# Third District Court of Appeal

State of Florida

Opinion filed November 16, 2016.

Not final until disposition of timely filed motion for rehearing.

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No. 3D 16-987

Lower Tribunal No. 14-27158

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### Classical & Innovative Designs, Inc.

,

Petitioner,

vs.



### Max South Construction, Inc. and BH Developers, LLC

, Respondents.

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

Smith, Judge.

Malka & Kravitz, P.A. and Ian T. Kravitz and Harry Malka (Ft. Lauderdale),

for petitioner.

Peckar & Abramson and Melinda S. Gentile and Monique S. Cardenas

, for

respondent Max South Construction, Inc.

Before SUAREZ, C.J., and EMAS and LOGUE, JJ.

SUAREZ, C.J.

Classical & Innovative Designs, Inc. (“CID”) petitions for certiorari

review of the order granting Max South Construction, Inc.’s (“Contractor”),Motion for Judgment on the Pleadings, dismissing CID’s Motion for Leave to

Amend, and releasing the cash security posted to secure CID’s Claim of Lien to

Contractor from the court registry. We grant the petition, finding that the trial

court departed from the essential requirements of the law, resulting in irreparable

harm that cannot be adequately remedied on final appeal. See Kirlin v. Green

, 955

So. 2d 28, 29 (Fla. 3d DCA 2007).

CID was hired as a subcontractor by Contractor to furnish a portion of the

work required of Contractor under its direct contract with the owner of the subject

real property, BH Developers, LLC (“Owner”). CID claimed that it remained

unpaid for finished work and recorded a claim of lien against Owner’s real

property. Shortly thereafter, Contractor brought action against CID seeking to

discharge the construction lien and requesting the Clerk to issue a summons to CID

to show cause why the claims of lien should not be enforced by action or vacated

and/or cancelled pursuant to Florida Statute Section 713.21(4) (2014). Contractor

then transferred CID’s lien to cash security pursuant to Florida Statute Section

713.21(2014), thereby releasing Owner’s property as security for the claim of lien

and replacing security for the claim of lien with the bond.

On June 23, 2015, CID filed a First Amended Complaint for Enforcement

and Foreclosure of Claim of Lien. That Amended Complaint contained both

Counterclaims against Contractor and Third Party claims against Owner. The

Amended Complaint mistakenly asserted a claim for lien foreclosure against the

2bond in the Third-Party portion of the Complaint, rather than in the Counterclaim,

but the count correctly named Contractor as the party against whom relief was

sought. Contractor did not respond to the allegations of the lien foreclosure count.

Contractor later moved for judgment on the pleadings, claiming that one

year had passed since it transferred the lien to cash security and the time for CID to

bring an action against that cash security had lapsed before CID named Contractor

as a party to the claim. The trial court granted the motion. We believe, under the

circumstances of this case, that was error which caused material injury for which

there is no adequate remedy on appeal. See Bayview Const. Corp. v. Jomar Prop.,

LLC

, 97 So. 3d 909 (Fla. 4th DCA 2012).

As required by Florida Statute Section 713.21, within one year of Contractor

transferring the construction lien to cash security CID brought an action against

that cash security, but through scrivener’s error that claim was not placed in the

correct portion of CID’s Amended Complaint. It is obvious that CID intentionally

amended its Complaint after the lien had been transferred to cash security to

properly state a claim against Contractor and we find that the scrivener’s error at

issue here should not deprive CID of its right to make a claim against the cash

bond. “The nature and character of a pleading must be determined, not by its title,

but by its contents and by the actual issues in dispute.” Scarfone v. Marin

, 442 So.

2d 282, 283 (Fla. 2d DCA 1983). See also Pub. Health Trust of Miami-Dade Cty

v. Acanda

, 71 So. 3d 782, 785-86 (Fla. 2011) (“We reject the use of

... ‘gotcha’

3tactic[s] to dispose of potentially meritorious causes of action... Causes of action

should be decided on their merits, and not as the result of ‘surprise, trickery, bluff,

and legal gymnastics’”).

Further, when the scrivener’s error became clear to CID, it properly moved

to amend its Amended Complaint to move the lien foreclosure to the Counterclaim

portion of its proposed Second Amended Complaint. The trial court should have

granted that motion. “Where there is no doubt regarding the identity of the party

intended to be named, it is not unfair or unjust to permit a plaintiff to correct its

pleading particularly because the defendant suffers no prejudice.” Arch Specialty

Ins. Co. v. Kubicki Draper, LLP

, 137 So. 3d 487, 491 (Fla. 4th DCA 2014).

For the foregoing reasons, we grant the petition for certiorari, reverse the

trial court’s order and remand with directions to vacate that order, to issue an order

granting Petitioner’s Motion for Leave to Amend relating back to the date that the

First Amended Counterclaim and Third Party Complaint was filed, and ordering

that the cash security be reposted to the court registry within ten days.

4