CopyCited 50 times | Published | Supreme Court of Florida | 15 Fla. L. Weekly Supp. 66, 1990 Fla. LEXIS 270, 1990 WL 13585
...Finally, it would be inequitable to nullify the bonding company's liability because the owner has not paid the contractor. When a surety on a private construction project issues a bond that purports to protect against mechanic's liens, the bond must be construed and applied in accordance with the conditions of section
713.23, Florida Statutes (1983). Guin & Hunt, Inc. v. Hughes Supply, Inc.,
335 So.2d 842 (Fla. 4th DCA 1976); Houdaille Industries, Inc. v. United Bonding Insurance Co.,
453 F.2d 1048 (5th Cir.1972). See also §
713.23(1)(a), Fla. Stat. (1983). The effect of such a bond is to exempt the owner's property from lien foreclosure and substitute the security of the bond. The bond in this case has all the attributes of a section
713.23 bond, and we declare it to be such a bond. We agree with the court in Guin & Hunt that a subcontractor is a third-party donee obligee of a section
713.23 bond and, as such, its rights are vested and may not subsequently be defeated by the failure of the owner to comply with the special conditions of the bond....
CopyCited 16 times | Published | District Court, S.D. Florida | 1970 U.S. Dist. LEXIS 10912
...very of the AETNA bond, which by its terms excludes WESCO and other third parties. During the trial and in the briefs, counsel engaged in debate on the issue of whether the AETNA and CONTINENTAL bonds are bonds which are covered by the provisions of Section 713.23 of the Florida Mechanic's Lien Law....
...aterials, deliver to the general contractor a written notice of the delivery of such materials and the nonpayment thereof, which is also a statutory condition precedent to the institution or prosecution of any action upon any such bond. Fla.Statutes 713.23, F.S.A....
..., as the Court does, that the CONTINENTAL bond is not such a bond because DIPLOMAT was a "Subcontractor", and was not a "General Contractor". The Act specifically limits such bonds to general contractors, not subcontractors. Fla. Statutes
713.01 and
713.23....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 1992 Fla. App. LEXIS 7459, 1992 WL 157407
...Ohio Casualty filed a timely notice of appeal. If Ohio Casualty's bond was a statutory bond, and we agree with the parties that the trial court did not specifically find that it was, Ohio Casualty, based upon MRK's complaint and claim of lien, had a valid defense to MRK's action. Section 713.23(1)(f), Florida Statutes (1987), provides that no action for labor or materials or supplies may be instituted or prosecuted against the surety on a statutory bond unless it is instituted within one year of the date of performance of the labor or completion of delivery of the materials and supplies....
CopyCited 11 times | Published | United States Bankruptcy Court, M.D. Florida | 1984 Bankr. LEXIS 4538, 12 Bankr. Ct. Dec. (CRR) 529
...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....
...nstruction contract which accrues after the execution and delivery of the bond (except that of the contractor) and, every claim of lien filed by a subcontractor, after the execution and delivery of the bond is transferred to and secured by the bond. § 713.23(2) Fla.Stat.; Coordinated Constructors v....
...Florida Fill, Inc.,
387 So.2d 1006 (Fla.3d DCA 1980). Accordingly, to recover on the bond, the lienor must then commence an action against the contractor or surety on the bond within one year from the performance of the labor or completion of the delivery of materials or supplies. §
713.23(1)(f) Fla....
...corded 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 | Supreme Court of Florida | 1991 WL 101183
...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. Stat. (1987) (provides that notice to owners "may be in substantially the following form"); and §
713.23, Fla....
CopyCited 11 times | Published | Florida 5th District Court of Appeal | 1981 Fla. App. LEXIS 20141
...reasonable attorney's fees in mechanics' lien cases. To avoid this constitutional problem I would hold section
627.756 inapplicable and would read section
713.29, Fla. Stat. (1979), applicable to lienors on bonded and unbonded jobs alike. NOTES [1] §
713.23, Fla....
CopyCited 10 times | Published | United States Bankruptcy Court, S.D. Florida. | 5 Collier Bankr. Cas. 2d 726, 1981 Bankr. LEXIS 2669
...e him from responsibility under the Florida statute. I cannot believe that the large diversions present here occurred without his knowledge, consent and active participation. The debtors have also argued that plaintiff's cause of action is barred by § 713.23, Florida Statutes, a statute of limitation, and that § 713.34(3), Florida Statutes, is unconstitutional....
CopyCited 10 times | Published | Florida 4th District Court of Appeal
...Count III of the amended complaint alleged the existence of the payment bond and a copy of the bond was attached. The owners moved to dismiss the action on the ground that the allegations affirmatively showed that no cause of action existed against the owners' property because a § 713.23 payment bond had been posted. The motion to dismiss was granted on a specific finding by the trial court that a payment bond was provided by the contractor pursuant to § 713.23....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 13 Fla. L. Weekly 2107, 1988 Fla. App. LEXIS 4052, 1988 WL 93073
...Martin of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee. JOANOS, Judge. Carlson-Southeast Corporation and Seaboard Surety Company appeal an interlocutory order denying their motion to transfer for improper venue. The issues raised in this appeal are: (1) whether, pursuant to sections
713.23 and
713.24, Florida Statutes, venue for a suit claiming an interest in a payment bond is proper only in the county where the bond is recorded; and (2) whether the course of conduct between the parties in this case overcame the general presumpt...
...(Geolithic), whereby Geolithic would provide and install the concrete panels which comprise the exterior walls of the building. The construction project is located in Broward County, Florida. Carlson posted a $33.7 million payment bond issued by Seaboard Surety Company (the surety) pursuant to section 713.23, Florida Statutes, [1] to insulate the Publix property from the filing of mechanics' liens....
...created an exception to the general rule that payment was to be made where the creditor is located. In supplemental answer to Geolithic's interrogatory, Carlson and the surety alleged that venue is proper only in Broward County, pursuant to sections
713.23 and
713.24, Florida Statutes, since Geolithic claimed an interest in the payment bond issued by Seaboard and deposited in Broward County....
...business, which is Duval County. Carlson and the surety filed a motion for rehearing, which was denied January 12, 1988. The venue issue raised in point one of this appeal requires consideration of the relationship of the bond provisions of sections
713.23 and
713.24, Florida Statutes (1985). A section
713.23 payment bond is a general contractor's bond designed to ensure payment of subcontractors and materialmen, and to exempt the property from mechanics' liens. Pursuant to section
713.23(1)(g) Any lienor shall have a direct right of action on the bond against the surety. No bond shall contain any provisions restricting the classes of persons protected thereby or the venue of any proceeding.... Section
713.23(2) provides, in part, that: The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor....
...5th DCA 1988); Girdley Construction Co. v. Architectural Exteriors, Inc.,
517 So.2d 137 (Fla. 5th DCA 1987). Absent an express agreement regarding venue, it appears that the general venue provisions of Chapter 47 are controlling with respect to sections
713.23 and
713.24....
...4th DCA 1981), as support for their contention that section
713.24(3) requires that a suit to recover on a bond must be brought in the county where the security is deposited. In Morganti, the general contractor on a construction project located in Palm Beach County had posted a payment bond pursuant to section
713.23, Florida Statutes (1977)....
...only the transfer of a mechanic's lien from the subject real estate to a bond. See 3 S. Rakusin, Florida Mechanics' Lien Manual 69 (1974, Supp. 1987). Rakusin states: This reasoning, while applicable to a
713.24 transfer bond, is not applicable to a
713.23 payment bond....
...Similarly, we find that appellants have failed to demonstrate a course of conduct that removed the case from the general rule that payment is due where the creditor resides. Accordingly, the order denying the motion to transfer venue is affirmed. SMITH, C.J., and ZEHMER, J., concur. NOTES [1] § 713.23(1)(a), Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal
...Briefly stated, the undisputed facts are as follows: Resnick Developers South, Inc., as owner, contracted with William Passalacqua Builders, Inc., as general contractor, for the construction of a condominium. Pursuant to this contract the owner required the general contractor to furnish a payment bond pursuant to Section 713.23, Florida Statutes....
...Subsequently the bond was increased to $7,335,849 to conform with changes in the original contract. The principal on the payment bond was the general contractor, and the surety *1196 was General Insurance Company of America. This bond was in proper form and qualified as a payment bond under the provisions of Section 713.23....
...The owner, on October 31, 1972, as provided by Section
713.13, Florida Statutes, recorded in the Public Records of Palm Beach County, and posted at the job site, a Notice of Commencement. The Notice of Commencement properly contained the name and address of the surety on the §
713.23 payment bond, and the amount of such bond....
...o enforce its claim of lien against the §
713.24 transfer bond. Additionally, the subcontractor moved for and was granted leave to further amend its complaint so as to add as a party defendant General Insurance Company of America, the surety on the §
713.23 payment bond....
...However, the subcontractor did not proceed against General Insurance Company of America or the general contractor, and neither were made defendants in this case. The trial court in its Final Summary Judgment recognized that the owner was not obligated to give the §
713.24 transfer bond and that the §
713.23 payment bond exempted the owner's property from any mechanic's lien....
...balance claimed to be due by appellee under his subcontract with the general contractor. We reach a contrary conclusion of law and reverse. The owner in this case required and obtained from its general contractor a proper payment bond as provided in § 713.23....
...y that appellee could perfect a valid claim of lien under Chapter 85 or Part I or II of Chapter 713 against the owner's property. The statute sets out the procedure that must be followed by the subcontractor in order to perfect its claim against the § 713.23 payment bond....
...If subcontractor did not bring an action to enforce its claim of lien within the time prescribed by law the owner could rely on the passage of time to remove the cloud of the improperly filed claim of lien. §
713.21(3). If subcontractor attempted to foreclose its claim of lien the *1197 owner could raise its §
713.23 exemption as an affirmative defense....
...d cancelled of record. Unfortunately all of these procedures require time. The only method by which the owner could immediately remove the cloud of an improperly filed claim of lien is to have the claim of lien transferred to security as provided by § 713.23....
...It is only a substitution of security pending a judicial determination of the validity of the claim of lien. In the present case appellee improperly filed a claim of lien. It was unenforceable against the owner's property because of the exemption created by the § 713.23 payment bond; however the claim of lien was of record and created a cloud on the title of owner's property....
...The owner has simply substituted the security of the transfer bond in place of its property. If the subcontractor were able to establish that it would have had a valid lien against the property, as might have been the case if there had not been a proper §
713.23 payment bond, then in that event appellee could look to the §
713.24 transfer bond in lieu of the owner's property. However in this case there was a proper §
713.23 payment bond and the subcontractor did not have, nor could it have had, a valid lien against the owner's property....
...In this case appellee did not have a valid claim of lien against the owner's property. Therefore, it was not entitled to look to the §
713.24 transfer bond for payment of its claim. We hold that the owner in this case was exempt from direct liability by virtue of the §
713.23 payment bond, and that it had the right to utilize the §
713.24 transfer bond to remove the encumbrance of appellee's improperly filed claim of lien....
...Appellee seeks support for its position from certain language used by this court in Schleifer v. All-Shores Construction and Supply Co.,
260 So.2d 270 (Fla. 4th DCA 1972). Consistent with our holding in the present case, in Schleifer we held that the securing of a §
713.23 payment bond exempted the property owner and his property for direct liability....
...Nevertheless, to avoid confusion and to remove any suggestion of conflict with our holding in the present case, we hereby recede from the above quoted language. *1198 Appellants have also presented the question of whether the lower court erred in failing to grant their motions for summary final judgment on the basis that the § 713.23 payment bond exempted the owner and its property from appellee's claim of lien....
CopyCited 8 times | Published | Florida 4th District Court of Appeal
...a, Inc., under a subcontract agreement with Guin & Hunt, Inc., provided labor and material to the project. The general contractor failed to pay the amount due under the subcontract. The subcontractor then sought to recover on the bond as provided by § 713.23, Florida Statutes....
...ere no genuine triable issues as to any material fact, found as a matter of law that the subcontractor was entitled to summary judgment. We agree and affirm. Appellants contend that the bond in question is a common law bond and not given pursuant to § 713.23....
...Court of Appeals, Fifth Circuit, considering a related question, held that under Florida law when a surety on private construction work issues a bond that purports to protect against mechanics' liens, the bond must be construed and applied in accordance with the conditions and provisions of §
713.23. Houdaille Industries, Inc. v. United Bonding Ins. Co.,
453 F.2d 1048 (5th Cir.1972). Although not bound by that decision we concur with the rationale of Houdaille. It is not mandatory under §
713.23 for a private owner to require a bond to protect lien claimants. But if the private owner, rather than remaining subject to the lien laws, chooses the alternate of a bond which protects against liens, he may not employ a bond other than a §
713.23 bond....
...The fact that he perfected his lien right, in the event he is not protected under the bond, does not diminish his claim under the bond. The surety in this case issued a bond that purports to protect against mechanics' liens. As such the bond should be construed as a "payment bond" in accordance with the provisions of § 713.23....
CopyCited 8 times | Published | Supreme Court of Florida
...the completion of the work included in this sub-contract, written acceptance by the Architect and full payment therefor by the Owner." Petitioner, Aetna Casualty and Surety Company, acted as surety with respect to the subcontract and, as provided by Section 713.23, Florida Statutes (1975), issued a payment bond....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1999 WL 743594
...erformance bonds from North American. Bergeron was a subcontractor and performed the last of its services on March 10, 1995. Following performance, Bergeron served a written notice of non-payment to Noland Construction and North American pursuant to section 713.23(1)(d), Florida Statutes....
