IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA PETITIONERS AMENDED JURISDICTIONAL BRIEF 1

IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA RIVIERA ALMERIA RIVERIA BILTMORE, LLC, and RIVIERA SEVILLA, LLC, CASE NO.: SC 11-503 DCA CASE NO: 3D10-1197 L.T. Case No.: 08-2763 CA 40 v. Petitioners, CDC BUILDERS, INC., Respondent. / PETITIONERS AMENDED JURISDICTIONAL BRIEF 1 DANIELS, KASHTAN, DOWNS, ROBERTSON & McGIRNEY Attorneys for Petitioners 3300 Ponce de Leon Boulevard Coral Gables, FL 33134 Tel: (305) 448-7988 Fax:(305) 448-7978 By: RICHARD A. DANIELS, ESQ. Fla. Bar No.: 236896 MADELYN S. LOZANO, ESQ. Fla. Bar. No.: 679135 JEREMY C. DANIELS, ESQ. Fla. Bar No.: 493643 1 Amended as to Service List Only 1

TABLE OF CONTENTS PAGE I. STATEMENT OF CASE..1 II. III. SUMMARY OF ARGUMENT.2 ARGUMENT.3 A. THE THIRD DCA S EXERCISE OF CERTIORARI JURISDICTION CONFLICTS WITH OPINIONS OF OTHER COURTS...3 B. THE THIRD DCA MISAPPLIED LIEN LAW PRECEDENT AND THEREBY CREATED CONFLICT.8 IV. CERTIFICATE OF SERVICE 10 V. CERTIFICATE OF COMPLIANCE 11 2

TABLE OF AUTHORITIES 713.05, Fla. Stat. (2006) 5 713.35, Fla. Stat. (2006) 1, 2, 5, 6, 7 713.345, Fla. Stat. (2006)..1 Allstate v. Kaklamanos, 843 So. 2d 885 (Fla. 2003) 3 Arab Termite & pest Control of Fla v. Jenkins, 409 So. 2d 1039 (Fla. 1942).10 Belmont Lakes, LLC v. Rooney, 980 So.2d 580 (Fla. 2d DCA 2008)..4 CDC Builders, Inc. v. Riviera Almeria, et al, 51 So. 3d 510 (Fla. 3d DCA 2010)..1 Ceco Corp. v. Goldberg, 219 so. 2d 475 (Fla. 3d DCA 1969).8 Custer Medical Center v. United Automobile, 2010 WL 4340809 (Fla. 2010).6 Haines City Community v. Heggs, 658 So. 2d 523 (Fla. 1995) 6, 7 Ivey v AllState Insurance, 774 So. 2d 679 (Fla. 2000).3, 6 Wolf Creek Land Development, Inc. v. Masterpiece Homes, Inc., 942 So. 2d 995 (Fla. 5 th DCA 2006).3, 4, 6 Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla. 2009) 3, 8, 9 Zalay v. Ace Cabinets of Clear Water, 700 So. 2d 15 (Fla. 2d DCA 1997)..3, 8, 9 3

I. Statement of the Case and Facts The Third District s opinion in CDC Builders, Inc. v. Riviera Almeria, et al, 51 So. 3d 510 (Fla. 3d DCA 2010), if left to stand, would create a new level of certiorari review and improperly disrupt the construction lien law. In a case where there was no established precedent on the issue before it, the Third District created new grounds for certiorari review of a partial summary judgment by holding that a contractor can violate sections 713.35 and 713.345 of Florida s Construction Lien Law and face criminal sanctions but still maintain its lien rights. The case involves a dispute between general contractor, CDC BUILDERS, INC. ( CDC ) and property owners RIVIERA BILTMORE, LLC and RIVIERA SEVILLA, LLC (collectively Riviera ). At issue is CDC s practice of routinely drawing more money from Riviera than what it was paying out to its subcontractors. In order to carry out this plan, CDC filed sworn interim payment applications that CDC knew contained false information about the payment status of its subcontractors. The trial court granted Riviera s Motion for Partial Summary Judgment and discharged CDC s lien claims because of its violations of section 713.35, Fla. Stat. (2006), which is contained in Part I of Chapter 713, Florida Statutes (2007). Section 713.35 prohibits the furnishing of an 1

