Florida/Georgia Personal Injury & Workers Compensation

...uitable lien on the improved property; from Guardian on the theory of "open account;" and from Guardian and Salem on the theory of account stated. A count in a prior complaint sought to foreclose a mechanic's lien but was dismissed as unenforceable. Section 713.03, Fla....

...Under the provisions of the mechanic's lien statute, an architect is entitled to the protection of a lien to secure payment of services he or she has performed toward improvement of real property or in connection with a specific parcel of real property. The applicable provision, section 713.03, Florida Statutes (1987), provides: (1) Any person who performs services as architect, landscape architect, interior designer, engineer, or land surveyor, subject to compliance with and the limitations imposed by this part, shall have...

...o pay all outstanding debts of the project. Although it was contemplated that the expert witness testimony would expedite clearing the property for its intended use, such services were not related to improvement of real property within the intent of section 713.03(1). Furthermore, we find that serving as an expert witness on behalf of the owner in an arbitration proceeding is not a lienable contract item under the "direct contract" provisions of section 713.03(2). Subsection (2) of section 713.03 authorizes an architect who has a direct contract with the owner to place a lien on real property for money due for his professional services, without regard to whether the property is actually improved....

...e with the design drawings. We find that this testimony demonstrates the existence of a factual dispute as to whether the June 1987 engineering inspection services and report preparation were related to improvement of the property as contemplated by section 713.03(1) and (2), and are therefore lienable services, or whether these services were performed in support of post-construction arbitration proceedings, and are therefore not lienable....

...40 U.S.C. § 276a-2(a). If the remaining federal funds were insufficient to repay the employees, the Davis-Bacon Act gave Allied’s employees the right to file a lien on the West Brickell property for the difference. 40 U.S.C. § 276a-2(b); Fla. Stat. § 713.03....

...In the case at bar, materials were furnished for subdivision improvements by a lienor not in privity. Chapter 713.02 Fla. Stat. (1975) defines eight different classes of potential lienors and the ensuing sections chronologically deal with each class. Thus, § 713.03 concerns itself with liens for professional services, § 713.04 applies to subdivision improvement lienors, § 713.05 deals with lienors in privity, and § 713.06 discusses liens of persons not in privity....

...erfect his lien. We agree with the trial judge, but concede that the statutory language is confusing because these successive sections of the chapter, quoted *226 above, do not handle the question of notice to owner, uniformly. Thus we see that: (1) § 713.03 specifically states that no notice is required....

...furnishes material to real property for the purpose... ." (emphasis supplied). It is our opinion that by reason of this language, the lienor in the instant case falls squarely under § 713.04 and not § 713.06. The appellant also argues that since both § 713.03 and § 713.05 specifically state that no notice is required, the concomitant failure to so state in § 713.04 should be interpreted to mean that it is required under this latter section....

...HIS SECTION" (emphasis supplied). The lienor before us is not subject to that SECTION. The final puzzling question then, is: If each section is separate and stands alone and only § 713.06(2) mandates a notice to owner, why did the legislature under § 713.03 and § 713.05, specifically include language excusing the filing of any such notice? We believe the answer is that it was an unnecessary precaution....

...The trial court correctly determined that appellee Putnam was not required to give notice of claim of lien to the owner, Royal Oak Properties, Inc., appellee, as provided by section 713.06(2), Florida Statutes, by virtue of an exemption granted for professional services as set forth in section 713.03(3), Florida Statutes....

...alid mechanics' lien. First Industrial Technology Corp. [FIT], the defendant below, cross-appeals from an adverse jury verdict. We affirm on the main appeal based on our conclusion that Miller does not have a valid mechanics' lien pursuant to either section 713.03, Florida Statutes (1987), or section 713.05, Florida Statutes (1987)....

...FIT filed several post-trial motions which were denied by the trial court. The enforcement of the mechanics' lien claim was heard by the trial court. The trial court found that Miller did not have a valid mechanics' lien. Miller contends that as a "design-builder", it has a valid mechanics' lien pursuant to either section 713.03, Florida Statutes (1987), or section 713.05, Florida Statutes (1987)....

...Gunn & Gunn Constr. Co., 348 So.2d 560 (Fla. 3d DCA 1977)). "[U]nless the lien is expressly created by the mechanics' lien law, it does not exist." O'Kon, 540 So.2d at 841 (citing Fell v. Messeroff, 145 So.2d 238, 239 (Fla. 3d DCA 1962)). In construing section 713.03, Florida Statutes (1987), we find that it is not applicable to the instant case. Section 713.03 provides in pertinent part as follows: (1) Any person who performs services as architect,......

