[CLC-Discussion] Final Contractor's affidavit

Fri Jan 4 05:46:00 PST 2019

I have not updated the research lately, but the older case law clearly
supports a directed verdict for noncompliance with the final affidavit
requirement-don't think anything has changed.

Charles B. Hernicz, Esq.

Board Certified in Construction Law by The Florida Bar          

Hernicz Legal Services, P.L.
1460 Wood Row Way 
Wellington, FL 33414 
Telephone: (561) 753-7511 
Facsimile: (561) 753-7082 
Chernicz at HerniczLegal.com

From: clc-discussion-bounces at lists.flabarrpptl.org
<clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of Bruce Partington
Sent: Thursday, January 3, 2019 2:50 PM
To: 'Brian Solomon' <bsolomon at volklawoffices.com>;
clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Final Contractor's affidavit

I've wondered about that before, and the question turns I think on whether
service of the CFA is an "element" of the cause of action, or merely a
"condition precedent" which can be pled generally. I don't think there is a
clear answer, but I always plead it. I am not aware of any definitive
authority one way or the other.

There is argument that it's an element since the statute says: "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 for not giving the owner the affidavit" (which smells like an
"element" to me); but it also says: "The contractor shall execute the
affidavit and deliver it to the owner at least 5 days before instituting an
action as a prerequisite to the institution of any action to enforce his or
her lien under this chapter" (which smells like a condition precedent to
me).

Another of the vagaries of the lien law nicely explored in the current
edition of the Fla. Bar Journal in Leonard Klingen's article. 

Bruce D Partington | Shareholder
bpartington at clarkpartington.com <mailto:bpartington at clarkpartington.com>  |
(850) 432-1399

CLARK PARTINGTON
Office: (850) 434-9200 | Fax: (850) 432-7340 
125 East Intendencia Street, 4th Floor 
Pensacola, Florida 32502 
 <http://clarkpartington.com/> clarkpartington.com 

 <https://www.facebook.com/ClarkPartington/>
<https://www.linkedin.com/company/2250553/admin/>
<https://twitter.com/ClarkPartington>
<https://www.instagram.com/clarkpartington/>  

From: clc-discussion-bounces at lists.flabarrpptl.org
<mailto:clc-discussion-bounces at lists.flabarrpptl.org>
[mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Brian
Solomon
Sent: Thursday, January 3, 2019 1:38 PM
To: clc-discussion at lists.flabarrpptl.org
<mailto:clc-discussion at lists.flabarrpptl.org> 
Subject: [CLC-Discussion] Final Contractor's affidavit

I know that raising the failure to file a final contractor's affidavit has
to be pled with particularity.  On the flip side, is there any support for
the proposition that a lienor in privity's failure to specifically plead
compliance with serving the final contractor's affidavit within five days,
fails to state a cause of action. 

Volk Law Offices, P.A.

Brian D. Solomon, Esquire

One Harbor Place

1901 S. Harbor City Blvd.

Suite 700

Melbourne, FL 32901

321.726.8338 telephone

bsolomon at volklawoffices.com <mailto:bsolomon at volklawoffices.com> 

Board Certified in Construction Law

 <http://volklawoffices.com/> 

This email is intended only for the use of the party to which it is
addressed and may contain information that is privileged, confidential, or
protected by law.  If you are not the intended recipient, you are hereby
notified that any dissemination, copying or distribution of this email or
its contents is strictly prohibited.  If you have received this message in
error, please notify us immediately by replying to the message and deleting
it from your computer.

Internet communications are not assured to be secure or clear of
inaccuracies as information could be intercepted, corrupted, lost,
destroyed, arrive late or incomplete, or contain viruses.  Therefore, we do
not accept responsibility for any errors or omissions that are present in
this email, or any attachment, that have arisen as a result of email
transmission.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20190104/f04e0f03/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 11393 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20190104/f04e0f03/image003-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.png
Type: image/png
Size: 365 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20190104/f04e0f03/image004-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.png
Type: image/png
Size: 468 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20190104/f04e0f03/image005-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.png
Type: image/png
Size: 619 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20190104/f04e0f03/image006-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image007.png
Type: image/png
Size: 621 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20190104/f04e0f03/image007-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image008.jpg
Type: image/jpeg
Size: 6895 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20190104/f04e0f03/image008-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Fort v Lopex-FInal Affidavit 580_SO_2D_227.doc
Type: application/msword
Size: 70144 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/clc-discussion/attachments/20190104/f04e0f03/FortvLopex-FInalAffidavit580_SO_2D_227-0001.doc>