Board of County Com'rs of Okaloosa County v. Gulf Pipeline Co.

• Decision Date: 17 November 1964
• Docket Number: No. F-148,F-148
• Citation: 168 So.2d 757
• Parties: BOARD OF COUNTY COMMISSIONERS OF OKALOOSA COUNTY, Florida, and Clutter Construction Corporation of Miaml Springs, Florida, a Corporation, Appellants, v. GULF PIPELINE COMPANY, Inc., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 757

168 So.2d 757

BOARD OF COUNTY COMMISSIONERS OF OKALOOSA COUNTY, Florida, and Clutter Construction Corporation of Miaml Springs, Florida, a Corporation, Appellants, v. GULF PIPELINE COMPANY, Inc., a Florida corporation, Appellee.

No. F-148.

District Court of Appeal of Florida, First District.

Nov. 17, 1964.

Rehearing Denied Dec. 9, 1964.

Beggs, Lane, Daniel, Gaines & Davis, Pensacola, Barrow & Moore, Crestview, for appellants.

Adams & Palmer, Crestview, for appellee.

STURGIS, Chief Judge.

The appellee, Gulf Pipeline Company, Inc., plaintiff below, subcontracted with Clutter Construction Corporation to furnish certain labor and steel material incident to a public works contract between the Clutter corporation, as prime contractor, and Okaloosa County, Florida, for the construction and enlarging of three hospitals in that county. Upon completing the subcontract there was a balance due by Clutter to appellee of $10,414.17, and there remained payable by the county to Clutter, but not yet due, approximately $145,000.00 of the primary contract price . The over-all project was apparently supervised by a board or commission, acting under the authority and control of the Board of County Commissioners of said county, known as the Board of Trustees of Okaloosa County, Florida Hospital System.

Gulf Pipeline Company, Inc., the subcontractor, brought this suit in chancery against the prime contractor, Clutter Construction Corporation, hereinafter called 'Clutter,' the Board of Trustees of Okaloosa County, Florida Hospital System, hereinafter referred to as the 'Hospital Board,' and the Board of County Commissioners of Okaloosa County, Florida, hereinafter referred to as the 'County Board.' The relief sought was a declaratory decree with respect to certain matters which in view of the issues on this appeal and our conclusions require no discussion, and also an equitable lien against the county for the unpaid balance due by Clutter. The complaint acknowledged that there was no legal basis by which plaintiff could assert a statutory lien against the county-owned real property upon which the improvements were made. The theory upon which the plaintiff asserted an equitable lien against the money owing by the county to Clutter was that it had substantially contributed to the performance of Clutter's contract with the county and that unless such lien was judicially recognized and the county required to recognize it, the county might pay the balance payable by it to Clutter and Clutter might in turn fail to pay its obligation to plaintiff. It is obvious that the situation thus outlined is not unusual in character. It attends the position of any subcontactor who performs work and furnishes materials on credit extended in connection with any public works contract.

Clutter and the County Board severally moved to dismiss the complaint for failure to state a cause of action. The County Board also moved to strike allegations designed to secure personal judgments against the members of the Board of County Commissioners. On December 2, 1963, the trial court entered an order granting the motion to strike and disposing of the County Board's motion to dismiss as follows:

'Upon proper showing by the defendant, Okaloosa County, and Board of County Commissioners to the Court by filing a certified copy of any 'To Pay' Bond given with proper sureties on behalf of Clutter Construction Company to Okaloosa County, Florida, insuring payment of claims of labors [sic], and/or materialmen on the job and the proper affidavit by the Clerk or Attorney that said Bond was in effect at the time the contract was entered and that the work on the job has not been completed and accepted thus allowing the bond to remain in full force and efeect, this cause will be dismissed as to the defendant, Okaloosa County, and the Board of County Commissioners, and the plaintiff will be required to join as a party the surety.'

The order did not dispose of Clutter's motion to dismiss.

On December 6, 1963, an order was entered granting plaintiff's petition for rehearing, reinstating the cause, and allowing the defendants fifteen days to file their answers. That part of the prior order granting the motion to strike was adhered to. The County Board filed an answer generally denying the...