WILLIAM R. HERMAN AND MYRTLE HERMAN, HIS WIFE, APPELLANTS,
v.
BOB WOSCHNIK CONSTRUCTION, INC., A FLORIDA CORPORATION, APPELLEE
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PER CURIAM.
Upon due consideration of the briefs and record in this cause we are of the opinion that the trial court lacks jurisdiction to proceed on plaintiff’s complaint predicated upon a claim of lien because of the failure to allege that the affidavit required by Section 713.06(3)(d)l F.S. as a prerequisite to the institution of suit has been filed. See Brown v. First Federal Sav. & L. Ass’n of New Smyrna, 160 So. 2d 556 (Fla. 1st DCA 1964); Potts v. Orlando Building Service, Inc., 206 So. 2d 221 (Fla. 4th DCA 1968); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975). However, we are of the further opinion that the allegations of the complaint state a cause of action for breach of contract. Mardan, supra; e. g. Cerniglia v. Davison Chemical Company, 145 So. 2d 254 (Fla. 2d DCA 1962).
Accordingly, trial court’s order denying defendants’ motion to dismiss is affirmed as modified.
MAGER, C. J., and CROSS and ALDERMAN, JJ., concur.
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Snead Constr. Corp. v. Langerman, 369 So. 2d 591 (Fla. 1st DCA 1978)…on a performance or payment bond are governed by the specific provisions in 627.756. [*595] Appellees urge that Midway Shopping Mall, Inc. v. Corky Corp., 257 So. 2d 905 (Fla. 3d DCA 1972), and Traveler’s Indemnity Company v. Howell and King, Inc., 336 So. 2d 1 (Fla. 4th DCA 1976) are controlling. In both of those cases it was held that Section 713.29 governed attorney’s fee awards in suits by sub-contractors to enforce liens against a general contractor and its surety because the Mechanic’s Lien Act was “…
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Sainer Constructors, Inc. v. Gen. Elec. Co., 352 So. 2d 1237 (Fla. 2d DCA 1977)…PER CURIAM. Affirmed. On the question of attorney’s fees see Section 713.29, Florida Statutes (1975), and the cases of Midway Shopping Mall, Inc. v. Corky Corp., 257 So. 2d 905 (Fla. 3d DCA 1972), and Travelers Indemniy Co. v. Howell & King, Inc., 336 So. 2d 1 (Fla. 4th DCA 1976). BOARDMAN, C. J., and SCHEB and RYDER, JJ., concur.…
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Hollub Constr. Co. v. Onkar Narula and Joy Narula, 704 So. 2d 689 (Fla. 3d DCA 1997)…1121 (Fla. 3d DCA 1995), and had an affirmative judgment rendered on its behalf at the conclusion of the case. See Peter Marich & Assoc., Inc. v. Powell, 365 So. 2d 754, 756 [*691] (Fla. 2d DCA 1978); Travelers Indemnity Co. v. Howell & King, Inc., 336 So. 2d 1, 2 (Fla. 4th DCA), cert. denied, 341 So. 2d 1086 (Fla.1976); Sharpe v. Ceco Corp., 242 So. 2d 464, 465 (Fla. 3d DCA 1970), cert. denied, 247 So. 2d 324 (Fla.1971). Based upon this test, it is clear to us that Hollub was the prevailing party in the l…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975)
- Brown v. First Fed. Sav. & Loan Ass'n OF NEW Smyrna, 160 So. 2d 556 (Fla. 1st DCA 1964)
- Cerniglia v. Davison Chem. Co., 145 So. 2d 254 (Fla. 2d DCA 1962)
- Jewell S. Potts, Jr. v. Orlando Bldg. Serv., Inc., 206 So. 2d 221 (Fla. 4th DCA 1968)