 1.090 to extend the time for service of a notice to the owner in a mechanic's lien action. Section
713.06(2)(a) requires that all lienors not in privity with the owner, except laborers, as a prerequisite to perfecting a construction lien must serve notice on the owner no later than 45 days after commencing to furnish services or materials....
...This court held that based on the time computations of rule 1.090 the last day for proper service was Tuesday, January 3. Because we have determined that the computations of rule 1.090(a) apply to the time period within which notice must be served on the owner under section
713.06(2)(a), we hold that they also apply to the period within which an action to enforce the lien must be commenced under section
713.22(1)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1977 Fla. App. LEXIS 15133
...ummary judgment for the full amount of his claim, against the surety on a performance bond posted by the general contractor under F.S. §
713.23, notwithstanding the plaintiff's admitted failure to give timely notice to the owner as required by F.S. §
713.06(2)....
...The statutory provision in question, F.S. §
713.23 expressly states "... Except claimants in privity with the contractor and except laborers, no claimant shall recover on a bond or from the contractor unless he shall have complied with the provisions of §
713.06(2)." [Emphasis supplied] F.S. §
713.06(2), in turn, provides for the service of a notice to the owner "......
...)1., of this section, or abandonment, whichever shall occur first." There is no question but that WeatherKing did not serve the notice in question until 105 days after commencement and 75 days after its abandonment of the job. A mere reading of F.S. § 713.06(2) precludes our acceptance of WeatherKing's contention that its faulty compliance with F.S. § 713.06(2) does not affect its right to recover on the performance bond....
..., a lienor listed therein may participate even though he gave no notice, provided a balance remains after the payment of lienors who have given notice." (Emphasis supplied.) Id. at 152." Under this formulation, an asserted lienholder in violation of § 713.06(2) must establish, in order to recover against the owner at all, either that funds remain undistributed or have been misdistributed....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1989 WL 9759
...Hahn of Hahn, Breathitt & Watson, P.A., Lakeland, for appellees Webb, Johnson and Community Nat. Bank. *1236 LEHAN, Acting Chief Judge. We affirm the dismissal with prejudice of a subcontractor's mechanic's lien amended complaint for failure to serve a timely notice upon the owner as required by section 713.06(2)(a), Florida Statutes (1987)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1994 WL 149726
...The trial court refused to enforce the mechanic's lien, and entered judgment in favor of the Stunkels on the grounds that Gazebo did not serve them with a notice to owner within forty-five days after commencing to furnish service or materials, as required by section 713.06(2)(a), Florida Statutes (1991)....
...This practical analysis, based on the totality of the circumstances, might eliminate any possible confusion and uncertainty in the construction industry as to when services are actually furnished, and when notice should be given in accordance with section 713.06(2)(a), Florida Statutes (1991), so a mechanic's lien can be legally enforced....
...Thus, we reverse and remand for proceedings consistent with this opinion. Nonetheless, we certify to the supreme court the following question as one of great public importance: DOES A SUBCONTRACTOR BEGIN TO FURNISH SERVICES, FOR THE PURPOSE OF TIMELY PROVIDING A NOTICE TO OWNER IN ACCORDANCE WITH SECTION 713.06(2)(a), FLORIDA STATUTES (1991), WHEN, WITHOUT ANY BINDING CONTRACTUAL OBLIGATION TO DO SO, HE OR SHE BEGINS TO SELECT MATERIALS AT SOME LOCATION OFF THE JOB SITE, FOR FUTURE INSTALLATION ON THE JOB SITE? ANSTEAD and STONE, JJ., concur....
...NOTES [1] All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter, and recording a claim of lien, must serve a notice on the owner.... The notice must be served before commencing, or not later than 45 days after commencing to furnish his services or materials... . § 713.06(2)(a), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2004 Fla. App. LEXIS 5230, 2004 WL 784774
...Liberty moved for summary judgment, arguing that Action Labor was not a proper claimant pursuant to the 1998 version of Chapter 713. The trial court agreed and entered an order granting Liberty's motion for summary judgment. For the following reasons, we affirm. § 713.06(1), Fla....
...his or her contract and with the direct contract and for any unpaid finance charges due under the lienor's contract. "No person may have a lien under this section except those lienors specified in it, as their designations are defined in §
713.01." §
713.06(1), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...Subsequently, the court entered a supplemental judgment awarding defendants costs and reasonable attorney's fees pursuant to Section
713.29. Appellant appeals from said judgments, contending that the trial court erred in holding the release of lien furnished by the contractor met the test of Section
713.06(3)(d)(1), Florida Statutes (1977)....
...oath that he has paid his subcontractors who may have liens on the project. The countervailing benefit is that the owner can rely on this affidavit and protect himself from subsequent notices of claims which may be filed within the 45-day period of Section
713.06(2), Florida Statutes (1977), "Notice to Owner", or within the 90-day period of Section
713.08(5), Florida Statutes (1977), "Claim of Lien"....
...Marguerite Mero Notary Public State of Florida at Large "My Commission expires: "Notary Public, State of Florida at large My Commission Expires March 5, 1979 Bonded by American Fire & C" [2] This was not reported at the time of the rendition of the original judgment in the trial court. [3] § 713.06(2)(a), Fla....
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 21079
the meaning of “deliver” as it is meant in section 713.-06(3)(d)(l): The contractor shall give to the
CopyPublished | Florida 1st District Court of Appeal
...rate allowable by law on all sums not timely paid
and hereby submits to the jurisdiction of the courts of the
State of Florida, whose laws govern this Agreement.
(Emphasis added). The monthly 1.5% charge was annualized by
the trial court to be 18%.
Section 713.06(1), Florida Statutes (2018), specifically
authorizes a lien on real property for a materialman or laborer “not
2
in privity” with the owner of real property for unpaid services or
materials and “...
...recoverable under the materialman lien statute. I would affirm the
final order in full.
Under the lien statute, the amount of the lien of a
materialman not in privity with the property owner includes “any
unpaid finance charges due under the lienor’s contract.” §
713.06(1), Fla....
CopyPublished | United States Bankruptcy Court, S.D. Florida. | 1982 Bankr. LEXIS 3360
..., 1981, to be the commencement date. Therefore, since HAW-KEYE has complied with the Mechanic’s Lien Statute (Florida Statutes, Chapter 713) in filing its Notice to Owner within forty-five (45) days of commencing work pursuant to Florida Statutes, §
713.06(2)(a), and further complied with Florida Statutes, §
713.08(5), by filing its Claim of Lien within ninety (90) days of August 17, 1981, the date upon which the work was....
CopyPublished | Florida 1st District Court of Appeal | 1980 Fla. App. LEXIS 17144
...E.E. Dean Snavely, Inc. v. Weatherking, Inc.,
343 So.2d 58 (Fla. 4th DCA 1977). In the instant case appellant failed to file a notice of commencement as required by Section
713.13, which rendered all payments made under the contract improperly paid. §
713.06(3)(a); Wool Wholesale Plumbing Supply, Inc....
...s. Accordingly, the amended final judgment is AFFIRMED. SCHEB, C. J., and OTT, J., concur. . This will no longer be so for lienors whose service and materials are furnished subsequent to July 1, 1978, the effective date of the following amendment to Section 713.06(2)(a): “[T]he failure to serve the notice [of intent to claim a lien] shall be a complete defense to payment by any person, except a person with whom the lienor failing to serve the notice has a contract.” § 713.06(2)(a), Fla.Stat....
