T.L. PAULK, APPELLANT,
v.
JOANNE S. PEYTON, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appellate court reversed the trial court's summary judgment, finding that the trial court erred in concluding that a contractor's failure to provide an original contractor's affidavit, rather than a copy, constituted a failure to meet a condition precedent for foreclosing a mechanic's lien.
The trial court erred in granting summary judgment for the owner on the mechanic's lien action based on the contractor's failure to provide an original contractor's affidavit, as this issue was not properly raised in the pleadings.
[1] The furnishing of a final contractor's affidavit to the owner is a condition precedent to the maintenance of an action to enforce a mechanic's lien.
[2] A defense of nonperformance of a condition precedent must be pleaded specifically and with particularity, or it is deemed waived.
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 intelligenceA contractor sued for breach of contract and foreclosure of a mechanic's lien. The owner moved for summary judgment, arguing the contractor provided a…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Fla. R. Civ. P. 1.120(c) cases and more on FLexlaw
MICKLE, Judge.
This appeal and cross-appeal arise out of an action for breach of contract and foreclosure of a mechanic’s hen. Of the several issues raised on appeal, one is dispositive. We conclude the trial court erred in entering summary judgment on the mechanic’s hen action, and we reverse and remand for further proceedings.
Appellant T.L. Paulk entered into a combination written and oral contract with appel-lee Joanne Peyton to perform certain improvements upon real property owned by Peyton. A dispute arose, and Paulk instituted the instant two-count complaint seeking damages for breach of contract and foreclosure of a mechanic’s hen.
With regard to the mechanic’s hen count, Paulk alleged specifically that he had furnished Peyton with a contractor’s affidavit stating that all henors had been paid and generally that all conditions precedent to the filing of this action had been satisfied. In turn, Peyton filed her answer to the complaint. In response to the aforementioned allegations, Peyton averred she was “without knowledge.” Additionally, Peyton alleged several affirmative defenses and a two-count counterclaim. In no part of her pleadings did Peyton raise the issue of the sufficiency of the contractor’s affidavit furnished her. Some nine months after the original complaint had been filed and some fourteen months after the claim of lien had been filed with the clerk of the court, Peyton filed a motion to dismiss the action for mechanic’s hen on the basis that Paulk had failed to provide her with the original contractor’s affidavit and had furnished her instead with a copy thereof.
The trial court denied this motion. Then, approximately two months later, Peyton filed a motion for summary judgment on the mechanic’s hen action asserting the same grounds alleged in the motion to dismiss. Following a hearing, the trial court entered an order granting the motion for summary judgment, finding that the furnishing of a photocopy of the contractor’s affidavit did not comply with the mechanic’s hen statute and, therefore, that Paulk had failed to meet a condition precedent to his action to foreclose a mechanic’s hen.
Section 713.06(3)(d), Florida Statutes (1987), provides in pertinent part:
(d) When a final payment under a direct contract becomes due the contractor:
1. The contractor shah give to the owner an affidavit stating, if that be the fact, that all henors under his direct contract have been paid in full, or if the fact be otherwise, showing the name of each henor who has not been paid in full and the amount due or to become due each for labor, services or materials furnished. The contractor shah have no lien or right of action against the owner for labor, services, or materials furnished under the direct contract while in default for not giving the owner the affidavit. The contractor shah execute the affidavit and dehver it to the owner at least 5 days before instituting an action as a prerequisite to the institution of any action to enforce his hen under this chapter, even if the final payment has not become due because the contract is terminated for a reason other than completion and regardless of whether the contractor has any henors working under him or not.
The furnishing of a final contractor’s affidavit to the owner is a condition precedent to the maintenance of an action to enforce a mechanic’s hen. See, Holding Electric, Inc. v. Roberts, 530 So. 2d 301 (Fla.1988).
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 conditions precedent under Chapter 713 have been satisfied.” Prestige Development Group, Inc. v. Russell, 612 So. 2d 691, 692 (Fla. 1st DCA 1993).
In the case sub judice, Paulk alleged compliance with section 713.06(3)(d), as well as satisfaction of all conditions precedent. As such, it was incumbent upon Pey-ton, under rule 1.120(c), to plead specifically and with particularity any nonperformance of this condition precedent. Peyton’s averment of “without knowledge” did not satisfy the standard prescribed in rule 1.120(c). Consequently, Peyton waived compliance with this condition. Prestige; Davie Westview Developers, Inc. v. Bob-Lin, Inc., 533 So. 2d 879 (Fla. 4th DCA 1988), rev. denied, 545 So. 2d 1366 (Fla.1989) (failure to plead specifically and with particularity nonperformance of furnishing of contractor’s affidavit constitutes a waiver).
Accordingly, the trial court erred in entering summary judgment thereby extinguishing the mechanic’s lien action. We REVERSE and REMAND for further proceedings consistent with this opinion.
KAHN and VAN NORTWICK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Deutsche Bank Nat'l Tr. Co. v. Quinion, 198 So. 3d 701 (Fla. 2d DCA 2016)…lk, 81 So. 3d at 626. The Cresons bore the burden of identifying both the nature of the condition precedent and the nature of its alleged failure before the trial court could dismiss Deutsche Bank’s complaint on any such basis. See Paulk v. Peyton, 648 So. 2d 772, 774 (Fla. 1st DCA 1994). The Cresons failed to meet that pleading requirement in their answer. Accordingly, we reverse the circuit court’s order of dismissal and remand this case for further proceedings. Reversed and remanded. ALTENBERND and SALA…
-
VonDRASEK v. City OF ST. Petersburg, 777 So. 2d 989 (Fla. 2d DCA 2000)…ion it needed to assess this legal issue when it filed its answer, the City waived this legal issue when it failed to provide a timely, specific denial.2 See Brown v. State, Dep’t of Corrections, 701 So. 2d 1211 (Fla. 1st DCA 1997); Paulk v. Peyton, 648 So. 2d 772 (Fla. 1st DCA 1994). The City’s motion to dismiss, filed after the expiration of the notice period, was effectively a motion to amend its answer to the plaintiffs’ complaint. See Fla. R. Civ. P. 1.190(a) (amendments). If the trial court had treated…
-
Bell v. Renar Dev. Co., 811 So. 2d 780 (Fla. 4th DCA 2002)…er plead, argue, or allege that the form of the affidavit was invalid for not having been properly sworn. See Boulis v. Boulis, 754 So. 2d 810 n. 1 (Fla. 4th DCA 2000)(citing Tillman v. State, 471 So. 2d 32, 35 (Fla.1985)). See also Paulk v. Peyton, 648 So. 2d 772 (Fla. 1st DCA 1994). While the Bells did, as they claim in their reply brief, “allude” to the argument in closing, this was not sufficient to preserve the issue for appeal. At no time did the trial court have the opportunity to make a ruling on the…
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)
- Jones v. Alterman Transp. Lines, Inc., 533 So. 2d 879 (Fla. 4th DCA 1988)
- Hodusa Corp. v. Abray Constr. Co., 546 So. 2d 1099 (Fla. 2d DCA 1989)
- Prestige Dev. Grp., Inc. v. Russell, 612 So. 2d 691 (Fla. 1st DCA 1993)