WALTER HARVEY CORP., A FLORIDA CORPORATION, APPELLANT,
v.
COHEN-AGER, INC., A FLORIDA CORPORATION, APPELLEE
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.
A sworn statement attached to a lien foreclosure complaint, listing material-men and labor paid by the plaintiff, is sufficient to comply with the statute when the contract indicates that both the owner and contractor were responsible for paying different lienors.
The defendant in a lien foreclosure suit moved to dismiss, arguing the plaintiff failed to provide a required affidavit stating all lienors were paid.…
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 Lien cases and more on FLexlaw
PER CURIAM.
The defendant to a lien foreclosure suit appeals an order denying its motion to dismiss the complaint. The single ground set forth in the motion to dismiss is that “Plaintiff has failed to provide an Affidavit as required by Florida Statute § 713.-06(3) (d) 1: ‘ . . . stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the names of each lienor who has not been paid in full and the amount due or to become due, each for labor, services or material furnished.’ ”
Attached to the complaint is the contract between the plaintiff and the defendant. It affirmatively appears from the contract that some prospective lienors were to be paid by the owner and others were to be paid by the contractor. In view of this fact, we hold that plaintiff’s sworn statement attached to his complaint as Exhibit D, which purports to list all the material-men and labor paid by him and makes claim therefor, is sufficient to comply with the statute. Cf. Eastland Investment Company v. J. R. Trueman & Associates, Inc., Fla.App.1973, 287 So. 2d 365, where this court held:
“Ordinarily, the general contractor must furnish the sworn statement as a condition precedent to the right to maintain an action to foreclose a mechanic’s lien unless the complaint alleges facts clearly avoiding the necessity to furnish it, and the circumstances peculiar to each case govern. Brown v. First Federal Savings & Loan Association of New Smyrna, Fla.App. 1964, 160 So. 2d 556.”
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McMAHAN Constr. Co., Inc. v. Carol's Care Ctr., Inc., 460 So. 2d 1001 (Fla. 5th DCA 1984)…sed, 324 So. 2d 90 (Fla.1975). . McMahan also alleged that no final affidavit was required of it because it had furnished owner with a payment bond pursuant to section 713.02(6), Florida Statutes (1983). See Walter Harvey Corp. v. Cohen-Ager, Inc., 317 So. 2d 775 (Fla. 3rd DCA 1975); Oppenheim. We do not reach this latter point because of our disposition of the case on the basis of the sufficiency of the affidavit. . § 768.28(6), Fla.Stat. (1983).…
-
Pacre Corp. v. J. F. Soulary Constr. Corp., 407 So. 2d 1093 (Fla. 3d DCA 1982)…PER CURIAM. Affirmed. Walter Harvey Corp. v. Cohen-Ager, Inc., 317 So. 2d 775 (Fla.3d DCA 1975).…
Authorities Cited
- Brown v. First Fed. Sav. & Loan Ass'n OF NEW Smyrna, 160 So. 2d 556 (Fla. 1st DCA 1964)
- Eastland Inv. Co. v. J. R. Trueman & Assocs., Inc., 287 So. 2d 365 (Fla. 3d DCA 1973)