MARDAN KITCHEN CABINETS, INC., APPELLANT,
v.
ARTHUR G. BRUNS, APPELLEE
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Mardan Kitchen Cabinets appealed the dismissal of its mechanic's lien foreclosure action against Arthur Bruns. The trial court dismissed the complaint for failure to comply with statutory requirements, specifically the timely delivery of a required affidavit, and awarded attorneys fees to the prevailing party defendant. The appellate court affirmed, holding that the affidavit requirement is jurisdictional and dismissal was proper.
The court held that the affidavit requirement is jurisdictional and dismissal for failure to comply is proper. The motion to amend was correctly denied as futile since the affidavit was not timely delivered. Dismissal without prejudice was proper as the complaint could not present a valid mechanic's lien foreclosure action, though Mardan retained a remedy for breach of contract damages. The prevailing party defendant was properly awarded attorneys fees under statute.
[1] A complaint to foreclose a mechanic's lien is properly dismissed without prejudice for failure to comply with statutory prerequisites, such as timely delivery of an affid…
[2] Failure to allege in a complaint for foreclosure of a mechanic's lien that the statutory affidavit prerequisite to suit has been filed is a jurisdictional defect requirin…
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Join FLexlaw to unlock all legal intelligence“Where the complaint fails 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.”
Establishes that the affidavit requirement is jurisdictional, making dismissal mandatory for noncompliance.
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Join FLexlaw to unlock all legal intelligenceIn March 1973, Mardan recorded a claim of lien on Bruns' property and filed a complaint to foreclose a mechanic's lien for custom cabinet work perform…
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NATHAN, Judge.
This is an appeal by the plaintiff, Mar-dan Kitchen Cabinets, Inc., from a final judgment dismissing without prejudice, the complaint to foreclose mechanics lien, discharging the notice of lis pendens, denying the plaintiff’s motion to amend and awarding attorneys fees to the defendant, Arthur G. Bruns.
In March of 1973, Mardan recorded a claim of lien on Bruns’ property and then filed a complaint for foreclosure of the mechanic’s lien, claiming monies due for custom cabinet work performed pursuant to a contract. Bruns answered and filed a counterclaim. Three days before the final hearing, Mardan mailed Bruns, for the first time, an affidavit stating the names of and amounts owed to unpaid lienors and payment to all other lienors, and submitted a copy thereof to the court together with a motion to amend the complaint to reflect compliance with § 713.06(3) (d)l, Fla.Stat. Bruns then moved to dismiss the complaint for noncompliance with the requirements of such statute in that the affidavit had not been delivered to him at least five days before suit was filed, which he contends is a statutory prerequisite to the institution of any suit to enforce a lien.
At the hearing, the trial court denied Mardan’s motion to amend, granted without prejudice, Bruns’ motion to dismiss the complaint, discharged the notice of lis pendens, dismissed Bruns’ counterclaim without prejudice, and finding Bruns to be the prevailing party, granted his motion for attorneys fees.
Mardan contends that the court erred in denying its motion to amend, in dismissing the complaint without prejudice since the complaint stated a viable claim for an action in contract for work done and materials furnished, and in awarding attorneys fees to Bruns, since the prevailing party in such a lawsuit could be determined only at the conclusion of the contract action. We disagree with all three contentions.
The court was correct in denying the motion to amend and in dismissing the complaint without prejudice since neither the complaint alone nor with the amendment added to it, could present a valid action for mechanic’s lien foreclosure. The affidavit is a statutory requirement, and dismissal for failure to comply therewith is proper. Oper v. Russell, Inc., Fla.App. 1967, 197 So. 2d 13. Where the complaint fails 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 of contract or claim for such damages,1 and we are of the opinion that absent sufficient allegations to constitute a contract action, dismissal without prejudice was proper. Mardan “. . . may still have (its) remedy at law, however, for damages for breach of contract upon satisfactory complaint and proof.” Oper v. Russell, Inc., supra, at IS.
As to Mardan’s third contention, § 713.29, Fla.Stat., provides that the prevailing party in an action to enforce a mechanic’s lien is entitled to recover attorneys fees. A party such as Bruns, who successfully resists an action to enforce a mechanic’s lien is the prevailing party and is entitled to attorneys fees under the statute. See Dominguez v. Benach, Fla.App. 1973, 277 So. 2d 567.
Affirmed.
. See C. A. Davis, Inc. v. Yell-for-Pennell, Inc., Fla.App.1973, 274 So. 2d 267, 268-269.
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Citator
Cited By (21 total)
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Holding Elec., Inc. v. Roberts, 530 So. 2d 301 (Fla. 1988)…tituting the action to foreclose the mechanic’s lien. The trial court granted the motion with prejudice. On appeal, the Third District Court of Appeal affirmed, concluding it was bound by its prior decision in Mardan Kitchen Cabinets, Inc. v. Bums, 312 So. 2d 769 (Fla. 3d DCA 1975). In Mardan, the contractor recorded a lien on the owner’s property and filed a complaint for foreclosure. The owner answered and the matter proceeded to trial. Three days before the final hearing, the contractor mailed to the owne…
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Falovitch v. Gunn & Gunn Constr. Co., 348 So. 2d 560 (Fla. 3d DCA 1977)…incumbent upon the trial court to dismiss the claim for foreclosure of the 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 mechani…
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51 Island WAY Condo. Ass'n, Inc. v. Williams, 458 So. 2d 364 (Fla. 2d DCA 1984)…Association, Inc. v. Del Bene, 388 So. 2d 1268 (Fla. 2d DCA 1980); MacBain v. Bowling, 374 So. 2d 75 (Fla. 3d DCA 1979); Gordon v. Warren Heating & Air Conditioning, Inc., 340 So. 2d 1234 (Fla. 4th DCA 1976); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975); Jackson v. Hatch, 288 So. 2d 564 (Fla. 2d DCA 1974). In Dolphin Towers we examined the term “prevailing party” in the context of section 718.303(1), Florida Statutes (1979), the Condominium Act, a provision also relied upon by t…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Oper v. Russell, Inc., 197 So. 2d 13 (Fla. 3d DCA 1967)
- Jewell S. Potts, Jr. v. Orlando Bldg. Serv., Inc., 206 So. 2d 221 (Fla. 4th DCA 1968)
- C. A. Davis, Inc. v. Yell-For-Pennell, Inc., 274 So. 2d 267 (Fla. 3d DCA 1973)
- Preston v. State, 277 So. 2d 567 (Fla. 3d DCA 1973)
- Vicente F. Dominguez v. Bienvenido M. Benach, Jr., 277 So. 2d 567 (Fla. 3d DCA 1973)