Key Points

  • A Florida claim of lien recorded within 90 days of the actual final furnishing of work is timely even if the lien misstates the completion date.
  • Amendments recorded after the 90-day window closes are nullities, but the original lien survives the failure to amend.
  • A misstated date must be evaluated under the safe-harbor provisions of section 713.08(3) and (4)(a), which ask whether the error prejudiced or adversely affected the owner.
  • The relevant prejudice is prejudice caused by the error, not the burden the lien itself places on the property.
  • The Fourth DCA reversed summary judgment for the homeowners and left the prejudice determination and all fee issues, including the $80,000 award, to the trial court on remand.

A Florida appeals court ruled Wednesday that a subcontractor's construction lien recorded within the 90-day legal deadline was timely even though the lien listed the wrong completion date, reversing a judgment that voided the lien and awarded two homeowners $80,000 in attorney's fees.

A three-judge panel of the Fourth District Court of Appeal held that the trial court should not have thrown out the lien that Coastal Building Contractors LLC recorded against the home of Abraham Calixte and Dorothy Drouillard, also known as Dorothy Calixte. Judge Lott wrote the unanimous opinion, joined by Judges Levine and Klingensmith.

Under the decision, whether a Florida construction lien is timely depends on when the work actually ended, not on the date written in the lien. A mistaken date is instead tested under the statute's two "safe harbor" provisions, which preserve a lien despite errors that did not harm the owner, and the panel sent the case back for the trial court to decide whether this error did.

The Calixtes hired a general contractor, Port St. Lucie Properties Inc., to build a single-family house, and that company subcontracted the masonry, carpentry and slab work to Coastal, according to the opinion. The project was delayed because drywall materials were unavailable, and the remaining work was finished on or about Dec. 1, 2022. Coastal acknowledged that some evidence pointed to Dec. 9 or Dec. 20, a dispute the court called immaterial because each date fell within 90 days of the lien's recording.

After a payment dispute, Coastal on Feb. 16, 2023, recorded a claim of lien. The document stated that the work was completed Oct. 21, 2022, which put the filing outside the 90-day window. The notice "appeared on its face untimely, even though it was actually timely," Judge Lott wrote.

Coastal tried to fix the error in September and October 2023, recording an amended claim of lien and a second amended claim of lien that listed a Dec. 20, 2022, completion date. The Calixtes sued for slander of title and for a declaratory judgment invalidating the lien. They deposited cash security to secure the second amended lien, and Coastal filed a consolidated foreclosure action objecting to the deposit.

Judge Steven J. Levin of the St. Lucie County Circuit Court entered summary judgment for the homeowners. The trial court reasoned that the original lien was untimely on its face and that the amendments came too late to cure it, and it alternatively found that the lien prejudiced the Calixtes by impairing their property rights. The court released the cash deposit and awarded the Calixtes $80,000 in fees.

Section 713.08 of the Florida Statutes requires a claim of lien to state when the first and last labor, services or materials were furnished. It bars recording "later than 90 days after the final furnishing of the labor or services or materials by the lienor," and it permits amendments only during that same 90-day period.

The appeals court agreed with part of the trial court's reasoning. Coastal's "attempts to amend the lien months down the road were improper and thus those amended notices are nullities," Judge Lott wrote.

But the panel held that the trial court erred in treating the original, unamended lien as "fatally deficient and incurable." The opinion said it was undisputed that the final work came within 90 days of recording. "Even though error caused the lien to appear untimely, the question of timeliness turns on whether the lien was, in fact, untimely," the court held.

That left the safe harbors. One provides that "the negligent inclusion or omission of any information in the claim of lien which has not prejudiced the owner does not constitute a default that operates to defeat an otherwise valid lien." The other lets a trial court, in its discretion, enforce a lien against anyone "who has not been adversely affected by such omission or error." The trial court never reached that question, the panel said, because it treated the failure to amend as the end of the inquiry.

The panel also rejected the trial court's alternative finding that the homeowners were harmed because the lien encumbered their property. That finding asked the wrong question about what caused the harm, Judge Lott wrote: "Of course the lien prejudiced the Calixtes: that's the point of a lien."

The proper test, the court held, compares what happened with "a counterfactual world where no error occurred and the correct information was included." The opinion asked whether the wrong date kept the Calixtes from understanding the claim and defending against it, or whether they relied on it in good faith. Or, Judge Lott wrote, "did they know the information was wrong, cross their fingers, and hope they had drawn bank error in their favor?"

The panel said the trial court erred in distinguishing O'Brian Associates of Orlando Inc. v. Tully, a 1966 Fourth District decision under a substantively similar statute that the opinion called "materially similar." In that case, the court barred a late amendment to a facially untimely lien but held that the lien could still be enforced if the owners had not been adversely affected by the error, a question it left for an evidentiary hearing.

The Calixtes, who represented themselves, did not file a brief in the appeal. In a footnote, the court said the lien's timeliness "appears to be undisputed" and instructed that if the trial court finds a genuine factual dispute over whether the work was completed within 90 days of recording, it "should proceed accordingly."

Lawyers for Coastal included Lawrence S. Klitzman of Klitzman Law Group PLLC. Abraham Calixte and Dorothy Drouillard appeared pro se.

The panel reversed and remanded for the trial court to decide, in its discretion, whether the wrong date prejudiced the homeowners; if it did not, the opinion said, the lien is valid. The court left "all issues pertaining to fees" for the trial court on remand. The decision, in appeals Nos. 4D2025-2593 and 4D2025-3611, is not final until disposition of any timely motion for rehearing.