CopyPublished | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 609, 1992 Fla. LEXIS 1635, 1992 WL 275896
...ys in which to pay. Cf. In re Advisory Opinion—Nonlawyer Prepa ration of Notice to Owner and Notice to Contractor,
544 So.2d 1013, 1016 (Fla.1989) (it is not the unlicensed practice of law for a nonlawyer to prepare the Notice To Owner required by section
713.06(2), Florida Statutes)....
CopyPublished | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 13845, 2000 WL 1595972
...The court held that De-vito was responsible for a total of $53,-963.19. Additionally, the court found that Skilled Services held a lien for $83,286.69 against VL Orlando on the Ramada Plaza Resort. A date for a foreclosure sale was set. As a result, VL Orlando appealed. VL Orlando contends that pursuant to sections
713.06 and
713.01, Skilled Services, as a labor pool, does not meet the statutory definition of laborer. Section
713.06, Florida Statutes (1997), reads in pertinent part: (1) A materialman or laborer, either of whom is not in privity with the owner, or a subcontractor or sub-subcontractor who complies with the provisions of this part and is subject to t...
...means performance or furnishing by the lienor or by another for him or her. Section
713.02(4), reads: (4) Persons who are not in privity with an owner and who perform labor ... constituting a part of an improvement under the direct contract of another person shall have rights to a lien on real property as provided in section
713.06....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 7996, 1990 WL 155071
...The courts have determined when privity arose on the particular facts of each case. A presumption of privity arises where the owner acts as his own contractor and contracts with the lien claimant, albeit in his capacity as contractor. These circumstances relieve the lien claimant of the statutory obligation of section 713.06(2)(a), Florida Statutes, to notify the owner of the claim of lien....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 13166, 1998 WL 727352
...Royal American Construction, Inc. (RAC), a general contractor, to construct an apartment complex. RAC obtained the services of JM who began to perform while obtaining supphes from FWS. FWS timely and correctly served its Notice to Owner pursuant to section 713.06, Florida Statutes (1995)....
...tes (1995), file its “Notice of Partial Recommencement”, and eliminate any obligations to FWS because the cost of completing the framing and rough carpentry after JM defaulted was in excess of the original contract with JM. Osprey relied upon subsection 713.06(1), Florida Statutes (1995), in concluding that it could not be responsible to FWS for its $467,124 claim of lien....
...RECOMMENCEMENT Subsection
713.07(4), Florida Statutes (1995), provides:
713.07 Priority of Liens.— (4) If construction ceases before completion and the owner desires to recommence construction, he may pay all lienors in full or pro rata in accordance with s.
713.06(4) prior to recommencement in which event all liens for the recommenced construction shall take priority from such recommencement; or the owner may record an affidavit in the clerk’s office stating his intention to recommence construction...
...contractor to defeat the claim of a materialman. Here, RAC failed to select a financially responsible subcontractor and may have failed to protect itself from JM’s supplier after it received a copy of FWS’s notice to owner in accordance with subsection 713.06(2)(a), Florida Statutes (1995)....
CopyPublished | Florida 2nd District Court of Appeal | 1974 Fla. App. LEXIS 8484
failed timely to comply. with the requirements of § 713.-06(3) (d)(1), Fla.Stat. Appellant’s failure timely
CopyPublished | Florida 4th District Court of Appeal | 9 Fla. L. Weekly 2160, 1984 Fla. App. LEXIS 15358
...That law does provide a security device in the form of a mechanic’s lien to secure the payment of sums otherwise due and owing. It further isolates a source of funds for such payment, the balance due under the contract, where improper payments as defined in Section 713.06 have been made....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2087, 1986 Fla. App. LEXIS 9890
STONE, Judge. The appellant-sign contractor failed to serve a contractor’s affidavit prior to suit as required for the foreclosure of a mechanic’s lien by section 713.06(3)(d)l, Florida Statutes (1985)....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2613, 1989 Fla. App. LEXIS 6294, 1989 WL 133749
...Upon the failure of Treetop to make payments to Brickellbanc, Brickellbanc filed a foreclosure action which was consolidated with King’s lien foreclosure. Brick-ellbanc moved for summary judgment on the basis that King failed to file a notice to owner as required by section 713.06(2)(a), Florida Statutes (1987)....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2565, 1989 Fla. App. LEXIS 6146
...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. According to this court: Each of these sections is separate and distinct and stands alone. The lienor in this case is not subject to §
713.06(2), which is the only one of these sections requiring notice to owner, because it says that it only applies to “lienors under THIS SECTION” (emphasis 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....
...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....
CopyPublished | Florida 4th District Court of Appeal
...The trial court did not reach that issue, although Contractor
did raise the issue at the summary judgment hearing. The issue is one of
fact, which was not conclusively shown, as is required to support a
summary judgment.
As to the Contractor’s affidavit, it appears that it was served prior to
suit in accordance with section 713.06(3)(d)1., Florida Statutes (2019).
Contractor’s documents reflect that counsel sent the affidavit months
before suit was filed via certified and regular mail to the address on the
notice of commencement....
CopyPublished | District Court of Appeal of Florida
...losure action. The appellant seeks reversal upon the contention that the plaintiff lienor was barred from recovery because of its failure to furnish an affidavit stating that all lienors had been paid in full, etc., as required of a contractor under § 713.06(3) (d) Fla.Stat., F.S.A....
CopyPublished | Florida 4th District Court of Appeal | 10 Fla. L. Weekly 2629, 1985 Fla. App. LEXIS 17075
...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)....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 17622
...Had the retainage been paid by the hospital to Safeco prior to December 20th, it follows that neither award would have been necessary or appropriate. Peninsular could not have prevailed because of its failure to send a timely notice to owner as required by Section 713.06, Florida Statutes (1973), 5 and Safeco would have been relieved of any necessity to cross-claim for the funds rightly due it....
...hich shall be taxed as part of his costs. . Travelers Indemnity Company v. Howell & King, Inc.,
336 So.2d 1 (Fla.4th DCA 1976), cert. denied
341 So.2d 1086 (Fla.1976); Midway Shopping Mall, Inc. v. Corky Corp.,
257 So.2d 905 (Fla.3d DCA 1972). . Section
713.06(2)(a), Florida Statutes (1973) provided, in pertinent part: All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice o...
CopyPublished | Florida 1st District Court of Appeal
PER CURIAM. Affirmed. See Fla.Stat. §
713.06(d) (1971), F.S.A.; Fla.R.Civ.P. 1.510(e), 31 F.S.A.; 6
CopyPublished | Florida 5th District Court of Appeal
...To impose a common law doctrine
to eliminate a statutory condition precedent would be to rewrite the statute.”).
In my view, the legislature created a clear specificity requirement in
section
624.155 and did not include an exception for substantial compliance.
Cf., e.g., §
713.06(2)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 19726, 2012 WL 5500384
PER CURIAM. In this mechanic’s lien case, Dennis Barber challenges an order of final summary judgment in favor of the property owner. Section 713.06, Florida Statutes (2008), allows for a lien on real property where the lienor has served notice of his claim on the property owner. An exception to the notice requirement is made for “laborers.” See § 713.06(2)(a), Fla. Stat. It was undisputed that Barber did not serve the notice required by section 713.06(2)(a)....
CopyPublished | Florida 4th District Court of Appeal | 1993 WL 458967
...ship interest in the joint venture owning the property amounted to less than 21%. We agree with Whiteside that the issue of common identity is not synonymous with common ownership. The notion is that the purposes of the notice to owner provisions of section 713.06 [1] have been satisfied by a common identity between the owner and the general contractor....
