CopyCited 12 times | Published | Supreme Court of Florida | 14 Fla. L. Weekly 328, 1989 Fla. LEXIS 647
...3d DCA 1988), in which the district court acknowledged conflict with Alex v. Randy, Inc.,
305 So.2d 13 (Fla. 1st DCA 1974), over whether a demand letter from an owner to a lienor must state that the lienor has to comply within the time limit set out in subsection
713.16(2), Florida Statutes (1985), or lose the lien....
...court's decision in Home Electric. Home Electric (Home) filed a claim of mechanics' lien against the Gonases for electrical work done on their home as a subcontractor. Gonas wrote to Home demanding a written accounting under oath, as specified by subsection 713.16(2)....
...The trial court denied that motion and, after trial, entered final judgment for Home. On appeal the district court reversed, holding that the mechanics' lien law must be complied with strictly and that Home had not done so. In Alex the first district construed the then-current version of subsection 713.16(2) liberally and held that a demand letter must include notice of the statutory time for reply. The version of subsection 713.16(2) at issue in Alex, however, provided that reply must be made within only ten days....
...Ace Concrete Service Co.,
63 So.2d 924, 925 (Fla. 1953). As a statutory creature, the mechanics' lien law must be strictly construed. Id.; Foy v. Mangum,
528 So.2d 1331 (Fla. 5th DCA 1988); Palmer Electric Services, Inc. v. Filler,
482 So.2d 509 (Fla. 2d DCA 1986). Subsection
713.16(2) does not require that the owner tell the lienor about the statutory time limit....
...[3] An owner's demand letter need not warn a lienor of the consequences of failing to respond. We approve the instant decision reversing the trial court's final judgment. It is so ordered. EHRLICH, C.J., and OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. NOTES [1] § 713.16(2), Fla....
CopyCited 11 times | Published | Supreme Court of Florida | 1991 WL 101183
...We have for review Stresscon v. Madiedo,
561 So.2d 1351, 1352 (Fla. 3d DCA 1990), in which the district court certified the following question to be of great public importance: MAY THE FAILURE TO NOTARIZE AN OTHERWISE TIMELY AND ACCURATE STATEMENT OF ACCOUNT UNDER SUBSECTION
713.16(2), FLORIDA STATUTES (1987), BE CURED BY VERIFICATION AFTER THE FACT, SO LONG AS THERE IS NO PREJUDICE TO THE OPPOSING PARTY? We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution, and we answer the question in the negative....
...The record reflects that Madiedo paid the contractor who subsequently paid Lartran. Lartran went into bankruptcy and Stresscon was not paid. Subsequent to Stresscon's filing of the claim of lien against Madiedo for work completed, Madiedo sent a demand letter to Stresscon pursuant to section 713.16(2), Florida Statutes (1987)....
...The Third District Court of Appeal affirmed. We approve the result below. This Court's decision in Home Electric is controlling in this case. In Home Electric an electrical contractor filed a claim of lien against the homeowner for work completed. As specified by section 713.16(2), Florida Statutes (1985), the homeowner demanded a statement of account from the contractor....
...equisite for a person seeking affirmative relief under the statute.'" Home Electric,
547 So.2d at 111 (quoting Palmer Elec. Servs., Inc. v. Filler,
482 So.2d 509, 510 (Fla. 2d DCA 1986)). Accordingly, the contractor's failure to strictly comply with section
713.16(2) resulted in the denial of an otherwise valid lien. In the instant case, Stresscon also failed to strictly comply with section
713.16(2), and its lien must be denied....
...(1987) (provides that notice to owners "may be in substantially the following form"); and §
713.23, Fla. Stat. (1987) (notice to contractors, notice of nonpayment, notice of bond and payment bond shall be sufficient if "in substantially the following form"). In contrast, section
713.16(2) requires that the lienor's written statement of account be under oath....
