HUNT TRUCK SALES AND SERVICE, INC., APPELLANT,
v.
BONANZA CONSTRUCTION, INC., ETC., ET AL., APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant Hunt Truck Sales sought to foreclose a mechanic's lien and recover on a payment bond. The trial court dismissed the mechanic's lien claim, finding the bond was a statutory payment bond under Fla. Stat. § 713.23 that precluded the lien. The appellate court reversed, holding that the complaint did not adequately establish that the bond complied with statutory requirements to trigger the lien preclusion.
The complaint does not clearly show that the bond complies with the statutory requirements of § 713.23, as it fails to allege that the bond is 'in at least the amount of the original contract price,' an essential feature of such a payment bond. Therefore, the complaint does not adequately establish the appellees' affirmative defense.
[1] A defense that appears on the face of a prior pleading may be raised by motion.
[2] A Labor and Material-Payment Bond furnished pursuant to Section 713.23 Florida Statutes must be in at least the amount of the original contract price for its benefits to…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“That the bond be in at least the amount of the contract price is an essential feature of a Section 713.23 Payment Bond.”
Establishes the critical statutory requirement that appellees failed to allege in the complaint
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant filed a multi-count complaint including Count VI seeking recovery on a Labor and Material-Payment Bond allegedly furnished July 25, 1973 for…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Labor And Material Payment Bond cases and more on FLexlaw
DOWNEY, Judge.
Appellant filed a multi-count complaint in which Count VII sought to foreclose a mechanic’s lien. Count VI sought recovery upon a bond which allegedly had been furnished for the benefit of the owner, “the Plaintiff and other similarly situated subcontractors and materialmen.” A copy of the bond is attached to the complaint.
Appellees moved to dismiss Count VII on the ground, among others, that the bond referred to in Count VI of the complaint was furnished pursuant to Sec. 713.23 Florida Statutes (1975) and thus appellant was not entitled to maintain Count VII for foreclosure of a mechanic’s lien. The trial court granted the motion to dismiss Count VII and expunged the claim of lien from the public records. It is that order which we have for review.
Ordinarily the defense asserted by appellees for the dismissal of Count VII should be set up affirmatively in the answer of the appellees. However, if the defense appears on the face of the prior pleading (in this case the complaint) then the defense can be raised by motion, Fla.R. Civ.P. 1.110(d).
The complaint in the case at bar alleges that a Labor and Material-Payment Bond was furnished July 25, 1973 for the benefit of the owner, the appellant and other similarly situated subcontractors and materialmen. The bond attached to the complaint is in the amount of $122,250.00 but nowhere in the pleadings or exhibits attached thereto do we find any allegation that the bond is “in at least the amount of the original contract price.” That the bond be in at least the amount of the contract price is an essential feature of a Section 713.23 Payment Bond. General Electric Company v. Commercial Standard Insurance Company, 335 So. 2d 624 (Fla. 1st DCA 1976). Suffice to say, a bond furnished pursuant to Sec. 713.23 Florida Statutes (1975) must comply with the provisions of that section in order for the benefits afforded thereby to accrue to the owner since preclusion of a claimant’s lien right is no insignificant matter. We find that the complaint in this ease does not clearly show the existence of the appellees’ defense to a lien foreclosure. Of course, it may well be that upon remand the appellees will set up the defense afforded them by Sec. 713.23 and by proof demonstrate that there is no genuine issue of fact, which may make what we do here appear to be an exercise in futility. We do not regard it as such. If that turn of events transpires, at least we will all be sure then that the appellant was not entitled to foreclosure of its mechanic’s lien. As the pleadings now stand, we may suspect appellant has no such right but we cannot conclude that with any degree of certitude.
Accordingly, the order dated October 29, 1976 is reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
ALDERMAN, C. J., and LETTS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Prof'l Plastering & Stucco, Inc. v. Bridgeport-Strasberg Joint Venture, 940 So. 2d 444 (Fla. 5th DCA 2006)…no prejudice” analysis of the majority. The lien statute is entirely a legislative creation, and we are obligated to enforce it in accordance with the clear, manifest intent of the legislature. Hunt Truck Sales & Serv., Inc. v. Bonanza Const., Inc., 353 So. 2d 612, 613 (Fla. 4th DCA 1977) (section 713.23 bond must comply with provisions of that section). Furthermore, even assuming that the lack of prejudice may excuse strict performance under section 713.23, in excusing the surety from the technical nuances o…
-
Alpha Elec. Supply, Inc. v. F. Feaster, Inc., 358 So. 2d 892 (Fla. 2d DCA 1978)…e the defense was prematurely raised and should be asserted affirmatively by allegations showing that the payment bond did, in fact, meet all the conditions of Section 713.23. But see Hunt Truck Sales and Service, Inc. v. Bonanza Construction, Inc., 353 So. 2d 612 (Fla. 4th DCA 1977). While appellant cannot recover on both counts, it is entitled to proceed, at this early stage of the litigation, on both counts. A party may state as many separate claims as he has, regardless of consistency. Fla.R.Civ.P. 1.110(…
-
Motor City Elec. Co. v. The Ohio Cas. Ins. Co. & Jack Hardy, Inc., 374 So. 2d 1068 (Fla. 3d DCA 1979)…l contract price. There have been no allegations in the pleadings that this statutory requirement was met. The bond must comply with the statute before the one year limitation period would apply. Hunt Truck Sales and Service v. Bonanza Construction, 353 So. 2d 612 (Fla. 4th DCA 1977); General Electric Company v. Commercial Standard Insurance Company, supra. The appellant has the right to sue upon a common law bond as a third party beneficiary. A third party may recover on a surety bond under appropriate circ…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gen. Elec. Co. v. Commercial Standard Ins. Co., 335 So. 2d 624 (Fla. 1st DCA 1976)