...The facts here as to the common identity issue cannot be viewed as any where close to being wholly in favor of the owner. The trial court erred in resolving the contested issue by a summary judgment. REVERSED AND REMANDED FOR TRIAL. ANSTEAD, J., and WALDEN, JAMES H., Senior Judge, concur. NOTES [1] See § 713.06, Fla....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 16613
...ntract. On October 7, 1977, the Cabinet Shop served its notice to the owner and filed its claim of lien in the amount of $2,782 against the Credit Union’s real property. The Notice to Owner was not filed within forty-five (45) days, as required by Section 713.06(2)(a), F.S., but the Claim of Lien was filed within ninety (90) days from the date the Cabinet Shop last furnished services to the owner....
...Following non-jury trial on the Cabinet Shop’s foreclosure complaint, the trial court entered final judgment finding that the Cabinet Shop had failed to give notice to owner within forty-five (45) days of commencing to furnish the labor and materials under the subcontract as required by Section
713.06(2)(a), F.S.; that the owner failed to file a Notice of Commencement of Construction under Section
713.13(1), F.S.; failed to obtain from the general contractor any affidavit concerning payment of lien-ors; and failed to file a notice o...
...The trial court granted the motion for rehearing on the grounds that the Credit Union had failed to retain 10% of the contract price as required by Section 713.-06(3)(d) 5, and by the contract between Trend Corporation and the Credit Union. No contractor’s affidavit under Section 713.06(3)(d) 1 was given to the Credit Union as owner by Trend Corporation as the general contractor....
...The court thereafter entered its final judgment on rehearing, which awarded the Cabinet Shop the sum of $947.67, together with attorney’s fees and costs. The Cabinet Shop’s failure to give notice to the owner within forty-five (45) days of beginning work, as required by Section 713.06(2)(a), bars its claim for a valid mechanic’s lien....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1166, 1987 Fla. App. LEXIS 8169
...ance with the Mechanics’ Lien Law. Section
713.07(4), Florida Statutes (1981) 1 provides: (4) If construction ceases before completion and the owner desires to recommence construction, he may pay all lien-ors in full or pro rata in accordance with s.
713.06(4) prior to recommencement in which event all liens for the recommenced construction shall take priority from such recommencement; or the owner may record an affidavit in the clerk’s office stating his intention to recommence construction...
...When the owner carries out those duties prescribed in the Mechanics’ Lien Law, the owner’s liability for liens will not exceed the contract price. See Tamarac Village Inc. v. Bates & Daly Co.,
348 So.2d 23, 25 (Fla. 4th DCA 1977); MacIntyre v. Torres,
358 So.2d 101 (Fla. 3rd DCA 1978); and Section
713.06(1), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 7321, 2010 WL 2077018
...Hockin of Linkhorst & Hockin, P.A., Jupiter, for respondents. PER CURIAM. Ebano-Soberon, Inc. (ES) seeks certiorari review of a trial court order that granted a motion for partial summary judgment, effectively vacating a lien for failure to furnish a final payment affidavit, as required by section 713.06(3)(d), Fla....
CopyPublished | Florida 5th District Court of Appeal
...foreclose a
construction lien on property owned by Dominic Pagio and Julia Pagio (“the
Pagios”). The trial court based its dismissal of this count on Varela’s failure
to timely deliver to the Pagios the contractor’s affidavit required by section
713.06(3)(d), Florida Statutes (2021)....
...copy of the Contractor’s Final Payment Affidavit with evidence it was served
on the Pagios on May 5, 2021. There is no dispute that service was
accomplished May 5th; the dispute is whether service on May 5th constituted
compliance with the requirement of section 713.06(3)(d) that “[t]he contractor
shall execute the affidavit and deliver it to the owner at least 5 days before
instituting an action as a prerequisite to the institution of any action to enforce
his or her lien under this chapter . . . .” § 713.06(3)(d), Fla....
...f the statutory
language is critical because proper service of the contractor’s affidavit is a
condition precedent to the right to maintain an action to foreclose on the lien.
See Sowers v. Hoenstine,
417 So. 2d 1137 (Fla. 5th DCA 1982).
Section
713.06(3)(d) requires a contractor to deliver a contractor’s final
payment affidavit to the owner “at least 5 days before instituting an action.”
Because the statute does not specify a method for computing time, Florida
Rule of General Practice and Judicial Administration 2.514 fills that gap....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3908, 1991 WL 66669
COWART, Judge. Sections
713.05 and
713.06(3)(d), Florida Statutes, provide that when final payment under a direct contract becomes due the contractor must give the owner an affidavit that all lienors have been paid or naming unpaid lienors and the amounts due. Section
713.06(3)(d)l., Florida Statutes, provides in part: The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit....
CopyPublished | Florida 4th District Court of Appeal
...harge the
claim of lien and recover damages for slander of title. The complaint
alleged, in part, that Coastal failed to timely record the claim of lien and
failed to perfect the lien by serving a “notice to owner” on Petitioners as
required by section 713.06(2), Florida Statutes (2023). As service of notice
on owner is “a prerequisite to perfecting a lien under this chapter and
recording a claim of lien,” § 713.06(2)(a), Fla....
...713 when the lienor is not in privity with the property owner, as is the case
here, includes service of a written notice to the property owner. See Mirror
& Shower Door Prods., Inc. v. Seabridge, Inc.,
621 So. 2d 486, 487 (Fla. 4th
DCA 1993) (noting that “the plain language of section
713.06 indicates the
legislature’s intent that service of a written notice which includes the
warnings contained in section
713.06(2)(c) is a prerequisite to perfecting a
lien under Chapter 713” for those lienors not in privity with the property
owner); Peninsular Supply Co....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 14247
...The value of the labor and material provided by appellant at this point was $500. Appellant filed a claim of lien for $500 on October 13, 1977, and the complaint was filed on December 12. Appellees’ filed a motion to dismiss based on appellant’s failure to comply with Section 713.06(3)(d)(l), Florida Statutes (1977)....
...Appellant did not deliver an affidavit to appellees before instituting this suit. Ap-pellees argue that, therefore, dismissal was proper. We do not agree. This requirement is clearly applicable only to a suit seeking final payment of the contract price. Appellant argues, and we agree, that an affidavit is not required by Section 713.06(3)(d)(l) in this case because the $500 he sought was not a final payment under the contract....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 1222779, 2013 Fla. App. LEXIS 4898
...damages against Weston Investment on the contract claims. The lien claims were decided non-jury. 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....
...Here, at the time work commenced, Marble was in privity with Weston Investment, having signed two contracts where Weston Investment had identified itself as an owner, similar to the way Marble had completed renovations on the previous six buildings. Marble was therefore not required to file a section 713.06(2)(a) notice to owner after it commenced work on building 9....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 857, 1987 Fla. App. LEXIS 7369
...Palmer-Smith was the general contractor for the Pavillion and INA was the surety on a labor and material bond written with Palmer-Smith as principal for this project. As a materialman, Monex served a notice to owner on Walt Disney World on March 19, 1982, pursuant to section 713.06....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 2545, 1997 WL 122718
...Appellant Craftsman Contractors, Inc.’s (“Craftsman”) final affidavit stated that “all lienors, subcontractors, and materialmen” had been paid in full. It is undisputed that subcontractor Mc-Elhany Electric, although admittedly unpaid, was not listed in the final affidavit. Craftsman argues, however, that section 713.06(3)(d)(l), Florida Statutes, only requires that the final affidavit list lienors and that McElhany was not a lienor since it had failed to file the notice to owner required by section 713.06(2)(a), Florida Statutes....
