LEGAL COMPLEXITIES WHEN THERE IS A FAILED PROJECT

heavy civil photoIberiabank v. Coconut 41, LLC, 2013 WL 6061833 (M.D.Fla. 2013) is a new case involving a failed mixed-use master development (subdivision) that illustrates some of the complexities when a construction project goes bad. It is a great case discussing aspects of Florida’s Lien Law (such as liens for subdivision improvements, single claim of lien, fraudulent liens) that are important for all construction participants. It is also a great case that discusses an unjust enrichment claim for unpaid work and a slander of title claim due to a fraudulently recorded lien. While the facts and issues are lengthy, there are numerous take-aways from this case that should not be ignored and are pointed out at the end of this article.

 

 

I. The Failed Development

 

 

In this case, a developer purchased approximately 46 acres of land. The land was intended to be developed into a master development. The developer sold approximately 14 acres referred to Development Area 2 to HG Coconut. The developer was responsible for installing the necessary infrastructure outside of Development Area 2 that would be required to develop both the developer’s land and Development Area 2. (This included, among other things, widening a road and sanitary-sewer work.)

 

To construct the infrastructure, the developer hired a heavy civil contractor. Two contracts were executed. The first contract was for on-site infrastructure improvements to the developer’s land. The second contract was for off-site infrastructure improvements such as the infrastructure improvements needed to develop Development Area 2. (There was no contract between the contractor and HG Coconut, the owner of Development Area 2.)

 

Because of nonpayment, the contractor recorded a single claim of lien. The lien included Development Area 2 (owned by HG Coconut). Remember, the contractor did not have a contract with the owner of Development Area 2.

 

II. Claims against HG Coconut – the Owner of Development Area 2 – and HG Coconut’s Claims against the Contractor

 

 

The contractor filed a lawsuit and asserted an unjust enrichment claim and lien foreclosure claim against HG Coconut–the owner of Development Area 2.  HG Coconut asserted a fraudulent lien claim and slander of title claim against the contractor.

 

 

A. Unjust Enrichment

 

The contractor contended that it benefited HG Coconut (a party it did not have a contract with) through infrastructure work it performed that provided value to Development Area 2. HG Coconut argued that the unjust enrichment claim should be barred because the contractor’s work was incomplete—it did not finish all of its work. The Middle District dismissed this argument equating recovery under an unjust enrichment theory to that of recovery when a contractor substantially performs. When a contractor substantially performs / completes its work, it is entitled to the full contract price minus the owner’s right to recover damages due to the contractor’s failure to render full performance. Since the contractor substantially completed its work subject to the unjust enrichment claim that provided a benefit to Development Area 2, the Middle District held that the contractor was entitled to the fair market value of the work minus HG Coconut’s offset for the remaining work.

 

B. Lien Foreclosure and Fraudulent Lien

 

The contractor argued that it was not paid for work performed under its off-site contract (the infrastructure work outside of developer’s land that was also needed to develop HG Coconut’s Development Area 2). HG Coconut asserted an affirmative claim against the contractor arguing that the contractor recorded a fraudulent lien.

 

The Middle District entered judgment against the contractor on its lien foreclosure claim. The fraudulent lien claim asserted by HG Coconut establishes the problems under Florida’s Lien Law with the contractor recording a lien that included Development Area 2.

 

Contractor’s performing subdivision improvements are entitled to certain protections under Florida’s Lien Law. Florida Statute s. 713.04(1) provides:

 

Any lienor who, regardless of privity, performs services or furnishes material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements shall be entitled to a lien on the real property for any money that is owed to her or him for her or his services or materials furnished in accordance with her or his contract and the direct contract. The total amount of liens allowed under this section shall not exceed the amount of the direct contract under which the lienor furnishes labor, materials, or services. The work of making real property suitable as the site of an improvement shall include but shall not be limited to the grading, leveling, excavating, and filling of land, including the furnishing of fill soil; the grading and paving of streets, curbs, and sidewalks; the construction of ditches and other area drainage facilities; the laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and the construction of canals and shall also include the altering, repairing, and redoing of all these things. When the services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land, the cost of the services and materials, if unpaid, may be the basis for a lien upon the abutting land. When the services or materials are placed upon land under contract with the owner of the land who subsequently dedicates parts of the land to public use, the person furnishing the services or materials placed upon the dedicated land shall be entitled to a lien upon the land abutting the dedicated land for the unpaid cost of the services and materials placed upon the dedicated land, or in the case of improvements that serve or benefit real property that is divided by the improvements, to a lien upon each abutting part for the equitable part of the full amount due and owing. If the part of the cost to be borne by each parcel of the land subject to the same lien is not specified in the contract, it shall be prorated equitably among the parcels served or benefited. No lien under this section shall be acquired until a claim of lien is recorded. No notice of commencement shall be filed for liens under this section. No lienor shall be required to serve a notice to owner for liens under this section.”

