THE COOL GUYS, LLC D/B/A PARAGON INDOOR AIR QUALITY, APPELLANT,
v.
JOMAR PROPERTIES, LLC, AND ACCREDITED SURETY AND CASUALTY COMPANY, INC., APPELLEES
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In this construction lien case, the Fourth District Court of Appeal affirmed summary judgment for the property owner and surety, holding that a lienor must bring a claim against a transfer bond within one year of the lien's transfer to the bond, even when the lien foreclosure suit was pending at the time of transfer.
The court held that the plain language of section 713.24(4) requires a claim against transferred security to be brought within one year of the transfer, regardless of whether a lien foreclosure suit was pending. The 2005 legislative amendment to section 713.24(4) superseded the prior American Fire rule that had permitted claims beyond one year when a suit was already pending.
[1] A claim to recover against a security bond, to which a lien has been transferred during the pendency of a lien foreclosure suit, must be brought within one year of the tr…
[2] The 2005 amendment to section 713.24(4), Florida Statutes, clarified that if a lien foreclosure action is pending and the lien is transferred to security, an action again…
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Join FLexlaw to unlock all legal intelligence“If a proceeding to enforce a lien is commenced in a court of competent jurisdiction within the time specified in s. 713.22 and, during such proceeding, the lien is transferred pursuant to this section or s. 713.13(l)(e), an action commenced within 1 year after the transfer, unless otherwise shortened by operation of law, in the same county or circuit court to recover against the security shall be deemed to have been brought as of the date of filing the action to enforce the lien, and the court shall have jurisdiction over the action.”
The amended language of section 713.24(4) that the trial court relied upon, establishing the one-year deadline from transfer for claims against transferred security.
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Join FLexlaw to unlock all legal intelligenceCool Guys recorded a construction lien against Jomar Properties in February 2007 for $58,296 in air conditioning work. Litigation commenced in March 2…
The full statement of facts, procedural history, and disposition for this case are member content.
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In this construction lien ease, the trial court entered final summary judgment in favor of the property owner, Jomar Properties, LLC, and the surety on the transfer bond, Accredited Surety and Casualty Company, Inc., finding that section 713.24(4), Florida Statutes (2011), precluded the lienor, The Cool Guys, LLC, from bringing a claim on the transfer bond more than two years after the lien was transferred to bond. Cool Guys seeks reversal of the summary judgment, arguing the trial court’s construction of the statute is erroneous. We affirm.
*1077In February of 2007, Cool Guys recorded a construction lien against property owned by Jomar, claiming it was still owed $58,296 for air conditioning work. In-March of 2007, litigation was commenced over the matter and Cool Guys filed a counterclaim for foreclosure of its lien. In December of 2007, during the pendency of the litigation, Jomar posted a transfer bond, transferring Cool Guy’s lien to a surety bond issued by Accredited Surety. Cool Guys received notice of the transfer of the lien to security. Despite such notice, Cool Guys did not attempt to bring a claim on the transfer bond until two years later. Jomar and the surety moved for summary judgment, asserting the claims on the transfer bond were time-barred given the one-year limitations period in section 713.24(4), Florida Statutes. The trial court agreed.
Section 713.24, Florida Statutes, governing the transfer of liens to security, permits a person with an interest in real property to transfer a lien imposed against the property to other security and, in so doing, remove the cloud on the property’s title. See § 713.24(1), Fla. Stat. Prior to 2005, section 713.24(4) read as follows: “If a proceeding to enforce a transferred lien is not commenced within the time prescribed in s. 713.22 [one year of recording of lien] ..., the clerk shall return said security upon request of the person depositing or filing the same, or the insurer.” § 713.24(4), Fla. Stat. (2004). The courts, however, refused to apply the one-year time limitation in section 713.24(4) to bar a claim against the surety where the lien was transferred to security during the pendency of a suit to foreclose the lien. See Am. Fire & Cas. Co. v. Davis Water & Waste Indus., Inc., 358 So.2d 225 (Fla. 4th DCA 1978), aff'd, 377 So.2d 164 (Fla.1979).
In American Fire, within one year of the recording of the lien, the lienor brought a lien foreclosure claim against the property owner. Subsequent to the filing of the lien foreclosure claim against the property owner, the lien was transferred to bond. The lienor did not attempt to join the surety until two and half years after the recording of the lien and two and one-sixth years after the transfer of the lien to bond. This court held that the one-year time limit in section 713.24(4) did not apply as the language “clearly intends that any future proceedings be commenced within the year set forth in s. 713.22 and does not seek to address itself to the situation where the suit has already been filed prior to the transfer.” 358 So.2d at 227. The court reasoned that to hold to the contrary would permit the property owner to defend the suit until the one year passed, to then transfer the lien to bond, and, in so doing, prevent any liability against himself or the surety. The supreme court affirmed this ruling.
