JAMES E. BELL, APPELLANT,
v.
BOYS, INC., A FLORIDA CORPORATION, APPELLEE
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A construction subcontractor sued a property owner for unpaid labor and materials after the general contractor abandoned the project. The trial court denied the property owner's motion to dismiss, but the appellate court reversed, finding the complaint fatally defective for failing to allege either proper notice under Florida law or the existence of undisbursed funds.
The complaint is fatally defective and the motion to dismiss should be granted. While a plaintiff without proper notice may still recover through statutory or equitable liens under certain circumstances, a plaintiff alleging no notice must at minimum allege the existence of undisbursed or improperly disbursed funds. The complaint here fails to make such allegations.
[1] A complaint seeking an equitable claim against undisbursed or improperly disbursed funds must allege the existence of such funds.
[2] Failure to allege the existence of notice to the owner under Fla. …
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Join FLexlaw to unlock all legal intelligence“However, for the plaintiff who alleges no notice to obtain an equitable claim against undisbursed or improperly disbursed funds there would have to be allegations as to the existence of such funds. This plaintiff has not alleged such facts, and the complaint is fatally defective in this regard.”
Establishes the core holding that a complaint without notice allegations must plead the existence of undisbursed funds to state a cognizable claim.
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Join FLexlaw to unlock all legal intelligenceThe property owner contracted with Seagate Construction Co. to perform construction improvements. Seagate in turn contracted with plaintiff Bell to pr…
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[*29] WALDEN, Chief Judge.
Defendant property owner contracted with Seagate Construction Co. to construct certain improvements. Seagate contracted with plaintiff to supply certain labor services and materials, but Seagate abandoned the job before completion, without disbursing $6,701.11 due to plaintiff. Plaintiff brought suit against defendant owner. The defendant made a motion to dismiss the complaint. The trial court denied it. We reverse.
The complaint failed to allege the existence of any notice to owner by Fla. Stat. 713.06 (1973). We recognize that untimely notice may not preclude a plaintiff from obtaining either statutory lien or an equitable lien on undisbursed funds (or improperly disbursed funds); Crane Co. v. Fine, 221 So. 2d 145 (Fla.1969); Westinghouse Electric Supply Co. v. Midway Shopping Mall, Inc., 277 So. 2d 809 (Fla.App. 3rd, 1973); 1800 N. Federal Corp. v. Westinghouse Electric Supply Co., 224 So. 2d 384 (Fla.App. 4th 1969); and that no notice at all may not deprive a plaintiff of all hope of recovery, Crane v. Fine, supra:
“[N]o notice to the owner is necessary for a lienor to participate in the final payment, since the contractor is required to list all unpaid lienors in his final-payment affidavit, whether or not such notice has been given, § 84.061 (3) (d) 2, Fla.Stat. 1965; and, as noted above, if a progress-payment affidavit from the contractor is required by the owner, a lienor listed therein may participate even though he gave no notice, provided a balance remains after the payment of lienors who have given notice.” (Emphasis supplied.) Id. at 152.
However, for the plaintiff who alleges no notice to obtain an equitable claim against undisbursed or improperly disbursed funds there would have to be allegations as to the existence of such funds. This plaintiff has not alleged such facts, and the complaint is fatally defective in this regard.
Plaintiff urges the complaint is sufficient because it alleges that defendant failed to file a notice of commencement prior to commencing to improve the property. Plaintiff cites to Westinghouse Electric Supply Co. v. Midway Shopping Mall, Inc., supra. In the Westinghouse case the Third District held that the allegations of the impropriety of payment of certain monies to a general contractor before the filing of a notice of commencement (Fla. Stat. § 713.06(3) (a) (1973) created an issue of fact sufficient to withstand a summary judgment. The instant complaint makes no allegation of any improper payments to the contractor. Defendant’s motion to dismiss the complaint should be granted, without prejudice to plaintiff’s right to amend its complaint.
Reversed and remanded with directions.
DOWNEY, J., and McCAULEY, JAMES A., Associate Judge, concur.
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Sarasota Commercial Refrigeration & AIR Conditioning, Inc. v. Schooley, 381 So. 2d 1141 (Fla. 2d DCA 1980)…gainst the owner unless funds remain undisbursed or have been improperly disbursed, and they must both plead and prove the existence of such funds. E. E. Dean Snavely, Inc. v. Weatherking, Inc., 343 So. 2d 58 (Fla. 4th DCA 1977); Bell v. Boys, Inc., 325 So. 2d 28 (Fla. 4th DCA 1976); see also Crane Co. v. Fine, supra. Accordingly, the final summary judgment is reversed and the cause remanded for further proceedings consistent with this opinion. OTT, J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.…
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E. E. Dean Snavely, Inc. v. Weatherking, Inc., 343 So. 2d 58 (Fla. 4th DCA 1977)…a vis tardy lienholders like WeatherKing than is the owner himself under the doctrine of Crane Co. v. Fine, 211 So. 2d 145 (Fla.1969). Judge Walden accurately summarized the rule enunciated in the Crane Co.case for this court in Bell v. Boys, Inc., 325 So. 2d 28, 29 (Fla. 4th DCA 1976): “We recognize that untimely notice may not preclude a plaintiff from obtaining either statutory lien or an equitable lien on undisbursed funds (or improperly disbursed funds); Crane Co. v. Fine, 221 So. 2d 145 (Fla.1969); W…
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Druliner v. Kitchen Distribs. OF Fla., Inc., 341 So. 2d 1077 (Fla. 4th DCA 1977)…PER CURIAM. Affirmed upon authority of Crane Co. v. Fine, 221 So. 2d 145 (Fla.1969); Bell v. Boys, Inc., 325 So. 2d 28 (Fla. 4th DCA 1976); Moretrence Corporation v. Bronson & Veal Enterprises, Inc., 262 So. 2d 206 (Fla. 4th DCA 1972); 1800 No. Federal Corp. v. Westinghouse Elec. Sup. Co., 224 So. 2d 384 (Fla. 4th DCA 1969). AFFIRMED. CROSS, DOWNEY and ALDERMAN, J…
Authorities Cited
- Crane Co. v. Fine, 221 So. 2d 145 (Fla. 1969)
- 1800 N. Fed. Corp. v. Westinghouse Elec. Supply Co., 224 So. 2d 384 (Fla. 4th DCA 1969)
- Westinghouse Elec. Supply Co. v. Midway Shopping Mall, Inc., 277 So. 2d 809 (Fla. 3d DCA 1973)