[CLC-Discussion] Final Contractor's affidavit

Fri Jan 4 06:08:28 PST 2019

Rivera (attached) found Fort to be abrogated by Ingersoll v. Hoffman, 589 So. 2d 233 (Fla. 1991) on the grounds that the defendant must specifically plead non-compliance with a condition precedent (e.g., CFA), and failure to do so can waive the defense. Notably, the lienor in Rivera alleged "all conditions precedent to the filing of this action have occurred, have bene performed, or have otherwise been waived or excused." This suggests compliance may not need to be specifically pled.

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Charles B. Hernicz, Esq.
Sent: Friday, January 04, 2019 8:46 AM
To: 'Bruce Partington'; 'Brian Solomon'; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Final Contractor's affidavit

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
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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

[cid:image001.jpg at 01D11BB2.EEFB99D0]<http://volklawoffices.com/>

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