...Our review of chapter 713, however, shows that the term “lienor” is not so limited as Craftsman contends. A review of the entire chapter leads to the conclusion that one may be a “lienor” under that chapter without giving the notice required by section 713.06(2)(a)....
...who “has a hen or prospective hen upon real property under this part....” In addition, the legislature has defined “henor giving notice” as “any henor ... who has duly and timely served a notice to the owner....” §
713.01(17), Fla.Stat. Section
713.06(3)(d)2 sets out the procedure for payment by an owner and refers to “henors” who have and have not given notice to an owner. In view of the entire statutory scheme, we conclude McElhany’s failure to file a notice to owner does not remove it from the definition of “henor” for purposes of section
713.06(3)(d)(l)....
...rly hst ah henors who had not been paid in full on its final contractor’s affidavit. BOOTH and JOANOS, JJ., concur. BENTON, J., dissents with written opinion. . This interpretation of the term “lienor” is consistent with the primary purpose of section 713.06(3)(d)(l), which is to protect the owner from claims of subcontractors and materialmen that remain unpaid at the time of final payment to the general contractor.
CopyPublished | Florida 4th District Court of Appeal | 1991 Fla. App. LEXIS 2412, 1991 WL 35353
BARKDULL, Judge. The trial court permitted a corporation to recover as a “laborer” pursuant to the exception in Section 713.06(2)(a), Florida Statutes (1987)....
...Reversed on other grounds
356 So.2d 264 (Fla.1978). All payments by the appellant, owners, were properly made to the general contractor. The subcontractor did not timely file a notice of intention with the owners and not being a laborer, it was not entitled to the benefits of the exception in Section
713.06(2)(a), Florida Statutes (1987)....
...3d DCA 1982); Morgan v. Goodwin,
355 So.2d 217 (Fla. 1st DCA 1978). The homeowners fully complied with the Mechanics Lien Law, made proper payments to the general contractor, and received upon the final payment, a No Lien Affidavit, or Release of Lien, pursuant to Section
713.06, Florida Statutes (1987), and are entitled to the protections of the statute....
CopyPublished | District Court of Appeal of Florida | 1977 Fla. App. LEXIS 15518
...The defendants filed an answer. Therein defendants denied in part, and disclaimed knowledge in part, as to the material allegations. As an affirmative defense the answer averred failure of the plaintiff to comply with the preliminary notice to owners requirement of Section 713.06(2)(a), Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1984 Fla. App. LEXIS 12270
...abor for erection of the modular unit. Ba-chrach filed a motion to strike the affirmative defense and to dismiss the counterclaim upon several grounds, including the assertion that Arabi had failed to deliver the contractor’s affidavit required by section 713.06(3)(d)l, Florida Statutes (1981)....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 13991
was not due and the affidavit requirement of § 713.-06(3) (d)(1) is inapposite. Appellee was entitled
CopyPublished | Florida 3rd District Court of Appeal | 1977 Fla. App. LEXIS 15416
...(2) for the defendant-counterclaimant owner in the amount of $1,066.00 as a set-off. On this appeal, the owner contends that the court lacked subject matter jurisdiction because the contractor furnished the contractor’s lien affidavit required by Section 713.06(3)(d)(l), Florida Statutes (1975), four days before filing suit, instead of five days, as required by the statute....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 4077, 1990 WL 74058
..., if indeed a statement had been sent to him at the address of the construction site, he would not have received it since he had not moved into the unfinished house. Finally, on May 20, 1987, Sub executed a contractor’s final affidavit pursuant to section 713.06(3)(d), Florida Statutes, and served it on Owner on June 1, 1987....
CopyPublished | United States Bankruptcy Court, M.D. Florida | 10 Fla. L. Weekly Fed. B 11, 1996 Bankr. LEXIS 773
...counterclaim, and denied Trustee’s Motion to Dismiss Whitlock’s Counterclaim. (Adv.Rec. 18). 12. FPC' answered the Trustee’s complaint, asserting that Debtor failed to provide FPC with Contractor’s Final Affidavit as required under Fla.Stat. § 713.06(3)(d), and which is a condition precedent to distribution of final payment pursuant to the contract....
...Therefore, FPC cannot rely solely on the Trustee’s deemed admissions to prove that Debtor breached the general contract, and that actual damages resulted. Pursuant to the terms of the general contract, Debtor agreed to abide by all applicable laws of the State of Florida. (FPC Ex. 1, ¶20). Section 713.06(3)(d)(l) provides, in part, that: (d) When final payment under a direct contract becomes due to the contractor: 1....
...The contractor shall give to the owner an affidavit stating ... the amount due.... The contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his lien under this Chapter. ... Fla.Stat. § 713.06(3)(d)(l) (1995)....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 16367
Cave with a Notice to Owner as required by Section
713.06(2), Florida Statutes (1973). Thereafter, Cape
CopyPublished | District Court of Appeal of Florida | 1968 Fla. App. LEXIS 5225
...isturbed. The final judgment from which the appeal has been taken, and the order cross-assigned by appellee, are severally affirmed. CROSS, J., and ANDERSON, ALLEN, Associate Judge, concur. . Transferred and renumbered by Chapter 67-254 as F.S.1967, Section 713.06(2) (a), F.S.A....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 15338
owners found it necessary to discharge. See Section 713.-06(3), Florida Statutes (1977). We recognize that
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6399
...of $9,485.82. The contractor was required to expend more than that sum to complete the Dade Plumbing subcontract work. Appellant, as a materialman to the subcontractor, served timely notice on the owner of intention to claim lien, as provided for in § 713.06(3) (a), and thereafter timely filed notice of lien....
...contractor, with reference to claims of materialmen of the subcontractor. Such a materialman, who has given the required notice of intention to claim lien and has timely filed lien notice is entitled to be paid by the owner and may enforce his lien. § 713.06 Fla....
CopyPublished | Florida 1st District Court of Appeal | 1978 Fla. App. LEXIS 16147
...The complaint as amended does not wholly fail to state a cause of action for foreclosure of a mechanic’s lien under circumstances envisioned in Brown v. First Federal Savings & Loan Ass’n,
160 So.2d 556 (Fla. 1st DCA 1964). The sufficiency of plaintiff’s proof to avoid ultimate dismissal under Section
713.06(3)(d)1, Florida Statutes (1977), may be appropriately tested when the proofs are developed....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6590
...c’s lien, it was sufficient as an action upon its contract with the general contractor. We hold that the complaint was not sufficient because it did not contain sufficient allegations to excuse the failure to serve the notice required by Fla.Stat. § 713.06, F.S.A....
CopyPublished | Supreme Court of Florida | 14 Fla. L. Weekly 268, 1989 Fla. LEXIS 504, 1989 WL 57948
...After holding a public hearing at which testimony was presented, the Florida Bar Standing Committee on the Unlicensed Practice of Law (Committee) issued a proposed advisory opinion with respect to the following question: Is it the unlicensed practice of law for a nonlawyer to prepare the Notice To Owner required by Fla.Stat. § 713.06(2) and the Notice To Contractor required by Fla.Stat....
