Herman v. Bob Woschnik Construction, Inc.

336 So. 2d 1

Opinion

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.