Court Finds Enforceable Construction Lien Despite Incorrect Notice of Commencement
James B. Martin, Inc d/b/a Allpro Windows & Doors v. Moore, arises from a payment dispute between a window contractor and several owners of the same property. The window contractor and Moore entered into a contract to remove and replace 10 windows at the property. Moore was a life tenant living on the property. As part of that transaction, the contractor had Moore sign a notice of commencement form, which was blank. The NOC was subsequently filled in and notarized by the contractor.
During installation of the windows, Moore claimed that the windows were incorrect and refused to make further payments under the contract. The contractor filed a construction lien against the property, which asserted that the property was owned by Moore, and another woman, Johnson. The contractor then filed suit for foreclose its construction lien, and for breach of contract, unjust enrichment, and foreclosure of an equitable lien. Moore counterclaimed to quiet title to the property, alleging that she owned it.
After suit was filed, the contractor learned that there were three additional owners of the property, including Moore’s mother, and was allowed to amend the complaint to add all of the owners as defendants. Moore’s mother ultimately obtained dismissal of the lien foreclosure count because the contractor failed to serve her with the notice to owner. Defaults were entered as to the other three defendants, leaving the lien foreclosure count only against Moore.
Following a bench trial, the court entered judgment in favor of the contractor on its breach of contract count, but entered judgment for Moore on the lien foreclosure count and quiet title counterclaim. The trial court found that enforcement of the lien was barred because the contractor’s notice of commencement was defective in that it failed to list all property owners and that the risk of error in the notice of commencement had shifted to the contractor because the contractor filled out the notice of commencement. The trial court also found that the notice of commencement was void because the contractor did not begin work within 90 days after recording of the notice of commencement. The contractor appealed.
On appeal, Florida’s Fourth District Court of Appeal affirmed the final judgment in part and reversed in part. The trial court affirmed the dismissal of the lien foreclosure claim against Moore’s mother, finding that the argument was not properly preserved for appeal.
The contractor then argued that “the trial court erred in denying enforcement of the construction lien based on the contractor’s failure to serve all owners with a notice to owner or the claim of lien, because: (1) Moore held herself out as the property's owner in the notice of commencement, answer, and amended answer and affirmative defenses; and (2) the contractor substantially complied with the statutory requirements to impose and enforce a construction lien.”
As to the first argument, the Fourth DCA determined that the trial court correctly determined that the risk of errors in the NOC fell on the contractor because it was the one that completed the NOC. As to the second argument, the Fourth DCA agreed with the contractor, finding that even if the notice of commencement was insufficient, the trial court erred in refusing to enforce the lien because an insufficient notice of commencement does not invalidate a properly recorded and served lien. Finally, the Fourth DCA also concluded that the trial court improperly denied the construction lien on the basis that work did not begin within 90 days of the recording of the NOC. Specifically the appellate court found that the contractor satisfied this requirement by taking measurements of the windows and ordering the windows within 90 days after the contract was signed. Accordingly, the trial court reversed the judgment in favor of Moore as to the lien foreclosure count and the quiet title counterclaim and remanded for further proceedings.
About the Author:
Jason Lambert is a Florida Board Certified Construction Attorney and Partner in the Construction Industry Practice Group at Hill Ward Henderson, in Tampa, Florida. He is also the founder and chief contributor to the Hammer & Gavel construction law blog. Jason focuses his practice on representing contractors, subcontractors, and materials suppliers throughout the state of Florida. Before law school, Jason spent a decade working in the construction industry, primarily as a project manager and operations director for both new construction and remodeling. He can be reached at jason.lambert@hwhlaw.com or 813-227-8495.
