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concluding that the filing of an amended lien to increase the lien amount did not toll the time for calculating the lawsuit filing deadline
Summary of this case from Mgmt. & Consulting, Inc. v. Tech Elec., Inc.Opinion
No. 94-0773.
January 20, 1995.
Appeal from the Circuit Court, Orange County, Rom W. Powell, J.
Michael J. Appleton, Winter Park, for appellant.
Ted B. Edwards of Smith, Mackinnon, Harris, Greeley, Bowdoin Edwards, P.A., Orlando, for appellee Intern. Station.
No appearance for appellee Stewart Gilman Co., Inc.
Hoepner Associates, Inc. (Hoepner), appeals a final order involuntarily dismissing its action to foreclose a construction lien. We affirm.
Hoepner, a professional engineering company, executed a contract in which it agreed to perform site engineering services on property owned by appellee, Stewart Gilman Company. Hoepner thereafter was paid $31,750 pursuant to the contract, but Hoepner alleged that it was due the additional sum of $19,250. Hoepner recorded its original claim of lien on August 27, 1991, and then recorded an amended claim of lien on September 24, 1991. Hoepner filed suit on the lien on September 24, 1992. At the close of Hoepner's case at trial, appellee moved for involuntary dismissal, claiming that dismissal was required because Hoepner failed to institute suit on its amended claim of lien within one year of the date of recording its original claim of lien. The trial court granted the motion and entered an order of dismissal, concluding that Hoepner's recording of its amended claim of lien did not toll the one-year time period within which suit on the lien was required to be instituted and, therefore, dismissal was required because the lawsuit was not filed before August 27, 1992. Hoepner has appealed this ruling.
The amended claim of lien merely increased the amount claimed to be owed from $19,150 to $19,250 and, thus, the issue of good faith reliance by any party is not presented in this case. See § 713.08(4)(b), Fla. Stat. (1991).
See § 713.22(1), Fla. Stat. (1991) (no lien shall continue for a longer period than one year after the claim of lien has been recorded unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction).
It is undisputed that the instant lawsuit was commenced within one year of the recording of Hoepner's amended claim of lien but more than one year (approximately 13 months) after the recording of its original claim of lien. The issue in this case is a specific issue of law; namely, whether the statutory one-year time period within which a lienor is required to institute suit on its amended claim of lien commences upon the recording of the original claim of lien or upon the recording of the amended claim of lien. Upon review of case law in this area, we conclude that the trial court properly ruled that the filing deadline must be calculated from the date the original claim of lien was recorded.
In Jack Stilson Co. v. Caloosa Bayview Corp., 278 So.2d 282 (Fla. 1973), the supreme court noted that, although the lien statutes authorize a correction or a change by way of an amendment to an original claim of lien, such amendment does not toll the statutory time to institute suit:
The lienor on a given claim has only one lien on that claim which he can pursue within the statute. Of course if there be another separate claim (not merely the same claim corrected by amendment) then a separate lien exists for such independent or different "claim of lien", and a right of separate suit thereon. The term might be applied in the matter of claims of lien: "one claim, one lien".Id. at 283-84 (emphasis in original).
Our court later relied upon Stilson in deciding Foy v. Mangum, 528 So.2d 1331 (Fla. 5th DCA 1988). In that case, Foy entered into a contract with Pope, the Mangums' general contractor, to provide all labor necessary for the framing work needed on the Mangums' new residence. On October 17, 1983, Pope abandoned the project, but Foy continued to work an additional 11 days. Thereafter, on November 4, 1983, Foy recorded his original claim of lien. On November 23, 1983, the Mangums filed an affidavit of intent to recommence construction on the residence. In response and in accordance with the lien law, Foy recorded a timely amended claim of lien on December 19, 1983. Approximately one year later, on December 10, 1984, Foy instituted suit on his amended claim of lien; however, the trial court entered judgment in favor of the Mangums, concluding that Foy's lawsuit was barred because the suit was commenced more than one year after the recording of the original claim of lien. Foy appealed, but this court affirmed, reiterating that a lienor has only one lien which he can pursue under the lien law, and that although the lienor may correct or amend his lien such amendment does not toll the statutorily imposed time period within which suit must be commenced.
The construction lien law required a claimant to refile a claim of lien within 30 days after an owner filed a notice of recommencement of construction and provided that the failure to do so resulted in the loss of priority as to claimants filing after the 30-day period. § 713.07(4), Fla. Stat. (1983).
In the instant case, the trial court properly relied upon these two cases in ruling that Hoepner's recording of its amended claim of lien did not toll the time period within which Hoepner was required to institute suit in this case. Accordingly, the trial court's order dismissing Hoepner's action to foreclose its construction lien must be affirmed because the evidence is undisputed that Hoepner failed to institute suit within one year from the date its original claim of lien was recorded.
AFFIRMED.
HARRIS, C.J., and GOSHORN, J., concur.