RONAL BUILDERS, INC., APPELLANT,
v.
POWELL BROTHERS, INC., APPELLEE
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DOWNEY, Judge.
We have fully considered the appellate points raised and conclude that they are without merit.
Appellant contends that the lien involved herein is a fraudulent lien as provided in § 713.31(2) (b), F.S.1973. Such a defense is an affirmative one and must be pleaded. That was not done here. See Midway Shopping Mall, Inc., v. Airtech Air Con., Inc., Fla.App.1971, 253 So. 2d 900.
Since appellee had not completed the contract the final payment was not due and the affidavit requirement of § 713.-06(3) (d)(1) is inapposite. Appellee was entitled to a lien for so much of the con tract price as was unpaid less the final payment or 10%, whichever was greater. For the foregoing reasons we affirm the judgment appealed from.
AFFIRMED.
OWEN, J., and DRIVER, B. J., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gesco, Inc. v. Edward L. Nezelek, Inc., 414 So. 2d 535 (Fla. 4th DCA 1982)…remature and therefore should be considered fraudulent and invalid pursuant to Section 713.31, Florida Statutes. However, as this argument was not pursued below, it may not now be raised on appeal. See, Ronal Builders, Inc. v. Powell Brothers, Inc., 328 So. 2d 869 (Fla. 4th DCA 1976), cert. denied, 339 So. 2d 1171 (Fla.1976). Likewise, Gesco’s argument that Nezelek did not comply with the affidavit requirements of Section 713.06(3)(d)(1), Florida Statutes, was not raised below and is therefore deemed waived f…
Authorities Cited
- Midway Shopping Mall, Inc. v. Airtech AIR Conditioning, Inc., 253 So. 2d 900 (Fla. 3d DCA 1971)