 

 

However, just because a contractor performing subdivision improvements has certain lien rights, does not mean it can record a fraudulent lien. A fraudulent lien is defined in Florida Statute s. 713.31(2)(a):

 

Any lien asserted under this part in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.”

 

If a lien is deemed fraudulent, it is unenforceable. Fla.Stat. s. 713.31(2)(b). Additionally, an owner (or contractor, subcontractor, etc. that suffers damage from a fraudulent lien) can assert a claim for damages against the lienor for recording the fraudulent lien:

 

An owner against whose interest in real property a fraudulent lien is filed, or any contractor, subcontractor, or sub-subcontractor who suffers damages as a result of the filing of the fraudulent lien, shall have a right of action for damages occasioned thereby. The action may be instituted independently of any other action, or in connection with a summons to show cause under s. 713.21, or as a counterclaim or cross-claim to any action to enforce or to determine the validity of the lien. The prevailing party in an action under this paragraph may recover reasonable attorney’s fees and costs. If the lienor who files a fraudulent lien is not the prevailing party, the lienor shall be liable to the owner or the defrauded party who prevails in an action under this subsection in damages, which shall include court costs, clerk’s fees, a reasonable attorney’s fee and costs for services in securing the discharge of the lien, the amount of any premium for a bond given to obtain the discharge of the lien, interest on any money deposited for the purpose of discharging the lien, and punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.”

Fla.Stat. 713.31(2)(c).

 

 

A lien will be fraudulent if it contains willfully exaggerated amounts which can include liening for amounts that are NOT properly lienable. See Coconut 41, supra, at *15. This is why it is imperative to consult an attorney before recording a claim of lien! Not spending the due diligence in advising an attorney of the facts and the accounting comprising the amount you want to lien for can result in a fraudulent lien. Also, because a fraudulent lien contains a willful exaggeration of amounts, the lienor’s consultation with its lawyer is a factor a court can consider to determine that there was no willful exaggeration. Id. “[A] lienor can rely on consultation with counsel prior to filing the claim of lien as evidence of good faith only in the event of a full and complete disclosure of the pertinent facts to the attorney from whom the advice is sought before the lienor acts on the advice. Consultation with an attorney is not entitled to any legal weight if the contractor did not disclose all pertinent facts to the attorney.” Id. quoting Sharrard v. Ligon, 892 So.2d 1092, 1097 (Fla. 2d DCA 2004). Notably, this means that if a lienor is using this defense to counteract a fraudulent lien claim /defense, certain discussions with counsel must be waived to establish the consultation and advice to show the lien and amount was recorded and compiled in good faith.

 

Here, the contractor recorded a single claim of lien that included Development Area 2. However, the entire lien amount did NOT pertain to infrastructure improving Development Area 2.

 

The Middle District pointed out that a single claim of lien was not proper because the property liened was owned by different owners. Florida Statute s. 713.09 discusses the concept of a single claim of lien:

 

A lienor is required to record only one claim of lien covering his or her entire demand against the real property when the amount demanded is for labor or services or material furnished for more than one improvement under the same direct contract. The single claim of lien is sufficient even though the improvement is for one or more improvements located on separate lots, parcels, or tracts of land. If materials to be used on one or more improvements on separate lots, parcels, or tracts of land under one direct contract are delivered by a lienor to a place designated by the person with whom the materialman contracted, other than the site of the improvement, the delivery to the place designated is prima facie evidence of delivery to the site of the improvement and incorporation in the improvement. The single claim of lien may be limited to a part of multiple lots, parcels, or tracts of land and their improvements or may cover all of the lots, parcels, or tracts of land and improvements. In each claim of lien under this section, the owner under the direct contract must be the same person for all lots, parcels, or tracts of land against which a single claim of lien is recorded.”

