Walter Harvey Corp. v. Cohen-Ager, Inc.

District Court of Appeal of Florida

Walter Harvey Corp. v. Cohen-Ager, Inc.

317 So. 2d 775, 1975 Fla. App. LEXIS 13812

CourtDistrict Court of Appeal of Florida

DecidedJuly 29, 1975

DocketNo. 75-277

StatusPublished

Cited by3 cases

This text of 317 So. 2d 775 (Walter Harvey Corp. v. Cohen-Ager, 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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Walter Harvey Corp. v. Cohen-Ager, Inc., 317 So. 2d 775, 1975 Fla. App. LEXIS 13812 (Fla. Ct. App. 1975).

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Opinion

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.

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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.

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317 So. 2d 775, 1975 Fla. App. LEXIS 13812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walter-harvey-corp-v-cohen-ager-inc-fladistctapp-1975.

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