HODUSA CORPORATION, A FLORIDA CORPORATION, APPELLANT,
v.
ABRAY CONSTRUCTION COMPANY, APPELLEE
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Hodusa Corporation appeals a trial court judgment in favor of Abray Construction Company in a mechanic's lien foreclosure case. The court affirmed, holding that while Abray was required to furnish a contractor's affidavit under Florida law, Hodusa waived the defense by failing to plead nonperformance with the specificity required by civil procedure rules.
A contractor in privity with an owner must furnish the contractor's affidavit as required by section 713.05, which incorporates the affidavit requirement of section 713.06(3)(d). However, failure to furnish the affidavit does not create a jurisdictional defect and does not mandate dismissal; instead, the owner must plead nonperformance with specificity under civil procedure rules, and Hodusa waived this defense by failing to do so.
[1] A contractor in privity with the owner, claiming a lien for subdivision improvements, must furnish the contractor's affidavit required by section 713.06(3)(d), Florida St…
[2] Sections 713.04 and 713.06, Florida Statutes, governing mechanics' liens for subdivision improvements and liens of persons not in privity, must be interpreted together.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A lienor, except a laborer or materialman, who is in privity with the owner and claims a lien under this section shall furnish the contractor's affidavit required in s. 713.06(3)(d).”
Establishes that contractors in privity with owners must furnish the contractor's affidavit under section 713.05
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Join FLexlaw to unlock all legal intelligenceAbray Construction Company contracted with Hodusa Corporation to perform improvements on a subdivision called 'Hodusa Place.' Problems arose with the …
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FRANK, Judge.
We affirm the trial court’s judgment in this matter. Of the six issues raised on appeal, only one merits discussion.
Abray Construction Company contracted with Hodusa Corporation to perform certain improvements upon a subdivision known as “Hodusa Place.” Problems ensued, and Abray instituted this lawsuit to, among other things, foreclose its lien. The trial judge ultimately entered final judgment in favor of Abray.
Hodusa now contends that the trial court should have dismissed Abray’s suit on the ground that Abray failed to provide Hodusa with the contractor’s affidavit referred to in section 713.06(3)(d)l, Florida Statutes (1987).
Abray on the other hand claims that it was not required to furnish the affidavit, because subdivision improvements are governed by section 713.04, Florida Statutes, and that section does not include an affidavit requirement applicable to a lienor in privity with the owner. It is true that the contractor’s affidavit requirement is not found in section 713.04 but in section 713.06, entitled “Liens of persons not in privity; proper payments.” Hence, at first blush it would seem that .no part of section 713.06 would be applicable in the presence of privity; that, however, is not the case.
Section 713.05, entitled “Liens of persons in privity,” specifically refers to section 713.06(3)(d): “A lienor, except a laborer or materialman, who is in privity with the owner and claims a lien under this section shall furnish the contractor’s affidavit required in s. 713.06(3)(d).” In recognition of the interplay of the various sections of the mechanics’ lien statutes, our court has held that sections 713.04 and 713.06 must be interpreted together. Southern Contractor Rentals, Inc. v. Broderick, 476 So. 2d 1376 (Fla. 2d DCA 1985); International Community Corporation— Tampa v. Davis Water and Waste Industries, Inc., 455 So. 2d 1164 (Fla. 2d DCA 1984); Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc., 454 So. 2d 701 (Fla. 2d DCA 1984).
As Judge Boardman wrote in Sewer Viewer, 454 So. 2d at 702:
... we consider that the purpose of section 713.04 is simply to provide less restrictive notice requirements for persons who, regardless of privity, are entitled to a lien for subdivision improvements, and to make provision for the attachment of such liens on abutting properties where the improvements are to lands dedicated to the public. We do not consider that the legislature intended to create a separate category of lien for subdivisions in regard to the manner, amount, and extent of a lien perfected under section 713.04.
Thus, because of the privity between Abray and Hodusa, Abray was required by section 713.05 to furnish Hodusa a contractor’s affidavit.
Abray’s omission, however, does not mandate dismissal of its lawsuit or reversal of the judgment in its favor. Although the furnishing of the affidavit is a condition precedent to bringing an action to foreclose a mechanic’s lien, failure to do so does not create a jurisdictional defect. Holding Electric, Inc. v. Roberts, 530 So. 2d 301 (Fla.1988).
Thus, Hodusa was required under rule 1.120, Florida Rules of Civil Procedure, to plead nonperformance of the condition precedent “specifically and with particularity.” See Davie Westview Developers, Inc. v. BoblAn, Inc., 533 So. 2d 879 (Fla. 4th DCA 1988). Hodusa’s second affirmative defense, captioned “Breach of Contract,” asserting that Abray had not fulfilled conditions of the contract in which the contractor’s affidavit is merely mentioned does not satisfy the standard prescribed in rule 1.120.
Thus, Hodusa has waived this argument.
AFFIRMED.
DANAHY, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Ingersoll v. Warren Hoffman, D.D.S., 589 So. 2d 223 (Fla. 1991)…edent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity. A general denial is not one “made specifically and with particularity.” In Hodusa Corp. v. Abray Construction Co., 546 So. 2d 1099 (Fla. 2d DCA 1989), the defendant sought to have a mechanic’s lien [*225] suit dismissed for failure to provide the contractor’s affidavit required by section 713.06(3)(d)(l), Florida Statutes (1987). In rejecting this contention, the court said: A…
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T.L. Paulk v. Peyton, 648 So. 2d 772 (Fla. 1st DCA 1994)…8). It follows that the defense of nonperformance of this condition precedent must be pled “specifically and with particularity” or it is deemed waived. Fla.R.Civ.P. 1.120(c); Florida Rules of Civil Procedure; Hodusa Corp. v. Abray Construction Co., 546 So. 2d 1099 (Fla. 2d DCA 1989). This court has previously held that pleading the defense of failure to give the contractor’s affidavit is not accomphshed by simply denying the allegation that “ah [*774] conditions precedent under Chapter 713 have been satisfied…
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Prestige Dev. Grp., Inc. v. Russell, 612 So. 2d 691 (Fla. 1st DCA 1993)…ffidavit until after the close of evidence. Therefore, the Russells waived compliance with that condition, and the trial court erred in dismissing Prestige’s mechanic’s lien claim on this basis. See Ingersoll; Hodusa Corp. v. Abray Construction Co., 546 So. 2d 1099 (Fla. 2d DCA 1989). The judgment of the trial court is reversed, and this cause is remanded for proceedings consistent with this opinion. MINER and KAHN, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Holding Elec., Inc. v. Roberts, 530 So. 2d 301 (Fla. 1988)
- Sewer Viewer, Inc. v. Shawnee Sunset Developers, Inc., 454 So. 2d 701 (Fla. 2d DCA 1984)
- Jones v. Alterman Transp. Lines, Inc., 533 So. 2d 879 (Fla. 4th DCA 1988)
- S. Contractor Rentals, Inc. v. Broderick, 476 So. 2d 1376 (Fla. 2d DCA 1985)
- Asiner v. Oriole Homes Corp., 455 So. 2d 1164 (Fla. 4th DCA 1984)
- Int'l Cmty. Corporation-Tampa & the Ins. Co. of Fla. v. Davis Water & Waste Indus., Inc., 455 So. 2d 1164 (Fla. 2d DCA 1984)