       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

             PRIME INVESTORS & DEVELOPERS, LLC and
                  HOMESTEAD HOLDINGS II, LLC,
                           Appellants,

                                     v.

                   THE MERIDIEN COMPANIES, INC.,
                             Appellee.

                              No. 4D19-1005

                            [January 22, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas R. Lopane, Judge; L.T. Case No. CACE 17-
002351.

   Vincent F. Vaccarella and Craig Lewis of Vincent F. Vaccarella, P.A.,
Fort Lauderdale, for appellants.

  William M. Lindeman of William M. Lindeman, P.A., Orlando, for
appellee.

GERBER, J.

   A developer and a contractor jointly appeal from the circuit court’s
order granting a subcontractor’s motion for final summary judgment on
the subcontractor’s claims for breach of contract and to foreclose a
construction lien, arising from the subcontractor not receiving full
payment for its installation of cabinets and countertops on a hotel project.

   The developer and the contractor argue the circuit court erred in
entering summary judgment for many reasons, three of which we address
here:    (1) the contractor’s affidavit reflected genuine issues of material
fact regarding the subcontractor’s material quality and installation; (2) the
subcontractor’s motion did not address the developer’s third affirmative
defense alleging lack of compliance with the construction lien statutes’
notice and timing requirements; and (3) the circuit court lacked subject
matter jurisdiction over the construction lien foreclosure claim because
the property is located in Miami-Dade County, not Broward County.
   We conclude the first two arguments have merit, for reasons explained
below. Therefore, we reverse the circuit court’s order granting the
subcontractor’s motion for final summary judgment. Although the third
argument is moot by our decision, we will briefly address that argument
because that issue may recur on remand.

  We present this opinion in three parts:
  1. Procedural history;
  2. The subcontractor’s summary judgment motion; and
  3. Our review.

                        1. Procedural History

   The developer hired the contractor to construct a hotel in Miami-Dade
County. The contractor then hired the subcontractor to install cabinets
and countertops for all guest rooms. The subcontract provided, in
pertinent part:

        Subcontractor acknowledges TIME IS OF THE ESSENCE
     in the performance of all Work. . . . Subcontractor is
     responsible for monitoring its progress in completing the Work
     in accordance with the Overall Project Schedule . . . to be
     prepared by the Contractor after consultation with the
     Subcontractor.

        ....

        The parties acknowledge that Broward County, Florida is
     the proper venue for any claim arising out of this Agreement.

        ....

       Work shall be performed in a timely, quality, professional
     and workmanlike manner. . . .

        ....

        Contractor’s Construction Manager shall check all Work
     after the . . . Subcontractor . . . has inspected the Work and
     made any necessary corrections. Payment for Work shall be
     approved and processed only after the Work to be performed
     has been 100% completed and found to be free of any defects,
     errors, omissions or discrepancies, as determined in


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      Contractor’s Construction Manager’s sole and absolute
      discretion. . . .

    The subcontractor eventually installed the cabinets and countertops in
the hotel, and the contractor’s construction manager signed off on the
installation. The contractor paid the subcontractor in part, but withheld
full payment because the contractor found that the cabinets and
countertops were deficient in both material quality and installation.

   The contractor later filed, in Broward County circuit court, a breach of
contract complaint against the subcontractor, alleging that the
subcontractor failed to provide the correct materials, timely install the
materials, properly install the materials, and correct the defective work.

   In response, the subcontractor filed an answer, a counterclaim for
breach of contract against the contractor for non-payment, and a third
party complaint to enforce its construction lien against the developer. The
subcontractor’s answer and third party complaint pled that venue was
proper in Broward County.

    In response to the subcontractor’s third party complaint, the developer
filed an answer and affirmative defenses. The developer’s answer admitted
venue was proper in Broward County, but denied the remaining
allegations. The developer’s third affirmative defense alleged that the
subcontractor had failed to comply with the notice and timing
requirements of the construction lien statutes provided in chapter 713,
Florida Statutes (2016).

