JEWELL S. POTTS, JR., AND ELSIE MAE POTTS, HUSBAND AND WIFE, APPELLANTS,
v.
ORLANDO BUILDING SERVICE, INC., A FLORIDA CORPORATION, APPELLEE
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The appellate court reversed the lower court's denial of a motion to dismiss, holding that the plaintiff's complaint for a mechanics lien was jurisdictionally deficient for failing to allege the filing of a required affidavit.
Yes, the complaint is jurisdictionally deficient and must be dismissed because it fails to allege the filing of the statutorily required affidavit.
“The much amended complaint fails to allege that the affidavit required by Section 84.061(3) (d), F.S.196S, F.S.A. as a prerequisite to institution of suit has been filed.”
identifies the specific deficiency in the plaintiff's complaint.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff filed a complaint to enforce a mechanics lien. The defendants moved to dismiss the complaint. The trial court denied the motion to dismi…
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Defendants, Jewell S. Potts, Jr., and his wife, Elsie Mae Potts, bring an interlocutory appeal from an order which denied their motion to dismiss plaintiff’s complaint *222for the enforcement of a mechanics lien. We reverse.
The much amended complaint fails to allege that the affidavit required by Section 84.061(3) (d), F.S.196S, F.S.A. as a prerequisite to institution of suit has been filed.
Such an omission is jurisdictional in nature 1 and requires that the complaint be dismissed.2
Reversed.
CROSS and McCAIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975)…to allege that the affidavit required by statute as a prerequisite to institution of suit has been filed, such omission is jurisdictional in nature and requires that the complaint be dismissed. Potts v. Orlando Building Service, Inc., Fla.App.1968, 206 So. 2d 221. Mardan’s proposed amendment to add the allegation that an affidavit had been supplied was futile since the affidavit was not timely. Although Mardan claims that the complaint states a cause of action in contract, it contains no mention of breach o…
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Falovitch v. Gunn & Gunn Constr. Co., 348 So. 2d 560 (Fla. 3d DCA 1977)…mechanic’s lien. See Oppenheim v. Newport Systems Development Corp., 348 So. 2d 328 (Fla.3d DCA 1977), opinion filed January 4, 1977; Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla.3d DCA 1975); Potts v. Orlando Building Service, Inc., 206 So. 2d 221 (Fla. 4th DCA 1968); Oper v. Russell, 197 So. 2d 13 (Fla.3d DCA 1967). Section 713.29, Florida Statutes, provides that the prevailing party in an action to enforce a mechanic’s lien is entitled to recover a reasonable fee for the services of his at…
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Herman v. BOB Woschnik Constr., Inc., 336 So. 2d 1 (Fla. 4th DCA 1976)…the affidavit required by Section 713.06(3)(d)l F.S. as a prerequisite to the institution of suit has been filed. See Brown v. First Federal Sav. & L. Ass’n of New Smyrna, 160 So. 2d 556 (Fla. 1st DCA 1964); Potts v. Orlando Building Service, Inc., 206 So. 2d 221 (Fla. 4th DCA 1968); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975). However, we are of the further opinion that the allegations of the complaint state a cause of action for breach of contract. Mardan, supra; e. g. Cernigl…
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
- Brown v. First Fed. Sav. & Loan Ass'n OF NEW Smyrna, 160 So. 2d 556 (Fla. 1st DCA 1964)
- Oper v. Russell, Inc., 197 So. 2d 13 (Fla. 3d DCA 1967)
- Halifax Constr. Co. v. Chastain Groves, Inc., 192 So. 2d 15 (Fla. 1st DCA 1966)