...In its amended answer, Bergeron included, for the first time, a cross-claim against Noland Construction and North American for payment for the work and services performed. North American filed an answer and alleged several affirmative defenses, including failure to state a cause of action under section
713.23, and failure to satisfy conditions precedent to payment under section
713.245, Florida Statutes....
...and Noland Construction. The owners subsequently filed a motion to determine the validity and scope of the payment bond. Specifically, the owners wanted the court to determine whether the North American bond should be treated as a payment bond under section
713.23 or a conditional payment bond under section
713.245....
...Essentially, North American argued that a general leave to amend was required to eliminate the confusion then present in the pleadings. The trial court denied North American's motion for a general amendment and concluded that the bond should be construed as a section 713.23 payment bond because the subcontracts did not contain conditional payment language....
...After remand, Bergeron moved for summary judgment against North American and Noland Construction. North American and Noland Construction also moved for summary judgment against Bergeron. The trial court granted summary judgment for Bergeron. Bergeron failed to comply with the time period prescribed in section 713.23(1)(e), which provides that "No action shall be instituted or prosecuted against the contractor or against the surety on the bond under this section after 1 year from the performance of the labor or completion of delivery of the materia...
...d its claim of lien, or that the claim of lien has been transferred to the Conditional Payment Bond, all as required under §
713.245, Fla. Stat." Obviously, announcing a defense based on section
713.245 is not the same as stating a defense based on section
713.23....
...t had actual notice throughout the proceedings that North American regarded the timeliness of its cross-claim as an issue. We note that the initial affirmative defense put Bergeron on notice of the possibility that the time restrictions specified in section 713.23 would be raised....
CopyCited 7 times | Published | Florida 4th District Court of Appeal
...Hardy Contractors, Inc., supplied materials to the job pursuant to a contract with a sub-contractor. Hardy filed a claim of lien in Palm Beach County asserting non-payment for the materials. The general contractor had posted a payment bond pursuant to Section 713.23, Florida Statutes (1977)....
...The construction project was in Palm Beach County and the claim of lien, the bond, and the Notice of Bond were all filed with the Clerk of the Circuit Court of Palm Beach County. Morganti moved to transfer the case against it and its surety to Palm Beach County, and the trial court denied the motion. Our review of Sections
713.23 and
713.24, Florida Statutes (1977), convinces us that the proper venue for the action against the general contractor and surety on the bond was in Palm Beach County where the security had been deposited....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 1988 WL 44479
...Taylor, Brion, Buker & Greene and Arnaldo Velez, Miami, for appellee/cross-appellant Aetna Cas. & Sur. Co. Before BARKDULL, HENDRY and FERGUSON, JJ. HENDRY, Judge. Shores Supply Company filed an action against Aetna Casualty and Surety Company pursuant to section 713.23, Florida Statutes (1987), to recover $17,159.51 for materials Shores furnished Aetna's principal, Frisa Corporation, on an open account for a construction project....
...1982), the supreme court concluded that when a lien is substituted by a bond, the statute which governs the assessment of attorney's fees is not the prevailing party provision under section
713.29, but the insurance provisions under sections
627.428 and
627.756. The legal effect of furnishing a payment bond pursuant to section
713.23 is to exempt the owner and the property from the provisions of the mechanic's lien statutes....
CopyCited 6 times | Published | Supreme Court of Florida | 1982 Fla. LEXIS 2315
...Johnson & Sons, Inc., is a paving subcontractor which engaged in paving work pursuant to a contract with Englishtown, Inc., the prime contractor on a project in Jacksonville, Florida. Englishtown purchased a bond from Balboa Insurance Company on behalf of the owner of the property pursuant to section 713.23, Florida Statutes (1977)....
...[1] *1046 Section
713.29, on the other hand, is expressly limited to "any action brought to enforce a lien under part I [Mechanic's Liens]." [2] This seems to indicate the legislature's intent to limit section
713.29 to the enforcement of liens arising under part I of chapter 713. Sections
713.02(6) and
713.23 of part I, relating to payment bonds, however, remove from part I owners who are protected by the required contractor's payment bonds....
...r. On the other hand, if the awards to the subcontractors arise out of a claim against the payment bond, the attorney's fee would be controlled by Section
627.756(2), Florida Statutes (1977). Id. at 738. The court went on to comment on the effect of section
713.23 on section
713.29. Section
713.29 provides for a reasonable attorney's fee "in any action brought to enforce a lien under Part I" of Chapter 713. Resnick, supra, held that the legal effect of furnishing a payment bond pursuant to
713.23 is to exempt the owner and the property from the provisions of Part I....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2005 Fla. App. LEXIS 2218, 2005 WL 430346
...1), against Bridgeport, Inc.; Bridgeport-Strasberg Joint Venture (the contractor); and General Accident Insurance (the surety). Delta Fire alleged a breach of contract claim against the contractor, and a construction payment bond claim against the surety pursuant to section 713.23, Florida Statutes (2001)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1980 Fla. App. LEXIS 17569
...Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ. NESBITT, Judge. Appellants, the general contractor and its surety, seek reversal of a money judgment entered in favor of appellee as lienor in a *1007 direct action against a payment bond furnished by appellants, pursuant to Section 713.23, Florida Statutes (1977)....
...v. A.C. Samford, Inc., supra . As stated, the performance called for in the instant case is the payment of money. Coordinated, being the debtor, was required to seek out Florida Fill, the creditor. A general contractor's bond, furnished pursuant to Section 713.23, Florida Statutes (1977), is a payment bond and not a performance bond, the latter of which is intended to ensure the physical completion of the work upon default....
...Coplan Pipe & Supply Co.,
262 So.2d 671 (Fla. 1972); Bryan v. Owsley Lumber Company,
201 So.2d 246 (Fla. 1st DCA 1967). Appellants also correctly argue that the effect of the payment bond furnished by the general contractor and the surety, pursuant to Section
713.23, Florida Statutes (1977), "is to exempt the owner's property from lien foreclosure and substitute the security of the bond in lieu thereof." Guin & Hunt, Inc....
...tes (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. We find nothing in Section
713.23(1), *1009 Florida Statutes (1977) [which affords a lienor a direct action against the bond] which grants the defense of proper payments to the general contractor and its surety....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...s Meekins), Grinnell Fire Protection Systems Company (hereafter referred to as Grinnell), and S.I. Goldman Mechanical Contractor, Inc. (hereafter referred to as Goldman). Pursuant to the prime contract Inland furnished a Payment Bond provided for in Section 713.23, Florida Statutes (1971), with Bankers & Shippers' Insurance Company of New York (hereafter referred to as Bankers) as surety....
...78-841 Bankers' first point suggests that the trial court erred in granting Goldman a judgment against Bankers because 1) there was no evidence adduced at trial to prove Goldman's claim and 2) Goldman's suit against Bankers was untimely in view of the one year limitation contained in Section 713.23, Florida Statutes (1973)....
...Thus, it appears to us that Bankers was liable for the amount of the Goldman judgment which was contained in this record. The other aspect of this point raised by Bankers is that Goldman's first complaint against Bankers was filed in October 1977, although Goldman last furnished materials in August 1973. Section 713.23, Florida Statutes (1973), requires that suit on a payment bond be instituted or prosecuted within one year after the last delivery of materials....
...a suit must be instituted within one year "against the contractor or surety". Goldman's suit against Inland was commenced well within one year from the last delivery of materials and thus the action against Bankers was timely, within the meaning of Section 713.23, supra....
...Clerici, Inc.,
340 So.2d 1194 (Fla. 4th DCA 1976). Section
713.29 provides for a reasonable attorney's fee "in any action brought to enforce a lien under Part I" of Chapter 713. Resnick, supra, held that the legal effect of furnishing a payment bond pursuant to
713.23 is to exempt the owner and the property from the provisions of Part I....
...ARISTAR APPEAL-Case No. 78-1024 Aristar suggests that the final judgment is erroneous in two respects: a) In impressing lien rights in favor of the subcontractors on the unpaid balance of the contract price (in Aristar's hands) when there was in full force and effect a Section 713.23 payment bond, the subcontractors' mechanics liens were unperfected and owners' cost of completion exceeded the amount due on the contract....
...b) In refusing to award Aristar the full amount of its damages against Bankers, the payment bond surety. In order to determine whether there is any validity to Aristar's first contention it is necessary to focus on the purpose and effect of a payment bond authorized by Section 713.23, Florida Statutes (1971)....
...e prime contractor) have any further claim against the owner or his property. As this court said in Resnick Developers South, Inc., supra : The owner in this case required and obtained from its general contractor a proper payment bond as provided in § 713.23....
...y that appellee could perfect a valid claim of lien under Chapter 85 or Part I or II of Chapter 713 against the owner's property. The statute sets out the procedure that must be followed by the subcontractor in order to perfect its claim against the § 713.23 payment bond....
...e bond at the commencement of this job, subcontractors were not entitled to enforce mechanics liens against Aristar or the real property involved. If they were not paid by Inland, their remedy was a direct action against Bankers on the payment bond. § 713.23, Fla....
...cost of completion was $101,031. It appears to us that at the time the liens were transferred to bond Aristar had a right to make the transfer, Resnick, supra, and thus the bond premium was recoverable against Inland and Bankers. However, today if a Section 713.23 bond is in existence the transfer is made to the payment bond by simply recording a notice of bond as provided in Section 713.23(2), Florida Statutes (1979)....
...78-1025 The final judgment makes no award against Safeco, but neither does it expressly exonerate Safeco. However, the law appears to be quite settled that the principal and surety on a Section
713.24 transfer bond are not liable thereon where there is a proper Section
713.23 payment bond in existence....
...among other things, it is alleged that the opinion of this court upholding judgment in favor of S.I. Goldman Mechanical Contractor Inc. is erroneous because we misinterpreted the statutory language relating to the statute of limitations contained in Section 713.23, Florida Statutes (1973). Upon further consideration of Section 713.23, we concede the petitioner's contention and hold that the institution of suit by Goldman against Inland and Aristar in 1974 was not a suit against the contractor or surety on the bond and thus did not toll the running of the one year statute of limitations....
...The third party complaint, filed May 19, 1975, against Bankers & Shippers (more than one year from the date Goldman last furnished labor and materials) for the first time made a claim on the payment bond. Thus, the claim was untimely under the statute of limitations contained in Section 713.23, Florida Statutes (1973)....
...The amount of those fees likewise should be determined based upon the net award to Aristar as found in our opinions in this case. We adhere to our opinion of September 24, 1980, as so modified and clarified. DOWNEY, ANSTEAD and HERSEY, JJ., concur. NOTES [1] Section 713.23, Florida Statutes (1973), provides in pertinent part: "No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after one year from the performance of the labor or completion of delivery of the materials and supplies." [2] The time frame involved in Resnick, supra, and this case predates the 1977 amendment to 713.23 allowing transfer of liens to a payment bond.
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...The School Board of Palm Beach County v. Fasano,
417 So.2d 1063 (Fla. 4th DCA 1982) and Miller v. Knob Construction Co.,
368 So.2d 891 (Fla. 2d DCA 1979). A subcontractor is not an indispensable party to a supplier's action against the principal and surety under a bond required by section
713.23(1)(g) of the Mechanics Lien Law....
...fields which are mutually exclusive," the statement was made in the context of applying payment received on a public construction project. Respondents also contend that a different result is mandated because of the difference in statutory language. Section 713.23(1)(g) states: Any lienor shall have a direct right of action on the bond against the surety....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1991 WL 232260
...Mursten Construction Company was the general contractor hired to erect improvements to real property owned by Saint Andrews Episcopal Church, Inc., the owner of the real property. The general contractor obtained a payment bond from Fidelity and Deposit Company of Maryland, as surety, pursuant to section 713.23, Florida Statutes (Supp....
...chanic's lien, and against Bly Electrical for open account and account stated. It should be noted that the general contractor and the surety were not defendants in the suit as originally filed. In June, 1989 a Notice of Bond was filed pursuant to subsection 713.23(2), Florida Statutes (Supp....
...1988). [1] This notice was provided to the material supplier, which thereby learned of the existence of the payment bond. The owner then moved to dismiss, correctly asserting that the material supplier's claim was transferred to the bond by virtue of subsection 713.23(2)....
...The general contractor and surety made several arguments in opposition, but the one which concerns us here is the assertion that the plaintiff material supplier had failed to comply with the statutory conditions precedent to maintaining its action against them, see § 713.23(1)(f), Fla. Stat. (Supp. 1988), and that the statutory periods for satisfying the conditions precedent had expired. See id. § 713.23(1)(d), (e). The trial court ruled in plaintiff material supplier's favor on this point, making the finding that plaintiff had complied with section 713.23. The court entered summary final judgment for plaintiff and this appeal ensued. Section 713.23 provides that where, as here, "a notice of commencement is not recorded, ......
...the lienor not in privity with the contractor is not otherwise notified in writing of the existence of the bond, the lienor not in privity with the contractor shall have 45 days from the date the lienor is notified of the existence of the bond within which to serve the [statutory] notice [to contractor]." Id. § 713.23(1)(d). The form of the notice to contractor is set forth in the statute. Id. [3] Section 713.23 also provides, "[i]n addition, a lienor shall be required, as a condition precedent to recovery under the bond, to serve a written notice of nonpayment to the contractor and the surety within 90 days of the date a payment is due to the lienor under a contract." Id. § 713.23(1)(e)....