 

For this reason, the Middle District found that the lien was willfully exaggerated. In other words, the contractor acknowledged that of its approximate $195,000 lien, the pro-rata share for work done on Development Area 2 was only approximately $61,000; thus, there was an exaggeration of over $100,000 in the lien that covered Development Area 2. “The Claim of Lien was for the total amount owing for offsite work even though Westwind Contracting knew that only a substantially lesser amount was apportionable to HG Coconut.” Coconut 41, supra, at *16. Although the contractor tried to counteract the fraudulent lien by testifying that it provided its counsel with certain information, there was no testimony that it advised counsel that the lien it wanted recorded included land owned by someone other than the entity that hired it.

 

Now, even though the lien was deemed unenforceable, HG Coconut still needed to prove its damages due to the fraudulent lien. The Middle District, however, found that HG Coconut failed to prove such damages. Remember, the damages are included in Section 713.21: “court costs, clerk’s fees, a reasonable attorney’s fee and costs for services in securing the discharge of the lien, the amount of any premium for a bond given to obtain the discharge of the lien, interest on any money deposited for the purpose of discharging the lien, and punitive damages in an amount not exceeding the difference between the amount claimed by the lienor to be due or to become due and the amount actually due or to become due.” HG Coconut did NOT put any evidence of the court costs, reasonable attorneys’ fees, bond premium, or punitive damages.

 

C. Slander of Title

 

In addition to asserting an affirmative claim for fraudulent lien, HG Coconut also asserted a claim against the contractor for slander of title based on the lien. This is a common claim when a party believes a lien was improperly recorded against their property. The elements of slander of title in Florida are: 1) a falsehood, 2) that has been published or communicated to a third party, 3) the defendant knew or should have known the falsehood would result in inducing others not to deal with the plaintiff, 4) the falsehood does result in others not dealing with the plaintiff, and 5) actual and/or special damages (inclusive of attorneys’ fees) are proximately caused by the falsehood. Coconut 41, supra, at *17 quoting McAllister v. Breakers Seville Ass’n, Inc., 981 So.2d 566, 574 (Fla. 4th DCA 2008). However, even if all of the elements above are proven, a defense to slander of title is good faith. Coconut 41, supra, at *18. This defense is important because good faith raises a privilege and shifts the burden to the plaintiff asserting the claim to prove actual malice in order to recover under a slander of title theory of liability. Id. quoting McAllister v. Breakers Seville Ass’n, Inc., 981 So.2d 566, 574 (Fla. 4th DCA 2008).

 

Here, the court did not need to delve into whether there was actual malice because HG Coconut did not prove the elements of slander of title. In particular, there was no evidence that the lien caused or induced anyone not to deal with HG Coconut or that the contractor should have known the lien would have that effect. Further, there was no evidence that HG Coconut incurred any actual and/or special damages caused by the lien. While HG Coconut clearly incurred attorneys’ fees, it did not put on any evidence as to the amount of fees it incurred.

 

III.  Important Take-Aways

 

Below are important points to take-away from this case:

 

  • Unjust enrichment is a claim that can be asserted if a contractor is not in contractual privity with the owner of the land and work was knowingly performed that conferred a benefit to the owner’s land
  • An owner can offset damages in an unjust enrichment claim by asserting as a defense that the work was incomplete/ the contractor failed to fully perform its work
  • A notice to owner is not required for subdivision improvements
  •  If a lien for subdivision improvements includes multiple parcels of land, it shall be prorated among the parcels (if not otherwise stated in the contract)
  • A single claim of lien can cover different land/ parcels if the owner is the same person
  • If there are multiple contracts, there should be separate liens for each contract (even if with the same owner)
  • A fraudulent lien includes a willful exaggeration and can include amounts not properly lienable
  • A party asserting a fraudulent lien needs to present evidence of its damages: attorneys’ fees, court costs, bond transfer costs, punitive damages, etc. to be entitled to damages due to the fraudulent lien
  • Consultation will a lawyer is a defense to a fraudulent lien but all of the important communications with the lawyer regarding the formation and compilation of the lien must be waived and must come into evidence to establish the good faith basis of the lien and lien amount
  • Slander of title is a difficult claim to prove based on a construction lien; the plaintiff must show defendant knew the lien would result in third parties not dealing with the plaintiff and, in fact, third parties did not deal with plaintiff because of the lien
  • A plaintiff in a slander of title action must prove its actual and/or special damages and special damages can include attorneys’ fees
  • A defendant in a slander of title action should assert good faith as a defense which would shift the burden to the plaintiff to prove actual malice

