Hotel La Petite Muse, LLC v. Verzura Construction, Inc.

• Court: District Court of Appeal of Florida
• Decided: June 5, 2024
• Docket: 2023-0318
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed June 5, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-318 Lower Tribunal No. 17-14452 ________________

Hotel La Petite Muse, LLC, Appellant,

vs.

Verzura Construction, Inc., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Carlos Lopez, Judge.

ALGO Law Firm, LLP, and Harvey J. Sepler, for appellant.

Crabtree & Auslander, and John G. Crabtree, Charles M. Auslander and Brian C. Tackenberg, for appellee.

Before LOGUE, C.J., and LINDSEY and GORDO, JJ.

GORDO, J. Hotel La Petite Muse, LLC (“HLP”) appeals an amended final judgment

in favor of Verzura Construction, Inc. (“Verzura”). We have jurisdiction. Fla.

R. App. P. 9.030(b)(1)(A). Finding competent substantial evidence for the

trial court’s factual findings and no error in its conclusions of law, we affirm.

“We review a judgment rendered after a bench trial to ensure that the

trial court’s findings of fact are supported by competent, substantial

evidence.” Haas Automation, Inc. v. Fox, 243 So. 3d 1017, 1023 (Fla. 3d

DCA 2018). “[F]indings of fact are clothed with a presumption of correctness

on appeal, and these findings will not be disturbed unless the appellant can

demonstrate that they are clearly erroneous.” de Holguin v. Godin, 367 So.

3d 1286, 1288-89 (Fla. 3d DCA 2023) (quoting Universal Beverages

Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005)).

On appeal, HLP argues 1 the trial court erred in entering a lien

foreclosure judgment in favor of Verzura because the construction lien failed

to satisfy the statutory requriements. HLP specifically contends Verzura

failed to deliver a valid and enforceable final construction affidavit.

After hearing extensive evidence during a four-day bench trial, the trial

court in this case found that Verzura had met all prerequisites to filing a claim

of lien and had presented uncontroverted testimony from its expert witnesses

1 We affirm the other issues raised by HLP without further discussion.

2 that its construction lien was valid and that the amounts stated were

accurate. While HLP argues the construction affidavit was incomplete, we

find there is competent substantial evidence to support the trial court’s

conclusions and to support Verzura’s argument that HLP waived the

defense.2 See Dreyfuss v. Dreyfuss, 701 So. 2d 437, 440 (Fla. 3d DCA

1997) (holding that “it is the duty of this court” to affirm trial court findings that

are supported by competent substantial evidence); Davie Westview Devs.,

Inc. v. Bob-Lin, Inc., 533 So. 2d 879, 880 (Fla. 4th DCA 1988) (“The

furnishing of a contractor's affidavit is a condition precedent to bringing an

action to foreclose a mechanic's lien . . . Appellant's failure to plead

specifically and with particularity appellee's nonperformance of this condition

precedent as required by rule 1.120(c), Florida Rules of Civil Procedure,

constitutes a waiver.”); Rivera v. Hammer Head Constr. & Dev. Corp., 14 So.

3d 1190, 1191 (Fla. 5th DCA 2009) (“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.”); Hodusa Corp. v. Abray Constr. Co., 546 So. 2d 1099,

2 HLP first raised the insufficiency of the affidavit in its motion for rehearing.

3 1101 (Fla. 2d DCA 1989) (finding the owner was required to “plead

nonperformance of the condition precedent” and its failure to do so

constituted a waiver of the defense).

Affirmed.