United States District Court, M.D. Florida, Tampa Division
TAYLOR INDUSTRIAL CONSTRUCTION, INC., a Florida corporation, Plaintiff,
WESTFIELD INSURANCE COMPANY, an Ohio corporation, Defendant. SLONE ASSOCIATES, INC. a Georgia corporation, Counter-Plaintiff,
TAYLOR INDUSTRIAL CONSTRUCTION, INC., a Florida corporation, Counter-Defendant.
P. FLYNN UNITED STATES MAGISTRATE JUDGE
an action by a sub-subcontractor, Plaintiff Taylor Industrial
Construction, Inc. (“Taylor”), to recover on a
construction lien, which was bonded off, and, in which, the
general contractor, Counter-Plaintiff Slone Associates, Inc.
(“Slone”), filed a counterclaim for fraudulent
claim of lien. The parties have filed cross-motions for
summary judgment, which are now ripe for review.
construction-litigation dispute over payment for welding
steel reinforcement joints to the ceiling area of a WalMart
distribution center (the “Project”) in
Brooksville, Florida, involves a general contractor, a
subcontractor, sub-subcontractors, and a surety. On or about
May 9, 2016, Slone was hired to provide construction-related
services and materials for the Project under a prime contract
(the “Prime Contract”) with Wal-Mart. Doc. 28 at
¶ 11. In conjunction with the Prime Contract, Slone
entered into a subcontract (the “Subcontract”)
with Daniels Welding Services, Inc. (“Daniels”)
to perform certain roof joist reinforcement work at the
Project in exchange for Slone's payment of the total
contract price of $555, 769.00 to Daniels. Id. at
¶ 12. Taylor was hired by Daniels to replace a prior
sub-subcontractor, Suwanee Iron Works
(“Suwanee”), that Daniels terminated for poor
performance. On or around June 25, 2016, Taylor began
performing welding work as a sub-subcontractor. Doc. 1 at
¶ 15. On July 8, 2016, Taylor and Daniels reduced the
sub-subcontract to writing. The Daniels/Taylor
sub-subcontract was originally a fixed price contract in the
amount of $194, 400.00 (the “Agreement”). Doc.
1-4. Daniels and Taylor then entered into a change order (the
“Change Order”) for compensation to be calculated
instead on a time and materials basis. Id.
Under the Change Order, Daniels agreed to pay Taylor $60.00
per hour for its work, which included “all overhead and
July 2016, Daniels notified Slone of its intent to
discontinue working on the Project. Shortly thereafter,
Taylor received a similar notice from Daniels. Taylor
responded in writing that unless termination was properly
made under the express terms of the Contract, Taylor intended
to continue to perform. Taylor then contacted Slone and asked
to be kept on the Project, but Slone informed Taylor that it
had already hired another welding company, Champco, Inc.
(“Champco”), to complete the work. As a result,
Taylor left the Project on July 26, 2016.
having not been paid by Daniels for its work, filed a
construction lien (the “Claim of Lien” or
“Lien”) on August 22, 2016. On September 29,
2016, Slone bonded off Taylor's Lien with a lien transfer
bond (the “Bond”) with Slone as principal and
Defendant Westfield Insurance Company
(“Westfield”) as surety, removing Taylor's
Claim of Lien from the property and transferring the Lien to
the Bond pursuant to Florida Statute § 713.24.
October 19, 2016, Taylor filed a one-count complaint against
Westfield seeking to collect $175, 453.36 (plus reasonable
attorneys' fees, costs and interest) on the Bond. Four
months later, Slone moved to intervene, seeking to file an
intervenor complaint against Taylor and third-party Daniels.
Slone's complaint alleged a fraudulent lien claim against
Taylor and five claims against Daniels. See Doc. 28.
Daniels' motion to dismiss Slone's claims against it
based on their subcontract's forum selection clause was
granted by the Court, and Daniels is no longer a party in
this case. See Doc. 72.
