S & S AIR CONDITIONING COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
EDWIN A. CANTOR AND LEO MASIN, APPELLEES
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S & S Air Conditioning appeals the dismissal of defendants and discharge of its mechanic's lien based on alleged failure to comply with Florida's statutory notice requirement. The appellate court reverses, holding that the complaint should not have been dismissed on its face and that the plaintiff should have an opportunity to amend to allege proper service.
The court erroneously dismissed the defendants and prematurely discharged the lien. The plaintiff must be given an opportunity to amend its complaint to allege valid service of the statutory notice before dismissal for failure to follow the statute.
[1] A complaint alleging failure to comply with statutory notice provisions for a lien claim may be dismissed only after the plaintiff is given an opportunity to amend the co…
[2] A motion to dismiss a complaint for failure to state a cause of action based on insufficient service of notice is premature if the complaint does not clearly preclude the…
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Join FLexlaw to unlock all legal intelligence“We hold that the court erroneously dismissed the defendants Cantor and Masin from the complaint and that its order discharging the lien was premature.”
Establishes the core holding that the dismissal and lien discharge were improper.
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Join FLexlaw to unlock all legal intelligenceS & S Air Conditioning Company sought to enforce a claim of lien against property owners Edwin A. Cantor and Leo Masin. The trial court dismissed the …
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PER CURIAM.
The plaintiff, S & S Air Conditioning Company, appeals an order which dismissed the appellees, Edwin A. Cantor and Leo Masin, from the cause and discharged the claim of lien which it sought to enforce against Edwin A. Cantor and Leo Masin as owners of certain property. The motion upon which the judgment was based stated that the complaint failed to state a cause of action because the complaint showed on its face that the plaintiff had failed to comply with the provisions of Fla.Stat. § 713.18, in that it alleged service of the statutory notice required upon one Arthur Davis who was not a proper party upon whom the notice should have been served.
We hold that the court erroneously dismissed the defendants Cantor and Masin from the complaint and that its order discharging the lien was premature. See Tyson v. Aikman, 1947, 159 Fla. 273, 31 So. 2d 272 and RCP 1.420(b).
In Continental Home Parks, Inc. v. Golden Triangle Asphalt Paving Co., Fla. App.1974, 291 So. 2d 49, the court fully discussed Fla.Stat. § 713.18 as to methods of service of the statutory notice. The allegations of the complaint are such that they do not clearly show service under any of the methods provided.
Nevertheless, they do not preclude the fact that service may have been proper under one or more of the sections if additional facts had been given. In addition, we feel that it should be pointed out that appellant may be able to allege other matters, such as a waiver of service which would affect the requirement for service, We hold that plaintiff must be given an opportunity to amend his complaint to allege valid service before his complaint is dismissed for failure to follow the statute. See Bryant v. Small, Fla. App.1973, 271 So. 2d 808.
Reversed and remanded for further proceedings.
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S & S AIR Conditioning Co. v. Cantor, 343 So. 2d 923 (Fla. 3d DCA 1977)…efendants, moved to dismiss the complaint on the ground that the service of the preliminary notice to owners, in the manner alleged, was insufficient. The motion was granted, and the action was dismissed. The plaintiff appealed. This court reversed (313 So. 2d 422), stating among other things: “The allegations of the complaint are such that they do not clearly show service under any of the methods provided”, and holding that the plaintiff should be given an oppor [*925] tunity to amend the complaint to allege…
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Inland Materials, Inc. v. Superior Aircraft Hangars, Inc., 464 So. 2d 1320 (Fla. 5th DCA 1985)…v. K.D. Hedin Construction, Inc., 382 So. 2d 90 (Fla. 2d DCA 1980); Osborne v. Delta Maintenance and Welding, Inc., 365 So. 2d 425 (Fla. 2d DCA 1978). See also Hardee v. Richardson, 47 So. 2d 520 (Fla.1950); S & S Air Conditioning Company v. Cantor, 313 So. 2d 422 (Fla. 3d DCA 1975) (as to mechanic’s liens). In this case the lessee did not move to dismiss the complaint for failure to state a cause of action by failing to allege delivery of the claim of lien. There is no genuine issue as to the fact that the…
Authorities Cited
- MRS. Grace Tyson v. Aikman, 159 Fla. 273 (Fla. 1947)
- Bryant v. Evans Small, 271 So. 2d 808 (Fla. 3d DCA 1973)
- Cont'l Home Parks, Inc. v. Golden Triangle Asphalt Paving Co., 291 So. 2d 49 (Fla. 2d DCA 1974)
- Seeley v. Louie L. Wainwright, 291 So. 2d 49 (Fla. 4th DCA 1974)