GERALD B. FALOVITCH, APPELLANT,
v.
GUNN AND GUNN CONSTRUCTION COMPANY, APPELLEE
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Gerald Falovitch appealed a judgment foreclosing a mechanic's lien filed by Gunn and Gunn Construction Company. The court reversed because the contractor failed to comply with the statutory requirement of serving an affidavit to the owner at least five days before instituting suit, which is an indispensable prerequisite under Florida's Mechanic's Lien Law.
Yes. The court reversed the judgment because strict compliance with the Mechanic's Lien Law is an indispensable prerequisite to seeking affirmative relief thereunder, and where a plaintiff fails to serve the required affidavit as a prerequisite to instituting suit and a motion to dismiss is filed, the trial court is obligated to dismiss the claim for foreclosure.
[1] Strict compliance with the Mechanic's Lien Law is an indispensable prerequisite to seeking affirmative relief thereunder.
[2] A contractor must furnish the owner with a contractor's affidavit at least five days before instituting suit to enforce a mechanic's lien.
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Join FLexlaw to unlock all legal intelligence“the contractor must execute and deliver to the owner at least five days before instituting suit an affidavit stating that all lienors have been paid in full, or showing the names of all lienors not yet paid in full, and the amounts due”
Establishes the statutory prerequisite requirement under Section 713.06(3)(d)(1)
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Join FLexlaw to unlock all legal intelligenceGunn and Gunn Construction Company filed suit to foreclose a mechanic's lien against Gerald Falovitch. The plaintiff's complaint did not allege that i…
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PER CURIAM.
This is an appeal by Gerald B. Falovitch, defendant in the trial court, from an adverse final judgment foreclosing a mechanic’s lien. The sole issue in this appeal is whether the court erred in entering a final judgment foreclosing the mechanic’s lien where the plaintiff, Gunn and Gunn Construction Company, failed to allege that it had furnished the defendant with a contractor’s affidavit at least five days before instituting suit, as required by Section 713.-06(3)(d)(l), Florida Statutes.
The plaintiff’s complaint did not allege nor does the record reflect that the affidavit was served prior to the institution of suit or at any time thereafter. No motion was made to amend the complaint to so state. Defendant Falovitch moved to dismiss the complaint on the ground that it did not state a cause of action. The trial court denied the motion. At a later date and prior to trial, defendant filed another motion to dismiss on the ground that the plaintiff had failed to comply with Section 713.-06(3)(d)(l), Florida Statutes, as a prerequisite to the institution of suit. This motion was also denied.
Section 713.06(3)(d)(l) provides that as a prerequisite the institution of any suit to enforce a lien under Chapter 713, the contractor must execute and deliver to the owner at least five days before instituting suit an affidavit stating that all lienors have been paid in full, or showing the names of all lienors not yet paid in full, and the amounts due. Further, the contractor can have no lien or right of action against the owner under the direct contract while in default by reason of not having given the owner such affidavit. The cases hold that strict compliance with the Mechanic’s Lien Law is an indispensable prerequisite to seeking affirmative relief thereunder. Partin v. Konsler Steel Company, 336 So. 2d 684 (Fla. 4th DCA 1976), and cases cited therein. Where the plaintiff fails to serve the affidavit as required by statute as a prerequisite to the institution of suit, and a motion to dismiss is filed, it is incumbent upon the trial court to dismiss the claim for foreclosure of the mechanic’s lien. See Oppenheim v. Newport Systems Development Corp., 348 So. 2d 328 (Fla.3d DCA 1977), opinion filed January 4, 1977; Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla.3d DCA 1975); Potts v. Orlando Building Service, Inc., 206 So. 2d 221 (Fla. 4th DCA 1968); Oper v. Russell, 197 So. 2d 13 (Fla.3d DCA 1967).
Section 713.29, Florida Statutes, provides that the prevailing party in an action to enforce a mechanic’s lien is entitled to recover a reasonable fee for the services of his attorney. As was held in Dominguez v. Benach, 277 So. 2d 567 (Fla.3d DCA 1973) and the Mardan Kitchen Cabinets case, supra, a party who successfully resists a claim to enforce a mechanic’s lien is the prevailing party, and that party is therefore entitled to reasonable attorney’s fees.
Accordingly, we reverse and remand to the trial court with directions to vacate the final judgment foreclosing the mechanic’s lien and to award a reasonable attorney’s fee to defendant Falovitch as the prevailing party in the claim to enforce the mechanic’s lien.
Reversed and remanded with directions.
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Citator
Cited By (18 total)
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Brown v. Gardens BY THE SEA S. Condo. Ass'n, 424 So. 2d 181 (Fla. 4th DCA 1983)…for this plaintiff. To some degree, such is the result in every case where a defendant prevails. The plaintiff, having invoked the Act, is liable for an attorney’s fee because he did not prevail. Cf. Falovitch v. Gunn and Gunn Construction Company, 348 So. 2d 560 (Fla. 3d DCA 1977). Reversed and remanded with instructions to allow appellants an attorney fee either by contract or statute. GLICKSTEIN, J., concurs. DELL, J., concurs specially with opinion.…
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Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So. 2d 1254 (Fla. 4th DCA 1984)…-Briggs Steel Products, Inc. v. Ace Concrete Service Co., supra. This principle is exemplified by the host of cases which have held that untimely service of the notice to owner is a fatal defect. See, e.g., Falovitch v. Gunn & Gunn Construction Co., 348 So. 2d 560 (Fla. 3d DCA 1977); Babe’s Plumbing, Inc. v. Maier, 194 So. 2d 666 (Fla. 2d DCA 1966); Standi v. Gardner, 192 So. 2d 340 (Fla. 2d DCA 1966). Thus, I would hold that constructive knowledge is not an acceptable substitute for full statutory compliance…
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Rustic Vill., Inc. v. Elayne Friedman, 417 So. 2d 305 (Fla. 3d DCA 1982)…for this plaintiff. To some degree, such is the result in every case where a defendant prevails. The plaintiff, having invoked the Act, is liable for an attorney’s fee because he did not prevail. Cf. Falovitch v. Gunn and Gunn Construction Company, 348 So. 2d 560 (Fla. 3d DCA 1977). Reversed and remanded with directions to grant the defendant the fee provided by statute. . 501.2105 Attorney’s fees.— (1) In any civil ligitation resulting from a consumer transaction involving a violation of this part, exc…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975)
- Oper v. Russell, Inc., 197 So. 2d 13 (Fla. 3d DCA 1967)
- Jewell S. Potts, Jr. v. Orlando Bldg. Serv., Inc., 206 So. 2d 221 (Fla. 4th DCA 1968)
- Partin v. Konsler Steel Co., 336 So. 2d 684 (Fla. 4th DCA 1976)
- Oppenheim v. Newport Sys. Dev. Corp., 348 So. 2d 328 (Fla. 3d DCA 1977)
- Preston v. State, 277 So. 2d 567 (Fla. 3d DCA 1973)
- Vicente F. Dominguez v. Bienvenido M. Benach, Jr., 277 So. 2d 567 (Fla. 3d DCA 1973)
- Tomorrow's Choice, Inc. v. Bassing Co., Inc., 343 So. 2d 70 (Fla. 3d DCA 1977)