MIRROR AND SHOWER DOOR PRODUCTS, INC., APPELLANT,
v.
SEABRIDGE, INC., AND MR. AND MRS. JENNINGS, APPELLEES

Fla. 4th DCA | 1993-05-26
No. 93-0222
GLICKSTEIN, C.J., and POLEN and FARMER, JJ., concur.
621 So. 2d 486 Florida District Court of Appeal, Fourth District (1993) Positive Treatment
Cited by 7 cases

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Synopsis

Mirror and Shower Door Products sought to foreclose a construction lien against the Jennings and Seabridge, Inc. The trial court dismissed the complaint for failing to comply with Florida's statutory notice-to-owner requirements. The appellate court affirmed the dismissal against the Jennings but reversed and remanded the dismissal against Seabridge, finding no basis for that dismissal.


Holding

The court held that a written notice containing all statutory warnings in substantially the prescribed form is a prerequisite to perfecting a lien, and that oral recitation of warnings does not constitute substantial compliance. The dismissal of Count I against the Jennings was proper, but the dismissal of Count II against Seabridge was improper as no such dismissal was sought.


Headnotes

[1] Strict compliance with statutory notice requirements is a prerequisite to perfecting a construction lien.

[2] Oral recitation of statutory warnings does not constitute substantial compliance with the written notice to owner requirements for a construction lien.

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Key Quotes

“mechanics' liens are purely creatures of statute and as such, must be strictly construed”

Establishes the fundamental principle that construction liens must comply strictly with statutory requirements

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Facts & Procedural History

Mirror and Shower Door Products failed to serve a written notice to owner on the Jennings in the form required by Florida Statutes section 713.06(2)(b…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is a fastrack appeal from the trial court’s order granting the Jennings’ motion to dismiss appellant’s amended complaint for foreclosure of a construction lien. The delay in resolving this case was caused by our discovery that the order on appeal was a nonfinal, nonappealable order. But for Dobrick v. Discovery Cruises, Inc., 581 So. 2d 645 (Fla. 4th DCA 1991), we would have dismissed for lack of jurisdiction. The parties have now submitted a final appealable order and we proceed to address the issues on the merits. We affirm in part and reverse in part.

It is undisputed that appellant failed to serve a written notice to owner upon the Jennings in the form required by section 713.06(2)(b), Florida Statutes (1991). Rather, appellant alleged that it hand delivered a notice to the Jennings which complied with the pre-amendment statute, and orally gave the warnings now required by that section.

The trial court properly dismissed Count I of appellant’s complaint for failure to state a cause of action, in that appellant failed to substantially comply with the notice to owner provision of section 713.-06(2)(c), Florida Statutes (1991), and thus failed to satisfy a prerequisite to perfecting a construction lien. It is well settled that mechanics’ liens are purely creatures of statute and as such, must be strictly construed. Aetna Casualty & Surety Co. v. Buck, 594 So. 2d 280, 281 (Fla.1992).

The purpose of the notice to owner is to protect an owner from the possibility of paying his contractor monies which ought to go to a subcontractor who remains unpaid. Id. The 1991 amendments to Chapter 713 followed the findings of The Mechanics’ Lien Law Study Commission contained in the Commission’s 1990 Report to the Governor.

Section 713.06(2)(c) was amended to provide in part: “The notice must be in substantially the following form_” Section 713.-06(2)(c), Florida Statutes (1991) (emphasis added). This language indicates the legislature’s intent that the notice include all of the several warnings contained in that section, in substantially the form provided. There is no indication that a proper notice could be “served” as required by section 713.06(2)(a), by being orally recited to the owner.

Thus, the plain language of section 713.06 indicates the legislature’s intent that service of a written notice which includes the warnings contained in section 713.-06(2)(c) is a prerequisite to perfecting a lien under Chapter 713.

Appellant had failed to provide this court with support for its assertion that orally reciting the warnings and information contained in section 713.06(2)(c) constitutes substantial compliance with that section. Rather, it appears that only immaterial errors and omissions in the form of the notice have been excused by the courts. See Fidelity & Deposit Co. v. Delta Painting Corp., 529 So. 2d 781 (Fla. 4th DCA 1988) (service of notice to owner upon corporate owner’s office staff showed substantial compliance with the notice to owner requirement and the absence of owner’s name on notice was inconsequential to the establishment of the lien); Symons Corp. v. Tartan-Lavers Inc., 456 So. 2d 1254 (Fla. 4th DCA 1984) (designation of an owner in the notice to owner will be sufficient if the owner, or others, were not misled, prejudiced or injured by the claimed defect, and error in lienor’s name not fatal in that the names were sufficiently similar to apprise the defendant against whom the claimant had asserted the lien).

While we affirm the dismissal of Count I of appellant’s complaint against the Jennings, we reverse the trial court’s order in so far as it dismissed Count II against Seabridge, Inc. There is no indication that such a dismissal was sought. Therefore, we affirm the dismissal of Count I, reverse the dismissal of Count II, and remand with instructions to reinstate Count II of appellant’s complaint against Seabridge, Inc. AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

GLICKSTEIN, C.J., and POLEN and FARMER, JJ., concur.


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Citator

Cited By

  • N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So. 2d 359 (Fla. 4th DCA 1999)
    …l March 27, 1996. It is settled law that recovery may not be allowed where the moving party does not comply with the time restrictions and notice requirements of the controlling statute. See Mirror and Shower Door Products, Inc. v. Seabridge, Inc., 621 So. 2d 486, 487 (Fla. 4th DCA 1993) (dismissing appellant’s complaint for failure to state a cause of action where appellant failed to comply with the notice to owner requirement); Mursten Constr. Co. v. C.E.S. Indus., Inc., 588 So. 2d 1061, 1063 (Fla. 3d DCA…
  • …apparent failure to notice or record the lien in compliance with the statute, we hold that it did not even substantially comply with the statutory requirements for obtaining a lien. See, e.g., Mirror and Shower Door Prods., Inc. v. Seabridge, Inc., 621 So. 2d 486, 487 (Fla. 4th DCA 1993) (“[0]nly immaterial errors and omissions in the form of the notice have been excused by the courts.”). Consequently, there was never a valid lien in the first instance. Therefore, the title company was a mere volunteer in sa…
  • Gulfside Props. Corp. v. Chapman Corp., 737 So. 2d 604 (Fla. 1st DCA 1999)
    …3.06 indicates the legislature’s intent that service of a written notice which includes the warnings contained in section 713.06(2)(c) is a prerequisite to perfecting a lien under Chapter 713.” Mirror and Shower Door Prods., Inc. v. Seabridge, Inc., 621 So. 2d 486, 487 (Fla. 4th DCA 1993) (acknowledging that only immaterial errors and omissions in the form of the notice to owner have been excused by courts). Chapman did not serve a written notice which included statutory warnings, and the lack of those warnin…

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