Third District Court of Appeal

State of Florida 

Opinion filed October 20, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D21-830

Lower Tribunal No. 19-36083

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James B. Pirtle Construction, Co., Inc.,

Petitioner,

vs.

Warren Henry Automobiles, Inc.,

Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Gina 

Beovides, Judge.

Peckar & Abramson, P.C., and Adam P. Handfinger and Stefanie A. 

Salomon, for petitioner.

The Soto Law Group, P.A., and Oscar E. Soto and Andrew V. Cobbe 

(Fort Lauderdale), for respondent.

Carlton Fields, P.A., and Sylvia H. Walbolt, Wm. Cary Wright and 

Nathaniel G. Foell (Tampa), for South Florida Associated General 

Contractors, as amicus curiae.
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Haber Law, P.A., and Christopher Utrera, for Oleta Partners, LLC, as 

amicus curiae.

Before FERNANDEZ, C.J., and HENDON and GORDO, JJ. 

HENDON, J. 

James B. Pirtle Construction Company, Inc. (“Pirtle”) files this petition 

for writ of certiorari seeking to quash a February 28, 2021, order 

discharging Pirtle’s claim of lien against Warren Henry Automobile, Inc. 

(“WHA”), and dismissing Count 1 of its Amended Counterclaim. We grant 

the petition for writ of certiorari and quash the trial court’s order discharging 

Pirtle’s claim of lien and dismissing Count I of the Amended Counterclaim.

Facts

The City of North Miami (“City”) owns certain real property known as 

Biscayne Landing located at 2300 NE 151 Street in North Miami (the 

“Property”). In May 2012, the City leased the property to Oleta Partners, 

LLC (“Oleta”) as a sub-landlord. In June 2015, Oleta entered into a Ground 

Sublease with WHA for a portion of the Property in order for WHA to 

construct and operate an automobile dealership and ancillary uses (the 

“Leasehold Interest”). In December 2016, WHA subsequently assigned the 

Ground Sublease to CARS-DB4, L.P. (“CARS”). In that agreement, CARS 

conveyed a leasehold interest in the Property to WHA who effectively 
3

became a lower-tier sub-sub-tenant to CARS. In May 2017, WHA and 

Pirtle entered into an agreement in which Pirtle agreed to furnish certain 

labor, services, and materials for the construction of improvements to 

WHA’s dealership construction project (the “Contract”).

Disagreements ensued, and WHA and Pirtle filed their respective 

claims against each other. In January 2020, Pirtle filed and recorded an 

amended claim of lien (“Claim of Lien”) against WHA’s leasehold interest in 

the amount of $4,818,455.63, exclusive of certain additional amounts due 

under Pirtle’s Contract with WHA. In May 2020, WHA arranged for the 

transfer and recordation of Pirtle’s Claim of Lien to a surety bond. Pirtle 

then filed its amended counterclaim and asserted a count for Action to 

Enforce Lien Transferred to Bond (Count I), seeking to enforce the claim of 

lien against the lien transfer bond. WHA then filed an amended petition to 

discharge Pirtle’s Claim of Lien and moved to dismiss Count I of Pirtle’s 

amended counterclaim, which Pirtle opposed. 

In January 2021, the court held a hearing on the motion, and 

subsequently discharged Pirtle’s Claim of Lien and dismissed Count I of its 

amended counterclaim. The trial court denied Pirtle’s motion for rehearing 

and reconsideration. Pirtle then filed this petition for writ of certiorari. 
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Standard of Review

A petition for writ of certiorari is the appropriate vehicle to seek review 

of an order granting a motion to vacate a lien. Dracon Constr., Inc. v. 

Facility Constr. Mgmt. Inc., 828 So. 2d 1069, 1070 (Fla. 4th DCA 2002). “A 

party seeking certiorari review must demonstrate (1) that the contested 

order results in material injury in the proceedings that cannot be corrected 

on post-judgment appeal and (2) that the order departs from the essential 

requirements of the law.” Valencia v. PennyMac Holdings, LLC, 317 So. 3d 

178, 180 (Fla. 3d DCA 2021) (quoting Piquet v. Clareway Props. Ltd., 314 

So. 3d 423, 427 (Fla. 3d DCA 2020)). 

Discussion

We first consider whether Pirtle has demonstrated irreparable harm 

that cannot be corrected post-judgment. The trial court’s order discharging 

Pirtle’s Claim of Lien against WHA irreparably harms Pirtle by depriving it of 

its security to recover any alleged losses from WHA. Losing the benefit of 

a recovery under a bond on a claim to enforce a lien constitutes the type of 

irreparable harm necessary to entitle a party to certiorari relief. See

Farrey's Wholesale Hardware Co. v. Coltin Elec. Servs., LLC, 263 So. 3d 
5

168, 179 (Fla. 2d DCA 2018) (citing Gator Boring & Trenching, Inc. v. 

Westra Constr. Corp., 210 So. 3d 175, 184 (Fla. 2d DCA 2016)). 

We next consider whether the trial court’s order departs from the 

essential requirements of law when it concluded that that Pirtle’s Claim of 

Lien encumbers the Property itself and the City’s fee simple ownership of 

the Property, rather than WHA’s leasehold interest. We conclude that 

Pirtle’s Claim of Lien can only exist against WHA’s leasehold interest and 

therefore the trial court’s misapplication of chapter 713 amounts to a 

departure from the essential requirements of law.