...The form of that notice is also set forth in the statute. Id. [4] The crucial portion of the statute for present purposes is: "No action for the labor or materials or supplies may be instituted or prosecuted against the contractor or surety unless both notices have been given." Id. § 713.23(1)(f) (emphasis added)....
...3d DCA 1990); accord Corporation of the President of the Latter Day Church of Jesus Christ v. Seymour Electric Supply Co.,
558 So.2d 88, 90 (Fla. 1st DCA 1990). Here, the statute proscribes the institution or prosecution of an action against the contractor or surety unless the statutory notices have been given. §
713.23(1)(f), Fla....
...(Supp. 1988). In view of the authority cited above, we have no alternative but to hold that the plaintiff material supplier had to provide the statutory notices as a condition precedent to filing suit against the general contractor and surety on the section
713.23 payment bond. The amended complaint could not itself serve as the statutory notice. See Corporation of the President v. Seymour Electric Supply Co.,
558 So.2d at 90. The material supplier also argues that under the circumstances present here, the section
713.23 payment bond should be treated as a transfer bond under section
713.24, Fla. Stat. (1987). While section
713.23 itself draws an analogy to section
713.24, [5] the requirements for payment bonds and suits thereon are set forth at length and in detail in section
713.23....
...3d DCA 1990); Home Electric of Dade County, Inc. v. Gonas,
547 So.2d 109, 110-11 (Fla. 1989). In addition, the material supplier contends that it did not receive the first notice. The material supplier would have had to receive it in order to trigger the notice times set forth in paragraphs
713.23,(1)(d)-(e), Fla....
...the question of receipt of the first Notice by the material supplier. [2] These same claims were brought forward in a later filed second amended complaint. [3] See supra note 1. [4] The notices need only be in "substantially" the statutory form. Id. § 713.23(1)(d), (e). [5] See § 713.23(2), Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...ice of commencement "(1) An owner or his authorized agent before actually commencing to improve any real property, or recommencing completion of any improvement after default or abandonment, whether or not a project has a payment bond complying with § 713.23, shall record a notice of commencement in the clerk's office and forthwith post a certified copy thereof containing the following information:" * * * * *
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...RAWLS, Acting Chief Judge. The sole issue in this appeal is whether appellant-plaintiff's cause of action is governed by the five-year statute of limitation as prescribed in Section
95.11, Florida Statutes, or by the one year statute as set out in Section
713.23, Florida Statutes....
...A further allegation was that the contractor had executed a payment bond providing for payment to persons furnishing labor and materials in the performance of said construction work. The complaint also alleged that although the bond was purportedly given in accordance with Section 713.23, Florida Statutes, that such was not the case, because the statute provides that a bond given pursuant to it shall be in at least the contract price, whereas the instant bond was only in ten percent of the contract price. [1] Appellee-defendant argues that the amount of the bond is immaterial because, admittedly, plaintiff's claim is in an amount substantially less than the amount set forth therein. Section 713.23, Florida Statutes, provides, inter alia: "......
...uired in this section after one year from the performance of the labor or completion of delivery of the materials and supplies... ." (emphasis supplied) Although the subject bond is entitled "Statutory Payment Bond Pursuant to Sections
713.02(6) and
713.23, Florida Statutes", such statement does not make it such, because it was not in at least the amount of the original contract price and thus not as required in Section
713.23. Since the purported statutory bond was not furnished in accordance with the requisites of the clear terms of Section
713.23, Florida Statutes, defendant is not protected by the one year limitation provision of the statute....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2002 WL 385026
...Sourini Painting's surety (Capitol Indemnity Corporation) and against Centex Rooney and its sureties (Seaboard Surety Company, St. Paul Fire & Marine Insurance Company, and National Union Fire Insurance Company). The sureties had furnished construction payment bonds pursuant to section 713.23, Florida Statutes (1993)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...privity, without notice to the owner. See: Ervin, Revised Mechanics' Lien Law; The Whys and Wherefores, 37 Fla. Bar Journal 1095 (1963). One provision which has remained specifically enumerated in all revisions of the Mechanics' Lien Act is found in § 713.23 Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...ilarly situated subcontractors and materialmen." A copy of the bond is attached to the complaint. Appellees moved to dismiss Count VII on the ground, among others, that the bond referred to in Count VI of the complaint was furnished pursuant to Sec. 713.23 Florida Statutes (1975) and thus appellant was not entitled to maintain Count VII for foreclosure of a mechanic's lien....
...The bond attached to the complaint is in the amount of $122,250.00 but nowhere in the pleadings or exhibits attached thereto do we find any allegation that the bond is "in at least the amount of the original contract price." That the bond be in at least the amount of the contract price is an essential feature of a Section
713.23 Payment Bond. General Electric Company v. Commercial Standard Insurance Company,
335 So.2d 624 (Fla. 1st DCA 1976). Suffice to say, a bond furnished pursuant to Sec.
713.23 Florida Statutes (1975) must comply with the provisions of that section in order for the benefits afforded thereby to accrue to the owner since preclusion of a claimant's lien right is no insignificant matter. We find that the complaint in this case does not clearly show the existence of the appellees' defense to a lien foreclosure. Of course, it may well be that upon remand the appellees will set up the defense afforded them by Sec.
713.23 and by proof demonstrate that there is no genuine issue of fact, which may make what we do here appear to be an exercise in futility....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1988 WL 89740
...A general contractor (Jendoco) provided an owner (Healthnet) with a payment bond (with the contractor as principal) and USF & G as surety, for the use and benefit of persons supplying labor and material in performance of a construction contract to improve the owner's real property. ( See § 713.23(1)(a), Fla....
...contractor did not need to, and therefore did not, "make application to the court for an order directing the parties to proceed with arbitration" as permitted under section
682.03(1), Florida Statutes. Thereafter, to toll the statute of limitations (§
713.23(1)(f), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 2414, 1987 Fla. App. LEXIS 10593
...and owing under the contract. Jetstar sued INA as surety for Gulf under Chapter 713, Florida Statutes (1985). INA moved to transfer venue to Sarasota County based upon the venue provision in the contract between Jetstar and Gulf. Jetstar argued that section 713.23(1)(g), Florida Statutes (1985) controlled, hence venue was properly laid in Palm Beach County. INA contends that the trial court erred when it denied its motion to transfer venue to Sarasota County. We agree and reverse. Appellee argues that it sued INA as a surety pursuant to section 713.23, Florida Statutes and that since section 713.23(1)(g) expressly provides that "no bond shall contain any provisions restricting the classes of persons protected thereby or the venue of any proceeding" the general provisions of Chapter 47, Florida Statutes (1985) control venue in this case....
...Jetstar also argues that the contractual provision for venue in Sarasota County does not apply because it has not sued for breach of contract and that INA cannot claim the benefits of the provision for venue as a third party beneficiary to the contract. Jetstar misplaces its reliance on section 713.23....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2000 WL 691136
...ecourse in the event of nonpayment by the contractor. [3] Here the trial court concluded that the surety bond issued to the General Contractor is an unconditional one and the Subcontractor failed to comply with the applicable procedure for recovery. Section 713.23(1)(a), Florida Statutes (1997), provides for unconditional payment bonds....
...This "pay-when-paid" language limits the Surety's liability to the payments made by the Owner. Under section
713.245, the Owner's property is not exempt from the Subcontractor's lien by which the Subcontractor seeks recovery. The notice and other requirements applicable to section
713.23 unconditional bonds are not relevant....
...However, the Owner points out to us language which is ostensibly incorporated, by reference to the contract between the Owner and the General Contractor, into the contract between the General Contractor and the Subcontractor. This language appears to require the General Contractor to provide the Owner with a section 713.23 (unconditional) payment bond....
...As a consequence, we reverse the final summary judgment and remand the case for further proceedings consistent herewith. Reversed and remanded. NOTES [1] Governed by §
713.245, Fla. Stat. (1997). It is also referred to as a "pay-when-paid" bond. [2] Governed by §
713.23, Fla....
...Hughes Supply, Inc.,
705 So.2d 616 (Fla. 4th DCA 1998), the contracts between the general contractor and the subcontractors did not contain "pay-when-paid" clauses, thus the bonds were not conditional ones under section
713.245, but were unconditional bonds under section
713.23....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1988 WL 23648
...Hardy Contractors, Inc.,
397 So.2d 378 (Fla. 4th DCA 1981). This cross-claim, as in Morganti, involves Hall's suit on a payment bond, posted in Orange County, where the surety had filed a notice of bond. Hall's claim on the bond had to be brought in Orange County, Florida. §
713.24(3), §
713.23(1)(g), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1345236
...Contractor for breach of the subcontract and against the Surety on the bond that had been furnished on the project. The Contractor and the Surety raised several defenses as to the bond claim, including that the bond is a statutory payment bond under section 713.23, Florida Statutes (1999), that the Subcontractor did not comply with the notice requirements of section 713.23(1)(d), and that the Subcontractor did not bring an action on the bond within one year from the date it performed *308 its obligations under the subcontract as required by section 713.23(1)(e). Section 713.23(1)(d) provides that "a lienor is required, as a condition precedent to recovery under the bond, to serve a written notice of nonpayment to the contractor and the surety not later than 90 days after the final furnishing of labor, services, or materials by the lienor." Section 713.23(1)(e) states that an action for labor, materials, or supplies may not be instituted or prosecuted against a contractor or surety unless both a notice to contractor and notice of nonpayment have been given, and "[n]o action shall be ins...
...truments applied to common law bonds and, as a result, that its claim was not time-barred. See §
95.11(2)(b), Fla. Stat. (1999). The Surety argued that it was entitled to entry of summary judgment because the bond was a statutory payment bond under section
713.23 and not a common law bond. It maintained that the one-year limitations period contained in section
713.23(1)(e) applied and that the claim was barred because the Subcontractor did not file suit within the one-year period....
...Id.; see also Nat'l Fire Ins. Co. of Hartford v. L.J. Clark Constr. Co.,
579 So.2d 743, 744-45 (Fla. 4th DCA 1991) (stating that "a payment bond is a common law bond rather than a statutory bond if it provides more expansive coverage than that provided for in section
713.23 " and noting that "[t]he cases indicate that the payment provisions or the class of claimants must be expanded to create a common law bond"). Here, the bond does not provide more expansive coverage than the statutory bond described in section
713.23. Instead, it contains terms that are substantially in the form required by section
713.23(3). Therefore, consistent with the analyses in Standard Heating and National Fire, we must consider the bond to be a statutory *309 bond under section
713.23 and not a common law bond....
...urety did not furnish the bond to Rinker. In defense, the surety and the general contractor asserted that Rinker failed to serve a notice of nonpayment and failed to commence an action on the bond within the applicable one-year period as required by section 713.23. They also contended that Rinker was not excused from complying with section 713.23 by claiming that it was not aware of the bond....
...m supplying the materials. Id. at 1196. The court stated that "[t]he mechanics['] lien law is given a strict and literal meaning" [1] and noted that even if the bond was served late, Rinker was not exempted from the notice and timing requirements of section 713.23....
...After the supplier filed suit, the general contractor and surety asserted that the supplier failed to comply with the statutory conditions precedent to filing suit. The trial court entered summary judgment in the supplier's favor, finding that it had complied with section 713.23....
...at 1061-62. On appeal, the Third District observed that it was required "to give the mechanic's lien statute a strict, and therefore literal, reading." Id. at 1063. It reversed the judgment because the supplier failed to comply with the requirements of section 713.23 by not serving a statutory notice to contractor and a notice of nonpayment to the contractor and the surety "as a condition precedent to filing suit against the general contractor and surety on the section 713.23 payment bond." Id....
...The courts' reasoning in Bridgeport and Mursten is persuasive as to the issues before us. We conclude that even if the Subcontractor is correct that the Owner, the Surety, and the Contractor did not fully adhere to the requirements of chapter 713, the Subcontractor was not excused from complying with the requirements of section 713.23 that it provide notice of nonpayment before filing suit and that it file suit within one year from its completion of performance, and the bond did not convert from a statutory payment bond to a common law bond....
...Finally, the record does not demonstrate that the Subcontractor suffered prejudice as a result of the alleged failure by others to comply with chapter 713 in a manner that could arguably excuse its own obligation to comply with the requirements of section 713.23....
...within the one-year limitations period because of any noncompliance by the Owner, Contractor, or Surety. Indeed, if the Subcontractor had been damaged by the failure or refusal of the Owner, Contractor, or Surety to furnish a copy of the bond to it, section 713.23(1)(b) provides a remedy to the Subcontractor....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1980 Fla. App. LEXIS 16374
...Several materialmen for Spurlin filed claims with Sentry on the sub-contractor's payment bond. Sentry paid the claims, and then filed suit against Arnold and General on the prime contractor's payment bond. General contended that Arnold's payment bond was a statutory bond governed by section 713.23, Florida Statutes (1971), and, therefore, Spurlin's action was barred by the one-year statute of limitation. The trial judge held the payment bond in this case is a "common law" bond rather than a "statutory" bond because it is broader in scope than required under section 713.23, Florida Statutes (1971)....