...th a specific parcel of real property and subject to said compliances and limitations, shall have a lien upon such real property for the money owing to him for his professional services, regardless of whether such real property is actually improved. Section 713.03 is not applicable for several reasons. First, Miller is not an architect, and therefore cannot perform services as an architect. See O'Kon, 540 So.2d at 840; see also § 481.223(1), Fla.Stats. (1987) (person may not practice architecture unless he is a registered architect). Second, section 713.03(1) requires that the real property be improved....

...The names used by the defendants were similar to debtor's, C.J. Wright, Co., debtor's principal and the principal in the named company were the same and the party against whom the lien was to be enforced was not adversely affected by the incorrect name. Likewise, because § 713.03(4)(a) governs each item required for perfection, referring to a contract with C.J....

...On April 4, 1994, six years after the map of reservation was filed and approximately four and one-half years after it was removed, DOT filed its notice of lis pendens. The Declaration of Taking was filed on April 29, 1994. McIntosh and Associates filed a claim of lien on both parcels under § 713.03 for the amount Springs Land owed it for the earlier services....

...O'Kon and Co., Inc. v. Riedel, 540 So.2d 836 (Fla. 1st DCA 1988) ( O'Kon I ). This court rejected the lower court's reliance on Rolls v. Bliss & Nyitray , and ruled alternatively that with respect to O'Kon's claim of lien, that the mechanic's lien statute itself, section 713.03(1), (2), Florida Statutes (1987), precluded a lien where O'Kon did not pursue certification pursuant to section 481.219(1)(b)....

...In so ruling we have proceeded on the assumption, without so holding in this case, that the provision of the Mechanics' Lien Law requiring such a sworn statement by a contractor is applicable to an architect when seeking to foreclose a lien for professional services, as provided by Section 713.03 Florida Statutes 1974....

...Dale Dykema, appellant/plaintiff, entered into a written contract with Trans State Industries, Inc., appellee/defendant, in which he undertook to perform architectural professional services in exchange for a fee. The appellant was not paid in full and, on December 7, 1972, as provided by Section 713.03(3), Florida Statutes, filed his claim of lien against the real property for which he had drafted the drawings, plans and specifications....

...uring, do not satisfy the mandatory requirement of the statute that the contractor supply the affidavit. Finally, appellee argues that because he is a professional engineer, he is exempt from the requirements of furnishing the affidavit by virtue of section 713.03(3), Florida Statutes (1981), which provides, in essence, that persons who perform services as engineers (and certain others) need not furnish the affidavit required by section 713.06(3)....

...1(10), Florida Statutes (1989), "lienor" includes the following: contractors; subcontractors; sub-subcontractors; laborers; materialmen who contract with the owner, a contractor, a subcontractor or a sub-subcontractor; and professional lienors under section 713.03....

...*1158 Initially, a summary judgment was rendered in favor of the developer on both its mechanic's lien [2] claim and its contract claim. The First District Court of Appeal affirmed with respect to the mechanic's lien claim, and held that the architect was precluded from asserting a lien because it was in violation of section 713.03(1) and (2), Florida Statutes (1987)....

Whether this was willful exaggeration under section 713.3 l(2)(a) was an issue of fact. As the trial court

...roperty; that improvements on the property were not made; that no contract had been entered into between the parties; that the services alleged to have been performed by plaintiff were of no value; and that defendants were not indebted to plaintiff. Section 713.03 Fla.Stat., F.S.A....

...services in supervising any portion of the work of im *356 proving the real property “rendered in accordance with his contract and with the direct contract” — that is, under a contract with the owner, or under a subcontract. Subsection (2) of § 713.03, on which the plaintiff is proceeding in this case, is applicable where services are performed incident to certain property but where the intended improvement of the property is not made....

...>}c % ‡» In granting summary judgment for the defendant the trial court proceeded on three grounds. First upon the expressed conclusion of the court that the plaintiff was not entitled to a lien because he did not have a “direct contract” within the meaning of § 713.03(2), stating: “The phrase ‘direct contract’ connotes a face-to-face personal confrontation of the parties, which was wholly lacking in this case.” That holding of the trial court would deny the effectiveness of an owner’s contract...

...ECTION” (emphasis in original). The lienor before us is not subject to that SECTION. The final puzzling question then, is: If each section is separate and stands alone and only § 713.06(2) mandates a notice to owner, why did the legislature under § 713.03 and § 713.05, specifically include language excusing the filing of any such notice? We believe the answer is that it was an unnecessary precaution....

...3rd DCA 1981), appeal dismissed, 415 So.2d 1359 (Fla. 1982), cited by the trial judge in paragraph four of its order, is also inapplicable, for therein no reference was made to a mechanics' lien, in contrast to the focus of the instant case. We disagree with appellant's basic argument, that section 713.03, Florida Statutes, "liens for professional services" allows for unauthorized architects (labelled here as project managers), practicing in Florida in violation of section 481.219, Florida Statutes, to file a lien on real property in Florida to collect for services rendered. To interpret the phrase "[a]ny person who performs services as architect ..." in section 713.03, Florida Statutes, to mean one practicing in violation of the professional regulation statutes would render attempts at professional regulation ineffective....

