STRESSCON, A GENERAL PARTNERSHIP, ETC., APPELLANT,
v.
REYNALDO MADIEDO AND VIVIANA MADIEDO, APPELLEES
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Stresscon, a sub-subcontractor on a warehouse construction project, filed a mechanic's lien against the Madiedos after not being paid by its contractor who went bankrupt. The trial court granted summary judgment for the Madiedos because Stresscon's statement of account, though timely and accurate, lacked the required notarization, and the appellate court affirmed based on the strict compliance requirement for mechanics' liens established in Home Electric.
Strict compliance with the notarization requirement is mandatory for mechanics' liens regardless of whether the statement is otherwise timely and accurate or whether there is prejudice to the opposing party. The trial court's summary judgment was affirmed under the controlling precedent of Home Electric requiring strict compliance with mechanics' lien statutes.
[1] A sub-subcontractor's failure to notarize an otherwise timely and accurate statement of account, as required by statute, can result in the forfeiture of their mechanic's…
[2] Strict compliance with statutory requirements for mechanic's liens is an indispensable prerequisite for a person seeking affirmative relief under the statute.
Previewing 2 of 4 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“At the time any payment is to be made by the owner to the contractor or directly to a lienor, the owner may in writing demand of any lienor a written statement under oath of his account showing the nature of the labor or services performed and to be performed, the materials furnished and to be furnished, the amount paid on account to date, the amount due, and the amount to become due. Failure or refusal to furnish the statement within 50 days after the demand, or furnishing of a false or fraudulent statement, shall deprive the person so failing or refusing to furnish such statement of his lien.”
Sets forth the statutory requirement for statement of account, including the requirement that it be under oath (implying notarization), and the penalty for failure to provide it.
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Join FLexlaw to unlock all legal intelligenceStresscon was a sub-subcontractor that installed prestressed concrete beams on a warehouse construction project for the Madiedos through subcontractor…
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[*1352] PER CURIAM.
Stresscon, a general partnership, appeals an adverse summary judgment entered in favor of appellees Reynaldo and Viviana Madiedo on claims for foreclosure of a mechanic’s lien and for quantum meruit. We affirm.
Stresscon was a sub-subcontractor on a contract to build a warehouse for the Ma-diedos. Stresscon installed prestressed concrete “Double T” beams as agreed with the subcontractor, Lartran Construction. Lartran went into bankruptcy and Stress-con was not paid.
Subsequent to Stresscon’s filing of the claim of lien against the Madiedos, the Ma-diedos sent a demand to Stresscon under subsection 713.16(2), Florida Statutes (1987). The statute provides:
At the time any payment is to be made by the owner to the contractor or directly to a lienor, the owner may in writing demand of any lienor a written statement under oath of his account showing the nature of the labor or services performed and to be performed, the materials furnished and to be furnished, the amount paid on account to date, the amount due, and the amount to become due. Failure or refusal to furnish the statement within SO days after the demand, or furnishing of a false or fraudulent statement, shall deprive the person so failing or refusing to furnish such statement of his lien.
(Emphasis added). Stresscon sent a timely statement of account by certified mail. It is undisputed that the statement of account is accurate, but Stresscon failed to notarize it, as the statute requires.
After litigation ensued, the Madiedos moved for summary judgment on the ground that Stresscon’s statement of account was not notarized. The Madiedos made no showing of prejudice, but argued that strict compliance was required without regard to prejudice. In response the Stresscon employee who signed the statement of account provided an affidavit stating, in part, that “The statements set forth in the November 9, 1987 letter [the statement of account] are true on this date as they were true on the date thereof.”
In granting summary judgment for the Madiedos, the trial court relied on the Florida Supreme Court’s recent decision in Home Electric of Dade County, Inc. v. Gonas, 547 So. 2d 109 (Fla.1989) in which the court stated, “We hold ‘that the mechanics’ lien law is to be strictly construed in every particular and strict compliance is an indispensable prerequisite for a person seeking affirmative relief under the statute.’ ...” Id. at 111 (citation omitted). Stresscon argues that Home Electric should be distinguished, since in that case Home Electric failed to supply any statement whatsoever. In the present case the statement was timely and accurate, but lacked only the notarization. Stresscon also points out that the amount stated in the letter is close to the amount set forth in the claim of lien, which is notarized, and that the trial court’s construction of subsection 713.16(2) is at odds with the policy stated in subsection 713.08(4)(a), Fla.Stat. (1987), which provides that errors or omissions in a claim of lien will not prevent its enforcement against one who has not been adversely affected thereby.
Given the breadth of the language used in Home Electric, we conclude that we have no alternative but to affirm. We certify the following as a question of great public importance:
MAY THE FAILURE TO NOTARIZE AN OTHERWISE TIMELY AND ACCURATE STATEMENT OF ACCOUNT UNDER SUBSECTION 713.16(2), FLORIDA STATUTES (1987), BE CURED BY VERIFICATION AFTER THE FACT, SO LONG AS THERE IS NO PREJUDICE TO THE OPPOSING PARTY?
As to Stresscon’s remaining points on appeal, no reversible error has been shown.
Affirmed; question certified.
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Mursten Constr. Co. & Fid. & Deposit Co. of Md. v. C.E.S. Indus., Inc., 588 So. 2d 1061 (Fla. 3d DCA 1991)…revailing de-cisional law, we are obliged to give the mechanic’s lien statute a strict, and therefore literal, reading. See Home Electric of Dade County, Inc. v. Gonas, 547 So. 2d at 110-11; Stresscon v. Madiedo, 581 So. 2d 158 (Fla.1991), approving 561 So. 2d 1351 (Fla. 3d DCA 1990); accord Corporation of the President of the Latter Day Church of Jesus Christ v. Seymour Electric Supply Co., 558 So. 2d 88, 90 (Fla. 1st DCA 1990). Here, the statute proscribes the institution or prosecution of an action against…1 / 2
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Stresscon v. Reynaldo Madiedo, 581 So. 2d 158 (Fla. 1991)…HARDING, Justice. We have for review Stresscon v. Madiedo, 561 So. 2d 1351, 1352 (Fla. 3d DCA 1990), in which the district court certified the following question to be of great public importance: MAY THE FAILURE TO NOTARIZE AN OTHERWISE TIMELY AND ACCURATE STATEMENT OF ACCOUNT UNDER SUBSECTION 713.16(2), FLORIDA STATUTES…
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