Motion for Summary Judgment against Slone (Doc. 109) seeks a
finding that Taylor's Lien is not fraudulent, and its
Motion for Summary Judgment against Westfield (Doc. 110)
seeks the same relief in addition to summary judgment on its
bond claim against Westfield. Westfield's Motion for
Summary Judgment (Doc. 86) seeks a declaration that the Lien
is fraudulent and a discharge of the Bond issued by
Westfield. Slone joined in Westfield's motion (Doc. 99)
seeking the same relief. The main issue to be decided amongst
the parties' numerous motions, responses and replies is
whether Taylor's Lien is enforceable. Taylor has
established that there are no genuine issues of material fact
as to the enforceability of the Lien, which subsumes the
issue of whether the Lien is fraudulent. A corollary issue
relates to the Declaration of Taylor's President, Greg
Taylor (“Mr. Taylor”) (Doc. 93-2), which Taylor
filed along with its opposition (Doc. 93) to Westfield's
Motion for Summary Judgment (Doc. 86). Westfield moves to
strike Mr. Taylor's Declaration on multiple bases: Mr.
Taylor's assertions are inadmissible testimony that
cannot be considered by the Court; portions of the
Declaration lack relevance to the motion for summary
judgment; the Declaration is inconsistent with Mr.
Taylor's prior sworn testimony; the Declaration was filed
in bad faith in violation of Rule 56(h). Doc. 94. Upon
review, none of the bases, however, warrant striking the
Motion to Strike Greg Taylor's Declaration
motion to strike will “usually be denied unless the
allegations have no possible relation to the controversy and
may cause prejudice to one of the parties.” Seibel
v. Society Lease, Inc., 969 F.Supp. 713, 715 (M.D. Fla.
1997) (citations omitted). Because this is a difficult
standard to satisfy, “[m]otions to strike … are
not favored, often being considered time wasters.”
Somerset Pharm., Inc., v. Kimball, 168 F.R.D. 69, 71
(M.D. Fla. 1996) (internal quotations omitted). Federal Rule
of Civil Procedure 56(c)(4) governs the submission of
affidavits and declarations supporting summary judgment
motions and states that an affidavit “must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters.” Fed.R.Civ.P. 56(c)(4).
party has given clear answers to unambiguous deposition
questions which negate existence of any genuine issue of
material fact, that party cannot thereafter create such issue
and thereby defeat summary judgment with an affidavit that
merely contradicts, without explanation, previously given
testimony; such an affidavit would be a sham. McCormick
v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n.7
(11th Cir. 2003) (citations omitted). However, that is not
the case here. There is no direct contradiction between Mr.
Taylor's deposition testimony and the testimony in his
Declaration, and there is no basis for Westfield's
assertion that it was made in bad faith. In addition, the
Eleventh Circuit has stated that, in some circumstances,
otherwise admissible evidence may be submitted in
inadmissible form at the summary judgment stage, though at
trial it must be submitted in admissible form. Henry v.
Colonial Baking Co., 952 F.Supp. 744, 749-50 (M.D. Ala.
1996) (citing McMillian v. Johnson, 88 F.3d 1573,
1584 (11th Cir. 1996)). For the reasons stated in
Taylor's response to Westfield's motion to strike,
the Court finds the statements in the Declaration admissible
as summary judgment evidence. Finally, Westfield fails to
cite any authority in support of its argument that portions
of the Declaration lack relevance to the motion for summary
judgment and therefore should be stricken. Furthermore, the
Court is equipped to disregard any such irrelevant inclusion.
As such, the Court denies Westfield's Motion to Strike
Mr. Taylor's Declaration.
motion is also denied on the alternative basis that it fails
to comply with Local Rule 3.01(g). Local Rule 3.01(g)
requires a party to confer with opposing counsel in a good
faith effort to resolve an issue before filing a motion.
