Rite-Way Painting & Plastering, Inc. v. Tetor
| Decision Date | 24 May 1991 |
| Docket Number | RITE-WAY,No. 90-02366,90-02366 |
| Citation | 582 So.2d 15 |
| Court | Florida District Court of Appeals |
| Parties | 16 Fla. L. Weekly D1410 PAINTING & PLASTERING, INC., a Florida corporation, Appellant, v. Williard TETOR and Velma Tetor, Appellees. |
Diane E. McGill of Turk & Shipp, Cape Coral, for appellant.
Michael B. McIver of Aloia, Dudley, Roosa, Sutton, McIver & Burandt, Cape Coral, for appellees.
This is an appeal by the plaintiff below, Rite-Way Painting and Plastering, Inc., from a final judgment finding Rite-Way's notice to owner, served pursuant to the mechanic's lien statute, untimely. Rite-Way also appeals an order dismissing with prejudice a count for quantum meruit from the amended complaint. We reverse.
Rite-Way, a subcontractor, entered into an oral agreement with general contractors to provide stucco, drywall, and painting materials and services to a condominium project owned by Williard and Velma Tetor, the appellees. The general contractors subsequently abandoned the project, and Rite-Way was never paid. Rite-Way filed a complaint alleging a mechanic's lien foreclosure
in count I and an action labeled as quantum meruit against the Tetors in count III. This appeal does not concern count II. After a non-jury trial on the mechanic's lien foreclosure, the trial court determined that Rite-Way's notice to owner was untimely served, and that all claims of lien filed by Rite-Way were therefore invalid and unenforceable. Rite-Way's count in quantum meruit was dismissed for failure to state a cause of action.
Section 713.06, Florida Statutes (1987), requires, as a prerequisite to perfecting a lien, that a subcontractor not in privity with an owner serve notice on the owner not later than forty-five days from commencing to furnish services or materials. The failure to timely serve the notice constitutes a complete defense to the enforcement of a lien. Sec. 713.06(2)(a), Fla.Stat. (1987). Such notice may be served by certified mail and evidence of delivery. Sec. 713.18(1)(b), Fla.Stat. (1987).
The trial court found that Rite-Way commenced providing labor and/or material to the project on November 16, 1988. On December 28, 1988, Rite-Way mailed a certified letter containing a notice to owner to the address of the construction project. The trial court determined that the letter was delivered on January 3, 1989. The trial court ruled that the notice was untimely because January 3rd was the forty-eighth day after the date of commencement. According to the trial court's calculation, the forty-fifth day after commencement would have fallen on a Saturday, December 31, 1988.
Florida Rule of Civil Procedure 1.090 provides that in computing any period of time prescribed by any applicable statute, the last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday. In such event, the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday. This court has previously applied rule 1.090 to compute the period for service of a notice of mechanic's lien. See Daly Aluminum Products, Inc. v. Stockslager, 244 So.2d 528 (Fla. 2d DCA 1970), cert. denied, 246 So.2d 97 (Fla.1971).
Here, because December 31st was a Saturday and January 2nd was the New Year's Day holiday, the last day for proper service was Tuesday, January 3, 1989. Finding that Rite-Way's notice to owner was timely served, we reverse the final judgment as to count I, the mechanic's lien foreclosure, and remand for further proceedings. By way of this opinion, we rule solely on the timeliness of the delivery of the notice. The sufficiency of the delivery and of the notice itself are yet to be determined by the trial court on remand.
While we agree that Rite-Way failed to state a cause of action in quantum meruit, we find that the allegations of count III state an action for a contract implied in law under a theory of unjust enrichment. Even though Rite-Way's amended complaint requested relief upon a theory of quantum meruit, it also included a prayer for general relief, and...
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...over "quantum meruit" is understandable, since there are cases to support both positions. For example, in Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA), review dismissed, 587 So.2d 1329 (Fla.1991), the court noted that "contracts implied in fact, such as an a......
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