In many instances, contractors or subcontractors perform work on someone’s property, without the property owner being fully aware of their rights or responsibilities under the lien statutes in Florida. When there is non-payment by the property owner or a dispute over payment, litigation often arises. And, interestingly, litigants, and sometimes courts, aren’t sure of their respective duties.
A case in point is Marble Unlimited, Inc. v. Weston Real Estate Inv. Corp., 125 So.3d 286 (Fla. 4th DCA 2013). Marble Unlimited, Inc. was a granite countertop subcontractor. Beginning in 2003, Marble contracted with Weston Real Estate Investment Corporation (“Weston Investment”) to renovate buildings within a condominium complex. From 2003 to 2007, Marble completed the renovations on buildings 3 through 8 and received payment from Weston Investment. Id at 287. In August 2006, Marble entered into two separate contracts for work on building 9 of the complex. As with the prior contracts, the owner identified in both contracts was Weston Investment. Id. Marble performed under the contracts and in 2008 filed claims of lien against various units, referencing its contracts with Weston Investment. Notices of contest of lien were filed by one John Genoni on behalf of the two corporations identified as owners—Weston Investment and Weston Real Estate Development, LLC (“Weston Development”). Id.
At a jury trial, and the jury awarded Marble $112,237.29 in damages against Weston Investment on the contract claims. The lien claims were decided non-jury. The circuit judge dismissed the lien claims against Weston Development because Marble had not served a notice to owner on Weston Development pursuant to §713.06, Florida Statutes. Marble then appealed.
The appellate Court noted that lienor who is in privity with the owner is not required to serve a notice to owner, as required by section 713.06. Id at 288. Whether privity exists is a factual inquiry requiring “both knowledge by an owner that a particular subcontractor is supplying services or materials to the job site and an express or implied assumption by the owner of the contractual obligation to pay for those services or materials.” C.L. Whiteside & Assocs. Constr. Co., Inc. v. Landings Joint Venture, 626 So.2d 1051, 1052–53 (Fla. 4th DCA 1993) (citing Harper Lumber & Mfg. Co. v. Teate, 98 Fla. 1055, 125 So. 21 (1929)). Here, at the time work commenced, Marble was in privity with Weston Investment, having signed two contracts where Weston Investment had identified itself as an owner, similar to the way Marble had completed renovations on the previous six buildings. Marble was therefore not required to file a section 713.06(2)(a) notice to owner after it commenced work on building 9. Id.
Interestingly, the appellate Court wasn’t willing to fall for the “switch-a-roo” seemingly attempted by Weston. The appellate Court held: after it contracted with Marble as the owner, Weston Investment could not trigger a duty on the part of Marble to file a notice to owner by transferring ownership of the condominium units to a related corporation, Weston Development. That the corporations were related is evident in the record—John Genoni filed notices of contest on behalf of both corporations and John Genoni, Jr. signed the original contracts on behalf of Weston Investment. To affirm the judgment of dismissal under these circumstances would be to allow corporate owners to play a shell game with ownership and frustrate the valid claims of contractors who complete work on real property. Id.
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