...Dunn,
342 So.2d 132 (Fla. 2nd DCA 1977). See United Bonding Insurance Co. v. City of Holly Hill,
249 So.2d 720 (Fla. 1st DCA 1971); S.W. Fla. Water Mgt. Dist. v. Miller Const.,
355 So.2d 1258 (Fla. 2nd DCA 1978). The bond in question does not make any reference to section
713.23. General wrote another bond for the same contractor on another project, which bond was also sued on in this action but is not involved in this appeal, and that other bond specifically incorporated section
713.23 in its terms, so General was not without the means or ability to write a statutory bond if it wanted to....
...Several materialmen for Spurlin filed claims with Sentry on the subcontractor's payment bond. Sentry paid the claims, and then filed suit against Arnold and General on the prime contractor's payment bond. General contended that Arnold's payment bond was a statutory bond governed by Section 713.23, Florida Statutes and, therefore, Spurlin's action was barred by the one-year statute of limitation....
...than statutory, bonds, and subject to the more generous statute of limitations. This was reversed on appeal because the conditions of the bonds were not broader and more protective than the statute required, and the bonds substantially complied with Section 713.23, Florida Statutes....
...Dean Snavely, Inc. v. Sullivan,
360 So.2d 451 (Fla. 1st DCA 1978). The amount of the payment bond in the instant case was equal to the contract price, it contained a one-year statute of limitation, and it protected the class of people intended to be protected by Section
713.23, Florida Statutes....
...The payment bond was a statutory bond and the one-year statute of limitation specifically incorporated therein should control. Accordingly, I would reverse the holding of the trial court. NOTES [1] The payment bond in question was issued in 1972. In 1978, Section 713.23, Florida Statutes, was amended to include a form for payment bonds.
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...Cincinnati, appellant-surety, executed a performance and payment bond with Brody as principal and Royal Oak as obligee. In our opinion in order for Putnam as a supplier of architectural services for the project to be entitled to enforce his claim of lien by direct action against Cincinnati, surety, under section 713.23, Florida Statutes, it was necessary for Putnam to establish that he was in privity with Royal Oak, the obligee under the bond. The liability of the surety is ordinarily measured by the liability of the principal (Brody) and generally the surety is not liable if the principal is not liable. 30 Fla.Jur., Suretyships, sec. 14; F.S. § 713.23....
...If Putnam's agreement to furnish architectural services was with Royal Oak Properties then Cincinnati as surety for Brody would not be liable to Putnam; however, if it were shown that Putnam's agreement was with Brody then Putnam's action against Cincinnati would be proper and in accordance with section 713.23, Florida Statutes....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2003 WL 21697443
...Rinker alleged that although CGU furnished a payment bond, it never furnished said bond to Rinker. Bridgeport and CGU alleged, as an affirmative defense, that Rinker had failed to comply with conditions precedent by failing to serve notices of non-payment as required by section 713.23 and that Rinker was not excused by claiming it was not aware of the CGU bond, because Rinker's initial notice identified CGU as the bonding company and was served upon CGU. It was also alleged that Rinker's claim was barred by the one year statute of limitations. Rinker asserts that its claim of lien serves as the statutory notice required under section 713.23, Florida Statutes. Section 713.23(1) provides, in relevant part: (c) Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor wit...
...section after 1 year from the performance of the labor or completion of delivery of the materials and supplies.... Bridgeport followed with its own motion for summary judgment, alleging that CGU issued the labor and material payment bond pursuant to section 713.23, that Rinker did not send CGU a notice of non-payment as required by section 713.23, and that Rinker failed to commence an action on the bond within one year from the performance of the labor or completion of delivery of the materials and supplies pursuant to section 713.23....
...The trial court erred in entering summary judgment for Rinker and denying Bridgeport's motion for rehearing. Clearly, Rinker did not comply with the requirements of the mechanics lien law before initiating an action on the bond. The notice requirements of section 713.23 are mandatory....
...See Mursten Constr. Co. v. C.E.S. Indus., Inc.,
588 So.2d 1061 (Fla. 3d DCA 1991). In Mursten, the Third District reversed a summary judgment in favor of the material supplier, holding that the supplier had failed to comply with the notice requirements of section
713.23....
...'s service of the notice of bond, the motion for rehearing should have been granted. Additionally, even if the bond was served late, Rinker does not cite to any authority which suggests that it was exempted from the notice and timing requirements of section 713.23 simply because the bond was served late, nor was late service the basis for Rinker's summary judgment motion....
...quested by the material supplier/lienor. It was not until one month after the material supplier filed suit that a notice of bond was filed. Id. at 1062. Nevertheless, the material supplier was still required to comply with the notice requirements of section 713.23. Here, where the notice of bond was filed several months before initiation of the lawsuit, Rinker was still required to comply with the statute. We recognize that section 713.23(1)(b) provides, in relevant part, that "[a]ny person who fails or refuses to furnish a copy without justifiable cause shall be liable to the lienor demanding the copy for any damages caused by the refusal or failure." This subsection,...
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...their action against appellee American Employers' Insurance Co., surety on the contractor's payment bonds, on grounds the suppliers' claims against those bonds were not asserted within one year after completion of delivery of the materials supplied. Section 713.23....
...t the owner, on grounds the contractor had provided payment bonds for the protection of suppliers of labor and material to the projects and, therefore, the owner and its property were exempt from the claims of liens of suppliers. Sections
713.02(6),
713.23....
...ect to reversal by the trial court several months later. We agree on both counts. Pursuant to contract with the owner, the contractor supplied bonds entitled "labor and material payment bonds" which were intended to and did substantially comply with Section 713.23....
...Contrast United Bonding Ins. Co. v. City of Holly Hill,
249 So.2d 720 (Fla. 1st DCA 1971). The trial court's order reinstating the suppliers' action against the owner and his property is based on the conception that *134 a payment bond provided under Section
713.23 exempts the owner and his property from lien foreclosure only if the suppliers pursue and obtain their remedies on the bond. Because by delay the suppliers lost their bond claims, they urge it is appropriate that their prior statutory remedy of foreclosure be reinstated. The suppliers point out that while an action on a payment bond provided under Section
713.23 must be brought within one year after completing delivery, suppliers have 90 days plus one year from completing delivery to claim a lien and sue for foreclosure under Sections
713.08(5) and
713.22....
...osure for a period of up to 90 days after termination of the surety's bond liability. We cannot consent to that result. Section
713.02(6) provides: "In any direct contract the owner may require the contractor to furnish a payment bond as provided in s.
713.23 and upon receipt of such bond the owner shall be exempt from the other provisions of [the mechanics' lien law]......
...The trial court's order is REVERSED, insofar as it rejoined appellant as a party and restored the suppliers' foreclosure suit; and it is AFFIRMED insofar as it dismissed the suppliers' action on the bond of appellee American Employers' Insurance Co. RAWLS, Acting C.J., and ERVIN, J., concur. NOTES [1] Section 713.23 provides in part: "No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after 1 year from the performance of the labor or completion of delivery of the ma...
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 13006, 2006 WL 2190718
...Delta Fire Sprinklers appeals the final summary judgment dismissing Delta Fire's actions against OneBeacon Insurance Company in two consolidated cases. We conclude, as did the trial court, that the construction payment bond issued by OneBeacon was a statutory bond that comported with section 713.23, Florida Statutes (2001), and that because Delta Fire failed to provide the required statutory notice of nonpayment, it could not recover under the bond....
...inole County. Delta Fire installed the fire protection system for the apartment complex, but alleges that it was not fully paid for its work. It originally brought a claim for breach of contract against the general contractor and a claim pursuant to section 713.23, Florida Statutes, against OneBeacon under a payment bond issued by that company....
...work on the project prior to the filing of the notice of commencement, but that Delta Fire performed no work until about four months after the OneBeacon bond was recorded and provided to them. Delta Fire sent its notice to contractor, as required by section 713.23(1)(c), Florida Statutes, about three months after the bond was recorded....
...By a sworn document dated December 8, 2000, Delta Fire submitted its final pay application (application Number 15), seeking payment of its contract retainage. As with the previous draw request, application Number 15 showed no additional work on the project, and 100% of the work completed. Section 713.23(1)(d), Florida Statutes, required Delta Fire "as a condition precedent to recovery under the bond" to serve a written notice of nonpayment on the contractor and surety not later than 90 days after the "final furnishing of labor, servic...
...5th DCA July 12, 2006), a case involving the identical project and very similar claims. Delta Fire, therefore, finds itself in the same posture as Professional Plastering, and we see no reason to vary our determination made in the earlier case that the bond is a statutory bond governed by the requirements of section 713.23....
...Thus, for example, section
713.08(5), Florida Statutes, requires a claim of lien to be recorded at any time during the progress of work or thereafter, but not later than 90 days after the final furnishing of the labor or services or materials by the lienor, and section
713.23(1)(d) requires a party seeking recovery under a payment bond to serve a written notice of nonpayment on the contractor and surety not later than 90 days after the "final furnishing of labor, services or materials." The issue we are fac...
CopyCited 4 times | Published | Florida 2nd District Court of Appeal
...he contract price fixed by the direct contract except as provided in subsection (3). Section
713.04 is obviously contained in part I of chapter 713. Further, there is certainly no indication that the legislature intended to exclude the provisions of section
713.23 from applying to liens acquired in regard to subdivisions. Section
713.23 again makes reference to part I....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1988 WL 92691
...ed in ruling that Transamerica and Seaboard were liable on their payment bond. The payment bond purports to protect the owner against mechanic's liens and, therefore, must be construed as a statutory payment bond in accordance with the provisions of section
713.23, Florida Statutes (1987). Guin & Hunt, Inc. v. Hughes Supply, Inc.,
335 So.2d 842 (Fla. 4th DCA 1976). See also, §
713.23(1)(a), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
...Regarding the dismissal of Count I on a statutory bond, appellant contends that the trial court erred in determining that the products supplied by appellant (diesel fuel, motor oil, lubricants, and other petroleum products) were not "materials" within the meaning of section 713.23, Florida Statutes (1981)....
...is notice to contractor and notice of nonpayment. Appellee concedes, and we agree, that the trial court erred in determining that the products supplied were not "materials." The furnishing of diesel fuel constituted the furnishing of materials under section
713.23. See Miami-Dade Water and *1105 Sewer Authority v. Progress Supply, Inc.,
389 So.2d 253 (Fla. 3d DCA 1980). However, we believe the trial court was correct in determining that the notice to contractor was not timely served. Section
713.23(1)(d) provides in part: Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in...
...ction
713.13, does not mean that appellant did not receive the requisite notice. Appellant did not need the surety's name and address because appellant's notice of intent to rely on the bond was required to be made to the contractor, not the surety. §
713.23(1)(d), Fla....
...Miller Construction Co., Inc. of Leesburg,
355 So.2d 1258 (Fla. 2d DCA 1978); State, Department of Transportation v. Houdaille Industries, Inc.,
372 So.2d 1177 (Fla. 1st DCA 1979). The bond here was no more expansive than a statutory bond provided for by section
713.23, Florida Statutes (1981)....
...of "materials" (which includes fuel, see Progress Supply, supra ) is of no moment. The bond provided no more expanded coverage than a statutory bond. Furthermore, the bond's definition of a claimant appears no more expansive than the requirement of section 713.23 that a statutory bond cover lienors....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1978 Fla. App. LEXIS 15630
...ing count two with leave to amend. We reverse. Appellant's complaint asserted that appellant furnished materials to a subcontractor in connection with the construction of a shopping center. The general contractor furnished a payment bond pursuant to Section 713.23, Florida Statutes (1975), which provides in part as follows: The payment bond required to exempt an owner under parts I and II of this chapter and chapter 85 shall be furnished by the contractor in at least the amount of the original c...
...ecover on that bond because a payment bond had been furnished in proper form and meeting all requirements of the statute. We agree with the decision of our sister court. Thus, proof of the existence of a payment bond meeting all of the conditions of Section
713.23, Florida Statutes (1975) is a complete defense to a suit on a subsequently filed transfer bond pursuant to Section
713.24....
...the statute. Appellees sought to impose this defense by their motion to dismiss. We believe the defense was prematurely raised and should be asserted affirmatively by allegations showing that the payment bond did, in fact, meet all the conditions of Section 713.23....
...ract between appellant and the subcontractor, and that the subcontractor is indebted to appellant for the materials so furnished. No doubt the presentation of such evidence will involve the subcontractor. However, appellant's right of recovery under Section 713.23 clearly is a direct right against the principal and surety under the payment bond, and joinder of the subcontractor is not required....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 13 Fla. L. Weekly 1384, 1988 Fla. App. LEXIS 2469, 1988 WL 56526
...§ 270b(a) (1986) (where a claimant must give written notice to the prime contractor within ninety days "from the date on which such person ... performed the last of the labor or furnished or supplied the last of the material for which such claim is made.") (Emphasis supplied); § 713.23(1)(e), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2006 WL 1931199
...e bond. Professional Plastering claimed that work on the construction project had begun before the bond was issued and the notice of commencement was filed. It alleged that the bond was a common law bond and that the notice and other requirements of section 713.23, Florida Statutes (1999), did not apply....