...ments for the Notice to Owner (NTO) and Notice to Contractor (preliminary notice) as follows: When working on a job where a payment bond has not been provided, the lienor is required to serve a NTO as the first step in perfecting the lien. Fla.Stat. § 713.06(2)....
...Lienors in privity (§
713.05), professional lienors (§
713.03), and lienors who make the site suitable for improvement (§
713.04) are not required to serve a NTO. The NTO must contain the lienor’s name and address, a description of the property, and the nature of the services or materials to be furnished. Section
713.06(2) sets forth a form which may be used as the ....
...If a company covers more than one county, it may have employees in- the different counties to conduct the search. One document the company may look at is the Notice of Commencement filed by the owner. It is the custom of the industry to combine the NTO required by §
713.06(2) and the preliminary notice required by §
713.23(l)(d) into one document....
...The nonlawyers may not, however, give legal advice, advise their customers in matters involving the mechanics’ lien statute, or complete any other forms required or allowed by the mechanics’ lien statute. This opinion applies to the Notice To Owner (Fla.Stat. § 713.06(2)(a)) and preliminary notice (Notice To Contractor, Fla.Stat....
...The decisions concerning the manner of service are largely dictated by the statutes and appear to be incidental to the preparation of the forms. Substantial compliance with the furnishing of these notices will not defeat a claim against a person who has not been adversely affected. § 713.06(2)(d), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1695, 1987 Fla. App. LEXIS 9235
...debtor five days prior to filing a claim of lien. Thus, it is contended that because such affidavit was not received by the Keyes prior to filing the claim of lien, the counterclaim could not survive. The Keyes are and the trial court was in error. Section 713.06(3)(d)l, Florida Statutes (1985), the controlling statute, provides as follows: The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under this direct contract have been paid in full or, if...
...Quality’s claim of lien was filed on December 20, 1985. The contractor’s affidavit was received by the Keyes on March 24, 1986, and Quality’s counterclaim was not filed until April 9, 1986. It is apparent without further discussion that Quality complied with section 713.06(3)(d)l prior to seeking in its counterclaim to enforce the lien....
...We find no statutory authority to support the Keyes’ contention that the contractor’s affidavit is to be served five days prior to filing of the claim of lien. We note in passing that the Keyes appear to have confused the pre-claim notice applicable to parties not in privity, prescribed in section 713.06(2)(a), with the affidavit requirement contained in section 713.-06(3)(d)l....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1699, 1987 Fla. App. LEXIS 9269
...act with Rutenberg-Sarasota. The ap-pellees were, therefore, laborers as defined in section
713.01(9). A laborer is not required to be in privity with the owner of the improved real property in order to have standing under the mechanics’ lien law. Section
713.06(1), Florida Statutes (1985), provides: (1) A materialman or laborer, either of whom is not in privity with the owner, ......
...h the direct contract. The total amount of all liens allowed ... 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 [section 713.06(3)]_ Since the appellees’ employment agreement constitutes a properly authorized contract with Square Frame, and the agreement was based upon Square Frame’s direct contract with Rutenberg-Sarasota for the improvement of real property, the appellees had standing to utilize the mechanics’ lien law pursuant to section 713.06(1)....
...appellees and, accordingly, affirm. Affirmed. SCHEB, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur. . We are not called upon to address the issue of whether any lienable funds existed on the Fairway Woods project under the provisions of sections 713.06(1) and 713.06(3), Florida Statutes (1985).
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 6284
the contractor did not meet the requirements of §
713.06(3) (d) (1) Fla.Stat., F.S. A., (3) that the court
CopyPublished | Florida 4th District Court of Appeal
...through counsel, moved
to dismiss the complaint; they argued, among other things, that the lien
foreclosure claim should be dismissed because the complaint did not
allege that Krips timely served a Notice to Owner upon the Scherfs, “as
required by section 713.06, Florida Statutes.” They asserted that “[u]nless
2
[Krips] can plead and prove compliance with this statutory prerequisite to
the enforcement of a construction lien,” the claim to foreclose...
...rfs also filed a
counterclaim against Krips for an invalid construction lien and a
fraudulent construction lien. The invalid lien counterclaim was based on
the Scherfs’ claim that Krips failed to serve a notice to owner upon them
“as required by section 713.06,” that the property address was incorrect
3
on the claim of lien, and that the lien incorrectly states that Krips had
contracted with Mr....
...In addition to
the claim that a notice to owner was required because Krips was not in
privity with the Scherfs, the attorney sought to add the defense that, if the
parties were in privity, then Krips failed to forward a final contractor’s
affidavit as required by section 713.06(3)(d)1., Florida Statutes (2016)....
...The
proposed amended answer, filed on November 23, 2021, for the first time
specifically denied that all conditions precedent had been fulfilled, pointing
to the failure to forward “a Final Contractor’s Affidavit at least five (5) days
prior to filing [suit] as required by section 713.06(3)(d)(1).”
The circuit court held a hearing on Krips’ motion for summary
judgment and the Scherfs’ motion to amend their answer....
CopyPublished | Florida 2nd District Court of Appeal | 1979 Fla. App. LEXIS 15619
...llee. Although the Mechanic’s Lien Law 1 should be liberally construed to protect the laborer and the materialman, 2 this should not excuse a claimant from failing to comply with the provisions of the law. A claimant alleging a claim of lien under Section 713.06, Florida Statutes (1977) must serve a notice of lien upon the owner, or his complaint must contain sufficient allegations to excuse the failure to serve notice....
...he 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....
CopyPublished | District Court of Appeal of Florida | 1975 Fla. App. LEXIS 13812
provide an Affidavit as required by Florida Statute § 713.-06(3) (d) 1: ‘ . . . stating, if that be the fact
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1805, 1987 Fla. App. LEXIS 9485
...Following a bench trial, an amended final judgment for $15,060.50 plus $2,000 in attorney fees was entered in favor of Renovations. This timely appeal followed. At the close of Renovations’ case, Sunair moved for a directed verdict on the ground that Renovations failed to comply with sections
713.08(5) and
713.06(3)(d)l, Florida Statutes (1985)....
...Section
713.08(5) provides in relevant part: The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing of the labor or services or materials by the lienor; .... Section
713.06(3)(d)l provides in part that: The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each li...
...ons furnished labor, services or materials to Sunair. Therefore, we conclude that there was compliance with the filing requirements of section
713.08(5). Sunair further contends that Renovations were required to file a contractor’s affidavit under section
713.06(3)(d)l and that their failure to do so barred them from maintaining the lien foreclosure suit....
...Instead, the matter was raised in a motion for directed verdict. The fifth district held that the timely delivery of the contractor’s affidavit to the owner was jurisdictional and a condition precedent to the filing of an action by the contractor to foreclose a lien. § 713.06(3)(d)l, Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 1983 Fla. App. LEXIS 19902
...nt under Chapter 713. The court subsequently filed a final judgment summarily granting the motion to dismiss with prejudice. This appeal ensued. The portion of Chapter 713 dealing with mechanics’ liens which pertains to a contractor’s affidavit, section 713.06(3)(d)l, Florida Statutes (1981), reads in full: (3) The owner may make proper payments on the direct contract as to lienors under this section, in the following manner: (d) When the final payment under a direct contract becomes due the contractor: 1....
...which contained language similar to that contained in the instant affidavit (“[t]hat all labor and materials used by the undersigned [contractor] in the erection of said improvements have been fully paid for”) did not fulfill the requirements of section 713.06(3)(d)1. He argues that the affidavit here completely satisfies the requirements of section 713.06(3)(d)1 since the above-quoted portion of his affidavit merely replaces the words “lienors” with the constituent parts of the statutory definition of “lienor.” 2 Appellees reply that our state supreme court pointed out in Julian E....
