Bickerstaff v. Frazier
| Citation | 232 So.2d 190 |
| Decision Date | 03 February 1970 |
| Docket Number | No. M--83,M--83 |
| Parties | John M. BICKERSTAFF, Appellant, v. Donald B. FRAZIER and Saarnell G. Frazier, his wife, Appellees. |
| Court | Court of Appeal of Florida (US) |
Howell & Deas, Jacksonville, for appellant.
Clark, Rumph, Franson & Hutcheson, Jacksonville, for appellees.
Plaintiff seeks review by interlocutory appeal of an order granting defendants' petition for rehearing rendered subsequent to final judgment in a suit to foreclose a lien for materials and labor furnished to defendants under a construction contract. The effect of the order granting rehearing is to set aside final judgment in favor of plaintiff and to permit defendants to file an amended counterclaim for damages resulting from plaintiff's alleged breach of the building contract.
Appellant contractor contends that appellee owners are conclusively bound by the certificate of completion issued by defendants' architect and are therefore precluded as a matter of law from seeking damages for the contractor's alleged breach of the contract occurring prior to issuance of the certificate. Upon this premise appellant contends the trial court erred in setting aside the judgment of foreclosure and permitting appellees to file an amended counterclaim seeking damages against him. Under the facts shown by the record on appeal, we are of the view that the trial court did not abuse its discretion in rendering the order on rehearing about which appellant complains, and that the architect's certificate of completion does not estop defendants as a matter of law from claiming damages for breach of contract as sought by their proposed amended counterclaim. 1
Appellees cross-assign as error the trial court's preliminary order denying their motion for compulsory arbitration as provided by the contract entered into between the parties. The contract provides that demand for arbitration by either party must be made within a reasonable time after a dispute between them has arisen. The record reveals that appellees were put on notice as early as June 3, 1968, when their architect's certificate of completion issued that a dispute had arisen as to the amount due plaintiff for final payment under the contract. Notice of such dispute again manifested itself on June 27, 1968, when plaintiff served and recorded his claim of lien for labor and materials furnished under the construction contract. It was not until October 23, 1968, after this suit was filed on August...
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Rolls v. Bliss & Nyitray, Inc.
...v. Arison Shipping Co., 280 So.2d 678 (Fla.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974); Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA), cert. denied, 238 So.2d 110 The final judgment is reversed insofar as it awards plaintiffs compensatory damages for fraud......
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Graham Contracting, Inc. v. Flagler County
...of time, relying on Lyons v. Krathen, 368 So.2d 906 (Fla. 3d DCA 1979), cert. den., 378 So.2d 346 (Fla.1979), and Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA 1970), cert. dismissed, 238 So.2d 110 (Fla.1970). In Lyons v. Krathen a written demand was made on a contractor to correct ce......
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Public Health Trust of Dade County v. M. R. Harrison Const. Corp., 82-679
...368 So.2d 906 (Fla. 3d DCA 1979), we affirmed the denial of an untimely motion to compel arbitration; that in Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA 1970), upon which we relied in Lyons, the First District did the same; and that in Frank J. Rooney, Inc. v. Food Fair Industries,......
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Island House Developers, Inc. v. Amac Const., Inc., 96-1251
...and the case is remanded for proceedings consistent with this opinion. BOOTH, JOANOS and BENTON, JJ., concur. 1 See Bickerstaff v. Frazier, 232 So.2d 190 (Fla. 1st DCA), cert. dismissed, 238 So.2d 110 (Fla.1970).2 Section 489.128 provides that contracts "performed in full or in part by any ......