...reverse that part of the order dismissing count two with prejudice. The payment bond issued on 21 July 1999 was derived from an American Institute of Architects boilerplate form. Its terms and coverage were substantially similar to that outlined in section
713.23(3). See Bridgeport,
903 So.2d at 308; see also Hawaiian Inn of Daytona Beach, Inc. v. Dunn,
342 So.2d 132, 133 (Fla. 1st DCA 1977) (holding that the bond "was intended to and did substantially comply with [s]ection
713.23"; therefore, because its conditions "were not broader and more protective than the statute required," the contention that the bond was a common law bond failed)....
...within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made. . . . However, the top of this bond was stamped with the following language: "This bond hereby is amended so that the provisions and limitations of section
255.05 or section
713.23 . . ., whichever is applicable, are incorporated herein by reference." [1] In compliance with sections
713.13 and
713.23(1), the bond was attached to the notice of commencement recorded and entered on 30 July 1999....
...Section
713.02(6), Florida Statutes (1999), provided that an owner could avoid construction liens on its property, other than that of the contractor furnishing a payment bond to the owner, by requiring the contractor to furnish a payment bond under section
713.23, which provided: (1)(a) The payment bond required to exempt an owner under this part shall be furnished by the contractor in at least the amount of the original contract price before commencing the construction of the improvement under...
...required by the bond and statute. Professional Plastering did not begin performing work on the project until 27 December 1999, about five months after the bond was in place. It worked on the project until 16 September 2000. By the plain language of section 713.23(1)(d), Professional Plastering was required to give its notice of nonpayment to the general contractor and surety by no later than 15 December 2000, i.e., within 90 days after the final furnishing of labor, services, or materials....
...We come to this conclusion after a thorough review of the applicable case and statutory law. *448 The Second District has ruled that a bond similar to that in this case is a statutory bond. In Bridgeport, the surety refused to pay on a bond because, inter alia, the claimant did not meet the notice requirements of section
713.23. Bridgeport,
903 So.2d at 308. The trial court ruled that the owner, contractor, and surety had not complied with several requirements of section
713.23. Therefore, the trial court held that the bond was a common law bond that was not subject to section
713.23's notice requirements, and granted summary judgment for the subcontractor....
...Guymann Constr., Inc.,
459 So.2d 1103, 1105 (Fla. 2d DCA 1984), and Nat'l Fire Ins. Co. of Hartford v. L.J. Clark Constr. Co.,
579 So.2d 743, 744-45 (Fla. 4th DCA 1991)). The bond "contain[ed] terms that [were] substantially in the form required by section
713.23(3)." Id. Therefore, the Second District concluded that the bond was a statutory bond under section
713.23 and not a common law bond. Id. at 308-09. Here, similarly, there is no dispute that the bond did not provide more expanded coverage; moreover, it was stamped with language explicitly incorporating the provisions and limitations of section
713.23....
...on precedent to filing suit was fatal. Bridgeport,
903 So.2d at 309 (citing Bridgeport Inc. v. Rinker Materials Corp.,
849 So.2d 1193 (Fla. 4th DCA 2003) ( Rinker ), and Mursten Constr. Co. v. C.E.S. Indus., Inc.,
588 So.2d 1061 (Fla. 3d DCA 1991)). Section
713.23 was to be accorded "a strict and literal meaning." Id....
...(quoting Rinker,
849 So.2d at 1195-96). Therefore: [E]ven if the Subcontractor is correct that the Owner, the Surety, and the Contractor did not fully adhere to the requirements of chapter 713, the Subcontractor was not excused from complying with the requirements of section
713.23 that it provide notice of nonpayment before filing suit and that it file suit within one year from its completion of performance, and the bond did not convert from a statutory payment bond to a common law bond....
...at 1062-63; see also Rinker,
849 So.2d at 1195 (holding that late notice of the bond did not excuse supplier from its obligation to comply with statutory notice requirements). The holdings in Bridgeport and Mursten Construction appear consistent with a full reading of section
713.23....
...and a copy of the bond shall be attached to the notice of commencement when the notice of commencement is recorded." But the statute clearly contemplates the possibility that a payment bond may not immediately satisfy this requirement. For example, section 713.23(1)(c) addresses notice where a notice of commencement is not filed or the bond is not referenced in a notice of commencement. Perhaps most importantly, section 713.23(2) says specifically that: The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor....
...explicit notice requirements, the statutory condition precedent to recovery, could seek payment anyway based on alleged technical *450 violations. We join the Second District in rejecting this approach, which is inconsistent with a strict reading of section 713.23. Here, the surety issued a bond that was facially sufficient under 713.23 and duly noticed. The subcontractor began work on the project many months after the notice of commencement and attached bond were recorded. The subcontractor, therefore, was required to comply with the notice obligations contained in section 713.23(d)....
...Under the Construction Lien Law, an owner can exempt himself from liens by requiring the contractor to furnish a statutorily qualified payment bond. In this regard, the statute provides: In any direct contract the owner may require the contractor to furnish a payment bond as provided in s. 713.23, and upon receipt of the bond the owner shall be exempt from the other provisions of this part as to that direct contract....
...n at least the amount of the original contract price before commencing the construction of the improvement under the direct contract, and a copy of the bond shall be attached to the notice of commencement when the notice of commencement is recorded. § 713.23(1)(a), Fla. Stat. (emphasis added). Although the majority acknowledges this language, it concludes that other subsections of 713.23, namely subsections (1)(c) and (2), "contemplate" that a statutory bond need not be furnished before construction is commenced to be effective as to claimants who furnish labor and materials after the bond is furnished....
...Otherwise, subsection (1)(a) becomes superfluous, because, under the majority's interpretation of subsection (2), any bond could exempt the owner's property. Clearly, that is not intended. As an apparent alternative to its statutory analysis, the majority holds that literal compliance with section 713.23(1)(a) is not required here because this particular claimant furnished labor and materials after the bond was furnished and was not harmed by the delay....
...Thus, the majority reaches the paradoxical conclusionwithout any statutory supportthat the same bond can be a "statutory" bond as to some claimants but a "common law" bond as to others. Under a logical extension of the holding of the majority, any of the statutory *452 criteria for 713.23 bonds may be circumvented when no actual harm results from the failure to strictly adhere to the legislative criteria....
...ent to pay all outstanding claims, the majority apparently would conclude that no harm equates to statutory compliance. But see Gen. Elec. Co. v. Commercial Standard Ins. Co.,
335 So.2d 624, 625 (Fla. 1st DCA 1976) (actual prejudice notwithstanding, §
713.23 bond must be furnished in amount of contract to qualify as statutory bond)....
...The lien statute is entirely a legislative creation, and we are obligated to enforce it in accordance with the clear, manifest intent of the legislature. Hunt Truck Sales & Serv., Inc. v. Bonanza Const., Inc.,
353 So.2d 612, 613 (Fla. 4th DCA 1977) (section
713.23 bond must comply with provisions of that section). Furthermore, even assuming that the lack of prejudice may excuse strict performance under section
713.23, in excusing the surety from the technical nuances of the statute, the majority affords disparate treatment to sureties and claimants....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...The trial court correctly concluded that although the form of Appellant's bond complied with the requirements for a conditional payment bond under section
713.245 (a bond conditioning payment to a subcontractor upon payment to the contractor) the bond should, nevertheless, be treated as a payment bond under section
713.23, Florida Statutes, as to lienors having no "pay when paid" clause in their subcontract....
...se they contain the above statutory legend limiting coverage to instances where an owner has paid the general contractor. This argument, however, neglects the first sentence of section
713.245(1), which reads: *618 Notwithstanding any provisions of ss.
713.23 and
713.24 to the contrary, "if" the contractor's written contractual obligation to pay lienors is expressly conditioned upon and limited to the payments made by the owner to the contractor, the duty of the surety to pay lienors will be coextensive with the duty of the contractor to pay......
...r does not contain express conditional payment language. Here, the relevant contracts did not have this conditional payment language. Thus, the trial court appropriately found that in the absence of such conditional language, the bonds complied with section 713.23 and should be considered, construed, and applied as unconditional 713.23 bonds....
...its contracts with the subcontractors. Where a contractor does not have a valid "pay when paid" clause in its contract with the subcontractor, neither the surety nor the contractor can invoke a "pay when paid" defense, and the bond is construed as a section 713.23 bond....
...Section
713.245 itself is specifically limited, only recognizing that the duty of the surety to pay is coextensive if the contractor has a valid "pay when paid" clause. Section
713.245(2) also states that "[e]xcept as specified in this section, all bonds issued under this section must conform to the requirements of §
713.23(1)(a), (b), (f), and (4)." Thus, a bond which would have been a conditional payment bond (§
713.245), but for the absence of a "pay when paid" clause in the contract, is a section
713.23 bond by definition. As to the Appellee, Laser Engineering, Inc., we reverse because its failure to comply with mandatory notice requirements of section
713.23(1)(d) and (e), Florida Statutes, is not excused by its faulty interpretation of section
713.245, Florida Statutes, and its assumption that it need not comply with the section
713.23 notice requirements....
CopyCited 3 times | Published | District Court, S.D. Florida | 1986 U.S. Dist. LEXIS 30175
...Section 515 imposes a statutory obligation on an employer to make contributions to a benefit plan as required by a collective bargaining agreement. Section 502(a)(3) specifies who is empowered to bring civil actions to enforce benefit plans. Plaintiffs' pendent state claim arises under Florida Statutes
255.05 and
713.23. Section
255.05 requires contractors to execute a payment and performance bond with a surety insurer prior to commencing repair or construction of a public building. Section
713.23 makes similar provisions for private construction projects....
...nds. Plaintiffs do argue, however, that Defendants acted "indirectly" in the interest of Hicks in relation to the benefit plans and therefore come within the second clause of Section 1002(5). For this contention Plaintiffs rely upon Florida Statutes
713.23 and
255.05 which, they argue, make the Defendant contractors and sureties statutorily liable for Hicks' delinquent contributions. According to Plaintiffs, this liability, although grounded in state law, in essence places the Defendants in the shoes of Hicks, and thereby converts them into employers as defined in ERISA. Even assuming, arguendo, Florida Statutes
713.23 and
255.05 impose liability on the Defendants for Hicks' failure to make contributions to the Plaintiff funds, a question which this Court need not reach, such state statutory liability would not effect the scope of the term "employer" as defined and applied under ERISA....
...Plaintiffs having sued on the collective bargaining agreement, the District Court clearly had jurisdiction over the contractor under the Labor Management Relations Act. Further, Plaintiff sued the surety company on its bond purusant to Florida Statute 713.23 and the Court exercised its pendent jurisdiction over the surety....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal
..., lath and stucco work. Kent Associates subcontracted a portion of the stud, wallboard and stucco work to appellee Cerasoli. In connection with the general contract, Stratton posted a payment bond for the project with appellant St. Paul, pursuant to section 713.23, Florida Statutes (1981)....
...The notices were delivered on July 17, 1981. Appellee filed a complaint seeking damages against Stratton and St. Paul, and appellants' answer set forth defenses including that appellee failed to comply with the forty-five day notice to contractor provision of section 713.23, Florida Statutes (1981)....
...On appeal, appellants argue that in order to recover from a general contractor or its surety not in privity, a sub-subcontractor must serve a written notice to contractor within forty-five days after first beginning to furnish labor, materials or supplies. We agree. Section 713.23(1)(d), Florida Statutes (1980 Supp.), provides that notice must be given. Section 713.23(1)(f) provides that "no action for the labor or materials or supplies may be instituted or prosecuted against the contractor or surety unless both notices have been given." It is undisputed below that appellee did not serve the notice required by section 713.23(1)(d) within forty-five days after beginning to furnish labor, materials or supplies....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 1978 Fla. App. LEXIS 15132
...r E.E. Dean Snavely, Inc., general contractor for the construction of the Suwannee County Mall owned by Leslie W. Rogers, Inc. American issued the corporate surety payment performance bond for performance by the general contractor in accordance with Section 713.23, Florida Statutes....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2003 WL 470199
...Hartford, the surety, had filed a payment bond for the Broward county project. Appellees, subcontractors, sued Miller & Solomon for breach of contract and to enforce a claim of lien. The lien foreclosure was transferred to the Hartford bond pursuant to section 713.23(2), Florida Statutes (2001)....
...The court denied the motion. The court recognized that, taken alone, the contract claim should be filed in Dade county pursuant to the contract provision, but that in this case, the two counts should not be severed. The parties agree that the bond action arises out of section 713.23, Florida Statutes. Subsection 713.23(1)(f) provides that the bond "must not contain any provisions restricting ......
...Roberts Plumbing Contractors, Inc.,
800 So.2d 285 (Fla. 3d DCA 2001), are distinguishable in that the sureties there were either parties to the subcontracts or named in the venue provisions. Appellants also assert that the bond, here, is really a payment bond issued under section
713.23, Florida Statutes, and should be distinguished from a case filed against a lien transfer bond issued under section
713.24, Florida Statutes. But we note that this case involves not only a claim against a payment bond, but also a claim of lien transferred to the bond. Further, and in any event, the venue provision in section
713.23(1)(f) place venue in Broward county....
...Hardy Contractors, Inc.,
397 So.2d 378 (Fla. 4th DCA 1981); but see Walbridge,
800 So.2d at 288 (opining that the Halls Ceramic Tile court confused jurisdiction with venue and, thus, misapplied Morganti ). The Fifth District in Halls Ceramic Tile also relied on sections
713.24(3) and
713.23(g), Florida Statutes (1985), in holding that venue was proper where the bond was posted. Those subsections substantially mirror sections
713.24(3) and
713.23(f), Florida Statutes (2000), respectively....