...d-Briggs Steel Prods., Inc. v. Ace Concrete Serv. Co.,
63 So.2d 924, 925 (Fla. 1953). Because the acquisition of a mechanic's lien is purely statutory, there must be strict compliance with the mechanics' lien law in order to acquire such a lien. Id. Section
713.16(2) requires the lienor to provide a written statement under oath....
...Stresscon's failure to notarize the statement of account must result in a denial of the mechanic's lien. Accordingly, we answer the certified question in the negative and approve the result below. It is so ordered. SHAW, C.J., and McDONALD, BARKETT, GRIMES and KOGAN, JJ., concur. OVERTON, J., dissents. NOTES [1] Section 713.16(2), Florida Statutes (1987), provides: At the time any payment is to be made by the owner to the contractor or directly to a lienor, the owner may in writing demand of any lienor a written statement under oath of his account showing th...
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 11 Fla. L. Weekly 265
...or. On July 18, 1983, appellant filed and recorded its claim of lien against appellees' property. On September 22, 1983, appellant's counsel wrote a letter demanding payment from appellees. On September 26, 1983, appellees' counsel, as authorized by section 713.16(2), Florida Statutes (1983), wrote a responsive letter to appellant's counsel demanding a sworn statement from appellant to reflect the nature of labor or services performed, materials furnished, amount paid and amount remaining due. That letter from appellees' counsel did not specify that it was being sent pursuant to section 713.16(2), nor did it include a warning that a failure to respond would deprive appellant of its lien....
...Both parties filed motions for summary judgments and supporting affidavits. Appellant relies on Alex v. Randy, Inc.,
305 So.2d 13 (Fla. 1st DCA 1974), to support its argument that its claim of lien survived its failure to respond to appellees' letter of demand pursuant to section
713.16(2)....
...The court in Alex v. Randy placed great emphasis on the fact that the parties there were lay persons not experienced in the technical aspects of the law. Because of that the Alex v. Randy court imposed the requirement, not included within the language of section 713.16(2), that a responsive demand letter written by an owner must contain a warning that the lienor's failure to respond will result in the loss of the claimed lien....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2008 WL 4643302
...ccount to date, the amount due, and the amount to become due, if known, as of the date of the statement for the improvement of real property as (property description). (signature and address of owner) (date of request for sworn statement of account) § 713.16(2), (3), Fla....
...Thus, on this record we conclude no "written statement under oath" was necessary to preserve J.S.L.'s lien. The lien should not have been discharged for failure to provide a statement under oath. Fourth, the statement provided by J.S.L. was properly sworn. Section 713.16(2) of the Florida Statutes requires, *399 on proper demand, only a statement "under oath." The statement provided by J.S.L....
...statement was not attested to in any manner. Madiedo moved for summary judgment. Only then, did a Stresscon employee sign the statement of account and provide an affidavit swearing to its truthfulness and accuracy. Construing the pre-1994 version of section 713.16(2), the Court concluded that Stresscon's failure to comply with the requirements of section 713.16(2) were fatal to its lien claim....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2004 WL 2481311
...e Contractor claimed was due and the quality of the construction. On August 25, 1999, the Contractor filed a claim of lien for $72,250. On September 10, 1999, the Owners served a request for a sworn statement of account on the Contractor pursuant to section 713.16, Florida Statutes (1999), requesting a written statement of the Owners' account showing the nature of the labor and services performed, the materials furnished, and the amount paid on account to date on the project....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2017 WL 2264635, 2017 Fla. App. LEXIS 7534
...Here, however, the substantial compliance argument fails because the statute specifically requires without exception at least fourteen days’ written notice of a scheduled hearing. As the Stresscon court observed in holding that nothing in the language of section 713.16(2), Florida Statutes, permitted “either substantial compliance or lack of prejudice to be considered in determining the validity of a [mechanics’] lien”: The fact that no prejudice has been nor can be shown is not the determining...
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...*14 Harry Katz, Jr., of Katz & Katz, Jacksonville, for appellants. Nathan Weil, III, Etho W. Skipper and Floyd G. Yeager, Jacksonville, for appellees. McCORD, Judge. This is an interlocutory appeal from an order holding appellants' demand made upon lienors (appellees) under Subsection (2) of Section 713.16, Florida Statutes (the mechanics' lien law) insufficient to deprive appellees of their liens....
