MAC MERMELL AND HIS WIFE, PEGGY MERMELL, APPELLANTS,
v.
PETE MCKINLEY, APPELLEE
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In this equity case, the trial court dismissed plaintiff's third amended complaint for failing to allege a cause of action in equity and transferred the case to the law side with leave to file an amended complaint. The defendants appealed the transfer, arguing the plaintiff cannot maintain an action at law, but the appellate court affirmed, finding the contention premature and leaving the statutory question for the trial court to resolve.
The court affirmed the trial court's transfer order, holding that the defendants' contention was premature and that the statutory question regarding whether a contractor can maintain an action at law should be determined by the trial court after the plaintiff files an amended complaint on the law side.
“We cannot anticipate what cause of action, if any, the plaintiff will allege at law pursuant to the court's order transferring the cause to the law side with leave to file an amended complaint.”
Establishes the court's reasoning for declining to prematurely decide the statutory question and deferring to the trial court to address issues as they actually develop.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff (appellee McKinley) originally sought to foreclose a mechanic's lien against the defendants (appellants Mermell and wife) based on const…
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The appellants were the defendants in- an action in equity instituted by the appellee as. plaintiff. The court dismissed the plaintiff’s, third amended complaint on the ground that this complaint failed to allege a cause of action in equity, and the court transferred' this cause to the law side of the court with . leave to the plaintiff to file an amended complaint at law. The defendants appeal, contending that the court erred in transferring the cause to the law side because the plaintiff cannot have an action at law. We are of the opinion that this contention is premature and affirm.
The alleged cause of action in equity was initially to foreclose a mechanic’s lien claimed by a contractor against an owner. A final decree of foreclosure in favor o.f plaintiff against the defendants was reversed by this court in Mermell v. McKinley, Fla.App.1961, 126 So.2d 902. Subsequently, the plaintiff amended, endeavoring to allege an equitable lien. The basis of the lien was the same construction of improvements on real property. The defendants cite section 84.04(3), Florida Statutes, F. S.A., as authority for their contention that the plaintiff contractor cannot have a cause of action at law against the defendant own*143er. We determine that we should not now answer this question, but to the contrary, this question should be determined by the trial court on the issues made by the parties ■on the law side. We cannot anticipate what cause of action, if any, the plaintiff will allege at law pursuant to the court’s order transferring the cause to the law side with leave to file an amended complaint.
SMITH, C. J., and ALLEN and SHANNON, JJ., concur.
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Citator
Authorities Cited
- Mac Mermell and Peggy Mermell v. McKINLEY, 126 So. 2d 902 (Fla. 2d DCA 1961)