CopyCited 3 times | Published | District Court, S.D. Florida | 1988 U.S. Dist. LEXIS 1851, 1988 WL 20242
...This challenge is, therefore, without merit. Fidelity & Deposit next argues that Plaintiff's claim for additional costs due to delay in performance of a contract are not recoverable under the payment bond. The payment bond in this case was executed pursuant to Florida Statute section 713.23, Fla.Stat.Ann. section 713.23 (West Supp.1987) (effective Jan. 1, 1981). The issue of whether increased costs due to delay are compensable pursuant to Florida Statute section 713.23 has not been addressed by the Florida courts....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...Order and Motion for Partial Final Judgment. We find no basis for certiorari review and dismiss the petition. Similarly, we also deny the petition for writ of mandamus. This petition arises from a statutory bond claim brought under Florida Statutes Section 713.23 by Decktight, a roofing subcontractor, against Amwest Surety Insurance ("Amwest") in connection with construction of a motel in Marathon, Florida....
CopyCited 3 times | Published | Florida 4th District Court of Appeal
...apartment buildings on the subject property. A statutory payment bond was secured with Di-Com as principal, and Fidelity and Deposit Company of Maryland as surety. There is no question that the bond conformed to the requirements of Florida Statutes, Section
713.23, F.S.A. The effect of such bond is set forth in F.S. §
713.02(6), F.S.A. reading as follows: "In any direct contract the owner may require the contractor to furnish a payment bond as provided in §
713.23 and upon receipt of such bond the owner shall be exempt from the other provisions of parts I and II of this chapter and of chapter 85, but this does not exempt the owner from the lien of the contractor who furnishes the bond....
...the bond filed pursuant to F.S. §
713.24, F.S.A., the court entered a money judgment against the appellant-property owner. The trial court did not consider the exemption afforded the owner by virtue of his having secured the payment bond under F.S. §
713.23, F.S.A., nor did it rule upon the effect of the bond filed pursuant to F.S....
...Shores, notwithstanding its breach of the sub-subcontract and resultant loss to the subcontractor, Nuco, Inc., or the general contractor, Di-Com Corporation. We reverse. In the first place, we think that securing of the payment bond pursuant to F.S. § 713.23, F.S.A., exempted the property owner and the property from direct liability....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1991 Fla. App. LEXIS 2967, 1991 WL 44982
...Sentry Indem. Co.,
384 So.2d 1305, 1306 (Fla. 5th DCA), rev. dismissed,
389 So.2d 1110 (Fla. 1980). Florida law is clear that a payment bond is a common law bond rather than a statutory bond if it provides more expansive coverage than that provided for in section
713.23, Florida Statutes (1990 Supp.)....
...Guymann Constr., Inc.,
459 So.2d 1103, 1105 (Fla. 2d DCA 1984), the second district stated: A payment bond is a common law bond if it provides more expansive coverage than that provided for in the statute. The bond here was no more expansive than a statutory bond provided for in section
713.23, Florida Statutes (1981)....
...pplies to the furnishing of "materials" (which includes fuel .. .) is of no moment. The bond provided no more expanded coverage than a statutory bond. Furthermore, the bond's definition of a claimant appears no more expansive than the requirement of section
713.23 that a statutory bond cover lienors. See §
713.01(10), Fla. Stat. (1981). Id. at 1105 (citations omitted, emphasis added). Section
713.23 provides in part: (1)(a) The payment bond required to exempt an owner under this part shall be *745 furnished by the contractor in at least the amount of the original contract price before commencing the construction of the improvement...
...section
95.11(2)(b), Florida Statutes (1990 Supp.). School Bd. of Volusia County v. Fidelity Co. of Maryland,
468 So.2d 431, 432 (Fla. 5th DCA 1985). Thus, the argument that the bond's limitation period validly expands coverage over that provided by section
713.23 is illogical when considered in conjunction with section
95.03 which makes that provision void....
CopyCited 3 times | Published | District Court, S.D. Florida | 1983 U.S. Dist. LEXIS 17363
...§ 1132 and pendent federal jurisdiction. See, Aldinger v. Howard,
427 U.S. 1,
96 S.Ct. 2413,
49 L.Ed.2d 276 (1976), and, Boudreaux v. Puckett,
611 F.2d 1028 (5th Cir.1980). First, the defendant Seaboard contends that the notice given by plaintiffs was inadequate under F.S.A. §
713.23....
...Second, defendant argues that even if the notice was adequate, some individual laborers left the construction site more than 90 days before the giving of notice and that contributions owed on their account cannot be recovered on the bond. 1. Notice under F.S.A. § 713.23. Section 713.23 of the Florida Statutes states, in part: (e) In addition, any lienor who is not in privity with the contractor and who has not received payment shall serve the contractor with written notice of the performance of the labor or delivery...
...ted in the statute is the required form or contains the required detail. The words "The notice may be in substantially the following form" are clearly precatory. Additionally, there is no indication that the surety is entitled to notice under F.S.A. § 713.23....
...n one letter and Summit in the other] by employees of Seygo and that fringe benefit contributions have not been paid to or on behalf of the employees who performed said labor. This Court concludes that if Seaboard was entitled to notice under F.S.A. § 713.23, plaintiffs' letters of November 3, 1981 constituted adequate notice under that section....
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")....
...da Statutes (2005), and a new Notice of Commencement. The Notice of Termination included a statement by the Owner that all lienors had been paid in full. The new Notice of Commencement acknowledged that the Project now had a payment bond pursuant to section 713.23, and identified Westchester Fire as the surety providing the payment bond....
...ant to their contract, Contract Management did not, in turn, pay K & A in full for the rebar materials it supplied to the Project. Consequently, K & A duly transmitted a Notice of Nonpayment to Soares Da Costa and Westchester Fire in accordance with section 713.23(1)(d), Florida Statutes (2005)....
...erting causes of action for breach of contract, open accounts, and accounts stated. Following the bench trial, the court found that K & A and Soares Da Costa were not in privity, and K & A therefore had to serve notice on Soares Da Costa pursuant to section 713.23(1)(c). The trial court held that K & A was not entitled to recover against Soares Da Costa or Westchester Fire because it failed to serve the proper notice, thus barring its claim against Soares Da Costa and Westchester Fire on the section 713.23 payment bond....
...issues involving the interpretation of statutes is de novo. "). III. ANALYSIS K & A raises several issues on appeal, only one of which merits discussion: whether the Notices to Contractor sent by K & A were sufficient to satisfy the requirements of section
713.23. K & A contends that the First Notice was sufficient to satisfy the requirements of section
713.23(1)(c) for all of the rebar materials it supplied and that the trial court erred in concluding that K & A should have served Soares Da Costa with a new Notice to Contractor for the rebar materials it supplied to the Project when the Project recommenced in April of 2006. 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....
...he services or materials furnished or to be furnished. See §
713.06(2)(a), Fla. Stat. "The notice must be served before commencing, or not later than 45 days after commencing, to furnish his or her labor, services, or materials." Id. Existence of a section
713.23 payment bond exempts the owner's real property from liens....
...Where a contractor has a payment bond, a lienor not in privity with a contractor must serve the contractor with notice in writing either before beginning, or within 45 days of beginning to furnish labor, materials, or supplies, that the lienor will look to the contractor's bond for protection on the work. § 713.23(1)(c), Fla. Stat. (2005) [1] . As a condition precedent to an action against a contractor or surety on a section 713.23 payment bond, all material suppliers who are not in privity with the contractor must serve such a notice on the contractor. See § 713.23(1)(e), Fla. Stat. (2005). An owner must record a notice of commencement before initiating improvements to any real property, whether or not the project has a payment bond in compliance with section 713.23....
...If a notice of termination of a notice of commencement is *318 recorded as a result of the cessation of construction, a new notice of commencement must be recorded before completion of the improvement may be recommenced. See §
713.13(1)(a), Fla. Stat. (2005). In the instant case, the Project did not have a section
713.23 payment bond when it began in August 2005. A statutory payment bond only secures liens that accrue subsequent to its execution and delivery. See §
713.23(2), Fla....
...ent] bond, the bond does not exempt the project from the liens of such persons. The project, for those lienors, is essentially unbonded." Prof'l Plastering & Stucco, Inc. v. 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....
...As a result, K & A was required to send new notices under the Construction Lien Law in order to perfect its lien rights relating to materials K & A furnished after the Project recommenced. *319 B. Second Notice K & A also argues that the Second Notice was sufficient to satisfy the notice requirements of section 713.23(1)(c) for purposes of the rebar materials supplied after the Project recommenced....
...tract Management, not Soares Da Costa. It held that K & A was required to send a separate Notice to Contractor for the rebar materials it delivered to the Project under the order of Contract Management as it had done previously, in the First Notice. Section 713.23(1)(c) sets forth a form for the notice to contractor which calls for the lienor to identify under whose order the lienor supplied the materials to the project....
...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. Id. Actual notice that a materialman is providing materials to a project, therefore, is insufficient to satisfy the notice requirements of section 713.23(1)(c). A subcontractor is not excused from the notice requirement of section 713.23(1)(c) even where the owner, surety or contractor did not fully adhere to the requirements of chapter 713, Florida Statutes....
...See Prof'l Plastering & Stucco,
940 So.2d at 448 ("[E]ven if the Subcontractor is correct that the Owner, the Surety, and the Contractor did not fully adhere to the requirements of chapter 713, the Subcontractor [is] not excused from complying with the requirements of section
713.23 that it provide notice ....
...omission except that it was an oversight." "Construction lien statutes must be given a strict reading." WMS Constr., Inc. v. N. Am. Specialty Ins. Co.,
929 So.2d 1, 4 (Fla. 3d DCA 2005). K & A was not excused from complying with the requirements of section
713.23(1)(c)....
...Any actual notice Soares Da Costa may have had that K & A was delivering rebar materials to the Project was insufficient to satisfy this burden. Only privity of contract between the contractor and the lienor, or a lienor's notice to the contractor as prescribed by section 713.23(1)(c), Florida Statutes, may serve to meet this burden....
...king such claim. IV. CONCLUSION For the above reasons, we affirm the final judgment. Affirmed. ROTHENBERG, J., concurs. *321 SCHWARTZ, Senior Judge (dissenting). In my judgment (a) no notice to contractor was even required in the circumstances under section 713.23(1)(c), because the lienor and the contractor, in every real sense, shared a "common identity" and were therefore in "privity" with each other....
...Palm Springs Mile Assocs., Ltd.,
762 So.2d 973 (Fla. 3d DCA 2000); Florida Wood Services, Inc. v. Osprey Joint Venture,
720 So.2d 591 (Fla. 5th DCA 1998); Centex-Winston Corporation v. Crown Paint, Inc.,
294 So.2d 694 (Fla. 3d DCA 1974). NOTES [1] Section
713.23(1)(c) states in pertinent part: Either before beginning or within 45 days after beginning to furnish labor, 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. [3] Section
713.23(1)(c) states that the notice to contractor may be in substantially the following form: NOTICE TO CONTRACTOR To (name of contractor) The undersigned notifies you that he or she has furnished or is furnishing (services or materials) for...
CopyCited 2 times | Published | Florida 1st District Court of Appeal
...r services in connection with these appeals the following amounts: Case No. K-160 $500.00 Case No. K-161 $500.00 Case No. K-162 $500.00 Case No. K-163 $750.00 RAWLS, Acting Chief Judge, and JOHNSON and SPECTOR, JJ., concur. NOTES [1] Now § 713.23, F.S., 1967, F.S.A.
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1979 Fla. App. LEXIS 15738
...KEHOE, Judge. This is an appeal from an order dismissing with prejudice a complaint seeking to recover under the provisions of a common law bond. The complaint was dismissed for exceeding the one year limitations period provided for by Sections
255.05 and
713.23, Florida Statutes (1977)....
...promptly makes payments to all persons supplying Principal with labor, materials and supplies, used directly or indirectly by Principal or subcontractors in the prosecution of the work provided for in the contract as prescribed by section
255.05 or section
713.23, Florida Statutes, whichever is applicable to the contract, and 3....
...r the contract and 4. performs the guarantee of all work and materials furnished under the contract applicable to the work and materials, then this bond is void; otherwise it remains in full force. The provisions and limitations of section
255.05 or section
713.23, Florida Statutes, whichever is applicable to the contract, are incorporated in this bond by reference....
...The appellant now refers us to General Electric Company v. Commercial Standard Insurance Company,
335 So.2d 624 (Fla. 1st DCA), cert. denied,
342 So.2d 1100 (Fla. 1976) as authority for reversal. We agree that the bond in question is not governed by the provisions of Sections
255.05 and
713.23 despite the language incorporating those statutes contained in the wording of the bond....
...ed to be benefited by its protection. United Bonding Insurance Co. v. City of Holly Hill,
249 So.2d 720 (Fla. 1st DCA 1971)." Southwest Florida Water Management District v. Miller Construction Co.,
355 So.2d 1258, 1259 (Fla. 2d DCA 1978). *1070 When Section
713.23 is read in conjunction with Section
713.02(6), it provides for a payment bond for one in privity with the owner of the property being improved. It does not apply to a situation where the principal on the bond was not in privity with the owner but was required to secure the bond as a condition of its subcontract. Section
713.23 additionally requires that the performance bond equal the amount of the original contract price....
