J. G. DODSON
v.
FLORIDA NURSERY & LANDSCAPE CO.
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The Florida Supreme Court reversed an order denying a motion to dismiss a contractor's lien foreclosure suit, holding that a contractor must allege compliance with statutory prerequisites to establishing a lien, including providing the owner with a sworn statement of unpaid subcontractors and laborers before the lien can exist or be enforced.
A contractor must allege in the bill of complaint sufficient facts demonstrating compliance with the statutory prerequisite of providing the owner a sworn statement regarding payment to laborers and subcontractors. Because the complaint failed to allege this essential condition precedent, it failed to state a cause of action.
“When final payment becomes due the contractor from the owner, the contractor shall give to the owner a statement under oath stating, if that be the fact, that all lienors contracting directly with or directly employed by such contractor have been paid in full or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full and the amount due or to become due each for labor or services performed or materials furnished”
Establishes the statutory prerequisite to acquiring a lien
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Join FLexlaw to unlock all legal intelligenceA contractor brought suit to foreclose an alleged lien for improvements made to real estate under contract with the owner. The contractor claimed $25,…
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The appeal is from an order denying motion to dismiss bill of complaint in a suit to foreclose a contractor’s alleged lien under the provisions of Chapter 17097, Acts of 1935.
The bill shows that the alleged lien grew out of the performance of a contract for improvements on real estate between the owner and the contractor lien claimant.
Sub-section 3 of Section 4 of the Act, supra, provides: “When final payment becomes due the contractor from the owner, the contractor shall give to the owner a statement under oath stating, if that be the fact, that all lienors contracting directly with or directly 'employed by such contractor have been paid in full or, if the fact be otherwise, showing the name of each such lienor who has not been paid in full and the amount due or to become due each for labor or services performed or materials furnished, and describing in a general way such labor, services or materials. The contractor shall have no lien or right of action against the owner for labor or services performed or materials furnished under his contract while in default by reason of not giving the owner such statement under oath.” This provision of the statute makes' the giving to the owner the sworn statement therein required a prerequisite to the acquiring of the lien by the contractor.
*889The bill of complaint does not allege that this condition precedent to the existence of the lien had been met or performed.
The motion to dismiss reaches all infirmities formerly reached by demurrer.
Section 28 of the 1931 Florida Chancery Practice Act requires that the bill of complaint should contain: “A short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence.”
Before a contractor may have and enforce a lien growing out of improvements made upon real estate under contract with the owner, he must comply with the provisions of Sub-section 3 of Section 4, supra, and, as this is an essential prerequisite to the existence of the lien, he must allege in his bill of complaint sufficient facts to show that that provision of the statute has been complied with.
The provisions of Section 28 of the Chancery Practice Act, supra, do not eliminate the necessity of the plaintiff to allege in his bill of complaint, and definitely, every fact necess'ary to entitle him to the relief sought. See Catts v. T. & J. R. R. Co., 75 Fla. 744, 79 Sou. 168; Wilmer v. Newsome, 110 Fla. 272, 149 Sou. 3; Hume v. Miller Bond & Mortgage Co., 96 Fla. 337, 118 Sou. 3; Treb Trading Co. v. Green, 102 Fla. 238, 135 Sou. 510, 136 Sou. 688; Hordan v. Equitable Life Assn. Society, 102 Fla. 782, 136 Sou. 517.
The appellee contends that because there were no outstanding liens, it was not necessary for the affidavit to be made, but the bill of complaint shows that the complainant furnished materials and supplied labor for installation and placing of materials for which he claimed $25,847.63. As a matter of law, the laborers, by performing the labor, acquired a lien and the statute Chapter 17097, supra, provides a method for enforcing such liens.
*890The bill of complaint failed to state a cause of action. Therefore, the order is reversed and the cause remanded.
So ordered.
Terrell, C. J., and Thomas, J., concur.
Chapman, J., concurs in opinion and judgment.
Justices Whitfield and Brown not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of (.he Rules of this Court.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hardee v. Richardson, 47 So.2d 520 (Fla. 1950)…e amounts not paid, if such be the case, the bill of complaint will be subject to a motion to dismiss on the ground that it is without equity. Compare Hendry Lumber Co. v. Bryant, 138 Fla. 485, 189 So. 710; Dodson v. Florida Nursery & Landscape Co., 138 Fla. 887, 190 So. 695; Buker v. Webster, 140 Fla. 471, 191 So. 835; Pinellas Lumber Co. v. Lynch, 140 Fla. 559, 192 So. 475; Roughan v. Rogers, 145 Fla. 421, 199 So. 572; Fred Howland, Inc., v. Gore, 152 Fla. 781, 13 So. 2d 303; Shad v. Arnow, 155 Fla. 164,…
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The Masterbilt Corp. v. S. A. Ryan Motors, Inc., 6 So. 2d 818 (Fla. 1942)…ons. See Southern Paint Mfg. Co. v. Crump, 132 Fla. 799, 182 So. 222; Browne v. Park, 144 Fla. 696,198 So. 462; Buker v. Webster, 140 Fla. 471, 191 So. 835; Hendry Lumber Co v. Bryant, 138 Fla. 485, 189 So. 710; Dodson v. Fla. Nursery Landscape Co., 138 Fla. 887, 190 So. 695. We fail to find error in the record and accordingly the decree appealed from is hereby affirmed. BROWN, C. J., TERRELL and THOMAS, JJ., concur.…
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Fred Howland, Inc. v. Gore, 152 Fla. 781 (Fla. 1942)…nd being fatally defective, it must be dismissed. The provisions of the statute are mandatory and the giving of the sworn statement required is a prerequisite to the acquiring of the lien by the contractor. Dodson v. Florida Nursery & Landscape Co., 190 So. 695.” In the above cited case also reported 138 Fla. 887, we construed the force and effect of Section 4, sub-paragraph 3 of Chapter 17097 Acts of 1935, and held: “2. Mechanic’s Liens. — To acquire and enforce contractor’s lien for improvements on rea…1 / 2
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jaudon v. Equitable Life Assurance Soc'y of the United States, 102 Fla. 782 (Fla. 1931)
- Treb Trading Co. v. Green, 102 Fla. 238 (Fla. 1931)
- Hume v. G. L. Miller Bond & Mortg. Co., 96 Fla. 337 (Fla. 1928)
- Willmer v. Newsom, 110 Fla. 272 (Fla. 1933)
- Catts v. Tampa & Jacksonville Ry. Co., 75 Fla. 744 (Fla. 1918)