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MHB Construction Services, L.L.C. v. RM-NA HB Waterway Shoppes, L.L.C.

Florida Court of Appeal, Fourth District

November 23, 2011

MHB CONSTRUCTION SERVICES, L.L.C., a Florida limited liability company, Appellant,
v.
RM-NA HB WATERWAY SHOPPES, L.L.C., a Florida limited liability company, Appellee.

Page 588

Michael J. Yates of the Law Offices of Michael J. Yates, P.L., Miami, for appellant.

Adam P. Handfinger and K. Stefan Chin of Peckar & Abramson, P.C., Miami, for appellee.

Scott D. Rembold and Mark D. Bohm of Bogert & Rembold, P.L., Coral Gables for Amicus Curiae South Florida Associated General Contractors.

DAMOORGIAN, J.

In its consolidated appeals, MHB Construction Services, L.L.C. appeals: (1) the trial court's final order dismissing RM-NA HB Waterway Shoppes, L.L.C. (" Landlord" ) as a party on a motion to dismiss and (2) the final judgment awarding Landlord attorney's fees and costs. The issue on appeal is whether MHB could lien Landlord's fee simple interest when Landlord's tenant failed to pay MHB for improvements made to the tenant's leased property. Concluding that the trial court was correct in its analysis that MHB may not lien Landlord's property, we affirm the trial court's final order of dismissal and the final judgment awarding attorney's fees and costs.

Landlord is the owner of a shopping center. Landlord entered into a commercial lease with Rebecca L. Shortt, Inc. (" Tenant" ), who operates a daycare center.[1] Two years before the lease's execution,

Page 589

Landlord recorded a " Notice of Lien Prohibition" in the public records of Broward County in accordance with section 713.10, Florida Statutes (2010). After entering into the lease, Tenant contracted with MHB to make improvements to the leased space. Before the construction began, Landlord executed and recorded a notice of commencement pursuant to section 713.13, Florida Statutes (2010).

Ultimately, MHB filed a foreclosure action against Landlord and Tenant for the balance due on the construction contract. In response to the complaint, Landlord filed a verified motion to strike Count I (foreclosure of lien) as a sham pleading, asserting that the recorded Notice of Lien Prohibition barred MHB from asserting a claim of lien on Landlord's property. The trial court agreed and entered a final order dismissing the claim against Landlord. This consolidated appeal followed.

MHB argues that by executing and recording a notice of commencement, Landlord identified its " control and financial stake in the construction," and " Landlord must now be estopped from claiming the lien cannot affect its fee simple property interest since Landlord identified itself as owner in the Notice of Commencement." We disagree.

We begin our analysis by looking at the purpose behind a notice of commencement. In Sasso Air Conditioning, Inc. v. United Cos. Lending Corp., 742 So.2d 468 (Fla. 4th DCA 1999), Judge Warner, quoting Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So.2d 1254 (Fla. 4th DCA 1984), provided a concise statement of the purpose served by a notice of commencement pursuant to Section 713.13(1)(a), Florida Statutes:

Though the Notice of Commencement was originally required to trigger a commencement date from which to measure time limitations under the Mechanic's Lien Law, the information contained in the Notice of Commencement provides all the details necessary to complete a Notice to Owner. Indeed, Section 713.13(1)(a), Florida Statutes, requires with Notice of Commencement information including the name and address of the owner and contractor. Thus, the legislature contemplated that the Notice of Commencement would provide the lienor with the current names and addresses of the owner and contractor, so that the lienor could properly mail the Notice to Owner.

Sasso Air Conditioning, Inc., 742 So.2d at 470 (quoting Symons Corp., 456 So.2d at 1259).

Contrary to MHB's assertion, we do not read section 713.13, Sasso Air Conditioning, Inc., or any other case law provided by MHB to suggest that the execution of a notice of commencement has the effect of giving a contractor the right to lien the property of a lessor ...


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