CopyCited 1 times | Published | District Court, M.D. Florida | 2007 U.S. Dist. LEXIS 74826
...v. State Farm Fire & Cas. Co.,
362 F.3d 1317, 1318 (11th Cir.2004). [5] There are two types of construction payment bonds under Florida law, common law bonds and statutory bonds. So-called statutory payment bonds must comply with the requirements of section
713.23, Florida Statutes....
...The requirements for making a claim against a statutory bond are set by statute. Neither XL nor Gibson asserts that the bond at issue in this case is a statutory bond, even though the bond was stamped with language purporting to incorporate by reference the provisions of section 713.23 (Doc....
...trued as a statutory bond in certain circumstances (Doc. # 1-3, at 2-3). Accordingly, the Court treats the bond as a common law bond. [6] If XL's bond were a statutory bond, Gibson's February 9, 2007, notice of nonpayment would be sufficient notice. Section 713.23, Florida Statutes, provides the form in which notice must be given. Fla. Stat. § 713.23(d)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...On June 23, 1969, the owner entered into a written construction contract with the general contractor, Hannan South Construction, Inc., providing for the construction of a shopping center. Hannan South on the same date posted a payment bond pursuant to Florida Statute 713.23, F.S.A....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 13 Fla. L. Weekly 1243, 1988 Fla. App. LEXIS 2179, 1988 WL 50677
...On September, 19, 1986, Otis filed an action against Employers Insurance of Wausau (Wausau) for a $42,065.50 balance due on the subcontract. Wausau was the surety on a labor and material payment bond posted by Peirce Construction in connection with the construction of the building. Wausau, relying on section 713.23(1)(f), Florida Statutes (1985), responded that the statute of limitations on the bond action had expired. Section 713.23(1)(f) states that "[n]o action shall be instituted or prosecuted against the contractor or against the surety on the bond ......
...erial fact, essential to the resolution of this action. Because the parties present conflicting interpretations of the nature of the work required under paragraph 21 of the subcontract and whether this work falls under the boundaries contemplated by section 713.23(1)(f), summary judgment should not have been granted....
...Otis commenced this action on the bond on September 19, 1986, over a year after installation was completed, to recover a $42,965.50 unpaid balance on its subcontract. Wausau defended on grounds that Otis' suit on the bond was barred by the *729 one-year period provided by section 713.23(1)(f), Florida Statutes (1985)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...The court granted summary judgment only as to defendant-appellee Travelers Indemnity upon the ground that the change of party plaintiff in the amended complaint did not relate back to the date of filing of the original complaint and therefore the one year statute of limitation, F.S. § 713.23 F.S.A., barred any recovery against the surety....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...enying motions for partial summary judgment and dismissal. Snavely contracted with one Rogers to construct a retail shopping center in Live Oak, Florida. Snavely, through its surety, furnished Rogers a payment and performance bond in accordance with Section 713.23, Florida Statutes (1977)....
...in one year after he filed his claim of lien as required by Section
713.22(1). We reject this argument. Moody sought in count IV to recover under a contractor's performance and payment bond, which incorporated both the provisions of the contract and
713.23. Count IV did not seek to foreclose Moody's claim of lien, which was authorized by Section
713.08. The relief which Moody sought under Section
713.23 was entirely separate from that afforded him by
713.08. Section
713.23 requires only that a suit be instituted against the contractor or the surety on the bond within one year from the performance of the labor or completion of delivery of the materials and supplies....
...Appellants additionally contend that Moody, d/b/a Moody Brothers, last performed work on the Suwannee County Mall *453 on August 29, 1975, and that suit was filed on behalf of Moody on September 15, 1976, more than one year after the last possible date for providing labor and materials as provided by Section 713.23....
...cted in the bond or in the written contract; therefore a factual issue exists as to whether the face amount of the bond truly reflects the contractual arrangement between the owner and general contractor. The bond, however, specifically incorporated Section 713.23 as well as the terms of the contract within its provisions....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 12 Fla. L. Weekly 181
...Before SCHWARTZ, C.J., and BARKDULL and HUBBART, JJ. BARKDULL, Judge. We find no error in the trial court holding that for a materialman to a subcontractor to perfect a mechanic's lien against a payment bond for "fabricated materials" he must file a 45 day notice as required by Section 713.23(1)(d) Florida Statutes....
...1983), Judge Ryder speaking for the Second District said: "Appellee filed a complaint seeking damages against Stratton and St. Paul, and appellants' answer set forth defenses including that appellee failed to comply with the forty-five day notice to contractor provision of section 713.23, Florida Statutes (1981)....
...On appeal, appellants argue that in order to recover from a general contractor or its surety not in privity, a sub-subcontractor must serve a written notice to contractor within forty-five days after first beginning to furnish labor, materials or supplies. We agree. Section 713.23(1)(d), Florida Statutes (1980 Supp.), provides that notice must be given. Section 713.23(1)(f) provides that `no action for the labor or materials or supplies may be instituted or prosecuted against the contractor or surety unless both notices have been given.' It is undisputed below that appellee did not serve the notice required by section 713.23(1)(d) within forty-five days after beginning to furnish labor, materials or supplies....
...ntiff in the amount of $21,046.37. The amended final judgment as modified by this court be and the same is hereby affirmed. Affirmed as modified. HUBBART, J., concurs. SCHWARTZ, Chief Judge (dissenting). I think it no less than obvious that sections
713.23(1)(d) [1] and
713.01(6), [2] Florida *657 Statutes (1985) are properly read to provide a special fabricator with an alternative as to the 45 day notice: the period runs either from commencing work on the materials, or from their actual incorporation into the improvement....
...ions of the statute, an owner is relieved of liability. See Sec.
713.02(6), Fla. Stat. Once the bond is posted and the materialman has notice of same, he is required to file two notices in order to claim against the bond, first a 45 day notice, Sec.
713.23(1)(d), Fla. Stat., and second, a demand for payment. See Sec.
713.23(1)(e), Fla. Stat. [1] Section
713.23(1)(d), Florida Statutes (1985) provides in pertinent part that: Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, s...
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1990 WL 19931
...er than the lien of the general contractor, Marshall. Section
713.02(6), Florida Statutes (1985). Because of the existence of the bond, Seymour was limited to an action against the surety, and the church's motion to dismiss should have been granted. Section
713.23, Florida Statutes (1985), provides that a lienor must serve the contractor with a "notice of nonpayment" within 90 days after complete delivery of materials and supplies....
...at 111. Accordingly, the judgment appealed from is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion. BOOTH and JOANOS, JJ., concur. NOTES [1] Section
713.08, Florida Statutes (1985). [2] Section
713.23(1)(e), Florida Statutes (1985). [3] Section
713.23(2), Florida Statutes (1985). [4] Section
713.23(1)(d), Florida Statutes (1985). [5] Section
713.23(1)(f), Florida Statutes (1985) (emphasis added)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1977 Fla. App. LEXIS 15133
...SCHWARTZ, ALAN, R., Associate Judge. The plaintiff-appellee, a materialman not in privity with the general contractor, secured a summary 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). We reverse. The statutory provision in question, F.S. §
713.23 expressly states "......
...As the Bell case squarely holds, a lienholder who has not given proper notice must himself demonstrate in fact, his complaint must so allege that these preconditions to recovery exist. The same rules apply, we hold, to an action such as this one, under a § 713.23 bond....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...Any number of liens may be transferred to one such security." [2] "(2) An owner or his agent or attorney may elect to shorten the time prescribed in subsection (1) of this section, within which to commence an action to enforce any claim of lien or claim against a bond or other security under §
713.23 or §
713.24, by recording in the clerk's office a notice in substantially the following form: NOTICE OF CONTEST OF LIEN To: _____________________________ (Name and address of lienor) You are notified that the undersigned contests the claim...
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2004 Fla. App. LEXIS 5230, 2004 WL 784774
...In September, 1998, Philips South Beach, LLC ("Philips"), entered into a construction contract with Mursten Construction Group, Inc. ("Mursten"), as general contractor for the Shore Club Hotel. Liberty Mutual Insurance Company ("Liberty") issued a payment bond pursuant to § 713.23, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2012 WL 3870415, 2012 Fla. App. LEXIS 14986
...ss resulting from a contractor’s contractual breach. We reverse because we conclude that section
713.29 is the controlling statute in this case. Continental, a surety for the general contractor, Aviation Constructors, Inc. (“ACI”), furnished a section
713.23 payment bond 1 for a large construction project on which Baylor was a subcontractor....
...to award of attorney’s fees under sections
627.756 and
627.428). The conflict between these statutes is apparent when one considers the hypothetical situation where a claimant obtains a judgment against a bonding company in an action brought on a section
713.23 bond, but the bonding company is found to be the prevailing party on the significant issues....
...at 1061 (“A rule of statutory construction which is relevant ... is that where two statutory provisions are in conflict, the specific provision controls the general provision”) Here it is undisputed that Baylor’s action against Continental was a claim to enforce a section 713.23 bond....
...Section
713.29.” 2 The trial court should have denied Baylor’s motion for attorney’s fees. REVERSED and REMANDED. LEVIN, S.J., Associate Judge, and HARRIS, C.M., Senior Judge, concur. . The statute sets forth the language that must be contained in a payment bond in order for the bond to qualify as a section
713.23 payment bond. Here, the parties stipulated that the bond in question was a
713.23 payment bond....
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 17230, 2005 WL 2861109
...ion 718.08, Florida Statutes (1995), for *2 an unpaid balance of $13,903.62. WMS subsequently filed suit to foreclose the lien. On March 2, 1998, Palm Springs filed a Notice of Bond — Transfer of Lien from Real Property to Payment Bond pursuant to section 713.23(2), Florida Statutes (1997), indicating that the claim of lien filed by WMS was secured by the payment bond issued by NAS....
...ich it asserted a claim against NAS on the bond. The trial court subsequently entered summary judgment in favor of Palm Springs and NAS, finding that the payment bond issued to Noland by NAS in this case was an unconditional bond, issued pursuant to section 713.23, Florida Statutes, and that WMS failed to comply with the mandatory notice provision of that section....
...or for WMS’ work as required by section
713.245(4) to transfer the lien to the conditional payment bond, and; C. Owner’s failure to comply with the requirements of section
713.245(4) is not excused by its erroneous conclusion that the bond was a section
713.23 payment bond instead of a section
713.245 conditional payment bond....
...Therefore, the issue of the nature of the bond in this case is moot. Accordingly, we affirm the Order granting Final Summary Judgment in favor of NAS. Affirmed. . That statute reads in relevant part:
713.245. Conditional payment bond (1)Notwithstanding any provisions of ss.
713.23 and
713.24 to the contrary, if the contractor's written contractual obligation to pay lienors is expressly conditioned upon and limited to the payments made by the owner to the contractor, the duty of the surety to pay lienors will be coext...
...IALS PROVIDED BY SUCH PERSONS. THIS BOND DOES NOT PRECLUDE YOU FROM SERVING A NOTICE TO OWNER OR FILING A CLAIM OF LIEN-ON THIS PROJECT. (2) Except as specified in this section, all bonds issued under this section must conform to the requirements of s. 713.23(l)(a), (b), (f), and (4)....
...All lienors must comply with the provisions of this part to preserve and perfect those lien rights. (4) Within 90 days after a claim of lien is recorded for labor, services, or materials for which the contractor has been paid, the owner or the contractor may record a notice of bond as specified in s. 713.23(2), together with a copy of the bond and a sworn statement in substantially the following form: CERTIFICATE OF PAYMENT TO THE CONTRACTOR (form omitted) Any notice of bond recorded more than 90 days after the recording of the claim of lien s...
CopyPublished | District Court of Appeal of Florida | 1984 Fla. App. LEXIS 13095
...By its complaint, United sought the balance due on its contract, costs, and statutory attorney’s fees. By a separate count United claimed the same damages from Safeco. Goldberger’s answer denied the debt, asserted the posting of a payment bond by Safeco pursuant to Section
713.23, Florida Statutes (1975), and alleged United should be required to pay Goldberger’s attorney’s fees pursuant to Section
713.29....
...on United's complaint against him because that entire cause of action inhered in the judgment against Sa-feco, and as a matter of law United had no claim against Goldberger because Safeco had posted a payment bond pursuant to Sections
713.02(6) and
713.23, and the trial court’s findings of fact and conclusions of law so reflects....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 14805
...and appellants as guarantors. The trial court entered a final judgment in favor of W. L. Cobb Construction Company, holding that the guarantee of Kendrick Jones, et ah, appellants, was provided in lieu of a statutory payment bond as contemplated by Section 713.23, Florida Statutes (1977). The court stated: . [I]f a personal guarantee is provided in lieu of the statutory payment bond, the personal guarantee must likewise be construed to afford the full protection contemplated by a Section 713.23 bond, which would inherently and necessarily include the obligations of General Building Designs, Inc....
...llants as guarantors. We find that the guarantee in question has the effect of a performance bond to indemnify the owners of the real property against liens and thus does not benefit appellee for a breach of contract by General Building Design, Inc. Section 713.23, Florida Statutes (1977) provides that a payment bond “shall be executed as surety by a surety insurer authorized to do business in Florida ....