...w, they contend that, unless the word “lienors” is used in the affidavit, the purposes of a contractor’s affidavit, which are to permit the owner to rely upon such affidavit to protect himself from subsequent notices to owner filed pursuant to section
713.06(2) and claims of lien filed under section
713.08(5), and to hold the contractor liable for the crime of perjury under section
713.35 if he delivers a false *1027 affidavit, will not be fulfilled....
...dictionary definition of “furnish.” The American Heritage Dictionary of the English Language (rev. 5th ed. 1976). If anything, the language contained in the contractor’s affidavit here affords the owner greater protection than that provided in section 713.06(3)(d)1 in that those not included within the statutory definition of lienor, such as a sub-sub-subeontractor, are testified to by the contractor in his affidavit as having been paid. In conclusion, while we do not in any way intend to discourage the use of the word “lienors” in a contractor’s affidavit, we hold that, even under a strict construction of section 713.06(3)(d)l, there is not anything in that section which requires that the contractor insert the word “lienors” in the contractor’s affidavit where, as here, language more protective in scope is employed and all outstanding debts, if any, are listed....
CopyPublished | Florida 4th District Court of Appeal | 14 Fla. L. Weekly 1701, 1989 Fla. App. LEXIS 4088
...After trial, the lower court denied the application for a mechanic’s lien on the asserted ground that National Hauling had not delivered a copy of the “notice to owner” to the general contractor, Worldwide, 1 within forty-five days of commencement as required by section 713.06(2)(a), Florida Statutes (1983)....
...We find no merit in Suchman’s appeal, but agree with both points presented by National Hauling. We first conclude that the trial judge erred in failing to establish a mechanic’s lien in National Hauling’s favor. The basis of the ruling below, the failure to serve notice on the general contractor, as provided by section 713.06(2)(a), Florida Statutes (1983), 2 is, as the Fourth District has very recently held in Roof Structures, *202 Inc....
...(a), Florida Statutes (1983). Following Roof Structures, 4 we therefore likewise hold that the owner’s failure to file the required notice of commencement contributed to and rendered him unable to rely upon the materialman’s failure to serve its section 713.06(2)(a) notice upon the contractor....
...e of the judgment under re *203 view, together with prejudgment interest, attorney’s fees and costs. Otherwise the judgment below is affirmed. Affirmed in part, reversed in part and remanded. . The notice was timely served on the owner, Suchman. . 713.06 provides in pertinent part: § 713.06 Liens of person not in privity; proper payments.— (2)(a) All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the...
...As conclusively demonstrated by the fact that it issued a check jointly payable to National Hauling and its subcontractor during that period, Worldwide was on actual notice of the materialman and its contributions to the job during the forty-five day period provided by section 713.06(2)(a), Florida Statutes (1983)....
...While we need not directly decide this issue in the light of the owner’s failure to file a timely notice of commencement and the holding in Roof Structures, we would be inclined to hold that this actual notice would itself be sufficient to satisfy the requirements of section 713.06(2)(a), Florida Statutes (1983)....
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 20612
the appellees with a notice to owner under Section
713.06(2)(a), Fla.Stat. (1979). We conclude that Section
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 170, 1985 Fla. App. LEXIS 13931
...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. Appellant also fulfilled the other procedural requirements of the mechanic’s lien statute. See §
713.06, Fla.Stat....
CopyAgo (Fla. Att'y Gen. 2010).
Published | Florida Attorney General Reports
...provide more specific guidance to the clerks of court as to the indexing of notices of federal tax liens. Sincerely, Bill McCollum Attorney General BM/tgh 1 You have posed a second question requesting that this office comment on the applicability of section 713.06 (2)(a), Florida Statutes, to a Notice of Federal Tax Lien submitted to the clerk of court for recording. Section 713.06 (2)(a), Florida Statutes, provides the requirements for perfecting a lien by a person not in privity with the owner under Chapter 713. However, my review of the statute does not indicate that the clerk of court has any duties or responsibilities under section 713.06 (2)(a), Florida Statutes, and no comment will be expressed herein on this question....
CopyPublished | Florida 4th District Court of Appeal | 1992 Fla. App. LEXIS 4, 1992 WL 255
STONE, Judge. We affirm the corrected final judgment entered in favor of a subcontractor against the appellant, Rogers & Ford Construction Corp., general contractors. The record reflects substantial compliance with section 713.06(2)(a), Florida Statutes, by a timely mailing of a notice to the owner, Business Men’s Assurance Company of America, prior to appellee filing its mechanic’s lien. Although, through no fault of appellee, the notice to owner actually was delivered to the owner after the time of recording, there was no resulting prejudice or injury to the owner and the lien was immediately bonded off. Section 713.06(2)(d), Florida Statutes (1989), provides that: If a lienor has substantially complied with the provisions of paragraphs (a), (b), and (c), any errors or omissions shall not prevent the enforcement of a claim against a person who has not been adversely affected by such omission or error....
CopyPublished | District Court of Appeal of Florida | 1971 Fla. App. LEXIS 5412
...the provisions of the Florida Mechanics Lien Act and that the defendant, Joab, Inc., was not liable to the plaintiff. Final judgment was rendered for Joab, Inc. and plaintiff has appealed. The notice to the owner herein must be held sufficient. See § 713.06(2), Fla.Stat., F.S.A.; and Boux v....
CopyPublished | Florida 2nd District Court of Appeal | 1977 Fla. App. LEXIS 15152
to furnish him with an affidavit pursuant to Section
713.06(3)(d)(l), Florida Statutes (1975). The two
CopyPublished | United States Bankruptcy Court, M.D. Florida | 1986 Bankr. LEXIS 6826
...The purpose of a cautionary notice is to enable the owner to protect himself by reserving sufficient funds to pay for labor and materials. It is a warning to the owner advising him to take heed as it were (emphasis added) Ramsey v. Hawkins,
78 Fla. 189 ,
82 So. 823 , (1919). It is instructive to draw an analogy to §
713.06, Florida Statutes, which deals with acquisition of liens by persons not in privity with owners of real property....
...s or materials) for the improvement of the real property identified as (property description) under an order given by_ Florida law prescribes the serving of this notice and restricts your right to make payments under your contract in accordance with § 713.06, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 15243
requirement for lienors not in privity, Fla.Stat. §
713.06 (1973), there is conflict within the complaint
CopyPublished | Florida 2nd District Court of Appeal | 1977 Fla. App. LEXIS 14992
thus failing to comply with the provisions of Section
713.06(2)(a), Florida Statutes, of the Mechanic’s
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 246, 1990 WL 3234
...The basis of the court’s ruling was that Florida National had not received a valid assignment of the mechanic’s lien. We reverse and remand for further proceedings. On August 21, 1985, Steger’s Trucking, Inc. [hereinafter Steger’s], a subcontractor, recorded a mechanic’s lien pursuant to section 713.06, Florida Statutes (1985), against Phillips, the owner, to recover $48,606.50 for services performed....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 15217
...1.11 due to plaintiff. ■ Plaintiff brought suit against defendant owner. The defendant made a motion to dismiss the complaint. The trial court denied it. We reverse. The complaint failed to allege the existence of any notice to owner by Fla. Stat. 713.06 (1973)....
