Atlantic Gardens Landscaping, Inc. v. Boca Raton Land Development, Inc., s. 76-1114

• Citation: 360 So.2d 1278
• Decision Date: 28 June 1978
• Docket Number: Nos. 76-1114,76-2111,s. 76-1114
• Parties: ATLANTIC GARDENS LANDSCAPING, INC., Appellant, v. BOCA RATON LAND DEVELOPMENT, INC. and American Fire and Casualty Company, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1278

360 So.2d 1278

ATLANTIC GARDENS LANDSCAPING, INC., Appellant, v. BOCA RATON LAND DEVELOPMENT, INC. and American Fire and Casualty Company, Appellees.

Nos. 76-1114, 76-2111.

District Court of Appeal of Florida, Fourth District.

June 28, 1978.

Rehearing Denied Aug. 16, 1978.

John A. Gentry, III, of Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, for appellant.

Glen N. Smith and William H. Lefkowitz of Ruden, Barnett, McClosky, Shuster & Schmerer, Fort Lauderdale, for appellees.

DOWNEY, Chief Judge.

Appellant sued appellees to foreclose a mechanics lien. The complaint contained the usual allegations regarding ownership of the property, the contract between the parties, the performance of work and furnishing of materials, the filing of a claim of lien, the incurrence of attorneys' fees, the performance of all conditions precedent to maintain the action, and a prayer for foreclosure of its lien or rendition of a judgment for the amount due. The complaint contained no allegation that appellant had furnished appellees the affidavit required by Section 713.06(3)(d), Florida Statutes (1975).

Appellees did not attack the complaint by motion but instead answered the complaint and put at issue many of the vital allegations of the complaint and specifically denied the performance of all conditions precedent to foreclose a mechanics lien.

At the close of appellant's case in chief, appellees moved for a directed verdict on the grounds that appellant had not proven a cause of action because it had failed to prove it furnished appellees with the affidavit required by Section 713.06(3)(d) (1975). The trial court reserved ruling and heard the remainder of the case, after which the court granted appellees' motion and dismissed the claim for foreclosure of the mechanic's lien and, in due course, entered final judgment for appellant for breach of contract in the amount of $7,655.01.

Appellant appealed from both the order directing a verdict against it on the claim for a mechanic's lien and from the final judgment. The two appeals were consolidated. In our opinion the trial court ruled correctly on this record. Appellant's main contention is that it was not necessary for it to allege that it furnished the affidavit in question because the evidence shows there were no other subcontractors, laborers or materialmen under appellant who were unpaid. While we concede that there are circumstances where one can plead a cause of action to foreclose a mechanic's lien without alleging compliance with 713.06(3)(d) ¹, this is not such a case. Here there is no pleading containing allegations to meet or to obviate the requirements of that section. In addition, there is no evidence in the record in appellant's case which proves that as a matter of fact the statutory section was either complied with or was not applicable. Thus, when appellees moved to dismiss (they actually moved for directed verdict) appellant had neither pleading nor proof to justify remaining in court. Appellant points to some testimony of Boca Raton Land Development's President adduced in appellee's case, but it was inadequate to meet appellant's burden and it came too late.

Appellant also...