affidavit containing false information about the payment status of subcontractors. CDC s breach of contract action, which seeks the same damages as sought in the lien claims, remains pending. The Third DCA treated CDC s appeal of the partial summary judgment as a Petition for Writ of Certiorari. It then improperly granted certiorari and vacated the partial summary judgment based on its disagreement with the trial court s first-impression interpretation of chapter 713 and the Third DCA s own improper factual determinations on disputed evidence. II. Summary of Argument The Third DCA improperly exercised its certiorari jurisdiction to vacate a partial summary judgment on the grounds that it disagreed with the circuit court s interpretation of Florida s Construction Lien Law in a case where there is no established precedent. The trial court had ruled that based on the undisputed fact that CDC had filed knowingly false, sworn pay applications, in violation of section 713.35 and the intent of the whole of construction lien law, CDC could not enforce any lien rights and could only proceed on its breach of contract claim. The Third DCA disagreed and held that section 713.35 violations do not prohibit lien rights. There is no clearly established law on the issue. Thus, there were no grounds for certiorari 2

review, and the decision below is in express and direct conflict with Ivey v. AllState Insurance, 774 So.2d 679 (Fla. 2000) and Wolf Creek Land Dev., Inc. v. Masterpiece Homes, Inc., 942 So.2d 995 (Fla. 5 th DCA 2006) which stand for the proposition that a district court of appeal should not grant a certiorari merely because it disagrees with the circuit court s interpretation of a statute where there is no established precedent on the issue. In addition, the Third DCA failed to interpret chapter 713 as a whole or apply fairness and equity in its application of the lien law, thereby misapplying Zalay v. Ace Cabinets of Clear Water, 700 So. 2d 15 (Fla. 2d DCA 1997) and Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla. 2009). III. Argument A. The Third DCA s Exercise of Certiorari Jurisdiction Conflicts with Opinions of Other Courts There is express and direct conflict between the Third DCA s decision here and this Court s decision in Ivey, 774 So. 2d at 679 and the Fifth DCA s opinion in Wolf Creek, 942 So.2d at 995. These cases stand for the proposition that a court should not interpret a statute on certiorari review where there is no controlling precedent to apply. In Ivey, this Court held that a DCA s mere disagreement with the trial court s interpretation of the applicable law is an improper basis for common law certiorari. 774 So. 2d at 683; see Allstate v. Kaklamanos, 843 3

So. 2d 885 (Fla. 2003)(reiterating that the Third DCA inappropriately exercised certiorari review in Ivey where it merely disagreed with the circuit court s interpretation of the applicable statute). Although Ivey, as well as Kaklamanos, deal with second tier certiorari review, the principles have been extended to certiorari review of non-final orders entered by a circuit court. See Belmont Lakes, LLC v. Rooney, 980 So.2d 580 (Fla. 2d DCA 2008)(on review of a non-final order granting summary judgment the departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error ). In Wolf Creek, 942 So.2d at 995, a case involving the interpretation of the lien statute, the Fifth DCA refused to grant certiorari when there was no clearly established principle of law on the statutory issue presented. In that case, the trial court had granted a developer s motion for judgment on the pleadings on the first count of Wolf Creek s complaint in which it sought to foreclose a construction lien. Id. at 997. A second count for breach of contract remained to be litigated. The Fifth DCA found that there had been no adequate showing that the trial court s order departed from the essential requirements of law since there was no case law on the statutory interpretation issue. As stated in the decision: The statutory issue raised by Wolf Creek in the present case is certainly debatable, but there appears to be no case law on the matter 4