...Plaintiff cites to Westinghouse Electric Supply Co. v. Midway Shopping Mall, Inc., supra. In the Westinghouse case the Third District held that the allegations of the impropriety of payment of certain monies to a general contractor before the filing of a notice of commencement ( Fla. Stat. § 713.06 (3) (a) (1973) created an issue of fact sufficient to withstand a summary judgment....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 211, 1988 Fla. App. LEXIS 164, 1988 WL 2626
...s interest only where the lease expressly or impliedly requires the lessee to make improvements to the leased property); see also Section
713.10, Florida Statutes (1981). Further, the fact that the appellant did not file a "notice to owner” under Section
713.06(2)(a), Florida Statutes (1981) is not, in our view, fatal to the appellant's claim of lien against a person who, although having only a leasehold interest at the time the lien attached, thereafter acquired the fee interest....
CopyPublished | District Court of Appeal of Florida
...The dismissal was based on the grounds that (1) plaintiff failed to allege in the amended complaint that he delivered to defendants, at least five days prior to filing of the cause, an affidavit of indebtedness or lack thereof pursuant to Fla.Stat, § 713.06(3) (d) (1), F.S.A., and (2) the sum of plaintiff’s claim ($880) as set out in count II was not of sufficient sum to come within the jurisdiction of the circuit court....
...In respect to the ground for dismissal of the amended complaint that the cause of action alleged therein was not maintainable because the plaintiff contractor had not served upon the owners of the property an affidavit in accordance with the provisions of section 713.06(3)(d)(l), Fla.Stat., F.S.A., suffice it to say that according to the allegations of the amended complaint there were no subcontractors furnishing any work, labor, or materials to the plaintiff as a general contractor involved in this litigation and defendants who were in privity with plaintiff, dealt only with him or his payroll employees and, thus, the provisions of section 713.06 are not applicable....
...ose only obligation is to alone render personal' services incident to the im *479 provement and the contract is one which excludes the notion that the services of a subcontractor are needed to consummate it, then the sworn statement required by F.S. § 713.06(3) (d) (1) is excused....
CopyPublished | Florida 4th District Court of Appeal | 1985 Fla. App. LEXIS 12674
PER CURIAM. Affirmed. Atlantic Gardens Landscaping, Inc., v. Boca Raton Land Development, Inc.,
360 So.2d 1278 (Fla. 4th DCA 1978). Section
713.06(5)(d)(1), Florida Statutes (1981).
CopyPublished | District Court of Appeal of Florida
from the preceding five-day period which, under §
713.06(3) (d)l, must intervene after filing of the contractor’s
CopyPublished | Florida 4th District Court of Appeal | 1984 Fla. App. LEXIS 11859
...y. After a bench trial, the court determined Raymundo was entitled to a lien in the amount of $2,688. 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)....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 507, 1989 Fla. App. LEXIS 894, 1989 WL 13080
...ly — without any legal force and effect. The trial judge acknowledged this when, at the July 13, 1987, hearing on Hanna’s motion to dismiss the mechanic’s lien action based on Tomco’s alleged failure to comply with the notice requirements of § 713.06(3)(d)1 Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 5514
Section 84.061(2) (a), F.S.1965 [renumbered as Section
713.06(2) (a), F.S.1967, F.S.A.], placed the lienor
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 1252, 1999 WL 69573
...The final judgment awarded Aqua Pool the value of its labor, services, and materials for building the pool ($14,498), costs ($226.33), and attorney’s fees ($6,774.55). The issue presented in this appeal, the construction of the term “adverse effect,” has its genesis in the statutory interplay between section
713.06(2)(a) 2 and section
713.08(4)(a)....
...Aqua Pool’s claim of lien contained numerous errors, the most serious of which was an erroneous date for its first provision of labor, services, and materials. This date, when coupled with the date of service of its notice to owner, allowed the Johnsons to conclude that the notice was not timely filed. Section 713.06(2)(a) requires the timely filing of the notice in order to perfect a lien....
...judgment accordingly, and proceed to resolve the remaining counts of the complaint. WHATLEY, A.C.J., and NORTHCUTT, J., Concur. . Furthermore, the trial court never found that the Johnsons should have ceased to rely on the defective claim of lien. . Section 713.06(2)(a) provides: All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of hen, must serve a notice on the owner setting forth the lienor’s name and address, a...
CopyPublished | Florida 4th District Court of Appeal | 2003 Fla. App. LEXIS 19757, 2003 WL 23095239
...filing of the lawsuit. Case law excuses the failure to file a contractor’s affidavit prior to filing suit to enforce the lien; however, in this case, such filing must have been accomplished within the 60 day limitation period of section
713.22(2). Section
713.06(3)(d), Florida Statutes (2000), requires the contractor to give the owner an affidavit “[w]hen the final payment under a direct contract becomes due the contractor.” While making provisions for the negligent omission of information in an affidavit, the statute provides that the “contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit.” §
713.06(3)(d) 1....
...e affidavit attached within the one-year statute of limitations that applied in that case. Id. The trial court dismissed the case because the contractor had failed to submit the affidavit five days before filing the original complaint as required by section 713.06(3)(d) 1....
CopyPublished | District Court of Appeal of Florida | 1974 Fla. App. LEXIS 8369
...any. Plaintiff filed a complaint against the defendants to foreclose a mechanic’s lien for labor and materials. In response thereto, defendants filed identical motions to dismiss on the grounds of (1) plaintiff’s failure to comply with Fla.Stat. § 713.06(3) (d)(1), and (2) plaintiff’s failure to comply with the direct contracts and to allow defendants to comply with Fla.Stat. § 713.06(3)(d) (S). After hearing argument thereon, the trial court entered its order denying the motions to dismiss. Defendants appeal therefrom. We affirm. Defendant-appellants’ motions to dismiss for failure to comply with § 713.06(3) (d)(1) and the provisions of the contracts were denied. This being an interlocutory appeal, it is only necessary that the allegations in the complaint show compliance with § 713.06(3) (d) (1) and the contracts....
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 19834, 2010 WL 5345140
...ure action against the appellant owner. In this appeal, the owner argues that the contractor did not satisfy a statutory condition precedent of identifying an unpaid material supplier in the contractor's final payment affidavit. We find, pursuant to section 713.06(3)(d)1., Florida Statutes (2007), that the contractor did not need to identify the material supplier in the affidavit because the material supplier did not serve a notice to owner. Therefore, we affirm. Section 713.06(3)(d)1....
...abor, services, or materials furnished. . . . The contractor shall have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit. . . . § 713.06(3)(d)1., Fla. Stat. (2007) (emphasis added). According to the owner, the contractor did not comply with section 713.06(3)(d)1....
...ill be upheld if there is any basis which would support the judgment in the record."). Competent, substantial evidence exists to support the conclusion that the material supplier never served a notice to owner on the owner, and the plain language of section 713.06(3)(d)1....
...1st DCA 1997), for the proposition that a contractor's final payment affidavit must identify all lienors, regardless of whether the lienors timely served a notice to owner. Id. at 751. We find that the owner's reliance *1218 on Craftsman is misplaced. The first district decided Craftsman based on a pre-1998 version of section 713.06(3)(d)1....
...The pre-1998 version merely stated, in pertinent part, that "[t]he contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full." In 1998, the legislature amended section 713.06(3)(d)1....
...In light of the amendment, we question whether Craftsman remains viable precedent for the proposition that a contractor's final payment affidavit must identify lienors who have not served a notice to owner. At oral argument, the owner sought to overcome its citation to Craftsman by relying upon the second clause in section 713.06(3)(d)1....
