JAMES C. EISAMAN, APPELLANT,
v.
LOUIS IOMELLI AND YVONNE IOMELLI, APPELLEES
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Appellant, a general contractor, filed suit to recover for labor and materials provided under a partially completed cooling system installation contract. The court reversed the trial court's dismissal, holding that the statutory requirement to provide an affidavit before suit does not apply when seeking recovery for partial work rather than final contract payment.
No. The statutory affidavit requirement applies only to suits seeking final payment under a contract. Because appellant sought recovery for partial work ($500) rather than final payment, the affidavit requirement did not apply, and dismissal was improper.
[1] A contractor is not required to provide an affidavit to the owner before filing suit to enforce a lien for partial payment when the contract has been unilaterally termina…
[2] The statutory requirement for a contractor to provide an affidavit to the owner before instituting suit to enforce a lien applies only to suits seeking final payment unde…
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Join FLexlaw to unlock all legal intelligence“This requirement is clearly applicable only to a suit seeking final payment of the contract price.”
The court's holding that the affidavit requirement does not apply to recovery for partial work
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Join FLexlaw to unlock all legal intelligenceOn September 17, 1977, appellant (general contractor) entered an oral contract with appellees (homeowners) to install a cooling system for $1,385, pay…
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BOARDMAN, Judge.
The following facts were alleged in the complaint. Appellant/plaintiff general contractor entered into an oral contract on September 17, 1977, with appellees/defend-ants owners to install a cooling system in a residence owned by them. The contract price was $1385 to be paid in two installments. The system was partially completed when on September 23, 1977, appellees unilaterally terminated the contract. No payment had been made to appellant. The value of the labor and material provided by appellant at this point was $500.
Appellant filed a claim of lien for $500 on October 13, 1977, and the complaint was filed on December 12. Appellees’ filed a motion to dismiss based on appellant’s failure to comply with Section 713.06(3)(d)(l), Florida Statutes (1977). Section 713.-06(3)(d)(l) provides:
When the final payment under a direct contract becomes due the contractor:
1. The contractor shall give to the owner an affidavit stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the name of each lienor who has not been paid in full and the amount due or to become due each for labor, services or materials furnished. The contractor shall have no lien or right of action against the owner for labor, services or materials furnished under the direct contract while in default by reason of not giving the owner such affidavit. The contractor shall execute said affidavit and deliver it to the owner at least 5 days before instituting suit as a prerequisite to the institution of any suit to enforce his lien under this chapter. Appellant did not deliver an affidavit to appellees before instituting this suit. Ap-pellees argue that, therefore, dismissal was proper. We do not agree.
This requirement is clearly applicable only to a suit seeking final payment of the contract price. Appellant argues, and we agree, that an affidavit is not required by Section 713.06(3)(d)(l) in this case because the $500 he sought was not a final payment under the contract. See Connor v. Dreyer, 335 So. 2d 352 (Fla. 2d DCA 1976).
Accordingly, the order of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
GRIMES, C. J., and RYDER, J., concur.
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Citator
Cited By
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Alan L. Ulch, Inc. v. Pitts, 376 So. 2d 297 (Fla. 2d DCA 1979)…PER CURIAM. We reverse this matter on the authority of Eisaman v. Tomelli, 368 So. 2d 619 (Fla. 2d DCA 1979) and Connor v. Dreyer, 335 So. 2d 352 (Fla. 2d DCA 1976), and remand the cause for further proceedings. GRIMES, C. J., and SCHEB and RYDER, JJ., concur.…
Authorities Cited
- Connor v. Dreyer, 335 So. 2d 352 (Fla. 2d DCA 1976)