LEWIS BLINN D/B/A GUILD CONSTRUCTION COMPANY (NOT INCORPORATED), APPELLANT,
v.
THOMAS R. DUMAS AND JANE T. DUMAS, HIS WIFE, APPELLEES
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A contractor appealed the dismissal of a mechanics lien foreclosure claim based solely on the omission of labor and material details. The court reversed, holding that under Florida law, such omissions do not automatically prevent enforcement of a lien unless there is actual adverse effect to the homeowner.
A total omission of details in a mechanics lien claim does not automatically prevent enforcement of the lien. Under Florida Statutes Section 713.08(4)(a), such omissions shall not prevent enforcement unless there is an adverse effect, which must be shown by the property owner rather than presumed. Here, no adverse effect was demonstrated in the record, and the contractor substantially complied with statutory prerequisites.
[1] Omission of details or errors in a claim of lien does not prevent enforcement unless there is an adverse effect from such omission or error, within the trial court's disc…
[2] A total omission of details in a claim of lien is not, per se, prejudicial and does not automatically impose an adverse effect.
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Join FLexlaw to unlock all legal intelligence“the omission of details or errors in a claim of lien, in the discretion of the trial court, shall not prevent the enforcement of a lien unless there is an adverse effect from such omission or error”
Establishes the statutory standard that omissions do not automatically defeat a lien claim; adverse effect must be shown
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Join FLexlaw to unlock all legal intelligenceLewis Blinn, doing business as Guild Construction Company, performed labor and furnished materials for improvements to property owned by Thomas and Ja…
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PER CURIAM.
This is an appeal from an order dismissing with prejudice Count I of a complaint which sought to foreclose a claim of lien on the ground that the total omission of the details of labor, services, or material furnished in the claim of lien was, per se prejudicial. We reverse.
Section 713.08(4)(a), Florida Statutes (1980), specifically provides that the omission of details or errors in a claim of lien, in the discretion of the trial court, shall not prevent the enforcement of a lien unless there is an adverse effect from such omission or error. While it is within the discretion of the trial court upon review of supporting evidence or the circumstances to find such adverse effect, here, there is nothing in the record to show any adverse effect from the omission of the details, and the stated ground that “such total omission is, per se, prejudicial and imposes an adverse effect” is not supported.
On appeal, appellees Dumas argue that there was adverse effect and that the order should be affirmed on this alternative ground. It is true that an order may be affirmed on alternative grounds. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1980) and Jones v. Weaver, 374 So. 2d 1175 (Fla. 1st DCA 1979).
However, we are not permitted to sit as a trial court in making such a factual determination on an issue not presented below or supported in the record, particularly where, as here, there appears to be little likelihood that the omission caused any adverse effect on the homeowners Dumas.
We note, for example, that the amended complaint indicates that the parties are in direct privity, that there was a written contract, orally expanded, for the improvement of the Dumas’ property, that the payment in issue is a final payment representing less than Vs of the alleged total payments and, thus, the Dumas are presumably aware of the nature and scope of the labor, services, or materials allegedly furnished, and, finally, that appellant contractor alleges delivery of the affidavit required by Section 713.06(3)(d), Florida Statutes (1980), which affidavit serves to protect the Dumas from any unknown lien claims from sub-contractors or material-men. This opinion does not foreclose the possibility that the Dumas might show at an appropriate hearing that the omission has caused an adverse effect.
However, absent such showing, it appears that appellant contractor has substantially complied with the statutory pre-requisites for claiming a mechanics lien, has stated a cause of action, and should be given an opportunity to prove his claim on the merits.
REVERSED and REMANDED for proceedings consistent with this opinion. SHAW and JOANOS, JJ., concur. ROBERT P. SMITH, Jr., C. J., dissents without written opinion.
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Stunkel v. Gazebo Landscaping Design, Inc., 660 So. 2d 623 (Fla. 1995)…(11) "Improvement” means any building, structure, construction, demolition, excavation, landscaping, or any part thereof existing, built, erected, placed, made, or done on land or other real property for its permanent benefit. . See Blinn v. Dumas, 408 So. 2d 683, 684 (Fla. 1st DCA 1982) (holding that claim of lien without specific details of what labor, services, or materials were provided did not have per se adverse affects on henee). . See Mid-State Contractors, Inc. v. Halo Dev. Corp., 342 So. 2d 1078,…
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Fid. & Deposit Co. OF Md. v. DELTA Painting Corp., 529 So. 2d 781 (Fla. 4th DCA 1988)…s name was inconsequential to the establishment of the lien. Symons Corp. v. Tartan-Lavers Delray Beach, 456 So. 2d 1254 (Fla. 4th DCA 1984); George J. Motz Construction Crop. v. Coral Pines, Inc., 232 So. 2d 441 (Fla. 4th DCA 1970); Blinn v. Dumas, 408 So. 2d 683 (Fla. 1st DCA 1982); S & S Air Conditioning Co. v. Cantor, 343 So. 2d 923 (Fla. 3d DCA 1977). Section 713.06(3)(d), Florida Statutes (1983), requires service of a final affidavit on an owner by a contractor, which indicates that all lienors under d…
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Royal Ambassador Condo. Ass'n, Inc. v. E. Coast Supply Corp., 495 So. 2d 932 (Fla. 4th DCA 1986)…re provided that omissions or errors therein shall not, within the discretion of the court, prevent enforcement of the lien against one unless he is adversely affected by the error or omission. § 713.08(4)(a), Fla.Stat. (1981); e.g., Blinn v. Dumas, 408 So. 2d 683 (Fla. 1st DCA 1982); Mid-State Contractors, Inc. v. Halo Development, 342 So. 2d 1078 (Fla. 2d DCA 1977); Adobe Brick Supply Co. v. Centex-Winston Corp., 270 So. 2d 755 (Fla. 3d DCA 1972). Whether any of the unit owners in Royal’s condominium have…
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