that has been pointed out by either side or that has been disclosed by our own independent research. As the order is not the subject of a clearly established principle of law, certiorari is not available to review it. Id. (emphasis in the original). Contrary to the Fifth DCA in Wolf Creek and this Court in Ivey, the Third DCA in the instant case granted common law certiorari for the express reason that we cannot agree with the trial court that either statute [section 713.345 or section 713.35] or chapter 713 interpreted as a whole would justify the discharge of an otherwise valid lien. Opinion at 6. As stated in page 4 of the Opinion, the trial court in CDC Builders found there were no questions of material fact that CDC Builders had filed false interim payment applications in violation of section 713.35, which prohibits the making or furnishing of a written statement in the form of an affidavit, whether or not under oath, containing false information about the payment status of subcontractors. As noted in the Third DCA s opinion, the trial court determined that chapter 713, when read as a whole, requires a contractor to comply with all provisions contained therein. Opinion at 6. See 713.05 ( a contractor who complies with the provisions of this part shall have a lien ). The trial court then found that by violating section 713.35, CDC Builders had not strictly complied with all of the provisions of chapter 713 and therefore ordered the discharge of the liens. Id. at 4. 5

The Third DCA did not agree with the trial court s interpretation and application of chapter 713. Id. The court noted that such violations expose an individual to criminal sanctions only and that as a statutory creature, the construction lien law must be strictly construed. Id. at 6-7. There is no controlling precedent establishing that a contractor s violation of section 713.35 results in a failure to acquire a lien or a discharge of a construction lien as the trial court held. Likewise, prior to the Third DCA s decision in this case there was no case law establishing that such a violation cannot result in the discharge of a construction lien. As in Wolf Creek, there was no established law on the statutory issue before the court on certiorari. Under Ivey and Wolf Creek, the Third DCA s disagreement with the trial court on the issue of first impression was not a proper basis for common law certiorari. See Custer Med. Ctr. v. United Automobile, 2010 WL 4340809 (Fla. 2010)(circuit court could not have violated the essential requirements of law when principle of law had never existed). The Third DCA attempted to justify its exercise of certiorari jurisdiction by stating its concern with the deleterious impact the trial court s interpretation of chapter 713 would have upon the construction industry as a whole as liens could be subject to attack for inaccuracies or simple mathematical errors. Opinion at 5, 7. See Haines City Community v. 6

Heggs, 658 So.2d 523 (Fla. 1995)(in granting common law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error). The Third DCA s concern is entirely misplaced. The liens were discharged for intentional acts, not for simple mathematical errors. Section 713.35 prohibits a prospective lienor from knowingly and intentionally filing a written statement in the form of an affidavit containing false information about the payment status of subcontractors. (emphasis supplied). By the statute s very terms, if the payment applications contain simple mathematical errors then the element of intent will not be met and there could be no finding of a section 713.35 violation. Moreover, the trial court did not commit a serious error resulting in a miscarriage of justice for the remainder of the case when it discharged a construction lien because of the intentional violation of a statutory provision that carries criminal sanctions. [T]he district court s exercise of its discretionary certiorari jurisdiction should depend on the court s assessment of the gravity of the error and the adequacy of other relief. Haines City, 658 So. 2d at 531. CDC can still pursue its contractual remedies for the same damages. Its loss of lien rights for filing false affidavits in violation of section 713.35 is remediable upon final appeal. 7

B. The Third DCA Misapplied Lien Law Precedent and Thereby Created Conflict. The instant decision misapplies Zalay, 700 So.2d at 15 (Fla. 2d DCA 1997) and Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla. 2009), and thus creates conflict. As stated in the opinion at issue, the trial court found that chapter 713, when read as a whole, requires a contractor to comply with all provisions contained therein. However, this interpretation neither comports with the statutory language nor with precedent in this state. Opinion at 6. This holding directly conflicts with Zalay, where a property owner argued that the construction lien imposed on its property could not include a subcontractor s attorney s fees and costs. The Second DCA noted that nothing in this statute expressly provides a lien for attorney s fees and costs. However: As a creature of statute, construction lien laws must be strictly construed Nevertheless, these statutes must be construed as a whole in light of the legislatures intended policies. Ceco Corp. v. Goldberg, 219 So.2d 475 (Fla. 3d DCA 1969). The attorneys fees awarded under section 713.29 are not an element of damages, but are taxed as part of costs. We see no reason why the costs involved in a construction lien action should not be included with the lien. (emphasis added). The Third DCA cites Zalay for the premise that the construction lien law shall not be subject to a rule of liberal construction in favor of any party. 8