         2. The Subcontractor’s Summary Judgment Motion

   After discovery, the subcontractor filed a motion for final summary
judgment. The motion alleged, in pertinent part: the contractor and
subcontractor modified the subcontract so that the timing of the
subcontractor’s performance was not linked to the overall project
schedule; the contractor agreed to swap out certain materials to save
costs; the subcontractor installed the materials in conformance with the
contractor-approved shop drawings; all of the materials were installed; and
any defective installations were simply punch list items, but the contractor
never provided a punch list.

   The subcontractor’s motion for summary judgment did not address the
developer’s third affirmative defense alleging the subcontractor had failed
to comply with chapter 713’s notice and timing requirements.


                                     3
   The developer and the contractor jointly filed a response to the
subcontractor’s motion for summary judgment. The response argued, in
pertinent part:    the subcontract provided that the subcontractor’s
performance was linked to the overall project schedule and time was of the
essence, and no modification was made to those timing provisions; the
subcontractor was months late in producing the materials, causing the
project’s overall progress and the hotel’s opening to be delayed; the
subcontractor’s materials did not meet the developer’s and the contractor’s
specification standards; and the subcontractor failed to correct the
deficiencies in materials and installation.

   In support of the response, the contractor and the developer filed the
contractor’s chief operating officer’s affidavit. The affidavit alleged, in
pertinent part:

         8. [The subcontractor] failed to adhere to the Overall
      Project Schedule, failed to adhere to [the contractor’s] time
      schedule, and did not prosecute their work under the
      Subcontract in a timely or diligent manner, delaying the
      overall progress of the Project.

          9. [The contractor and subcontractor] agreed to a
      schedule for the cabinets to be delivered and installed to the
      Project and [the subcontractor] was bound by the terms of the
      Subcontract to deliver in accordance with that schedule. [The
      subcontractor] failed to produce its cabinets in accordance
      with the schedule and was more than three months late. Once
      the cabinets were late, [the subcontractor] essentially held the
      cabinets hostage and extorted a change order from [the
      contractor] for accelerated delivery of the cabinets. [The
      subcontractor] then failed to meet the delivery schedule that
      it promised pursuant to the change order.

         ....

         11. [The subcontractor’s] delays in its cabinetry work
      caused delays to the opening of the hotel and ultimately, [the
      contractor] had to finish a significant portion of [the
      subcontractor’s] work itself.

         13. Pursuant to the terms of the Subcontract, [the
      subcontractor] was to finish all Guest Room kitchenette and
      bathroom cabinetry and countertops in accordance with all of
      the Contract Documents, including but not limited to the . . .

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      [s]pecifications[,] a list of which were attached to and
      incorporated into the Subcontract.

         14. The cabinets provided to the Project by [the
      subcontractor] did not meet the standards of the Contract
      Documents or the . . . [s]pecifications and were unacceptable.
      ...

          15. I personally notified [the subcontractor] of the
      deficiencies and walked the project on several occasions with
      [the subcontractor’s] owners . . . [The subcontractor] has
      refused to acknowledge their need to repair and replace the
      cabinets, or [the Developer’s] rejection, instead insisting on
      full payment.

    After a hearing, the circuit court granted the subcontractor’s motion for
summary judgment. The circuit court’s reasoning, in pertinent part, was:
“I’m going to go ahead and grant summary judgment. . . . [The
subcontractor’s] argument and their motion is . . . directly on point.
There’s no genuine issue of fact here.” The circuit court did not provide
any details of its reasoning.

   The circuit court then entered a written final summary judgment
against the developer and the contractor for the full amount which the
subcontractor requested in the counterclaim and third-party complaint.
The circuit court did not order the commencement of any foreclosure
proceedings on the subcontractor’s construction lien against the
developer’s property.

   After the final summary judgment was entered, the developer filed a
supersedeas bond with the clerk of court to stay execution of the final
judgment pending appeal. This appeal followed.

                              3. Our Review

    As mentioned above, the developer and the contractor argue the circuit
court erred in entering summary judgment for many reasons, three of
which we address here: (1) the contractor’s affidavit reflected genuine
issues of material fact regarding the subcontractor’s material quality and
installation; (2) the subcontractor’s motion did not address the developer’s
third affirmative defense alleging lack of compliance with the construction
lien statutes’ notice and timing requirements; and (3) the circuit court
lacked subject matter jurisdiction over the construction lien foreclosure


                                     5
claim because the property is located in Miami-Dade County, not Broward
County.