...Statutory requirements for bonds of this type must be strictly followed. In reversing the dismissal of a complaint seeking foreclosure of a mechanic’s lien under a statutory payment bond, the Fourth District Court stated: Suffice to say, a bond furnished pursuant to Section 713.23, Florida Statutes (1975) must comply with the provisions of that section in order for the benefits afforded thereby to accrue to the owner since preclusion of a claimant’s lien right is no insignificant matter....
...Bonanza Construction, Inc.
353 So.2d 612 (Fla. 4th DCA 1977) at 613. This court stated in Alpha Electric Supply, Inc. v. F. Feaster, Inc.,
358 So.2d 892 (Fla. 2d DCA 1978): *552 Thus, proof of the existence of a payment bond meeting all of the conditions of Section
713.23, Florida Statutes (1975) is a complete defense to a suit We believe the defense was prematurely raised and should be asserted affirmatively by allegations showing that the payment bond did, in fact, meet all the conditions of Section
713.23....
...subcontractors and materialmen did avail themselves of the benefits of Chapter 713. Although it is not mandatory that an owner obtain a payment bond, if the owner chooses the alternative of a bond, he may not employ one other than as provided for by Section 713.23....
CopyPublished | Florida 4th District Court of Appeal
...validity of the
unexecuted subcontracts and argued the LOIs should govern instead.
Subcontractor’s complaint included five counts. Count I alleged claims
against Contractor and its surety Philadelphia on the original payment
bond pursuant to section 713.23, Florida Statutes. Count II alleged
claims against Project Owner and its surety Suretec on the transfer
payment bond pursuant to section 713.23, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 857, 1987 Fla. App. LEXIS 7369
...(Heller) appeals from a final summary judgment entered against it in favor of Palmer-Smith Company and Insurance Company of North America (INA). We reverse because we think Heller successfully established substantial compliance with the content requirements for notice imposed by section 713.23(l)(d), Florida Statutes (1981)....
...Later, Heller on behalf of Monex, sent the required notice of non-payment to Palmer-Smith, pursuant to section 718.-23(l)(e). The sole issue in this case is whether or not the copy of the first notice, which was mailed to Palmer-Smith and received by it, sufficiently complied, with the content requirement set forth in section 713.23(l)(d). The notice, although labeled “Notice to Owner,” contained all of the information required by section 713.23(l)(d), except for a statement that Monex would “look to the contractor’s bond for protection on the work.” Section 713.23(l)(d) states: The notice may be in substantially the following form: NOTICE TO CONTRACTOR To (name of contractor) The undersigned notifies you that he has furnished or is furnishing (services or materials) for the improvement of the re...
...ontractor adequately put them both on notice that the supplier was, in effect, looking to the bond for protection. The court said the surety and general contractor were not entitled to ignore the notice. The purpose of giving the notices pursuant to section 713.23 by a supplier of materials is to permit him to file a lawsuit against the contractor or surety....
...COBB, J., concurs. DAUKSCH, J., dissents with opinion. . See e.g., Julian E. Johnson & Sons v. Balboa Insurance Co.,
408 So.2d 1044 (Fla.1982). . A claimant ... shall ... furnish the contractor with a notice that he intends to look to the bond for protection. . §
713.23(l)(f), Fla.Stat....
CopyPublished | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 790, 1985 Fla. App. LEXIS 13173
...u *1364 ant to the subsequent negotiations with the project developer. There is an adequate evidentiary predicate for this determination by the trial court, and appellant’s claim on the payment bond was therefore properly denied in accordance with § 713.23(l)(f), Florida Statutes, which provides that: ......
CopyPublished | District Court of Appeal of Florida | 1969 Fla. App. LEXIS 5928
...uction contract, as in the case before us. The summary judgment appealed held that Minichiello, having a “lien or prospective lien” (Florida Statutes § 713.-01(10), 1967, F.S.A.) was a lienor (§ 713.-02) who might sue the surety directly under § 713.23, because the contract required installation of carpet and permitted retain-age of the final ten per cent of the contract price until completion, including the installation of “fixtures and carpeting.” Appellant relies on Fell v....
CopyPublished | District Court of Appeal of Florida | 1972 Fla. App. LEXIS 6590
...n the job involved; Saul J. Morgan Enterprises, Inc., alleged to be the owner of the real property involved; and Travelers Indemnity Company of Hartford, Connecticut, alleged to be the surety upon a bond filed pursuant to the provisions of Fla.Stat. § 713.23, F.S.A....
CopyPublished | District Court of Appeal of Florida | 1977 Fla. App. LEXIS 15780
...Thereafter, the court entered judgment on the pleadings in favor of the surety company on the premise that the third-party complaint had not been filed against the bond within one year of the performance of the labor or completion of the delivery of materials and supplies as required by Section 713.23, Florida Statutes (1975)....
CopyPublished | Supreme Court of Florida | 14 Fla. L. Weekly 268, 1989 Fla. LEXIS 504, 1989 WL 57948
...tee) 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. §
713.23(l)(d)? We review the proposed advisory opinion pursuant to article V, section 15, of the Florida Constitution, and rule 10-7.1(g) of the Rules Regulating The Florida Bar....
...§
713.18 and includes actual delivery, mailing by certified or registered mail, or, if the above cannot be accomplished, posting on the premises. When working on a job where a payment bond has been furnished, the preliminary notice, entitled the Notice To Contractor, takes the place of the NTO. Under Fla.Stat. §
713.23(l)(d) if a bond is furnished, a lienor not in privity with the owner, except a laborer, must serve the contractor a notice that he will look to the bond for payment....
...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....
...nvolving 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. §
713.23(l)(d)) only and any other form or notice contained in the mechanics’ lien statute or elsewhere is not covered by this proposed advisory opinion....
CopyPublished | District Court of Appeal of Florida | 1979 Fla. App. LEXIS 15199
...rnished the last of the materials upon which it based its claim. The answer filed included a general denial of all allegations of the complaint as well as an affirmative defense that Alpha failed to send a notice to the owner as required by Sections
713.23 and
713.06, Florida Statutes (1977), and therefore had not established its claim....
...with. Alpha, however, responds that it is not required to comply with those provisions because the bond is not a statutory bond, rather a common law bond 1 and, being so, the surety is not entitled to take advantage of the procedural requirements of Section 713.23....
...In our view it is not necessary for us to decide whether the bond is statutory or one at common law. The suit was brought against the contractor and the surety on the bond and compliance was alleged with all conditions of the bond. The notice provisions of the bond were in general conformity with those provided in Section 713.23....
...J., and LARRY G. SMITH, J„ concur. . It so concludes by reasoning that since a claimant is defined in the.bond as one having a direct contract with the principal or with a sub-contractor of the principal for labor, material or both, and the language of Section 713.23 is less restrictive in that it requires the contractor to “make payments to all persons supplying him labor, material and supplies used directly or indirectly by said contractor, subcontractor or subsubcontractor ....
...2d DCA 1978), have so held when the bonds expand coverage to claimants broader than that required by the statute. Here, as noted, coverage is not broadened, rather constricted. Still, the notice and time limitations stated in the bond exactly parallel those of Section 713.23....
CopyPublished | District Court, S.D. Florida | 1987 U.S. Dist. LEXIS 269
...Section 185 , 29 U.S.C. Section 1132 (a)(3), and 29 U.S.C. Section 1145 . Jurisdiction is asserted herein over De-Bartolo, the contractor, pursuant to pendent jurisdiction claimed under Fla.Stat.
255.05 (The Florida Little Miller Act), and Fla.Stat.
713.23 (The Florida Mechanics Lien Act)....
CopyPublished | District Court of Appeal of Florida
and his surety, the Appellant, pursuant to Section
713.23, Florida Statutes (1975). The Appellee was
CopyPublished | Florida 3rd District Court of Appeal | 2003 Fla. App. LEXIS 19520, 2003 WL 23008870
...defending party. The owner also relies on United Plumbing and Heating. Inc. v. Goldberger,
452 So.2d 591 (Fla. 4th DCA 1984). That case is distinguishable. There the owner’s answer asserted that an unconditional payment bond had been posted under section
713.23, Florida Statutes (1995)....
...The bond company ultimately paid the majority of the plaintiff plumbing contractor’s claim. Thereafter, the trial court awarded attorney’s fees to the owner. This was on the theory that given the existence of an unconditional payment bond under section 713.23, Florida Statutes, the plumbing contractor should have proceeded solely against the bond and not against the owner....
CopyPublished | District Court of Appeal of Florida | 13 Fla. L. Weekly 11, 1987 Fla. App. LEXIS 11730, 1987 WL 3018
SCHWARTZ, Chief Judge. In an action by the owner of a large construction crane on a mechanic’s lien payment bond posted under section 713.23, Florida Statutes (1983), the trial court entered summary judgment for the defendants, the contractor and surety, on the ground that the notice to contractor required by section 713.23(l)(d) 1 had not been timely served....
...v. Balboa Ins. Co.,
408 So.2d 1044 (Fla.1982), and there is no other basis for recovery against the surety, see §§
627.728(1),
627.756, Fla.Stat. (1988), this portion of the judgment under review is set aside. Affirmed in part, reversed in part. . Section
713.23(l)(d) provides: (d) Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in wri...
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 4006417, 2013 Fla. App. LEXIS 12361
...We disagree with Walbridge for all of the reasons in this opinion. Reversed with directions to vacate the order granting transfer of this action to Orange County. STEVENSON and TAYLOR, JJ., concur. . The general contractor, Miller & Solomon, had secured a payment bond for the construction project pursuant to section 713.23....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 16840
...Alpha Electric Supply, Inc., a supplier on a construction project, appeals from an adverse summary judgment entered against it in a suit brought against the general contractor, F. Feaster, Inc., and the bonding company on a payment bond issued pursuant to section 713.23, Florida Statutes (1975)....
CopyPublished | District Court of Appeal of Florida | 1978 Fla. App. LEXIS 17194
...dgment in suits by appellee (subcontractor) to foreclose mechanic’s liens on owners’ two oceanfront motels. Owners contend the trial court erred because the general contractor on the two projects furnished statutory payment bonds to owners under Section
713.23, Florida Statutes (1975), which exempted them from liability to subcontractor under Section
713.02(6), Florida Statutes (1975)....
CopyPublished | Florida 3rd District Court of Appeal | 2007 Fla. App. LEXIS 11791, 2007 WL 2188458
...The trial court ultimately granted JMS’s motion to vacate and then dismissed the matter entirely on rehearing, based upon findings that JMS had commenced a lawsuit in this matter in front of another division, and that there was already a payment bond in place pursuant to that lawsuit. Indeed, according to section 713.23(f)(2), Florida Statutes (2006): The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor....
CopyPublished | Court of Appeals for the Eleventh Circuit | 27 Wage & Hour Cas. (BNA) 1151
...The Mechanic’s Lien Law requires a contractor to post a bond to protect the landowner’s property against foreclosure of mechanic's liens. See, Coordinated Constructors v. Florida Fill, Inc.,
387 So.2d 1006 , (Fla. 3d Dist.Ct.App.1980), Fla.Stat. §
713.23(1) (1983). The purpose of the 45-day provision of that statute’s notice requirement, §
713.23 which also allows for a laborer’s exemption, “......
CopyPublished | District Court of Appeal of Florida | 1981 Fla. App. LEXIS 19248
...General Contractors, Inc., as general contractor, for the construction of a children’s hospital. Allied entered into a contract with Superior Asphalt Co. for Superior as subcontractor to do the paving and striping, plus work on a pond. Pursuant to section 713.23, Florida Statutes (1977), Allied posted a payment bond with United States Fidelity & Guaranty (U.S.F....
...Allied, resulted in a judgment of $8,902.65, plus interest, costs, and attorney fees of $3,300 in favor of Superior. As for the first point Allied raises in this appeal, the record shows that Superior substantially complied with any requirements of section 713.23 concerning notice as prerequisite to a direct action on a payment bond....
...Claims of lien by putative lienors (other than the contractor) filed subsequent to execution and delivery of the payment bond are transferred to that bond with the same effect as liens transferred under section
713.24, Florida Statutes (1977). See §
713.23(2), Fla.Stat. (1977). It is difficult to ascertain the legislative intent underlying the latter language because one statute (§
713.24) deals with valid liens, and the other (§
713.23) does not....
CopyPublished | Florida 1st District Court of Appeal | 1997 WL 144084
..., with the result that Ewell was not paid. Ultimately, both First Assurance and Wyatt became insolvent. Further, it became known that First Assurance was not authorized by the Department of Insurance to issue payment bonds in Florida, as required by section 713.23, Fla.Stat....
...The statement in Resnick on which appellee relies must be considered in light of the facts and issues presented in that case. It was clear from the outset in Resnick that the payment bond was valid. The court noted that it was in proper form and qualified as a payment bond under section 713.23, Fla.Stat. The Resnick court explained that the owner's options regarding the claim of lien were to raise the payment bond as an affirmative defense in an enforcement action, or have the claim of lien transferred to security, as provided for in section 713.23, Fla.Stat....
...It is only a substitution of security pending a judicial determination of the validity of the claim of lien." Further the court said: [i]f the subcontractor were able to establish that it would have had a valid lien against the property, as might have been the case had there not been a proper s.
713.23 payment bond, then in that event [the subcontractor] could look to the s.
713.24 transfer bond in lieu of the owner's property. However in this case there was a proper s.
713.23 payment bond and the subcontractor did not have, nor could it have had, a valid lien against the owner's property....