...should not be enforced by action or vacated and cancelled of record. Appellants contend that the liens of appellee should be cancelled because appellees failed to respond within ten days to demands served severally upon them under Subsection (2) of Section 713.16, Florida Statutes....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...Home Electric of Dade County, Inc., filed a claim of lien against Mr. and Mrs. Gonas for electrical subcontracting work performed in remodeling the Gonas's home. Roy Gonas thereafter sent to Home Electric by certified mail a demand for a written accounting. The demand did not specify that under section 713.16(2), Florida Statutes (1986), Home Electric had to respond within thirty days or lose the lien....
...d with the mechanic's lien law; and that he had no legal training. The trial court denied the owners' motion for summary judgment and, following trial, entered a final judgment of foreclosure from the lien. The issue on appeal is the construction of section 713.16(2) which provides: At the time any payment is to be made by the owner to the contractor or directly to a lienor, the owner may in writing demand of any lienor a written statement under oath of his account showing the nature of the labo...
...warning was necessary, even though the statute did not require it, because lienors under the mechanic's lien law are generally not aware of technical aspects of the law. Id. at 14-15. The Second District Court of Appeal, however, strictly construed section
713.16(2) and held that "strict compliance is an indispensable prerequisite for a person seeking relief under the statute." Palmer Elec. Servs., Inc. v. Filler,
482 So.2d 509, 510 (Fla. 2d DCA 1986). We approve the reasoning and rationale of Palmer and, consistent with Palmer, we hold that under section
713.16(2) a lienor must, upon proper demand by an owner, furnish a statement of account within thirty days or lose the lien....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 1989 WL 62423
...ry notice. We do not consider this to conflict with Hardrives, as here there was a reasonable effort by the subcontractor to comply with the statute. With respect to a second issue raised concerning compliance with the sworn statement requirement of section 713.16, Florida Statutes, it does not appear that the trial court has specifically ruled on the issue as presented....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 13166, 1998 WL 727352
...Because Osprey had to pay more than the original price established in the contract price between RAC and JM to complete the framing and rough carpentry, no further obKgation existed to pay Kenors for unpaid claims. 4. FWS failed to properly respond to a request for a sworn statement of account pursuant to section 713.16(2), Florida Statutes (1995) and its president failed to observe the formaKties of giving the oath in that statement....
...ompleted project for the guaranteed price of $15,-212,000. Accordingly, we reject Osprey’s attempt to create a “partial” recommencement provision under subsection
713.07(4), so as to defeat FWS’s claim of lien. SWORN STATEMENT Pursuant to subsection
713.16(2), Florida Statutes (1995), an owner may make a written demand upon any lienor for a written statement under oath of his account showing the materials furnished, the amount paid on account to date, the amount due, and the amount to become due, if known, as of the date of the statement by the lienor....
...FWS provided all this information in its sworn statement of account to Osprey. However, the deposition of FWS’ president revealed that he was not formally administered an oath by the attending notary when he signed the statement. The trial court found the claim of lien invalid for that reason. Subsection 713.16(2), requires that a statement of account be under oath....
...of subcontractor’s president to take an oath when he signed lien claim required remand to determine whether faulty claim of lien adversely affected owners). Cf. Stresscon v. Madiedo,
581 So.2d 158 (Fla.1991) (court construed a pre-1994 version of §
713.16(2) which contained no language permitting lack of prejudice to be considered in determining the validity of a sworn statement of account and held failure to notarize otherwise valid statement of account is fatal to lien claim)....
...Such cases are different from the instant case which is a civil suit and what is at stake is the complete loss of an otherwise valid claim of lien. Indeed, such drastic loss of an otherwise valid claim of lien as has occurred in the past, see Stresscon, has been cured by the 1994 Legislative amendment to subsection 713.16(2).