  Our review is de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000) (review of an order granting a motion for
summary judgment is de novo). As our supreme court held in Moore v.
Morris, 475 So. 2d 666 (Fla. 1985):

         The law is well settled in Florida that a party moving for
      summary judgment must show conclusively the absence of
      any genuine issue of material fact and the court must draw
      every possible inference in favor of the party against whom a
      summary judgment is sought. A summary judgment should
      not be granted unless the facts are so crystallized that nothing
      remains but questions of law.

          If the evidence raises any issue of material fact, if it is
      conflicting, if it will permit different reasonable inferences, or
      if it tends to prove the issues, it should be submitted to the
      jury as a question of fact to be determined by it.

Id. at 668 (internal citations omitted).

   This appeal presents a textbook example of a case involving genuine
issues of material fact.

   Here, the contractor’s chief operating officer’s affidavit, as quoted
above, created genuine issues of material fact on all of the subcontractor’s
arguments referred to above.

   Based on these genuine issues of material fact, we cannot discern why
the circuit court granted the subcontractor’s motion, especially given that
the circuit court did not provide any details of its reasoning. If the circuit
court weighed the evidence to make its decision, that action would have
been improper. See Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394,
399 (Fla. 4th DCA 2012) (“A trial court may not weigh the evidence or judge
the credibility of witnesses in arriving at summary judgment.”).

   The circuit court also erred in granting the subcontractor’s motion for
final summary judgment because the subcontractor’s motion did not
address the developer’s third affirmative defense alleging lack of
compliance with the construction lien statutes’ notice and timing
requirements. As we held in Kurian v. Wells Fargo Bank, Nat. Ass’n, 114
So. 3d 1052 (Fla. 4th DCA 2013):

                                      6
      When a party raises affirmative defenses, a summary
      judgment should not be granted where there are issues of fact
      raised by the affirmative defenses which have not been
      effectively factually challenged and refuted. The movant must
      disprove the affirmative defenses or show they are legally
      insufficient.

Id. at 1054 (internal citations and quotation marks omitted).

    Lastly, we briefly address the developer’s argument, raised for the first
time on appeal, that the circuit court lacked subject matter jurisdiction
over the construction lien foreclosure claim because the property is located
in Miami-Dade County, not Broward County. See Fla. R. Civ. P. 1.140
(“[A]ny ground showing that the court lacks jurisdiction of the subject
matter may be made at any time.”).

   This argument is moot because the circuit court’s final summary
judgment simply awarded the full amount which the subcontractor
requested in the counterclaim and third-party complaint against the
contractor and the developer. The circuit court did not order the
commencement of any foreclosure proceedings on the subcontractor’s
construction lien against the developer’s property.

    However, because we are remanding the case for further proceedings,
we remind the circuit court that “[a] lien against property is in rem,
affecting title to the property, and must be brought in the circuit with
jurisdiction over the property.” Garrido v. Nat’l Union Fire Ins. Co. of
Pittsburgh, PA, 891 So. 2d 1091, 1092 (Fla. 4th DCA 2004). Furthermore,
this local action rule “is one of subject matter jurisdiction, not venue, and
subject matter jurisdiction cannot be conferred by waiver or consent.”
Frym v. Flagship Cmty. Bank, 96 So. 3d 452, 453 (Fla. 2d DCA 2012)
(internal quotations and citations omitted).

                                Conclusion

   Based on the foregoing, we reverse the circuit court’s order granting the
subcontractor’s motion for final summary judgment.            We use this
opportunity to strongly encourage circuit courts which are inclined to
grant motions for summary judgment to provide their reasoning in some
fashion. Although our review of orders granting summary judgment is de
novo, knowing a circuit court’s reasoning would be helpful to consider in
reviewing the order on appeal and ensuring we have not overlooked a legal
basis upon which to affirm a summary judgment.

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  Reversed and remanded for further proceedings.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

                         *        *         *

  Not final until disposition of timely filed motion for rehearing.




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