final until disposition of timely filed motion for rehearing.
of non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Thomas H. Barkdull, III,
Judge; L.T. Case No. 2016CA006056XXXXMB.
B. Rose and Daniel A. Thomas of Mrachek, Fitzgerald, Rose,
Konopka, Thomas & Weiss, P.A., West Palm Beach, for
H. Pelzer and Glenn N. Smith of Greenspoon Marder, P.A., Fort
Lauderdale, for appellee.
appeal an order denying their motion for release of a lien
transfer bond. They argue the trial court erred in denying
their motion and imposing notice on the contractor's
counsel, which is not required by section 713.22(2), Florida
Statutes (2016). We agree and reverse.
homeowners entered into an agreement with the contractor for
construction of a single-family home. In May 2016, after
disputes arose between the parties, the contractor recorded a
mechanic's lien against the property under Chapter 713
and filed suit against the homeowners to foreclose the lien.
The contractor also recorded a lis pendens against the
homeowners subsequently posted a lien transfer bond and
recorded a notice of contest of lien. On July 27, 2016, the
clerk recorded a certificate of transfer and mailed a copy to
the contractor with the notice of contest.
October 10, 2016, the homeowners moved to release the bond,
dismiss the foreclosure complaint, and discharge the lis
pendens. They argued that under sections 713.22 and 713.24,
Florida Statutes, the property was released from the lien
because the contractor failed to file suit against the surety
within sixty days of the recording of their notice of
contest. Yet, the clerk refused to release the bond without a
court order after the contractor objected.
contractor responded by arguing the homeowners' motion
should be denied based on "principles of equity and
excusable neglect." The contractor and its counsel
claimed they were unaware of the lien transfer bond and the
notice of contest until the homeowners requested the clerk to
release the bond.
hearing on the homeowners' motion, the court took issue
with the homeowners' failure to send copies of the lien
transfer bond and notice of contest to the contractor's
counsel. And, the court found that the notice of contest
failed to advise the contractor that it needed to file suit
against the bond surety within sixty days. Homeowners'
counsel argued that appropriate notice was given under the
statute. Nevertheless, the court denied the motion and
allowed the contractor to file an amended complaint naming
the bond surety as a party. From this order, the homeowners
de novo review. See Major League Baseball v.
Morsani, 790 So.2d 1071, 1074 (Fla. 2001).
homeowners maintain that, when they posted the lien transfer
bond, the lien was transferred to the bond surety and the
property was released from the lien. See §
713.24(1), Fla. Stat. (2016). Once they recorded a notice of
contest of lien, the contractor had sixty days to file suit
against the bond surety to enforce the lien. See
§ 713.22(2). The clerk was required to serve a copy of
the notice of contest on the contractor at the address shown
on the claim of lien, which it did. See id.
contractor admits receiving the notice, but claims it was
received by the contractor's secretary rather than being
delivered to a corporate officer or its counsel. It claims
that it ...