 

For more information on fraudulent liens and slander of title, please see: http://www.floridaconstructionlegalupdates.com/owners-defending-a-lien-especially-a-patently-fraudulent-lien/

 

For more information on liens and lienable items/ amounts, please see: http://www.floridaconstructionlegalupdates.com/the-final-furnishing-date-and-lienable-amounts-for-construction-liens-decided-on-a-case-by-case-basis/

 

For more information on unjust enrichment theories, please see: http://www.floridaconstructionlegalupdates.com/subcontractors-and-unjust-enrichment-claims/

and

http://www.floridaconstructionlegalupdates.com/the-reality-when-the-construction-lender-forecloses/

 

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

OWNERS DEFENDING A LIEN – ESPECIALLY A PATENTLY FRAUDULENT LIEN

UnknownOwners are sometimes in a difficult position and predicament when an entity wrongly records a claim of lien on their real property and forecloses on the lien. The owner is forced to defend the lien foreclosure claim that it contends was improperly filed and fraudulent (or is simply forced to deal with an improperly filed lien encumbering their property). In this circumstance, an owner should not remain on the defensive, but should pursue his/her own affirmative fraudulent lien claim. Another affirmative claim the owner can assert, besides possibly a breach of contract claim, is a slander of title claim in furtherance of exerting some pressure against the entity and person that wrongly filed a lien.  This is especially true if the lien is so patently wrong under Florida’s Lien Law and cases interpreting Florida’s Lien Law.

 

Medellin v. MLA Consulting, Inc. d/b/a UBuildIt, Fla. L. Weekly D2042a (Fla. 5th DCA 2011), is a new case discussing fraudulent liens, slander of title for recording a fraudulent lien, and the awarding of attorneys’ fees to an owner that successfully defends a lien.   These are all important considerations for an owner that is confronted with a patently improper or fraudulent lien as appears to be the exact situation the owners confronted in this case.

 

In Medallin, owners hired a consultant (that was neither a licensed contractor nor architect) to provide consulting services to assist them with the process of constructing their home as their own general contractor.   The consultant was to provide its services in two phases. The first phase was the planning phase which involved a site inspection, budget meeting, plans review, and estimation of construction costs. This phase was completed. The second phase was the construction phase whereby consultant would specifically assist owner in serving as their own general contractor. This phase was not completed.  Instead, the owners terminated the contract with consultant per the terms of the contract before this construction phase began.

 

The consultant recorded a construction lien for the entire amount of the construction planning phase (despite this phase not having started or finished) and filed a lawsuit against the owners to foreclose the lien and for breach of contract. The owners, in turn, countersued consultant for filing a fraudulent lien and the consultant’s president, believed to be the person that signed the lien, for slander of title. The owners apparently (and correctly) argued that the consultant was not an entity that could properly record a construction lien under Florida law and included amounts which were not lienable under the law (such as lost profits).

 

The trial court ruled after a bench trial that the owners did not breach the contract and did not owe consultant any money because they terminated the contract prior to the construction phase and per the contract. The trial court, however, held that consultant did not record a fraudulent lien because it had a good faith reason to think it was owed the full amount of the construction phase fee under the contract. The trial court further held that the president of the consultant was not liable for slander of title and did not award the owners attorneys’ fees for successfully defeating consultant’s lien claim. The owners appealed these rulings to the Fifth District Court of Appeal.

 

Whether the Trial Court Should Have Declared the Lien Fraudulent

 

In a lengthy discussion on this issue, the Fifth District explained in relevant part:

 

We agree with Appellants that a trial court is permitted to conclude that a lien was fraudulently filed where the lien is based on services that cannot support a lien under chapter 713, even if the lienor had a good faith belief that it was owed money by the property owner.  Section 713.31(2) provides, in relevant part:

(a) Any lien asserted under this part in which the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished for the property upon which he or she seeks to impress such lien or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.

