Mardan Kitchen Cabinets, Inc. v. Bruns, 74--1212
| Decision Date | 13 May 1975 |
| Docket Number | No. 74--1212,74--1212 |
| Parties | MARDAN KITCHEN CABINETS, INC., Appellant, v. Arthur G. BRUNS, Appellee. |
| Court | Florida District Court of Appeals |
Courshon & Berk, Miami Beach, and Matt Weinstein, So. Miami, for appellant.
Brickman, Male & Bloom and Stephen Freeman, Miami, for appellee.
Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
This is an appeal by the plaintiff, Mardan Kitchen Cabinets, Inc., from a final judgment dismissing without prejudice, the complaint to foreclose mechanics lien, discharging the notice of lis pendens, denying the plaintiff's motion to amend and awarding attorneys fees to the defendant, Arthur G. Bruns.
In March of 1973, Mardan recorded a claim of lien on Bruns' property and then filed a complaint for foreclosure of the mechanic's lien, claiming monies due for custom cabinet work performed pursuant to a contract. Bruns answered and filed a counterclaim. Three days before the final hearing, Mardan mailed Bruns, for the first time, an affidavit stating the names of and amounts owed to unpaid lienors and payment to all other lienors, and submitted a copy thereof to the court together with a motion to amend the complaint to reflect compliance with a $713.06(3)(d)1, Fla.Stat. Bruns then moved to dismiss the complaint for noncompliance with the requirements of such statute in that the affidavit had not been delivered to him at least five days before suit was filed, which he contends is a statutory prerequisite to the institution of any suit to enforce a lien. At the hearing, the trial court denied Mardan's motion to amend, granted without prejudice, Bruns' motion to dismiss the complaint, discharged the notice of lis pendens, dismissed Bruns' counterclaim without prejudice, and finding Bruns to be the prevailing party, granted his motion for attorneys fees.
Mardan contends that the court erred in denying its motion to amend, in dismissing the complaint without prejudice since the complaint stated a viable claim for an action to contract for work done and materials furnished, and in awarding attorneys fees to Bruns, since the prevailing party in such a lawsuit could be determined only at the conclusion of the contract action. We disagree with all three contentions.
The court was correct in denying the motion to amend and in dismissing the complaint without prejudice since neither the complaint alone nor with the amendment added to it, could present a valid action for...
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Ramada Development Co. v. Rauch
...leave to amend is proper even if the affidavit was, in fact, delivered, because amendment would be futile. Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla.Dist.Ct.App.1975). The process of litigating the lien issue began in normal fashion in this case. In its complaint Ramada all......
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McKelvey v. Kismet, Inc.
...(W. Morris ed. 1980).6 Gordon purports to rely on two other cases, both of which are distinguishable. Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975) (involuntary dismissal for failure to comply with statute); Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974) (wher......
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McMahan Const. Co., Inc. v. Carol's Care Center, Inc., 83-1140
...with Saleh v. Watkins, 415 So.2d 858 (Fla. 5th DCA 1982), which did involve that section. Saleh followed Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3rd DCA 1975) and held that the affidavit had to be delivered prior to the time the suit was filed. If it was not then the tri......
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Nolan v. Altman
...mechanic's liens, see Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974). We do not find the result reached in those cases to be c......