In a short opinion, Florida’s Third District Court of Appeal affirmed a final judgment foreclosing a lien in favor of a general contractor. While the opinion is short and without elaboration, reviewing the underlying trial docket raises questions about the acceptable forms for contractor’s payment affidavits and pleading affirmative defenses relating to lien claims.
Hotel La Petite Muse, LLC v. Verzura Construction, Inc. arises from a contract and lien foreclosure dispute between a property owner and a general contractor. Following a bench trial, the trial court entered judgment in favor of the general contractor, including finding that the contractor’s lien was valid and enforceable. The property owner appealed, arguing that the trial court erred in enforcing the contractor’s lien because the contractor failed to deliver a valid and enforceable final construction affidavit. Specifically, the property owner argued that the affidavit was incomplete.
On appeal, Florida’s Third District Court of Appeal, with very little elaboration, affirmed the trial court’s judgment, stating:
After hearing extensive evidence during a four-day bench trial, the trial court in this case found that [the general contractor] had met all prerequisites to filing a claim of lien and had presented uncontroverted testimony from its expert witnesses that its construction lien was valid and that the amounts stated were accurate. While [the property owner] argues the construction affidavit was incomplete, we find there is competent substantial evidence to support the trial court's conclusions and to support [the general contractor’s] argument that [the property owner] waived the defense.
The appellate court concluded by citing multiple court opinions supporting the conclusion that failure to specifically plead the contractor’s non-performance of the condition is a waiver of the defense.
While the opinion leaves a lot of open questions about the affidavit at issue in the case, digging into the trial court docket provides some insight. First, the affidavit at issue in the appeal, appears to be a version of the AIA G706 affidavit. A picture of the version entered into evidence at trial is below:
In its final judgment, the trial court specifically addressed the affidavit, and the general contractor’s compliance with the requirements of Chapter 713, Florida Statutes, as follows:
Pursuant to 713 Florida Statutes, [the general contractor] sued the [property owner] to foreclose on its Claim of Lien in the total amount of $1,755,684.56. [The general contractor] has complied with all conditions precedent. [The general contractor] has filed its Notice of Commencement, Notice to Owner, Contractor’s Affidavit of Payments of Debts and Claims, May 12, 2017, and timely filed the Claim of Lien in the amount of $1,755,684.56 on May 19, 2017, within 90 days of [the general contractor] providing its last labor and materials April 26, 2017.
In order for a Claim of Lien to be valid under 713 Florida Statutes, the lien amount must be recorded in the county where the real property is located, served on the owner within fifteen days of recording and the final Contractor’s affidavit must be served on the owner at least five days prior to initiating an action for foreclosure.
[The general contractor] has proven that all prerequisites to filing a Claim of Lien have been met including Notice of Commencement, Notice to Owner, Contractor’s Affidavit of Payments of Debts and Claims, May 12, 2017, and timely filed the Claim of Lien in the amount of $1,755,684.56 on May 19, 2017 within 90 days of [the general contractor] providing its last labor and materials, April 26, 2017.
In its motion for rehearing, the property owner challenged the sufficiency of the affidavit supporting the lien, arguing as follows:
Indeed, the May 12, 2017 affidavit referred to in the Final Judgment and on the record bears little resemblance to the statutory affidavit: it is not signed or notarized; it does not state that it is being provided to obtain final payment; it refers only to payment of subcontractors and not to other lienors; and it contains language that the amounts are “to finish.” As such, the affidavit is not sufficiently similar to the form provided in — and required by — Fla. Stat. 713.06 and, both as a matter of fact and law, should not have been relied on by this Court. (emphasis in original)
In response, the general contractor attached a copy of the full affidavit (pictured below) and argued that any clerical errors that resulted in the cut off version of the affidavit being presented at trial by both parties should not be used against the general contractor on rehearing. The general contractor also argued that this was the first time that the property owner had raised the affirmative defense that the contractor’s payment affidavit was not properly executed, and therefore the defense had been waived.
The trial court denied the motion for rehearing and the Third DCA affirmed the final judgment. Interestingly, in at least one set of affirmative defenses, the property owner did assert the following defense:
[The general contractor’s] claims are barred because [it] failed to satisfy conditions precedent, including service or furnishing of a valid final contractor’s affidavit.
While the opinion of the Third District Court of Appeal provides none of these details, reviewing the actual documents from the trial docket raises interesting questions about substantial compliance with the form of the affidavit required by 713.06, Florida Statutes, and the level of specificity required when pleading deficiencies in compliance with lien law requirements. Below are links to some of the trial court documents referenced in this post.