DOOR SYSTEMS, INC., APPELLANT,
v.
CHRIS VITOLO, A/K/A CHRISTIE VITOLO, D/B/A PORT MINI WAREHOUSES, ET AL., APPELLEES
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Door Systems appeals the dismissal of Count II of its complaint, which sought to impress and foreclose an equitable lien on real estate. The court reversed the dismissal and remanded for the plaintiff to replead, finding that while the complaint as framed was deficient, a cause of action for equitable lien could be dimly discerned from the allegations.
The dismissal of Count II was reversed because, although the complaint as framed was deficient, a cause of action for equitable lien could be discerned from the allegations of misrepresentation made with knowledge of the true owners and potential unjust enrichment. The plaintiff should be given another opportunity to amend and properly plead the claim.
[1] A complaint seeking an equitable lien must allege ultimate material facts supporting the conclusion that the plaintiff is without an adequate remedy at law.
[2] A cause of action for an equitable lien may be possible where a party is unjustly enriched due to misrepresentation made with the knowledge of the true owner.
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Join FLexlaw to unlock all legal intelligence“a cause of action for an equitable lien can be possibly discerned, albeit dimly, in light of the alleged misrepresentation made with the knowledge of the true owners, and the fact that the true owner may stand to be unjustly enriched to the tune of something over $500,000.00”
Establishes the court's rationale for reversing dismissal despite finding the complaint as framed was deficient
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Join FLexlaw to unlock all legal intelligenceDoor Systems filed a complaint against Chris Vitolo and others, with Count II alleging that Vitolo wrongly represented he owned real estate when he di…
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PER CURIAM.
We reverse the order dismissing Count II of plaintiff’s second amended complaint with prejudice and remand with instructions to allow plaintiff yet another opportunity to amend.
Count II is supposed to be an action to impress and foreclose an equitable lien upon a fund and a parcel of real estate, all details of which are not significant.
Our analysis of Count II leaves us with the opinion that it, as framed, was properly dismissed. For instance, it starts off with the statement, “This is an action for damages in excess of $5,000.00.” It states the conclusion, “Plaintiff is without an adequate remedy at law” and does not allege ultimate material facts to support the averment as, for example, Chris Vitolo is insolvent and judgment proof. Moreover, the gravamen of plaintiff’s Count II is that Chris Vitolo wrongly represented that he owned the real estate in question and that the true owners knew and acquiesced in the misrepresentation. Yet Count II alleges that the true owners filed a notice of commencement listing themselves as owners, and plaintiff does not plead a basis for recovery after the time the true ownership was revealed.
Without laboring the matter further we feel that a cause of action for an equitable lien can be possibly discerned, albeit dimly, in light of the alleged misrepresentation made with the knowledge of the true owners, and the fact that the true owner may stand to be unjustly enriched to the tune of something over $500,000.00. See, e.g., Peninsular Supply Company v. C.B. Day Realty of Florida, Inc., 423 So. 2d 500 (Fla. 3d DCA 1982); Phelps v. T.O. Mahaffey, Inc., 156 So. 2d 900 (Fla. 2d DCA 1963). We think that the ends of justice will be served by granting plaintiff an additional opportunity to re-plead.
Reversed and remanded with instructions.
ANSTEAD, DELL and WALDEN, JJ., concur.
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Citator
Authorities Cited
- Peninsular Supply Co. v. C.B. DAY Realty OF Fla., Inc., 423 So. 2d 500 (Fla. 3d DCA 1982)
- Phelps v. T. O. Mahaffey, Inc., 156 So. 2d 900 (Fla. 2d DCA 1963)