...ved a notice to owner," the owner argues that, with respect to unpaid lienors, the contractor must identify those lienors regardless of whether they timely served a notice to owner or not. We disagree. Another amendment which the legislature made to section 713.06(3)(d)1....
...served a notice to owner" and who have not been paid in full. Even if the contractor negligently omitted the material supplier from the final payment affidavit, the lien still would be valid here. Yet another amendment which the legislature made to section 713.06(3)(d)1....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 11, 1984 Fla. App. LEXIS 16436
...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)....
...er than completion and regardless of whether the contractor has any lienors working under him or not. (Emphasis supplied). Consistent with established precedent, 2 the trial judge allowed McMahan to file an amended complaint alleging compliance with section 713.06(3)(d)(l)....
...We find the cross-appeal without merit. The amended complaint was filed on February 24, 1983. It contained three counts: one, for mechanic lien foreclosure; one for breach of contract; and one for unjust enrichment. In an effort to allege compliance with section 713.06(3)(d)(l), McMahan claimed its application and certificate for payment, prepared on an A.I.A. form, which it furnished appellee on September 2, 1982, complied with all the requirements of section 713.06(3)(d)(l)....
...pment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or such other person. We do not think the certificate meets the requirements of section 713.06(3)(d)....
...5th DCA 1984), we held that the statutory notice required by the sovereign immunity statute 6 could be given after the suit was filed, and that the trial court should either have allowed an amended complaint to be filed, or a new suit to stand. Although Askew did not involve the affidavit required by section 713.06(3)(d)(l) of the mechanic lien law, we recognized that our holding was irreconcilable with Saleh v....
CopyPublished | Florida 3rd District Court of Appeal
...On appeal, defendant-appellant first contends that the court erred in holding that persons alleged to be in privity with the owner could maintain an action to enforce a mechanic's lien without having furnished the sworn statement required by Florida Statutes § 713.06(3)(d)(1), F.S.A....
...First Federal Savings & Loan Association of New Smyrna, Fla.App. 1964,
160 So.2d 556. Turning to the case sub judice, plaintiff-appellee Feinknopf is an architectural firm which is seeking to recover for its professional services and, therefore, is not a contractor within the meaning of F.S. §
713.06(3)(d)(1), F.S.A....
...r personal services incident to the improvement and the contract is one which under customary business practices excludes the notion that the services of a subcontractor are likely in order to consummate it, then the sworn statement required by F.S. § 713.06(3)(d)(1), F.S.A., is not required....
CopyPublished | Florida 4th District Court of Appeal | 1978 Fla. App. LEXIS 16871
within 45 days of first delivery as required by §
713.06(2)(a), Fla.Stat. (1975). We hold that the complaint
CopyPublished | Florida 1st District Court of Appeal
...Upon due consideration of the briefs and record in this cause we are of the opinion that the trial court lacks jurisdiction to proceed on plaintiff’s complaint predicated upon a claim of lien because of the failure to allege that the affidavit required by Section 713.06(3)(d)l F.S....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 1693, 1986 Fla. App. LEXIS 9193
...M & G recorded its claim of lien when the Golds refused to pay for work M & G performed on the property at Gregg’s direction. However, M & G failed to allege that it furnished the Golds with a sworn affidavit prior to instituting its action, as required by section 713.06(3)(d), Florida Statutes (1983)....
...en though entered on a default, must be reversed. GAC Corp. v. Beach,
308 So.2d 550, 551-52 (Fla. 2d DCA 1975) (citing North American Accident Insurance Co. v. Moreland,
60 Fla. 153 ,
53 So. 635 , 637 (1910)). We reject M & G’s contention that section
713.06(3)(d) is inapplicable because M & G was not a “voluntary” contractor. Section
713.06(3)(d) does not distinguish between voluntary and involuntary contractors....
...We therefore reverse those portions of the judgment granting relief pursuant to count six and count eight and the portion assessing the amount of attorney’s fees. In all other respects, we affirm. Affirmed in part; reversed in part; remanded. . The complaint also named other defendants who are not a part of this appeal. . Section 713.06(3)(d) provides in pertinent part: 1....
CopyPublished | Florida 4th District Court of Appeal | 1990 Fla. App. LEXIS 6518, 1990 WL 127998
...Industrial Park, Inc.,
552 So.2d 256 (Fla. 4th DCA 1989). 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....
CopyPublished | District Court of Appeal of Florida | 1976 Fla. App. LEXIS 15384
...3.08(5). On the same date, appellee, for the first time mailed its notice to owner regarding the claim, but this notice was not mailed or delivered within the forty-five days from the first date of furnishing materials as required by Florida Statute § 713.06(2)(a)....
...Apparently the learned trial judge reasoned that the failure of the appellant to require his contractor to furnish a final payment affidavit and to retain the last payment due under his contract or 10% of the contract price, whichever was larger, pending receipt of such affidavit as required by F.S. §
713.06(3)(d)(l), was sufficient to perfect appellee’s lien even though its notice to owner was not timely mailed or delivered as required by F.S. §
713.06(2)(a), provided appellee had complied with the ninety day requirement of F.S. §
713.08, supra. We agree the issue to be decided is where the owner fails to comply with the Statute
713.06, does this preserve the subcontractor’s lien even though it failed to comply with the provisions of the Mechanic’s Lien Law, Chapter 713, F.S.? We think not....
...c’s Lien statute is an indispensable prerequisite to seeking affirmative relief thereunder. We conclude that the chancellor was in error in holding that appellee/subcontractor’s failure to comply with the explicit provision of the statute, viz.: § 713.06(2)(a) (notice to owner) was excusable and did not preclude its perfecting a lien altogether....
CopyPublished | District Court of Appeal of Florida
a final contractor’s affidavit pursuant to Section
713.06(2), Florida Statutes.”
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6428
...§ 713.-06(3) (d) (1), F.S.A., in that the affidavit was filed more than ninety days after the last items of service and material were furnished. We have examined the statutes *532 involved as well as the case law and nowhere do we find that the affidavit required by § 713.06(3) (d) (1) must be served on the owner within ninety days after the last items of service and material are furnished....
CopyPublished | Florida 4th District Court of Appeal
...The trial court did not reach that issue, although Contractor
did raise the issue at the summary judgment hearing. The issue is one of
fact, which was not conclusively shown, as is required to support a
summary judgment.
As to the Contractor’s affidavit, it appears that it was served prior to
suit in accordance with section 713.06(3)(d)1., Florida Statutes (2019).
Contractor’s documents reflect that counsel sent the affidavit months
before suit was filed via certified and regular mail to the address on the
notice of commencement....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 5670, 2011 WL 1496001
...Blackton argues that section
713.132(2) required Independence to additionally attach a contractor’s affidavit. 1 We find this argument to be without merit. Subsection (2) provides: An owner has the right to rely on a contractor’s affidavit given under section
713.06(3)(d)-However, the notice of termination must be accompanied by the contractor’s affidavit....
CopyPublished | Florida 5th District Court of Appeal | 1984 Fla. App. LEXIS 12685
...5th DCA 1983), therefore the requirement that a contractor execute and deliver to the owner an affidavit stating that all persons providing labor, services, and materials have been paid in full is not satisfied by the filing of subcontractors’ releases, or by proof that no liens have been filed. See § 713.06(3)(d)l, Fla.Stat....
