Ebano-Soberon, Inc. v. The Cury Group, Inc.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT January Term 2010 EBANO-SOBERON, INC., Petitioner, v. THE CURY GROUP, INC., 470 SOUTH OCEAN, L.L.C., and BERKLEY REGIONAL INSURANCE COMPANY, Respondents. No. 4D09-5127 [ May 26, 2010 ] PER CURIAM. Ebano-Soberon, Inc. (ES) seeks certiorari review of a trial court order that granted a motion for partial summary judgment, effectively vacating a lien for failure to furnish a final payment affidavit, as required by section 713.06(3)(d), Fla. Stat. We find the order to be reviewable by certiorari. See, e.g., A & M Painting v. Jennings, 598 So. 2d 335 (Fla. 4th DCA 1992). Our review of this matter reveals that there remain material issues of fact as to whether ES was a laborer, material supplier, contractor or subcontractor, such that whether ES is obligated to furnish a final payment affidavit is not certain at this stage of the case. Included among the issues is whether ES was a subcontractor and, thus, not required to furnish a final payment affidavit. See Art Berman Concrete, Inc. v. Sey Constr. Corp., 247 So. 2d 791 (Fla. 3d DCA 1971). For these reasons, the partial summary judgment should not have b e e n entered. See Architectural Complements, Inc. v. R.G. Brown Props., Inc., 686 So. 2d 678 (Fla. 2d DCA 1996). We grant the petition, quash the trial court s order granting partial summary judgment, a n d remand to the trial court for further proceedings consistent with this opinion. TAYLOR, DAMOORGIAN and GERBER, JJ., concur. * * * Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Joseph Marx, Judge; L.T. Case No. 2008CA026064XXXXMBAF. Brian S. Dervishi and Marc I. Goldsand of Weissman, Dervishi, Borgo & Nordlund, P.A., Miami, for petitioner. Ryan V. Kadyszewski and John A. Hockin of Linkhorst & Hockin, P.A., Jupiter, for respondents. Not final until disposition of timely filed motion for rehearing. -2-

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