Opinion
No. 75-492.
March 12, 1976. Rehearing Denied April 14, 1976.
Appeal from the Circuit Court, Broward County, George Richardson, Jr., J.
Leo Greenfield of Law Offices of Leo Greenfield, P.A., North Miami, for appellant.
Richard G. Gordon of McCune, Hiaasen, Crum, Ferris Gardner, P.A., Fort Lauderdale, for appellee.
We have fully considered the appellate points raised and conclude that they are without merit.
Appellant contends that the lien involved herein is a fraudulent lien as provided in § 713.31(2)(b), F.S. 1973. Such a defense is an affirmative one and must be pleaded. That was not done here. See Midway Shopping Mall, Inc., v. Airtech Air Con., Inc., Fla.App. 1971, 253 So.2d 900.
Since appellee had not completed the contract the final payment was not due and the affidavit requirement of § 713.06(3)(d)(1) is inapposite. Appellee was entitled to a lien for so much of the contract price as was unpaid less the final payment or 10%, whichever was greater.
For the foregoing reasons we affirm the judgment appealed from.
AFFIRMED.
OWEN, J., and DRIVER, B.J., Associate Judge, concur.