Herman v. Bob Woschnik Construction, Inc.

District Court of Appeal of Florida

Herman v. Bob Woschnik Construction, Inc.

336 So. 2d 1

CourtDistrict Court of Appeal of Florida

DecidedAugust 6, 1976

DocketNo. 76-1043

StatusPublished

Cited by4 cases

This text of 336 So. 2d 1 (Herman v. Bob Woschnik Construction, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Herman v. Bob Woschnik Construction, Inc., 336 So. 2d 1 (Fla. Ct. App. 1976).

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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.

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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.

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336 So. 2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herman-v-bob-woschnik-construction-inc-fladistctapp-1976.

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