...We find the above mandatory language to be very clear and straightforward, and find that appellant has not justified its failure to comply with the requirements of the regulatory statute. Further, in response to this court's request for supplemental argument, appellant and appellee correctly distinguished between section 713.03(1) and section 713.01(2), Florida Statutes, and agreed that section 713.03(1) is limited to circumstances where property has been improved, so is not applicable to the facts of this case, whereas section 713.03(2) applies when the lienor is an architect who has a direct contract with the property owner. We agree with appellees that section 713.03(2) should be read in pari materia with section 481.203, which refers to an architect in terms of a registered architect. Also, as appellees argue, section 713.03(2) provides that only an architect with a direct contract (with the owner) may qualify for a lien....

...rchitect to employ an engineer for the owner, where the engineer had filed a mechanic's lien for services. Although we did not find this case supportive of appellant's argument that it, as the corporate entity, is entitled to a mechanic's lien under section 713.03(2), Florida Statutes, the opinion does explain the distinction between section 713.03(1) and section 713.03(2), Florida Statutes. Neither the provisions in section 713.03(1) nor section 713.03(2) allow O'Kon to file a mechanic's lien for architectural services performed while not in compliance with state statutes regulating the practice of architecture....

...— As used in this part: (1) "Contract" means an agreement for improving real property, written or unwritten, express or implied, and includes extras or change orders as herein denied. * * * * * * (4) "Direct contract" means a contract as here defined between the owner and any other person. (Emphasis supplied.) 713.03 Liens for professional services....

...sidence building.... The trial court concluded that the exception is only applicable to owners of property who draw their own plans, and not to third parties holding themselves out as architects. With regard to Appellant’s mechanic’s lien claim, section 713.03, Florida Statutes, provides: (1) Any person who performs services as architect, ......

...ee’s position. Obviously, if the legislature intends to limit the single family home provisions to owner/builders or natural persons it should amend the statute accordingly. With respect to the judgment’s denial of the lien claim, subpart (2) of section 713.03 specifically limits the right to claim a hen on property which is not actually improved to “architects.” Section 713.01(1), Florida Statutes, defines “architect” as a person or firm authorized to practice architecture pursuant...

...Consequently, section 489.128(1), which prohibits an unlicensed contractor from enforcing a contract, is not applicable. SG also argues that the trial court erred in concluding that Complimenti was entitled to a lien. We disagree. The trial court relied on section 713.03(1), which provides that “[a]ny person who performs services as ....

foreclosure proceedings. Construction of Section 713.3^71 Turning now to Jax’s second argument

sub-subcontractor, or a professional lienor under Section 713.03. This is provided by Section 713.01(10) Florida

...al property with the building permit secured by Plaintiff and with Plaintiff's architectural plans, even though it has not paid Plaintiff for his services related to either. In moving for summary judgment, Defendant argues that under Florida Statute 713.03, Plaintiff is not entitled to a lien on the real property because he did not have a contract with Defendant and no improvements were actually made to the property....

..., et al., supra, at § 2730.1 (footnotes omitted). "[W]hen plaintiff is suing based on an implied agreement, questions concerning the parties' intentions necessarily intrude." Id. (footnotes omitted). 2. Material issue of fact relative to Fla. Stat. 713.03 As support for its argument that Plaintiff had no contract or direct contract to *891 perform the services that he in fact performed, Defendant points to the depositions of several individuals, including Plaintiff....

...Pyms, 266 So.2d 355, 357 (Fla.Dist.Ct.App.1972) (a direct contract, binding the owner directly, can be formed "by the owner through an agent, as effectively as if the parties made such contract face-to-face"). This, in turn, would trigger the application of Fla.Stat. 713.03(2), which would grant Plaintiff a lien regardless of whether the property had been physically improved....

...If the Court or jury finds that a contract existed for Plaintiff to perform the work but that that contract did not obligate New Metropolitan directly to Plaintiff, the Court would then consider whether the improvement to the property alleged by Plaintiff satisfies the requirements of Fla.Stat. 713.03(1). If the property had been improved within the meaning of this section of the statute, then Plaintiff would be entitled to a lien against the property. Whether the improvement falls within the meaning of Fla. Stat. 713.03(1) is, again, a mixed question of law and fact....

...First American Investment Corp., 565 So.2d 349 (Fla.Dist.Ct.App.1990) with Miami Highland Park, Inc. v. Leslie, 142 So.2d 754 (Fla.Dist.Ct.App.1962). Plaintiff should be permitted to introduce evidence that the services performed by Plaintiff improved the property within the meaning of Fla.Stat. 713.03....