IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC JURISDICTIONAL BRIEF OF APPELLEES

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC TH DCA CASE NO.: 4D L.T. NO.: AP AY PIERSON D. CONSTRUCTION, INC., A Florida corporation vs. Appellant MARTIN YUDELL and JUDITH YUDELL, Appellees. JURISDICTIONAL BRIEF OF APPELLEES Morris G. (Skip) Miller, Esq. ADORNO & YOSS, P.A Forum Place Building Florida Bar No:

2 TABLE OF CONTENTS Page TABLE OF CITATIONS i INTRODUCTION STATEMENT OF THE CASE AND OF THE FACTS SUMMARY OF ARGUMENT ARGUMENT ON ISSUE PRESENTED FOR REVIEW THE DECISION OF THE 4 TH DISTRICT COURT OF APPEAL IN THIS MATTER DOES NOT CONFLICT WITH ANY DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

3 TABLE OF CITATIONS CASES Pages Coquina, Ltd. v. Nicholson Cabinet Co., 509 So. 2d , 5 (Fla. 1st DCA 1987) Holding Electric, Inc. v. Roberts, 530 So. 2d 301 (Fla. 1988) 2, 4, 5 STATUTES AND COURT RULES Fla. R. App. P (a)(2)(A)(iv) 1,6 Fla. R. App. P (a)(2) 8 Section (3)(d), Fla. Stat. 2, 3, 5 Section , Fla. Stat. 2 Section (1), Fla. Stat. 2, 3, 4 Section (2), Fla. Stat. 2, 3,4, 5 i

4 INTRODUCTION This matter is a petition by the Plaintiff/Appellant PIERSON D. CONSTRUCTION, INC. ( Appellant ) against Defendants/Appellees MARTIN YUDELL and JUDITH YUDELL ( Appellees ) to invoke the discretionary jurisdiction of this Court.pursuant to Fla. R. App. P (a)(2)(A)(iv), with respect to the opinion filed by the 4 th District Court of Appeal on December 31, 2003 in this matter, affirming the order of the trial court dismissing the case (the 4 th DCA Opinion ). The 4 th DCA Opinion was reported at 863 So. 2d 413, and is in the Appendix to Appellant s Brief on Jurisdiction. The nature of the case is a complaint filed by the Appellant to foreclose a mechanics lien on the Appellees residence. STATEMENT OF THE CASE AND OF THE FACTS The Statement of the Case and of the Facts are accurately set forth in the 4 th DCA Opinion. 1

5 SUMMARY OF ARGUMENT The 4 th DCA Opinion does not conflict with any decision of this Court or of any other district court of appeal, including but not limited to the cases of Holding Electric, Inc. v. Roberts, 530 So. 2d 301 (Fla. 1988) or Coquina, Ltd. v. Nicholson Cabinet Co., 509 So. 2d 1344 (Fla. 1st DCA 1987) cited by the Appellant. The issue that is common to all of these cases is whether a contractor must provide a property owner with the contractor s final affidavit required by Section (3)(d), Fla. Stat., within the limitation periods contained in Section , Fla. Stat. in order to maintain a cause of action. Each case answers that question in the affirmative, whether the limitation period is one year pursuant to Section (1), Fla. Stat. (Holding Electric, supra), or has been shortened to 60 days by the owner filing a notice of contest of lien pursuant to Section (2), Fla. Stat. (the 4 th DCA Opinion and Coquina, Ltd., supra). Therefore, there is no conflict between the 4 th DCA Opinion and either Holding Electric or Coquina, Ltd.. 2

