AAA SOD, INC., A FLORIDA CORPORATION, CROSS APPELLANT,
v.
WEITZER CORPORATION, A FLORIDA CORPORATION, AND HARRY WEITZER, CROSS APPELLEE; WEITZER ENTERPRISES NO. 4, INC., WEITZER MOON LAKE, LTD., WEITZER COMMUNITIES LTD., AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, APPELLANTS/CROSS APPELLEES, V. AAA SOD, INC., A FLORIDA CORPORATION, APPELLEE/CROSS APPELLANT
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AAA Sod, a contractor, appealed a judgment against it on a mechanics' lien claim, while the surety cross-appealed a judgment against the performance bond. The court affirmed the judgment for the contractor against the owner on non-lien claims but reversed the judgment against the surety on the lien count due to the contractor's failure to provide a required final payment affidavit.
The court affirmed judgment for the contractor against the owner on non-lien claims but reversed the judgment against the surety on the mechanics' lien count because the contractor failed to provide the required final payment affidavit. The surety is entitled to attorney's fees under the mechanics' lien statute, but neither the contractor nor the owner is entitled to attorney's fees.
[1] A judgment for a contractor against an owner may be affirmed even if a claim of lien is reversed, if the contractor also sought relief not based on the lien claim.
[2] A contractor must furnish a final payment affidavit to foreclose a claim of lien when subcontractors are involved in the project.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 713.06(3)(d)(1), Florida Statutes (1985), requires same of a contractor having one or more subcontractors which are providing, as here, some of the services or materials.”
Establishes the statutory requirement for a final payment affidavit when a contractor uses subcontractors, which the contractor failed to satisfy.
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Join FLexlaw to unlock all legal intelligenceAAA Sod, a contractor, performed work on a project for Weitzer Corporation. The contractor used an irrigation subcontractor because it was not license…
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GLICKSTEIN, Judge.
This is an appeal by an owner and surety from a final judgment and a cross appeal by the contractor. Having relinquished jurisdiction for the purpose of obtaining findings of fact, in order to effect an informed decision, we also obtained supplemental briefs thereafter — all of which have eliminated the previous uncertainty and have enabled us to reach this decision.
We hold that the trial court did not err in entering judgment for the contractor against the owner, the contractor’s complaint having also sought relief not based upon the contractor’s claim of lien; and we affirm to that extent.
However, we must reverse the judgment on the bond against the transferee surety. In its original brief, the surety mentioned only cursorily that there were technical barriers to the judgment. Its supplemental brief amplifies, albeit with the same reference to the record as originally, that it was error not to direct a verdict upon the count of the contractor’s complaint which sought to foreclose a claim of lien because there was no proof of the contractor’s furnishing the final payment affidavit. We agree. See Atlantic Gardens Landscaping, Inc. v. Boca Raton Land Development, Inc., 360 So. 2d 1278 (Fla. 4th DCA 1978), and Antonelli Construction Company v. Sanfilippo, 449 So. 2d 891 (Fla. 3d DCA 1984). Section 713.06(3)(d)(1), Florida Statutes (1985), requires same of a contractor having one or more subcontractors which are providing, as here, some of the services or materials. The plaintiff in this case had an irrigation subcontractor on the job because plaintiff was not licensed to do that part of the work.
Another effect of the above reversal is upon the question of attorney’s fees. It can be seen from our conclusions that the only party entitled to them under section 713.29, Florida Statutes (1985) is the surety as it has prevailed upon the mechanics’ lien count.
The contractor is not entitled to attorney’s fees against the owner as none of the exhibits attached to its complaint show any contractual basis therefor. Similarly, the owner is not entitled to attorney’s fees against the contractor, although it prevailed in defense of the claim based on a lien, because the contractor successfully obtained a money judgment on its other theory. See Schabert v. Montaltos, 445 So. 2d 1136 (Fla. 2d DCA 1984).
ANSTEAD and LETTS, JJ., concur.
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Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla. 1993)…249 So. 2d at 500.1 This principle has been consistently fohowed in subsequent decisions. M & P Concrete Prods., Inc.; Ahimsa Technic, Inc. v. Lighthouse Shores Town Homes Dev. Co., 543 So. 2d 422 (Fla. 5th DCA 1989); AAA Sod, Inc. v. Weitzer Corp., 513 So. 2d 750 (Fla. 4th DCA 1987); Plaza Builders, Inc. v. Regis, 502 So. 2d 918 (Fla. 2d DCA 1986); Magee v. Bishop Signs, Inc., 458 So. 2d 1174 (Fla. 4th DCA 1984); Schabert v. Montaltos, 445 So. 2d 1136 (Fla. 2d DCA 1984); General Dev. Corp. v. John H. Gossett…
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Metro-Centre Assocs. v. Env't Eng'rs, Inc., 522 So. 2d 967 (Fla. 3d DCA 1988)…ed in Scka-bert that a landowner is not the “prevailing party” and is not entitled to attorney’s fees where a contractor obtains a judgment for labor or materials even though it fails to establish its mechanics’ lien. AAA Sod, Inc. v. Weitzer Corp., 513 So. 2d 750 (Fla. 4th DCA 1987); Plaza Builders, Inc. v. Regis, 502 So. 2d 918 (Fla. 2d DCA 1986). It is equally true, as Metro-Centre posits, that a landowner who successfully resists a claim to enforce a mechanics’ lien against his property is entitled to rec…
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M & P Concrete Prods., Inc. v. Woods, 590 So. 2d 429 (Fla. 4th DCA 1991)…t on its quasi contract claim. Unfortunately, however, this is not the first time we have construed this statute in this circumstance. I am thus stare-decisis-bound to follow our earlier decision on this point in AAA Sod Inc. v. Weitzer Corporation, 513 So. 2d 750 (Fla. 4th DCA 1987), where the owner prevailed on the lien claim but lost on the contract claim and thus lost fees.1 Because this is a circumstance frequently occurring in this state, it follows that I fully support the certified question. . The s…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Atl. Gardens Landscaping, Inc. v. Boca Raton Land Dev., Inc., 360 So. 2d 1278 (Fla. 4th DCA 1978)
- Schabert v. Montaltos, 445 So. 2d 1136 (Fla. 2d DCA 1984)
- Antonelli Constr. Co., Inc. v. Sanfilippo, 449 So. 2d 891 (Fla. 3d DCA 1984)