ROY T. LOVING, D/B/A LOVING PLUMBING COMPANY (NOT A CORPORATION), APPELLANT,
v.
ALBERT TM. VIECELLI, PHILIP CONTINE, RAYBRELL INCORPORATED, A FLORIDA CORPORATION, RAYMOND M. CRAIG, SR. A/K/A R. M. CRAIG, AND ROSA LENA CRAIG, HIS WIFE AND UNIVERSITY FEDERAL SAVINGS AND LOAN ASSOCIATION OF CORAL GABLES, A UNITED STATES CORPORATION, APPELLEES
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Roy Loving appealed the dismissal of his mechanics' lien foreclosure complaint. The trial court dismissed for failure to state a cause of action, lack of jurisdiction over parties, and lack of subject matter jurisdiction. The appellate court affirmed the dismissal on the pleading deficiency but reversed and remanded because the trial court should have granted Loving's motion to amend the complaint.
The court affirmed that the complaint was properly dismissed because it was too vague and indefinite to determine if essential allegations were made, as pleadings must state every fact essential to the cause of action distinctly, definitely and clearly. However, the court reversed because the trial court should have granted Loving's motion to amend, allowing him reasonable time to cure the pleading defects.
“Our examination of the record convinces us that the complaint was properly dismissed for failure to state a cause of action in that it was so vague and indefinite that it is difficult to determine whether the essential allegations were made.”
Establishes the court's finding that the original complaint failed to adequately plead the mechanics' lien claim
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Join FLexlaw to unlock all legal intelligenceLoving filed a complaint seeking to foreclose a mechanics' lien against multiple defendants including Viecelli, Contine, Raybrell Incorporated, the Cr…
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The plaintiff appeals an order dismissing its complaint in which it sought to foreclose a claim of mechanics’ lien. The complaint was the first filed in the cause. The defendant’s motion to dismiss directed to the complaint set forth three grounds. The first of these grounds alleges failure to state a cause of action. The other two were directed to a claimed lack of juris*561diction over the party and lack of jurisdiction over the subject matter. We have not been favored with a brief by the appellee. Such a situation places an undue burden on the appellate court. Jacksonville Tractor Company v. Nasworthy, Fla.App.1959, 114 So.2d 463.
Our examination of the record convinces us that the complaint was properly dismissed for failure to state a cause of action in that it was so vague and indefinite that it is difficult to determine whether the essential allegations were made. Mere legal conclusions are not sufficient unless substantiated by allegations of ultimate fact. Every fact essential to the cause of action must be stated distinctively, definitely and clearly. Ocala Loan Company v. Smith, Fla.App.1963, 155 So.2d 711 and cases cited therein at page 716.
After the entry of the order, the plaintiff filed a “Motion to Vacate and Amend Order” in which it made a request for the right to amend the complaint. This motion alleged a departure by the court from a previous oral ruling. The trial judge construed this motion as a petition for a rehearing on the merits and we presume that it was so argued. Nevertheless, we feel that this motion was a sufficient request for permission to amend. We therefore hold that the motion to amend should have been granted and an order entered allowing the plaintiff reasonable time for amendment. See: McNayr v. Cranbrook Investments, Inc., Fla.1963, 158 So.2d 129; Cabot v. Clearwater Construction Co., Fla. 1956, 89 So.2d 662.
An examination of the record does not affirmatively show a lack of jurisdiction. In the absence of a statement in the order that the decree was entered on that ground, or a showing of a lack of jurisdiction by the appellee, we must presume that the basis of the order was as set out above.
Affirmed in part, reversed in part and remanded.
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Doyle v. Flex, 210 So. 2d 493 (Fla. 4th DCA 1968)…of any allegation showing any conduct on defendants’ part which might be construed as an “implied invitation,” plaintiffs’ complaint is fatally defective, and we so hold. Affirmed. McCAIN and OWEN, JJ., concur. . Loving v. Viecelli, Fla.App.1964, 164 So. 2d 560; Ocala Loan Co. v. Smith, Fla.App.1963, 155 So. 2d 711. . Kislak v. Kreedian, Fla.1957, 95 So. 2d 510; Naples Builders Supply Co. v. Clutter Const. Corp., Fla.App.1963, 152 So. 2d 478. . Crutchfield v. Adams, Fla.App.1963, 152 So. 2d 808. . Mortg…
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Dep't OF Corr. v. Celestine Helton & the Career Serv. Comm'n, 477 So. 2d 14 (Fla. 1st DCA 1985)…to support. Imperial Point Colonnades Condominium, Inc. v. Freedom Properties Interna [*15] tional, Inc., 349 So. 2d 1194, 1195 (Fla. 4th DCA 1977); Holden v. City of Fort Lauderdale, 286 So. 2d 218, 219 n. 2 (Fla. 4th DCA 1973); Loving v. Viecelli, 164 So. 2d 560, 561 (Fla. 3d DCA 1964); In re Krugle’s Estate, 134 So. 2d 860, 861 (Fla. 2d DCA 1961). AFFIRMED. SMITH, J., concurs. MILLS, J., dissents.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cabot v. Clearwater Constr. Co., 89 So. 2d 662 (Fla. 1956)
- Ocala Loan Co. v. Smith, 155 So. 2d 711 (Fla. 1st DCA 1963)
- McNAYR v. Cranbrook Invs., Inc., 158 So. 2d 129 (Fla. 1963)
- Jacksonville Tractor Co., Inc. v. Nasworthy, 114 So. 2d 463 (Fla. 1st DCA 1959)