FRANK STENHOLM, APPELLANT,
v.
MARION J. CALBECK AND MARY E. CALBECK, HIS WIFE, APPELLEES
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Stenholm filed a mechanic's lien claim against the Calbecks and sought to foreclose it. The trial court dismissed the suit for allegedly failing to comply with Florida lien statutes, but the appellate court reversed, holding that the statutory requirement to serve an affidavit on the owner is only that it be delivered at least five days before filing suit, not within ninety days of the last work performed.
The court held that the affidavit must be delivered to the owner at least five days before instituting suit, but no ninety-day deadline applies to the service of the affidavit itself. Stenholm complied with the statute by serving the affidavit five days before filing suit, and his lien was properly perfected.
[1] A claim of lien must be recorded within ninety days after the final furnishing of labor, services, or materials.
[2] An affidavit required by statute must be delivered to the owner at least five days before instituting suit to enforce a lien.
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“The contractor shall have no lien or right of action against the owner for labor, services or materials furnished under the direct contract while in default by reason of not giving the owner such affidavit. The contractor shall execute said affidavit and deliver it to the owner at least five days before instituting suit as a prerequisite to the institution of any suit to enforce his lien under this chapter.”
Establishes the statutory requirement that the affidavit be delivered at least five days before suit, making this time a prerequisite to enforce the lien.
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Join FLexlaw to unlock all legal intelligenceStenholm performed work and furnished materials for the Calbecks' property, with the last work completed on October 8, 1971. He filed a claim of lien …
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A claim of lien was filed by appellant on November 3, 1971, showing that the last work performed was October 8, 1971, thereby complying with Fla.Stat. § 713.-08(5), F.S.A., which provides:
“(5) The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than ninety days after the final furnishing of the labor or services or materials by the lienor; . .
The affidavit required by Fla.Stat. § 713.-06(3) (d) (1), F.S.A., was served on the owner five days prior to the filing of the complaint to foreclose the lien. This statute reads in part:
“The contractor shall have no lien or right of action against the owner for labor, services or materials furnished under the direct contract while in default by reason of not giving the owner such affidavit. The contractor shall execute said affidavit and deliver it to the owner at least five days before instituting suit as a prerequisite to the institution of any suit to enforce his lien under this chapter.”
The trial judge dismissed the suit for failure to comply with Fla.Stat. § 713.-06(3) (d) (1), F.S.A., in that the affidavit was filed more than ninety days after the last items of service and material were furnished. We have examined the statutes *532involved as well as the case law and nowhere do we find that the affidavit required by § 713.06(3) (d) (1) must be served on the owner within ninety days after the last items of service and material are furnished. The clear reading of the statute requires it to be delivered to the owner at least five days before instituting suit and makes this time a prerequisite to any suit to enforce his lien. The right to file the action is suspended while the lienor is in default for failure to file the affidavit. Five days after filing it, however, he may then file the action if that date occurs within the time prescribed by law.
We believe Fla.Stat. 713 has been complied with so as to perfect appellant’s lien.
For these reasons the trial judge erred in granting the motion to dismiss. We therefore reverse and remand with directions consistent with this opinion.
HOBSON and MANN, JJ„ concur.
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Jackson v. Hardrick, 392 So. 2d 48 (Fla. 5th DCA 1980)…PER CURIAM. REVERSED on the authority of Stenholm v. Calbeck, 265 So. 2d 531 (Fla. 2d DCA 1972). COBB, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.…