WHA contends that the lower court correctly interpreted the plain 

language of section 713.02(3), Florida Statutes, which states in pertinent 

part, “[p]ersons in privity with an owner and who perform labor or services 

or furnish materials constituting an improvement . . . shall have rights to a 

lien on real property as provided in § 713.05.” WHA’s motion below cited to 

section 713.05, which states that a “contractor who complies with the 

provisions of this part shall . . . have a lien on the real property improved . . 

. .” WHA argues that according to these statutory provisions, lien rights can 

only extend to “real property,” as defined in section 713.01(26). Section 

713.01(26) defines “real property” as “the land that is improved and the 

improvements thereon, including fixtures, except any such property owned 
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by the state or any county, municipality, school board, or governmental 

agency, commission, or political subdivision.” Thus, WHA argues, Pirtle’s 

claim of lien was properly discharged because it was attempting to lien 

property exempt from the definition of “real property” i.e., property owned 

by a municipality. The trial court agreed and based the lien discharge on 

this analysis. 

Pirtle’s claim of lien can only be against WHA’s leasehold interest, not 

the physical Property. This is so because WHA has no ownership interest 

in the Property. WHA leases the Property as a sub-sub-lessee and only for 

the purpose of constructing and operating an auto dealership which will 

generate revenue up the lease chain. WHA’s reliance on section 713.02(3) 

is misplaced. That section states “[p]ersons in privity with an owner shall 

have rights on real property. . . .” (emphasis added). Section 713.02(3) 

applies only to those situations where the lienor is in privity with the owner. 

Here, Pirtle is not in privity with the owner, the City of North Miami. Pirtle’s 

agreement to perform construction services was with a sub-subtenant, 

WHA, which is a subtenant to Oleta, which is the only entity in privity with 

the owner, the City of North Miami.

At common law, a leasehold interest was considered a type of 

personal property, not realty. See Aurora Grp., Ltd. v. Dep’t of Revenue, 
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487 So. 2d 1132 (Fla. 3d DCA 1986). This concept is incorporated into

section 713.11, Florida Statutes, titled, “Liens for improving land in which 

the contracting party has no interest.” In this section, Florida’s construction 

lien law explicitly states that “[w]hen the person contracting for improving 

real property has no interest as owner in the land, no lien shall attach to the 

land . . . .” § 713.11, Fla. Stat. (2021) (emphasis added).1 Further, section

713.10, Florida Statutes (2021), provides: 

(1) Except as provided in s. 713.12,[2] a lien under this part 

shall extend to, and only to, the right, title, and interest of the 

person who contracts for the improvement as such right, title, 

and interest exists at the commencement of the improvement 

or is thereafter acquired in the real property. When an 

improvement is made by a lessee in accordance with an 

agreement between such lessee and her or his lessor, the lien 

shall extend also to the interest of such lessor. 

(Emphasis added). States and municipalities lease public property to 

private tenants in order to operate their facilities (e.g., parks, airports), and 

contractors doing work for those tenants have lien rights not on the 

property, but on the leasehold interest of that tenant.

1 The parties were afforded an extensive hearing and yet the record 

indicates that the petitioners did not once refer section 713.11 to the trial 

judge.

2 Inapplicable here, section 713.12 is titled: Liens for improving real 

property under contract with husband or wife on property of the other or of 

both.
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Finally, the Memorandum of Ground Lease between Oleta and the 

City explicitly satisfied each and every one of the elements identified in 

section 713.103 so as to protect the City from any mechanic’s liens. The 

Ground Lease contains the following language:

3 Section 713.10, Florida Statutes (2020) provides:

(2)(a) When the lease expressly provides that the interest of the 

lessor shall not be subject to liens for improvements made by 

the lessee, the lessee shall notify the contractor making any 

such improvements of such provision or provisions in the lease, 

and the knowing or willful failure of the lessee to provide such 

notice to the contractor shall render the contract between the 

lessee and the contractor voidable at the option of the 

contractor.

(b) The interest of the lessor is not subject to liens for 

improvements made by the lessee when:

1. The lease, or a short form or a memorandum of the 

lease that contains the specific language in the lease 

prohibiting such liability, is recorded in the official records 

of the county where the premises are located before the 

recording of a notice of commencement for 

improvements to the premises and the terms of the lease 

expressly prohibit such liability; or

2. The terms of the lease expressly prohibit such liability, 

and a notice advising that leases for the rental of 

premises on a parcel of land prohibit such liability has 

been recorded in the official records of the county in 

which the parcel of land is located before the recording of 

a notice of commencement for improvements to the 

premises.
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Neither [Oleta] nor anyone claiming by, through or under [Oleta] 

including, without limitation, contractors, subcontractors, 

materialmen, mechanics and laborers, shall have any right to 

file or place any construction, materialmen’s or other liens of 

any kinds whatsoever upon [City’s] interest in the [Property] or 

any portion thereof; on the contrary, any such liens are 

specifically prohibited and shall be null and void and of no force 

or effect.

Id. This language clearly satisfies section 713.10(2)(b), exempting the 

City’s interest in the Property from any sort of lien claim. Thus, Pirtle’s 

Claim of Lien could not have subjected the real property owned by the City 

to a claim of lien – contrary to the trial court’s order. Reading chapter 713 

as a whole and in context of the Contract between WHA (as sublessor to 

Oleta) and Pirtle, and the Memorandum of Agreement between the City 

and Oleta, Pirtle’s Claim of Lien is against WHA’s leasehold interest, not

against the Property. 

We therefore grant Pirtle’s petition for writ of certiorari and quash the 

order below discharging Pirtle’s claim of lien and dismissing Count I of the 

Amended Counterclaim.

Petition granted, order quashed.