July 1st, 2022

In A. Alexis Varela, Inc. v. Pagio, No. 5D21-2077, 2022 WL 1592482 (Fla. Dist. Ct. App. May 20, 2022), the Florida Fifth District Court of Appeal reversed a trial court’s order dismissing a contractor’s lien foreclosure claim. The Court of Appeal stated that the trial court erred in computing the deadline for the contractor to deliver an affidavit to the homeowners pursuant to Florida’s construction lien statute. The Court of Appeal held the affidavit was timely delivered according to Florida’s rules for the computation of time.

A. Alexis Varela Inc. d/b/a The Valera Construction Group (“Valera”) entered a contract with Dominic Pagio and Julia Pagio (“the Pagios”) to perform remodeling work on the Pagios’ home. The Pagios allege Valera did not perform the work in a timely or workmanlike manner. They refused to remit final payment.

On May 10, 2021, Valera filed a lawsuit to foreclose on a construction lien for the balance due. Valera attached a copy of the Contractor’s Final Payment Affidavit to the Complaint, showing that the Pagios were served with the affidavit on May 5, 2021.

The Pagios filed a Motion to Dismiss Valera’s lien foreclosure claim. The Pagios argued that the affidavit was served one day too late to constitute compliance with Florida’s construction lien statute. The statute states, “[t]he contractor shall execute the affidavit and deliver it to the owner at least 5 days before instituting an action…to enforce his or her lien.” Fla. Stat. Ann. § 713.06. The trial court agreed with the Pagios, and held that May 11, 2021, (not May 10, 2021) was the first day the lien foreclosure actions could be filed. The trial court dismissed Valera’s lien foreclosure claim.

Valera appealed, arguing the trial court had misinterpreted the timing requirement in the statute.  Valera argued the trial court interpreted the statute to mean that there must be five clear days between the delivery of the affidavit and the institution of the action, meaning the action could not be filed until the sixth day after the delivery of the affidavit. The Fifth District Court of Appeal agreed with Valera that this interpretation of the statute was incorrect under the Florida Rules of General Practice and Judicial Administration.

Pursuant to Florida Rules of General Practice and Judicial Administration, Rule 2.514(a), a deadline period stated in days begins to run from the next day that is not a Saturday, Sunday, or legal holiday and continues until the last day of the period. If the last day of the period falls on a Saturday, Sunday, or legal holiday, then the period is extended to the end of the next day that is not a Saturday, Sunday, or legal holiday. The Court of Appeal noted the period did not need to be extended under the rule because May 5, 2021 was a Wednesday, and May 10, 2021 was a Monday. The Court of Appeal held that the plain language of the rule requires the exclusion of one of the terminal dates and the inclusion of the other.