Arabi Homes, Inc. v. Bachrach, 83-1540

Decision Date14 March 1984
Docket NumberNo. 83-1540,83-1540
Citation446 So.2d 725
CourtFlorida District Court of Appeals
PartiesARABI HOMES, INC., Appellant, v. Henry BACHRACH; Treetops of Naples Second Development Corporation; Bruce Mumm; Judith Davis; Harry Roeder; Evelyn Mumm; Naples Construction Corporation; Wilson, Miller, Barton, Soll & Peak, Inc.; Brisson Enterprises, Inc.; Wayson Underground Utilities, Inc.; Imperial River Landscaping, Inc.; and Treetops of Naples Development Corporation, Appellees.

Gary A. Robinson, Bonita Springs, for appellant.

David L. Dawson of Bond, Schoeneck & King, Naples, for appellee Henry Bachrach.

GRIMES, Judge.

This appeal involves the propriety of a final summary judgment of mortgage foreclosure in favor of Henry Bachrach which eliminated a mechanic's lien claim by Arabi Homes, Inc.

Bachrach sued to foreclose a mortgage executed by Treetops of Naples Development Corporation. Arabi was joined as a defendant because of a mechanic's lien filed prior in time to the recording of Bachrach's mortgage. Arabi filed an affirmative defense predicated on its mechanic's lien and a counterclaim to foreclose the lien. Arabi alleged that Treetops owed it $31,932 on a "contract for materials and services" which was attached to its pleadings as a composite exhibit. The composite exhibit consisted of several invoices reflecting the sale of a modular condominium unit, the sale of overhead cabinets and marble lavatories, and the furnishing of labor for erection of the modular unit. Bachrach filed a motion to strike the affirmative defense and to dismiss the counterclaim upon several grounds, including the assertion that Arabi had failed to deliver the contractor's affidavit required by section 713.06(3)(d)1, Florida Statutes (1981). Bachrach later filed a motion for summary judgment against all defendants.

At the hearing on the motions, Bachrach's attorney argued that he was entitled to summary judgment because Arabi's pleadings reflected that Arabi was a contractor and the pleadings contained no allegation of the delivery of a contractor's affidavit. At this point, Arabi's attorney futilely argued that Arabi was not required to deliver a contractor's affidavit because it was really a materialman. The court struck Arabi's affirmative defense, dismissed Arabi's counterclaim and entered summary judgment for Bachrach against all defendants.

Arabi's pleadings seem to allege a single contract to furnish and erect a modular condominium unit and to furnish certain accessories....

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1 cases
  • D.I.C. Commercial Const. Corp. v. Knight Erection & Fabrication Inc., 87-3090
    • United States
    • Florida District Court of Appeals
    • August 2, 1989
    ...Act that have recognized that more than one contract may be used to measure notice requirements. 1 See also Arabi Homes, Inc. v. Bachrach, 446 So.2d 725 (Fla. 2d DCA 1984). Since § 255.05 was patterned after the Miller Act, we agree those decisions are persuasive authority to support the tr......

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