In 2005, the legislature amended section 713.24(4), adding the following sentence:
If a proceeding to enforce a lien is commenced in a court of competent jurisdiction within the time specified in s. 713.22 and, during such proceeding, the lien is transferred pursuant to this section or s. 713.13(l)(e), an action commenced within 1 year after the transfer, unless otherwise shortened by operation of law, in the same county or circuit court to recover against the security shall be deemed to have been brought as of the date of filing the action to enforce the lien, and the court shall have jurisdiction over the action.
§' 713.24(4), Fla. Stat. (2005).1 It is this added sentence the trial court relied upon *1078in finding the claims brought on the transfer bond were untimely as the lien had been transferred to security during the pendency of the lien foreclosure suit and no attempt was made to state a claim on the bond until two years after such transfer.
“‘[W]hen the words of a statute are plain and unambiguous and convey a definite meaning, courts have no occasion to resort to rules of construction — they must read the statute as written’ and the court’s inquiry should end.” Rothman-Browning v. Marshall, 83 So.3d 859 (Fla. 4th DCA 2011) (quoting Nicoll v. Baker, 668 So.2d 989, 990-91 (Fla.1996)). There is no ambiguity in the statute. It is clear from the language that if a lien foreclosure suit is pending and the lien is transferred to security during the pendency of that litigation, a claim to recover against the transferred security must be brought within one year of the transfer.
Appellant urges us to find that the rule announced in American Fire continues to be the law for cases like the instant one where the lien is transferred to security during the pendency of lien foreclosure litigation and the lienor subsequently seeks to join the surety in the pending action and that the sentence added to section 713.24(4) applies only where the lienor seeks to file an entirely separate action against the surety. We see no basis for reading the statute in this manner. It is presumed that when the legislature undertook to amend section 713.24(4), it was aware of prevailing decisions on the subject. See Miller v. State, 42 So.3d 204, 219 (Fla.2010), cert. denied, — U.S. -, 131 S.Ct. 935, 178 L.Ed.2d 776 (2011). Thus, the legislature was aware of the American Fire holding and also aware of decisions from the district courts reaching a different result where suit was brought after the lien was transferred to bond. See Canam Sys., Inc. v. Lake Buchanan Dev. Corp., 375 So.2d 582 (Fla. 5th DCA 1979) (affirming dismissal of claims against surety and principal where lien was transferred to bond prior to filing of timely lien foreclosure suit and lienor waited three years to assert claims against the bond). The language added to subsection (4) addresses the “gotcha” concern expressed in American Fire while at the same time protecting the lienor and lienee by affording the lien- or a time certain — one year from the date of the transfer of the lien — to seek to recover against the surety and bond.
Accordingly, having considered all issues raised, we affirm the judgment in favor of the property owner and the surety.
Affirmed.
HAZOURI and DAMOORGIAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Hiller v. Phoenix Assocs. OF S. Fla., Inc., 189 So. 3d 272 (Fla. 2d DCA 2016)…ys elapsed, Hiller filed a motion seeking, among other things, an order from the court directing the clerk to release the transfer bond. During a hearing on these, motions Hil-ler directed the trial court to Cool Guys, LLC v. Jomar Properties, LLC, 84 So. 3d 1076, 1078 (Fla. 4th DOA 2012), and argued that regardless of the action Phoenix commenced against Hiller prior to transfer, Phoenix had to commence an action against the surety or the transfer bond would extinguish automatically by operation of section…
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Rabil v. Seaside Builders, LLC, 226 So. 3d 935 (Fla. 4th DCA 2017)…was automatically extinguished by operation of law, and the clerk was obligated to release the bond. See §§ 713,22(2), 713.24(4); see also Hiller v. Phoenix Assocs. of So. Fla., 189 So. 3d 272 (Fla. 2d DCA 2016); Cool Guys, LLC v. Jomar Props., LLC, 84 So. 3d 1076 (Fla. 4th DCA 2012). We> therefore reverse and remand for the trial court to release the bond and discharge the lis pendens. Reversed and Remanded. Taylor and Conner, JJ., concur.…
Authorities Cited
- Miller v. State, 42 So. 3d 204 (Fla. 2010)
- Nicoll v. Baker, 668 So. 2d 989 (Fla. 1996)
- Am. Fire & Cas. Co. v. Davis Water & Waste Indus., Inc., 358 So. 2d 225 (Fla. 4th DCA 1978)
- Am. Fire & Cas. Co. v. Davis Water & Waste Indus., Inc., 377 So. 2d 164 (Fla. 1979)
- Canam Sys., Inc. v. Lake Buchanan Dev. Corp. & United Gen. Corp., 375 So. 2d 582 (Fla. 5th DCA 1979)
- Rothman-Browning v. Marshall, 83 So. 3d 859 (Fla. 4th DCA 2011)