Wednesday, June 24, 2009

Failure to Provide Contractor's Affidavit Must be Raised as a Defense or it is Waived

In Rivera v. Hammer Head (5D08-549 & 5D08-1672 ), the Firft District affirmed the trial court's denial of a motion for involuntary dismissal because "while a contractor’s affidavit is a condition precedent to bringing an action to foreclose a construction lien, the failure of the defendant property owner to plead specifically and with particularity the contractor’s non-performance of that condition as required by Florida Rule of Civil Procedure 1.120(c) constitutes a waiver of the condition or defense. Similarly, the Hodusa court recognized that furnishing an affidavit is a condition precedent to bringing an action to foreclose a mechanic's lien, but failure to do so does not create a jurisdictional defect. Hodusa, 546 So. 2d at 1101 (citing Holding Elec., Inc. v. Roberts, 530 So. 2d 301 (Fla. 1988)). The court also held that Hodusa was required under rule 1.120 to plead nonperformance of the condition precedent ‘specifically and with particularity’ and its failure to do so waived its right to assert that defense."

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