EMG JOCKEY CLUB LLC
v.
APEIRON MIAMI, LLC
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This per curiam opinion affirms a lower court decision regarding an unlicensed contractor's inability to assert a lien or bond claim. The court relies on Florida Statute §489.128(2) and established procedural principles regarding pleading requirements and summary judgment.
The court affirmed the judgment, holding that under Florida Statute §489.128(2), no lien or bond claim shall exist in favor of an unlicensed contractor when a contract is rendered unenforceable. Additionally, the court confirmed that a party cannot alter its previously asserted position through affidavits or other evidence to escape the consequences of summary judgment.
[1] An unlicensed contractor may not maintain a lien or bond claim for labor, services, or materials provided under a contract rendered unenforceable due to the contractor's…
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Join FLexlaw to unlock all legal intelligence“Notwithstanding any other provision of law to the contrary, if a contract is rendered unenforceable under this section, no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto.”
Florida Statute §489.128(2) (2018)
The case involves a contract with an unlicensed contractor who sought to enforce a lien or bond claim for labor, services, or materials provided. The …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Affirmed. See §489.128(2), Fla. Stat. (2018) (providing:
“Notwithstanding any other provision of law to the contrary, if a contract is rendered unenforceable under this section, no lien or bond claim shall exist in favor of the unlicensed contractor for any labor, services, or materials provided under the contract or any amendment thereto.”) (emphasis added.);
Fernandez v. Fla. Nat’l Coll., Inc., 925 So. 2d 1096, 1101 (Fla. 3d DCA 2006) (holding that “issues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing”); Am. Title Ins. Co. v. Carter, 670 So. 2d 1115 (Fla. 5th DCA 1996) (reversing summary judgment where trial court relied on estoppel theory not raised in the pleadings). See also Elison v. Goodman, 395 So. 2d 1201, 1202 (Fla. 3d DCA 1981) (holding:
“The judgment is affirmed, notwithstanding the filing of an affidavit in opposition to the summary judgment in which Mr. Elison directly contradicted his deposition testimony concerning the date of discovery, so as to bring it within the limitations period. The trial court properly struck this affidavit under the now well-settled rule, which had its genesis in Ellison v. Anderson, 74 So. 2d 680 (Fla.1954), that a party is not permitted to alter a previously asserted position simply to avert summary judgment.”); McKean v. Kloeppel Hotels, Inc., 171 So. 2d 552, 556 (Fla. 1st DCA 1965) (“Paralleling those rules of law which impose upon the party moving for summary judgment the above mentioned heavy burdens is the rule that the party opposing the motion will not be permitted to alter his position as occasion may indicate to be expedient in order to evade the consequences of his previous pleadings, admissions, affidavits, depositions or testimony.”)
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ellison v. Johnson Anderson, 74 So. 2d 680 (Fla. 1954)
- McKEAN v. Kloeppel Hotels, Inc., 171 So. 2d 552 (Fla. 1st DCA 1965)
- Elison v. Goodman, 395 So. 2d 1201 (Fla. 3d DCA 1981)
- Fernandez v. Fla. Nat'l Coll., Inc., 925 So. 2d 1096 (Fla. 3d DCA 2006)
- Am. Title Ins. Co. v. Carter, 670 So. 2d 1115 (Fla. 5th DCA 1996)