Courtney M. Fernandez and Ellis T. Fernandez, Appellants,
Manning Building Supplies, Inc., Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Waddell A.
Fernandez, III, of Fernandez Trial Lawyers, P.A.,
Jacksonville, for Appellants.
Charles B. Jimerson and James O. Birr, III, of Jimerson &
Cobb, P.A., Jacksonville, for Appellee.
M. and Ellis T. Fernandez challenge a judgment foreclosing on
a construction lien and awarding attorney's fees and
costs. We find no error in the award of attorney's fees
and costs and affirm that award without further comment.
However, we find merit in the argument that the trial court
erred in its determination of the interest recoverable on the
principal amount of the lien, and therefore, we reverse that
part of the judgment.
construction lien was filed by Manning Building Supplies,
Inc., on the residential property owned by the Fernandezes.
Manning entered into a contract with the general contractor
hired by the Fernandezes to supply materials to be used in a
renovation of the residence. Manning was not paid so it filed
a lien against the property and filed suit against the
contractor as well as the Fernandezes. The trial court
granted a partial summary judgment on the lien foreclosure
count of Manning's complaint. The trial court thereafter
determined that Manning was entitled to collect $24, 157.64
in principal from the Fernandezes plus interest at the rate
of 18% per year. The trial court determined a rate of 18% was
required because the contract between Manning and the
contractor provided that a monthly fee of 1.5% of the
contract balance would be owed if payment was not timely made
on a monthly basis.
contract provides in pertinent part:
1. Payment of all sums due hereunder are due and payable in
DUVAL County, Florida. CUSTOMER agrees that all invoices are
due upon receipt with the following terms: Net 10th of the
month following month of purchase I/We submit to Manning
Building Supplies, Inc. I/We agree to make payment to MBS on
or before the tenth (10th) day of the month following date of
purchase. I/We understand that a delinquent account
will cause credit to be suspended and a 1-1/2% monthly
delinquent charge to be added, plus any attorney's fees,
and/or court costs necessary to collect this account, all of
which I/We agree to pay. Proper venue shall be in
DUVAL County, Florida. Accounts are considered delinquent on
the fifteenth (15th) day of the month following purchase and
finance charges will be added on the last day of the month
following purchase. . . . CUSTOMER agrees to pay
SELLER interest, including post judgment interest, at the
highest rate allowable by law on all sums not timely
paid and hereby submits to the jurisdiction of the
courts of the State of Florida, whose laws govern this
(Emphasis added). The monthly 1.5% charge was annualized by
the trial court to be 18%.
713.06(1), Florida Statutes (2018), specifically authorizes a
lien on real property for a materialman or laborer "not
in privity" with the owner of real property for unpaid
services or materials and "for any unpaid finance
charges due under the lienor's
contract."[*] Chapter 713
does not define the term "finance charge."
other areas of Florida Statutes distinguish between
delinquency and finance charges. For example, Chapter 687,
Florida Statutes (2018), pertaining to usury, interest, and
lending practices provides:
(c) Notwithstanding any other provision of this section,
any lessor or merchant, or
any person who lends money or
extends any other form of credit, who is regularly
engaged in the business of selling or leasing merchandise,
goods, or services which are for other than
personal, family, or household purposes, or any assignee of
such lessor, merchant, or person who lends money or extends
any other form of credit, who is the holder of a commercial
installment contract, each of which persons or entities is
subject to the laws of any jurisdiction of the United States,
any state, the District of Columbia, the Commonwealth of
Puerto Rico, or any territory or insular possession of the
United States, may, if the contract so provides,
charge a delinquency charge on each installment which is in
default for a period of not less than 10 days in an amount
not in excess of 5 percent of such installment.
However, only one such delinquency charge may be collected on
any installment, regardless of the period during which it
remains in default. A delinquency charge imposed
pursuant to this paragraph shall not be deemed interest or a
finance charge ...