HARRIS PAINT COMPANY, APPELLANT,
v.
MULTICON PROPERTIES, INC., ET AL., APPELLEES

Fla. 1st DCA | 1976-02-03
No. Y—121
RAWLS and McCORD, JJ., concur.
326 So. 2d 43 Florida District Court of Appeal, First District (1976) Caution
Cited by 8 cases

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Synopsis

Harris Paint Company appealed the dismissal of its second amended mechanic's lien complaint against Multicon Properties, arguing it should not be barred by the one-year statute of limitations under Florida law. The court held that a party cannot voluntarily drop a defendant within the limitations period and then re-add that same defendant after the statute has run, affirming the dismissal.


Holding

A party cannot re-add a defendant after the statute of limitations has run when that defendant was properly named in an earlier complaint filed within the limitations period but voluntarily dropped by the plaintiff due to simple mistake or inadvertence.


Headnotes

[1] A plaintiff who voluntarily drops a proper party defendant within the statute of limitations period cannot re-add that party after the statute of limitations has run.

[2] The purpose of mechanic's lien limitation periods is the speedy determination of claims.

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Key Quotes

“A fundamental purpose of the limitation periods established by F.S. § 713.22(1) and § 713.24(4) is the speedy determination of mechanic's lien claims.”

Establishes the statutory purpose underlying the one-year limitations period that bars Harris Paint's claim.

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Facts & Procedural History

Harris Paint filed a mechanic's lien and sued Multicon Properties within one year. When Multicon Properties moved to dismiss, Harris abandoned that co…

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Opinion of the Court
BOYER, Chief Judge.

BOYER, Chief Judge.

Appellant, plaintiff below, appeals from the trial court’s order dismissing its second amended complaint. The question to be resolved is whether the one year statute of limitations imposed by F.S. § 713.22(1) is applicable.

Appellant filed its original complaint against appellee Multicon Properties, Inc., an Ohio corporation engaged in the buying and selling of real estate. That complaint sought to foreclose a mechanic’s lien filed in the public records of Duval County less than one year before the filing of the complaint. When Multicon Properties filed a motion to dismiss, appellant abandoned its original complaint and, without court order, filed its first amended complaint, dropping Multicon Properties as a defendant while adding Insurance Company of North America and Multicon Construction Corporation as defendants. Multicon Construction is another Ohio corporation engaged in the business of commercial construction contracting. The original complaint filed by appellant alleged that Multi-con Properties owned the subject property, but the first amended complaint alleged that Multicon Construction owned the property. With appellant’s approval, after appellant had already filed its first amended complaint, the lower court entered an order granting the pending motion to dismiss the initial complaint and allowing the filing of the first amended complaint.

The trial court then granted a motion to dismiss the first amended complaint but with leave to amend. Appellant thereupon filed a second amended complaint retaining INA and Multicon Construction as defendants and adding Multicon Properties as an additional defendant. This last complaint, which alleged that Multicon Properties was the owner of the subject property, was filed eighteen months after appellant recorded its claim of lien and six months after the one year period of limitations imposed by F.S. § 713.22(1) had lapsed. Multicon Properties thereupon filed its motion to dismiss based on the statute of limitations.1

Appellant makes no allegation, by way of pleading nor otherwise, of fraud, estoppel, nor misrepresentation. (See Argenbright v. J. M. Fields Co., Fla.App.3rd 1967, 196 So. 2d 190) Indeed, appellant admits in its brief that Multicon Construction rather than Multicon Properties was alleged to have been the owner of the property in question in the first amended complaint through mistake and inadvertence. Thus, the issue before us is whether a party who has filed a complaint against a proper party within the period designated by the statute of limitations and who voluntarily drops that party as a defendant may then re add that party defendant after the statute of limitations has run. For reasons expressed below, we hold that he cannot.

A fundamental purpose of the limitation periods established by F.S. § 713.22(1) and § 713.24(4) is the speedy determination of mechanic’s lien claims. (Jack Stilson and Co. v. Caloosa Bayview Corp., Sup.Ct.Fla. 1973, 278 So. 2d 282) The circumstances of this case present no valid reason for failing to apply the statute of limitations. To hold otherwise would render the very purpose of the limitation period nugatory. Appellant has relied on Argenbright v.

J. M. Fields Co., supra, to support its assertion that the statute of limitations should not be applied.

However, in the Argen-bright case, the actions of the defendant misled the plaintiff and caused the statute of limitations to run, whereas in the instant case, the statute ran because of a simple mistake. This case is more closely analogous to Barrentine v. Vulcan Materials Co., Fla.App.1st 1968, 216 So. 2d 59, wherein a party plaintiff attempted to refile an action after the limitations period had lapsed and where the action had originally been dismissed for failure to prosecute. In both instances, the appellant’s own action (or inaction) caused the statute of limitations to run.

Affirmed.

RAWLS and McCORD, JJ., concur. . Appellant has not raised as an issue before us the propriety of dismissing a complaint when it appears on its face that the statute of limitations has run as distinguished from permitting the statute of limitations to be raised as an affirmative defense for the purpose of summary judgment. See Rule 1.110(d), RCP. We here express no opinion as to the propriety of that procedure, and since it has not been raised we do not address the issue.


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Citator

Cited By

  • …ded for further proceedings not inconsistent herewith. HOBSON and GRIMES, JJ., concur. . See Barrentine v. Vulcan Materials Company (Fla.App.1st, 1968), 216 So. 2d 59. Also cf. Harris Paint Company v. Multicon Properties, Inc. (Fla.App.1st, 1976), 326 So. 2d 43.…
  • B & H Sales, Inc. v. The Fusco Corp., 342 So. 2d 105 (Fla. 2d DCA 1977)
    …tion and that that corporation was doing business as Sunshine Associates, a fictitious name at the appropriate time and place.” . Jack Stilson & Co. v. Caloosa Bayview Corp., 278 So. 2d 282 (Fla.1973); Harris Paint Co. v. Multicon Properties, Inc., 326 So. 2d 43 (Fla. 1st DCA 1976). Cf. Hamilton v. Largo Paint & Decorating, Inc., 335 So. 2d 623 (Fla. 2d DCA 1976); Golconda Corp. v. Newton, 336 So. 2d 433 (Fla. 1st DCA 1976). . 51 Am.Jur., supra. See Cabot v. Clearwater Construction Co., 89 So. 2d 662 (Fla.…
  • Hiller v. Phoenix Assocs. OF S. Fla., Inc., 189 So. 3d 272 (Fla. 2d DCA 2016)
    …nal judgment. This comports with the purpose behind the special statutory proceeding, namely that owners and lienors alike receive timely and certain resolution of the Chapter 713 litigation. See, e.g., Harris Paint Co. v. Multicon Properties, Inc., 326 So. 2d 43, 44 (Fla. 1st DCA 1976) (“A fundamental purpose of the limitation periods established by F.S. s. 713.22(1) and s. 713.24(4) is the speedy determination of mechanic’s lien claims.”). Reversed and remanded. KELLY and KHOUZAM, JJ., Concur.…

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