In Fettig’s Constr., Inc. v. Paradise Properties & Interiors LLC, the Florida District Court of Appeals, Fourth District, analyzed whether absence of a notice of commencement is a prerequisite to a contractor’s ability to serve its claim of construction lien on the last known address of the party to be served pursuant to the requirements of section 713.18(3)(a), Florida Statutes (2019). 2020 WL 4667654, at *1 (Fla. Dist. Ct. App. Aug. 12, 2020). The appellate court granted the writ of certiorari brought by the Petitioner Fettig’s Construction, Inc. (“Fettig’s”), which challenged the trial court’s partial final judgment dismissing Fettig’s lien foreclosure action and discharging its recorded lis pendens and lien. The trial court’s dismissal was based on its finding that Fettig’s claim was barred by the statute of limitations because he “failed to properly serve the claim of lien or contractor’s affidavit in accordance with the provisions of section 713.18, Florida Statutes (2019).”
Fettig’s was hired as a general contractor to renovate premises owned by the Respondent Paradise Properties & Interiors, LLC (“Paradise Properties”) in January 2018. On January 19, 2018, Fettig’s recorded its notice of commencement, listing the owners as Jackie and Keith Schaeffer of Paradise Properties and the property address as 628 Banyan Rd, Vero Beach, Florida. Fettig’s recorded its claim of lien on May 1, 2018. Fettig’s then sent its claim of lien on May 3, 2018 by both certified and regular mail.
The mailings were sent to two addresses, neither of which were the address listed in Fettig’s notice of commencement. The regular mailings were not returned. The certified mailings, however, were returned as undeliverable.
The first address was a Vero Beach address that had been identified as Paradise Properties’ mailing address with the Indian River County Property Appraiser. The second address was an Orlando address that Paradise Properties held out to the State of Florida as being its mailing address, registered agent’s address, and the mailing address for its two members.
In April 2019, Fettig’s brought suit against Paradise Properties for breach of contract, unjust enrichment, and foreclosure of its construction lien. Paradise Properties eventually moved for summary judgment as to the lien foreclosure claim. Paradise Properties argued neither the lien nor the Contractor’s affidavit were delivered to it or posted on the property as required by section 713.08, Florida Statutes (2019). The trial court granted summary judgment, discharged the lien, and dismissed the lien foreclosure action.
The Florida District Court of Appeals, Fourth District, quashed the trial court’s order and remanded the case for further review. The appellate court noted that section 713.08 governs the filing of construction lien claims and requires service of the claim on the owner in accordance with the methods set forth in section 713.18. The appellate court’s analysis of the timeliness of the claim, and whether service was proper, hinged on the interpretation of section 713.18(3)(a).
Fettig’s argued subsection (3)(a)1 provides three alternative methods for service. Thus, it contended its claim was timely because it was served within fifteen days of its recording, the certified mailings were returned as undeliverable, and the claim of lien was sent to the last known address(es) of the corporation. Alternatively, Paradise Properties argued the alternative methods found in subsection (3)(a)1, which provide for service on the address on the building permit or the last known address of the person to be served, are available only when a notice of commencement has not been filed.
The appellate court concluded that the statute permitted service on the last known address of the person to be served whether a notice of commencement was filed or not. The appellate court quashed the partial final judgment based on the lower court’s “clearly erroneous construction of the statute” and remanded the case to determine whether the address used actually constituted Paradise Properties’ last known address. Florida contractors should take note of the decision by the Florida District Court of Appeals, Fourth District, as its interpretation of 713.18(3)(a) expands the available methods for effectuating service under the statute.