ART BERMAN CONCRETE, INC., a Florida Corporation, Appellant,
v.
SEY CONSTRUCTION CORP., a Florida Corporation, Milton F. Steinhardt and Fidelity and Deposit Company of Maryland, As Surety, Appellees.
District Court of Appeal of Florida, Third District.
William J. Goldworn and Daniel J. Spiegel, Miami, for appellant.
James V. Johnstone, Miami, for appellees.
Before PEARSON, C.J., and CHARLES CARROLL and HENDRY, JJ.
PEARSON, Chief Judge.
Thе controlling question in this appeal is whether the notice indicated by F.S. § 713.06 (3) (d) 1, F.S.A., of the mechanic's lien law must be given by a sub-contractor who claims under a mechanic's lien. The section reads as follows:
"(3) The ownеr may make proper payments on the direct contract as to lienors under this section, in the following manner:
(a) * * * * *
(b) * * * * *
(c) * * * * *
(d) When the final payment under a direct contract becomes due the contractor:
1. The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwisе, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, servicеs or materials furnished. The contractor shall have no lien or right of аction against the owner for labor, services or materials furnished under the direct contract while in default by reason of not giving the owner suсh affidavit. The contractor shall execute said affidavit and deliver it to the owner at least five *792 days before instituting suit as a prerequisite tо the institution of any suit to enforce his lien under this chapter."
The question which we must decide arose by the filing of appellant's complaint to foreclose a mechanic's lien. The complaint did not allеge that the notice had been given. It is not clear from the comрlaint whether appellant alleges itself to be a sub-contractor but the complaint is susceptible to that interpretation. The triаl court dismissed appellant's complaint with prejudice as to thе prayer to enforce a mechanic's lien but with leave to institutе an action upon any contract rights it might claim. We hold that it was error for the trial court to dismiss with prejudice the complaint to foreсlose the lien.
It will be noted from a reading of the quoted section that by the terms of the section itself, it applies to "contractors" аnd not sub-contractors; further, that the section refers to "the direct сontract" which would further indicate an applicability only to the gеneral contract.
Appellee suggests that the term "contractor" as used within the section should be interpreted as a generic tеrm including subcontractor inasmuch as this would aid in the protection of the owner from unjust claims. This last purpose is urged by the appellee аs the purpose of the section. We are convinced first that thе entire lien law must be interpreted favorably to the lienor in order to achieve the beneficial purpose of the statute which is thе protection of those entitled to receive the fruits of their lаbor. Crane Co. v. Fine, Fla. 1969,
Second, we are convinced that the interpretation urged by appellee is both strained and unreasonable under the language of the section. It is the duty of the court in interprеting a statute to follow the plain language thereof. Tropical Coach Line, Inc. v. Carter, Fla. 1960,
The judgment appealed is reversed with directions to enter an order dismissing appellant's complaint аs failing to comply with RCP 1.110, but granting to appellant the right to amend its comрlaint for claim of lien and for further proceedings in accordance with the views herein set out.
Reversed and remanded.