Section I.A.2 of the Middle District Discovery
Handbook explains “confer” means “a
substantive discussion.” It adds: “Many potential
... disputes are resolved (or the differences narrowed or
clarified) when counsel confer in good faith. Rule 3.01(g) is
strictly enforced. A motion that does not comply with the
rule may be summarily denied.” Discovery
Handbook § I.A.2; see also Miller v.
Summers, No. 2:14-cv-347-FtM-38DNF, 2015 WL 12859329, at
*1-2 (M.D. Fla. Sept. 25, 2015) (finding that a party's
motions to strike were procedurally barred for failure to
comply with Local Rule 3.01(g) and denying the motions on
Motions for Summary Judgment on Validity of the Lien
judgment is appropriate if all the pleadings, discovery,
affidavits, and disclosure materials on file show that there
is no genuine disputed issue of material fact, and the movant
is entitled to judgment as matter of law. See Fed.
R. Civ. P. 56(a) and (c). The existence of some factual
disputes between the litigants will not defeat an otherwise
properly supported summary judgment motion; “the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). A fact is material if it is a legal element of the
claim that may affect the outcome of the suit under the
substantive governing law. Allen v. Tyson Foods,
Inc., 121 F.3d 642, 646 (11th Cir. 1997). A dispute
about a material fact is “genuine” if the
evidence is such that a reasonable jury could find for the
non-moving party. Anderson, 477 U.S. at 248. In
determining whether a genuine dispute of material fact
exists, the court must view the evidence and all factual
inferences drawn therefrom in the light most favorable to the
non-moving party and must resolve any reasonable doubts in
the non-movant's favor. Skop v. City of Atlanta,
485 F.3d 1130, 1136 (11th Cir. 2007).
non-moving party, however, “must do more than simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant
must go beyond the pleadings and “identify affirmative
evidence” that creates a genuine dispute of material
fact. Crawford-El v. Britton, 523 U.S. 574, 600
(1998). “[M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (citing Bald Mtn. Park, Ltd.
v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla' of evidence
supporting the opposing party's position will not
suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252).
contractor is owed money for either labor, services,
materials, or other items used to improve real property in
accordance with a contract, Florida Statute § 713.05
allows a contractor to assert a claim of lien on the real
property that he has improved. “[T]he fundamental
purpose of the Construction Lien Law is to protect those who
have provided labor and materials for the improvement of real
property. It is to be construed favorably so as to give
laborers and suppliers the greatest protection compatible
with justice and equity.” WMS Constr., Inc. v. Palm
Springs Mile Assocs., Ltd., 762 So.2d 973, 974-75 (Fla.
3d DCA 2000) (citations omitted). “The mechanics lien
law was enacted to protect the interests of subcontractors
and materialmen who remain unpaid while the owner pays the
contractor directly.” Hardrives Co. v. Tri-County
Concrete Prods., Inc., 489 So.2d 1211, 1212 (Fla. 4th
DCA 1986) (citation omitted).
in order to succeed on a claim of lien transferred to a bond
pursuant Florida Statute § 713.24, a lienor who is not
in privity with the owner must show it: (i) timely and
properly served a statutorily-compliant notice to owner, (ii)
timely recorded a claim of lien within 90 days of last
performing work on the project, (iii) filed suit to foreclose
within one year of recording the claim of lien, and (iv) that
such lien is for labor, services and/or materials actually
incorporated into the project in accordance with the
lienor's contract and the contract between the owner and
the contractor. See, generally, Fla. Stat.
§§ 713.06, 713.08. There is no dispute that the
first three elements have been met by Taylor. It is the
fourth element that is at issue here.
other hand, Florida Statute § 713.31 protects the owner
of the property by providing a remedy for fraud or collusion
on the part of the contractor. In pertinent part, §
713.31 reads as follows:
(2)(a) Any lien asserted ... in which the lienor has
willfully exaggerated the amount for which such lien is
claimed or in which the lienor has willfully included a claim
for work not performed upon or materials not furnished for
the property upon which he or she ...