However, it failed to follow the statutory construction as in Zalay by failing to construe chapter 713 as a whole. Its holding fails to give effect to section 713.05, which provides that a contractor has to comply with the provisions of Part I of chapter 713 in order to have a lien. Instead, the Third DCA found [w]hile a violation of either section 713.345 or 713.35 would expose an individual to criminal sanctions, it would not justify the discharge or invalidation of an otherwise valid lien. Opinion at 6. Furthermore, sections 713.35 and 713.345 protect an owner from parting with construction funds under false pretenses and exposing themselves to liens and other claims. Recently, this Court stated that the dual purpose of the lien law in protecting both the laborer and owner seems to evidence a legislative intent to emphasize fairness and equity in actions brought pursuant to the lien law. Trytek, 3 So.3d at 1194. Instead of emphasizing fairness and equity, the Third DCA unjustly favored the contractor over an owner out of some unfounded concern that simple mathematic errors, which were not the facts presented, would result in the discharge of a lien. The Third DCA refused to interpret chapter 713 as a whole in spite of the legislative intent to protect an owner from fraudulently departing with funds. In so doing, the decision conflicts Zalay and Trytek. This misapplication of precedent creates a conflict, which this 9

Court should invoke its jurisdiction to resolve. Arab Termite & Pest Control of Fla v. Jenkins, 409 So.2d 1039 (Fla. 1942). Conclusion Accordingly, based on the foregoing, it is respectfully requested that this honorable Court invoke its jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), to take jurisdiction of this case and vacate the decision of the Third DCA. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed via U.S. Mail and e-mailed this 23 rd of March, 2011 to all Counsel on the attached Service List. DANIELS, KASHTAN, DOWNS, ROBERTSON & McGIRNEY Attorneys for Petitioners 3300 Ponce de Leon Boulevard Coral Gables, FL 33134 Tel: (305) 448-7988 Fax:(305) 448-7978 By: RICHARD A. DANIELS, ESQ. Fla. Bar No.: 236896 MADELYN SIMON LOZANO Fla. Bar. No.: 679135 JEREMY C. DANIELS, ESQ. Fla. Bar No.: 493643 (Certificate of Compliance to follow on the next page) 10

Certificate of Compliance with Fla. R. App. P. 9.210 In accordance with Fla. R. App. P. 9.210 (a)(2), the undersigned certifies that this brief complies with the font requirements of Fla. R. App. P. 9.210. By: JEREMY C. DANIELS, ESQ. Fla. Bar No.: 493643 11

SERVICE LIST Michael J. Kurzman, Esq. Tiffany M. Hurwitz, Esq. Siegfried, Rivera, Lerner, De La Torre & Sobel, P.A. 8211 West Broward Blvd. Suite 250 Plantation, Florida 33324 (954) 781.1134 Telephone (954) 465.2590 Facsimile mkurzman@siegfriedlaw.com thurwitz@siegfriedlaw.com Bruce Alan Weil, Esq. Boies, Schiller & Flexner, LLP Bank of America Tower, Suite 2800 100 S.E. 2 nd Street Miami, Florida 33131 (305) 539.8400 Telephone (305) 539.1307 Facsimile bweil@bsfllp.com P:\EDSISS\DOCS\1009\5655\AA1355.DOC 12

INDEX OF APPENDIX TO PETITIONERS JURISDICTIONAL BRIEF Conformed Copy of Third District Court of Appeal s Decision in CDC Builders, Inc. v. Riviera Almeria, LLC, et al. 14