(b) [A] minor mistake or error in a claim of lien, or a good faith dispute as to the amount due does not constitute a willful exaggeration that operates to defeat an otherwise valid lien.

***

This court has held that a trial court can determine that a lien is fraudulent notwithstanding a good faith dispute as to the amount owed under a contract. In particular, a trial court can conclude that a lien is fraudulent where the underlying claim does not support a lien under chapter 713. In Onionskin, Inc. v. DeCiccio, 720 So. 2d 257, 257 (Fla. 5th DCA 1998), this court affirmed a trial court’s finding that a lien was willfully exaggerated and, therefore, fraudulent, where the lienor filed a lien based on claims of damages for breach of contract and lost profits because, as the trial court put it, these items are clearly not lienable by any stretch of the imagination.

***

The decisions in Onionskin and Stevens [another case the court relied on] clearly hold that a trial court may or may not find that a lienor willfully exaggerated a lien where the underlying claim does not support a lien under chapter 713. These decisions also make it clear that a good faith dispute as to the amount owed does not necessarily mean as a matter of law that a lien is not fraudulent. Here, UBuildIt [consultant] did not perform labor or services constituting an improvement on Appellants’ [owner] property that would give UBuildIt a right to file a lien on the property. Rather, its lien was based on breach of contract and lost profits, which are not a proper basis for a lien. Appellants correctly assert that a trial court can conclude that a lien was willfully exaggerated where the lienor included claims that were not lienable, notwithstanding the lienor’s good faith belief that he or she is entitled to payment.

***

Accordingly, the trial court misinterpreted section 713.31 when it determined that it could not address Appellants’ arguments that UBuildIt’s lien was willfully exaggerated given that UBuildIt included claims that were not lienable. We must, therefore, reverse that part of the final judgment denying Appellants’ claim for fraudulent lien and remand this case to the trial court to address that issue in a manner consistent with this opinion.”

Medellin (internal quotations and citations omitted) (emphasis added).

 

Although the Fifth District is remanding this case back to the trial court to determine whether the lien should be declared fraudulent, there are two prominent facts that should support this finding.  First, the Fifth District pointed out that consultant really was not a proper liener under Florida’s Lien Law.  Second, the lien included amounts that are not properly lienable, even if consultant was deemed a proper liener (such as lost profits).  Considering both factors together should lead to the reasonable finding that the lien was fraudulent.  Moreover, if consultant was not a proper liener and was never in a position to properly record a lien to begin with, then technically, all amounts included in the lien would be improper and not lienable amounts (because they are amounts coming from an improper lienor).  Thus, by not declaring the lien fraudulent would not be punishing an entity from recording a lien when it did not have a proper legal basis to do so and for including amounts that are not proper amounts to include in a lien.

 

Could the President of Consultant be Liable for Slander of Title

 

The Fifth District found that the president of consultant could be found liable for slander of title in light of the fact that the the lien included amounts which were not properly lienable under the law.

 

While the elements of slander of title still needed to be established, providing owners an avenue to sue the entity and potentially the person that signed the lien for slander of title may give them some personal argument/claim when a lien is so grossly incorrect.   The downside, however, is that by allowing owners to assert personal claims against the person that signed the lien could result in a chilling effect where certain lienors are afraid to lien because they don’t want to be sued personally.  This fear makes sense because the person is not signing the lien in a personal capacity, but in the capacity as the representative of the lienor.

 

Should the Trial Court Have Awarded the Owners’ Attorney Fees for Defeating the Consultant’s Lien Claim

 

Lastly, the Fifth District maintained that the owners should have been awarded their attorneys’ fees as the prevailing parties for defeating the consultant’s lien claim.

 

This ruling is important and makes sense because if an owner is successful and defeats a lien claim, there really is no reason why they should not be deemed the prevailing party for purposes of attorneys’ fees.  Otherwise, there is no repercussion to an entity that records a lien and forecloses , rightfully or wrongfully, if they are not going to be responsible for the owner’s attornesy’ fees if they lose their lien claim outright.

 

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.