               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


BEST DRYWALL SERVICES, INC., and             )
WILLIAM R. SMITH,                            )
                                             )
              Appellants,                    )
                                             )
v.                                           )   Case No. 2D15-2103
                                             )
GARY BLASZCZYK and DONNA                     )
BLASZCZYK,                                   )
                                             )
              Appellees.                     )
                                             )

Opinion filed October 26, 2016.

Appeal from the Circuit Court for Collier
County; James R. Shenko, Judge.

Charles Paul-Thomas Phoenix of Rhodes
Tucker, Sanibel, for Appellants.

Mark B. Cohn of The Boatman Law Firm,
P.A., Naples, for Appellees.



WARD, SAMANTHA L., Associate Judge.

              Best Drywall Services, Inc., appeals the final judgment awarding it

$18,000 on its breach of contract claim against Gary and Donna Blaszczyk following a

jury trial and granting the Blaszczyks' motion for directed verdict on count one. Because

Best presented sufficient evidence to support a verdict in its favor on count one, we
reverse the trial court's ruling on the motion for directed verdict but affirm the final

judgment in all other respects.

              This case arises from an oral agreement between the parties for the

complete renovation of the Blaszczyks' condo in Naples, which the parties agree

included air conditioning, electrical, and plumbing work. Best alleged that the value of

the work totaled $321,600.31 and that the Blaszczyks failed to pay the final two invoices

totaling $61,600.31. Best recorded a claim of lien in Collier County on January 5, 2011,

and alleged that the last day it provided labor and services to the Blaszczyks was on

October 7, 2010, exactly ninety days prior. See § 713.08(5), Fla. Stat. (2010) (requiring

that a claim of lien be recorded no "later than [ninety] days after the final furnishing of

the labor or services or materials by the lienor"). In count one of its complaint, Best

sought foreclosure on the lien and alleged that it was timely filed. The Blaszczyks

admitted that the claim of lien was timely filed in their answer and affirmative defenses.

              At trial, Best's president, William Smith, made several different statements

during his testimony regarding the ultimate completion date of the renovation; the record

reflects that at different points in his testimony, Smith identified September 21,

September 28, October 7, October 8, and October 21, 2010, as the date that the

renovation was complete. More specifically, Smith testified that the electrician, Bill

Prevaria, and the plumbing company, Hamilton Plumbing, were on site doing the final

hookups on October 7 and 8, 2010.

              After Best rested its case, the Blaszczyks filed a motion for directed

verdict on the count seeking foreclosure on the lien, alleging that Smith admitted that

the project was complete prior to October 7, 2010, and that Best had offered no

evidence to support its allegation that the lien was timely filed under section 713.08(5).

                                             -2-
The trial court found that Smith's testimony regarding the September 28, 2010,

completion date was a party admission, allowed the Blaszczyks to amend their answer

to deny Best's allegation that the claim of lien was timely filed, and granted the motion

for directed verdict on that count. This appeal followed.

              We review a trial court's ruling on a motion for directed verdict de novo.

Jackson Hewitt, Inc. v. Kaman, 100 So. 3d 19, 27 (Fla. 2d DCA 2011). "A motion for

directed verdict should be granted only where no view of the evidence, or inferences

made therefrom, could support a verdict for the nonmoving party." Id. (quoting Sims v.

Cristinzio, 898 So. 2d 1004, 1005 (Fla. 2d DCA 2005)). Although Smith testified that the

work was completed on several dates outside the ninety-day filing window of section

713.08(5), he also testified that the work was completed on several dates within the

ninety-day filing window. "If there are conflicts in the evidence or different reasonable

inferences that may be drawn from the evidence, the issue is factual and should be

submitted to the jury." Sims, 898 So. 2d at 1005 (citing Marriott Int'l, Inc. v. Perez-

Melendez, 855 So. 2d 624, 628 (Fla. 5th DCA 2003)). Smith's testimony regarding the

presence of the electrician and plumber providing the final hookups was sufficient to

create an issue for the trier of fact as to the timeliness of Best's claim of lien. See Sam

Rodgers Props., Inc. v. Chmura, 61 So. 3d 432, 438 (Fla. 2d DCA 2011) ("The test for

whether work constitutes a 'final furnishing' is whether the work was done in good faith,

within a reasonable time, pursuant to the terms of the contract, and whether it was




                                            -3-
necessary to a finished job.").1 Accordingly, we reverse that portion of the final

judgment and remand for a new trial on count one, Best's claim of lien. 2

              Affirmed in part, reversed in part, and remanded.


VILLANTI, C.J., Concurs.
KELLY, J., Concurs in part and dissents in part.




KELLY, Judge, Concurring in part; dissenting in part.


              I agree that it was error for the trial court to direct verdict on the lien count;

however, I would still affirm. Best has appealed a judgment in its favor that it does not

want us to reverse. While the majority has returned this case to the trial court to have

the lien claim retried, Best never asked this court for that remedy. It asked this court to

reverse the directed verdict, period. At oral argument, Best's counsel explained that



              1
                On appeal the parties framed their directed verdict arguments as though
the lien issue was to be submitted to the jury. Best asked the trial court, via a motion to
bifurcate, to decide the lien count rather than send that claim to the jury. The court
denied the request to bifurcate but agreed to decide the lien count. While the record is
not complete as to all of the details of this arrangement, it is evident that the trial court
believed that it was to decide the claim of lien count and that Best agreed with that
decision. The directed verdict was error because the trial court weighed the evidence
and made credibility determinations. A motion for involuntary dismissal in a case tried
to a judge "is in the nature of a motion for directed verdict." Alpha Elec. Supply, Inc., v.
Jewel Builders, Inc., 349 So. 2d 699, 700 (Fla. 4th DCA 1977). "If sufficient evidence
has been adduced, though conflicting, which, when considered in the light most
favorable to the non-moving party would establish a prima facie case in favor of that
party, then the motion should not be granted. A trial judge may not weigh evidence
when ruling on such a motion." Id. Thus, the fact the lien claim was ultimately to be
decided by the judge makes no difference when considering the propriety of the trial
court's ruling.
              2
              Because our decision on this issue is dispositive, we decline to address
the remaining arguments on appeal.

                                             -4-
Best had no quarrel with the final judgment, which awarded it damages under a breach

of contract theory, but simply wanted the directed verdict reversed. Best admitted that

the point of the appeal was to allow it to go back and seek attorney's fees under the lien

statute. See § 713.29, Fla. Stat. (2010). The problem with this argument is it overlooks

that Best has to prevail on its claim before that right accrues.

              The majority has generously read into Best's arguments a request for a

new trial on the lien claim. I do not agree we may do that for Best. Best's posttrial

motions demonstrate it knows how to ask for a new trial, yet it has not done so in its

briefs or at oral argument. Finally, even if I thought it was proper to help Best with its

argument in that regard, I am not convinced Best was harmed by the directed verdict, at

least in a way that supports a reversal. According to Best's attorney, it is satisfied with

the damages awarded by the jury. At oral argument, the issue of its ability to seek fees

was revealed to be harm it sought to remedy. But, as explained above, it will not have

the right to seek fees even if we reverse because it has not yet and may never prevail

on the claim of lien count. I am not convinced the speculative ability to seek fees in the

future is a proper basis to reverse.




                                            -5-
