APPROVED DRY WALL CONSTRUCTION, INC., APPELLANT,
v.
MORGAN PROPERTIES, INC., A FLORIDA CORPORATION, ET AL., APPELLEES
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Approved Dry Wall Construction sought to foreclose a mechanic's lien against the property owner and general contractor. The court affirmed dismissal as to the owner and surety due to insufficient notice allegations, but reversed dismissal as to the general contractor, allowing the case to proceed on the underlying contract claim.
The complaint was insufficient as a mechanic's lien foreclosure because it failed to contain sufficient allegations to excuse non-service of the notice required by Fla.Stat. § 713.06. However, the complaint was sufficient to state a cause of action for recovery on the underlying contract with the general contractor.
[1] A complaint seeking foreclosure of a mechanic's lien must contain sufficient allegations to excuse the failure to serve the notice required by Fla.Stat. …
[2] Notice to a contracting party does not serve as notice to the owner of the property when the owner is not a corporation wholly owned by the contracting party and their ma…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We hold that the complaint was not sufficient because it did not contain sufficient allegations to excuse the failure to serve the notice required by Fla.Stat. § 713.06, F.S.A.”
Establishes the basis for affirming dismissal as to the owner and surety on the mechanic's lien claim
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceApproved Dry Wall Construction entered into a contract with Morgan Properties, Inc., the general contractor on a construction job. The property was ow…
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The appellant, Approved Dry Wall Construction, Inc., seeks review of a dismissal of its amended complaint seeking the foreclosure of a mechanic’s lien. The appellees are Morgan Properties, Inc., alleged to be the general contractor on the job involved; Saul J. Morgan Enterprises, Inc., alleged to be the owner of the real property involved; and Travelers Indemnity Company of Hartford, Connecticut, alleged to be the surety upon a bond filed pursuant to the provisions of Fla.Stat. § 713.23, F.S.A. Appellant takes alternative positions on this appeal. First, the appellant argues that his complaint was sufficient as a complaint to foreclose a mechanic’s lien under the holding of Boux v. East Hillsborough Apartments, Inc., Fla.App.1969, 218 So.2d 202. See also Yell-For-Pennell, Inc. v. Joab, Inc., Fla.App.1971, 243 So.2d 438. Second, he urges that even if the complaint was insufficient as a complaint to enforce a mechanic’s lien, it was sufficient as an action upon its contract with the general contractor.
We hold that the complaint was not sufficient because it did not contain sufficient allegations to excuse the failure to serve the notice required by Fla.Stat. § 713.06, F.S.A. The case of Boux v. East Hillsborough Apartments, Inc., supra, is not applicable because the owner of the property in the present case is not a corporation wholly owned by the contracting party nor were the managing officers alleged to be so identical that notice to one would serve as notice to the other. We therefore affirm so much of the order of dismissal as dismisses the defendants Saul J. Morgan Enterprises, Inc. (the owner) and Travelers Indemnity Company of Hartford, Connecticut (the surety on the bond).
We hold that the complaint is sufficient to state a cause of action for recovery on the contract which is attached to the complaint and signed by the general contractor Morgan Properties, Inc. In fairness to the trial court it should be pointed out that appellee does not urge here that the complaint is not sufficient for that purpose. It is suggested that because appellant as plaintiff concentrated its argument before the lower court primarily upon the lien feature of the complaint that the trial court may have overlooked the contract aspect of the complaint. We think that in an attempt to expedite the settlement of this dispute, the judgment of dismissal should be reversed insofar as it dismissed the defendant, Morgan Properties, Inc., and that the cause should be remanded for further proceedings in accordance with the views herein expressed. See Emery v. International Glass and Mfg., Inc., Fla.App.1971, 249 So.2d 496.
Affirmed in part, reversed in part and remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vance D. Bishop and Joseph F. Putnam v. James A. Knowles, Inc., 292 So. 2d 415 (Fla. 2d DCA 1974)…own by the record in the instant case was not such as would authorize the imposition of a lien when the notice was not served until after the owner had disbursed its funds. Cf. Approved Dry Wall Const., Inc. v. Morgan Prop., Inc., Fla.App.3rd, 1972, 263 So. 2d 243. Thus, Nunamaker must be relegated [*418] to the remedy of seeking recovery from Knowles with whom it was in privity. The thrust of Nunamaker’s cross-appeal centers upon the court having admitted testimony concerning drywall deficiencies on certain…
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W. N. Robbins Elec., Inc. v. Intercontinental Grp., Inc., 374 So. 2d 21 (Fla. 3d DCA 1979)…e of lien upon the owner, or his complaint must contain sufficient allegations to excuse the failure to serve notice. Bishop v. James A. Knowles, Inc., 292 So. 2d 415 (Fla. 2d DCA 1974); Approved Dry Wall Construction Co. v. Morgan Properties, Inc., 263 So. 2d 243 (Fla. 3d DCA 1972). A complaint alleging a claim of lien under Section 713.05, Florida Statutes (1977), while not requiring notice by the claimant, must contain an allegation that the claimant was in privity with the owner at the time of the claim.…
Authorities Cited
- B. Irwin Emery et ux. v. Int'l Glass & MFG., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971)
- Boux v. E. Hillsborough Apts., Inc., 218 So. 2d 202 (Fla. 2d DCA 1969)
- Yell-For-Pennell, Inc. v. Joab, Inc., 243 So. 2d 438 (Fla. 3d DCA 1971)