6 ARGUMENT THE DECISION OF THE 4 TH DISTRICT COURT OF APPEAL IN THIS MATTER DOES NOT CONFLICT WITH ANY DECISION OF THIS COURT OR ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW The issue before the trial court and the 4 th DCA was whether the Appellant complied with the procedures and time deadlines contained in Chapter 713, Florida Statutes for instituting an action. Section (1), Fla. Stat., provides that a claim of lien does not continue beyond 1 year unless within that time an action to enforce the lien has been commenced. Section (2), Fla. Stat., provides that the 1 year period is shortened to 60 days where, as here, the owner has filed a Notice of Contest of Lien. Section (3)(d), Fla. Stat., provides that the contractor must deliver to the owner a contractor s final affidavit stating whether lienors under the construction contract have been paid at least 5 days before the owner institutes an action to enforce his or her lien. In this case, the Appellees filed a Notice of Contest of Lien, which had the effect of shortening the time for the Appellant to institute an action from one year to 60 days. The Appellant filed its initial complaint within the 60 days but at that time had not provided the Appellees with the Contractor s Final Affidavit. The Contractor s Final Affidavit was not delivered to the Appellees until well 3

7 after the 60 days had expired, subsequent to which the Appellant filed an amended complaint. The trial court held that the Contractor s Affidavit was untimely because it was not delivered within 60 days of the date the Appellees filed a Notice of Contest of Lien, and dismissed the amended complaint. The 4 th DCA Opinion affirmed, holding that the Contractor s Affidavit must be filed within the 60 day limitation period of Section (2), Fla. Stat. The Appellant argues that this is in conflict with Holding, supra. This position is without merit The issue in Holding was whether a contractor who failed to deliver a contractor s affidavit prior to filing a complaint could file an amended complaint within the one year period contained in Section (1), Fla. Stat. (no notice of contest of lien was filed by the owner) to show delivery of the contractor s affidavit. This Court ruled in the affirmative, so long as the statute of limitations had not run prior to the filing of the amended complaint. Clearly there is no conflict between the 4 th DCA Opinion and Holding. In fact, the 4 th DCA relied on the following language from Holding to support the 4 th DCA Opinion: 4

8 delivery of the contractor s affidavit is not jurisdictional, although it is a prerequisite to maintaining an action and must be completed within the statutory limitation period. 530 So. 2d at 303 (emphasis supplied). The Appellant also argues that the 4 th DCA Opinion conflicts with Coquina, Ltd., supra. This position is also without merit. In Coquina, the issue was whether a lawsuit filed less than five days after the delivery of the contractor s affidavit would be considered timely for purposes of the 60 day limitation contained in Section (2), Fla. Stat if the lawsuit was filed within the 60 days. The court found that the lawsuit had been timely filed, notwithstanding the noncompliance with Section (3)(d), Fla. Stat., but specifically based its holding on the fact that the contractor s final affidavit was served prior to the end of the 60 day period. Again, Coquina is totally consistent with the 4 th DCA Opinion and Holding, supra, as to the requirement that the contractor s final affidavit be delivered within the applicable statutory period. 5

9 CONCLUSION For the foregoing reasons, under Fla. R. App. P (a)(2)(A)(iv) this Court does not have jurisdiction to hear this appeal, and therefore this appeal should be dismissed. MORRIS G. (SKIP) MILLER, ESQ. ADORNO & YOSS, P.A Forum Way, Building (telephone) (fax) Florida Bar # MICHAEL R. BAKST, ESQ. ELK, BANKIER, CHRISTU & BAKST 222 Lakeview Avenue, Suite (telephone) (fax) Florida Bar # By: Morris G. (Skip) Miller, Esq. Co- Counsel for Appellees Martin and Judith Yudell 6

10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by U.S. Mail to Randall L. Leshin, Esq., 712 E. McNab Road, Pompano Beach, FL 33060, this 18th day of March, MORRIS G. (SKIP) MILLER, ESQ. ADORNO & YOSS, P.A Forum Way, Building (telephone) (fax) Florida Bar # MICHAEL R. BAKST, ESQ. ELK, BANKIER, CHRISTU & BAKST 222 Lakeview Avenue, Suite (telephone) (fax) Florida Bar # By: Morris G. (Skip) Miller, Esq. Co- Counsel for Appellees Martin and Judith Yudell 7

11 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that foregoing brief complies with the font requirements of Fla. R. App. P (a)(2). Morris G. (Skip) Miller, ESQ. ADORNO & YOSS, P.A Forum Place, Building Fla. Bar #