Opinion
Case No. 95-3586
Opinion filed March 20, 1997. Rehearing Denied June 18, 1997.
An appeal from the circuit court for Escambia County. John P. Kuder, Judge.
Bruce D. Partington of Clark, Partington, Hart, Larry, Bond, Stackhouse Stone, Pensacola, Attorney for Appellant.
Robert A. Emmanuel of Emmanuel, Sheppard Condon, Pensacola, Attorney for Appellee.
We affirm the judgment below. Appellant Craftsman Contractors, Inc.'s ("Craftsman") final affidavit stated that "all lienors, subcontractors, and materialmen" had been paid in full. It is undisputed that subcontractor McElhany Electric, although admittedly unpaid, was not listed in the final affidavit. Craftsman argues, however, that section 713.06(3)(d)(1), Florida Statutes, only requires that the final affidavit list lienors and that McElhany was not a lienor since it had failed to file the notice to owner required by section 713.06(2)(a), Florida Statutes. Our review of chapter 713, however, shows that the term "lienor" is not so limited as Craftsman contends.
A review of the entire chapter leads to the conclusion that one may be a "lienor" under that chapter without giving the notice required by section 713.06(2)(a). Florida Statutes section 713.01(16) defines "lienor" as a contractor, subcontractor or laborer who "has a lien or prospective lien upon real property under this part . . . ." In addition, the legislature has defined "lienor giving notice" as "any lienor . . . who has duly and timely served a notice to the owner . . . ." § 713.01(17), Fla. Stat. Section 713.06(3)(d)2 sets out the procedure for payment by an owner and refers to "lienors" who have and have not given notice to an owner. In view of the entire statutory scheme, we conclude McElhany's failure to file a notice to owner does not remove it from the definition of "lienor" for purposes of section 713.06(3)(d)(1).
This interpretation of the term "lienor" is consistent with the primary purpose of section 713.06(3)(d)(1), which is to protect the owner from claims of subcontractors and materialmen that remain unpaid at the time of final payment to the general contractor.
Accordingly, we affirm the trial court's order finding that Craftsman's lien was unenforceable because it failed to properly list all lienors who had not been paid in full on its final contractor's affidavit.
BOOTH and JOANOS, JJ., CONCUR; BENTON, J., DISSENTS WITH WRITTEN OPINION.
In order to perfect a lien on real property under the Construction Lien Law, a contractor must apprise the owner of any debts owed other (sub)contractors (including engineers, architects, and certain other professionals), laborers, or materialmen "under his direct contract" whose services, labor, or materials may give (or have given) rise to a lien because they helped discharge the contractor's undertaking to improve the real property. The contractor has to
give to the owner an affidavit stating, if that be the fact, that all lienors under his direct contract have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due . . . .
§ 713.06(3)(d)1., Fla. Stat. (1993). Like a contractor in privity with the owner, other "lienors" have certain statutorily specified security rights. The contractor's affidavit must identify any "lienors under his direct contract" whose liens — perfected or prospective — have not been fully satisfied. If there are none, the contractor is "required to swear under oath that he has paid his subcontractors who may have liens on the project." Climatrol Corp. v. Kent, 370 So.2d 394, 395 (Fla. 3d DCA 1979)(emphasis supplied).
The affidavit Craftsman Contractors, Inc. (Craftsman) gave Mr. Brown did not mention one of its subcontractors, McElhany Electric (McElhany). This omission was immaterial, even though Craftsman had a contingent agreement to pay McElhany more for work it had done. McElhany Electric was not a "lienor who ha[d] not been paid in full," § 713.06(3)(d)1., Fla. Stat. (1993), because McElhany was not a "lienor": It had neither a lien nor — because it never gave notice to the owner — a prospective lien. "[A] claimant not in privity with the owner who did not perfect lien rights by giving proper notice [to the owner is] completely without a remedy under the mechanics' lien statute." Peninsular Supply Co. v. C.B. Day Realty of Fla., Inc., 423 So.2d 500, 502 (Fla. 3d DCA 1982).
In defining a "lienor" as one who "has a lien or prospective lien upon real property under this part," § 713.01(16), Fla. Stat. (1993), the Construction Lien Law excludes non-lienors who have no prospect of a lien; and relieves the contractor making an affidavit of any duty to "show the name" in the affidavit of any person unable to perfect a lien. True, as the majority opinion points out, the statute contemplates "`lienors' who . . . have not given notice to an owner." Ante, at __. For purposes of the Construction Lien Law, however, "lienors" (other than laborers) who have not yet given notice to an owner are by definition limited to (sub)contractors or materialmen who are still able to give the required notice to owner (and meet other prerequisites) for "lien[s] upon real property under this part." § 713.01(16), Fla. Stat. (1993). Here, time for McElhany to give the notice required to perfect a lien had long since expired when the contractor's affidavit was executed. The owner was at no risk that his property would be encumbered with a duplicative lien. The trial court's failure to enforce the lien was a windfall for him.