Mills v. Robert W. Gottfried, Inc.
| Decision Date | 12 February 1973 |
| Docket Number | No. 72--102,72--102 |
| Citation | 272 So.2d 837 |
| Parties | H. Jefferson MILLS, Jr. and Valerie B. Mills, his Wife, Appellants, v. ROBERT W. GOTTFRIED, INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
James S. Robinson, of Sullivan & Robinson, West Palm Beach, and Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellants.
Elwyn L. Middleton, of Burns, Middleton, Farrell & Faust, Palm Beach, for appellee.
This is an interlocutory appeal from an order of the Circuit Court for Palm Beach County, Florida, in a suit to foreclose a statutory mechanic's lien.
The plaintiff, Robert W. Gottfried, Inc., alleged in its complaint that it fully performed a written contract with the defendants under which it was required to construct a home for the defendants on real property in Palm Beach County, Florida. The complaint averred that final payment was due the plaintiff in the amount of $37,478.26. The relief sought was an adjudication of the amount due the plaintiff from the defendants, the declaration of a mechanic's lien for that amount, and the foreclosure of the lien in the event payment of the amount found due was not made by a short day.
Instead of answering the complaint, the defendants filed a motion to dismiss on the ground that the trial court lacked jurisdiction. The motion asked in the alternative for an order directing the plaintiff to arbitrate its claim. The trial court denied the motion, and the defendants perfected this appeal.
The motion to dismiss on the ground that the trial court lacked jurisdiction was without merit. The complaint--which was taken as admitted at the motion stage of the proceedings--clearly indicates that the plaintiff was seeking to foreclose a statutory mechanic's lien on real property, under Chapter 713, F.S.1971, F.S.A. Jurisdiction to hear and decide such an action is vested in the circuit court by Article V, subsection 6(3), Florida Constitution of 1885, as amended, and is continued in that court by the newly adopted Article V which became generally effective in January of 1973.
Insofar as the alternative relief sought by the motion, that is, an order for arbitration, a closer question is presented. The contract between the plaintiff and the defendants provided:
'All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. . . .'
These provisions for arbitration are not contrary to the public policy of this state (see Section 682.02, F.S.1971, F.S.A.) and should be enforced in accordance with the Florida Arbitration Code, Chapter 682, F.S.1971, F.S.A. However, both the agreement and the Florida Arbitration Code contemplate the submission to arbitration of real Controversies--not questions simply of academic interest. When the motion to dismiss was filed in the present case, there was no controversy to submit to arbitration. As noted above, the defendants' answer had not been filed. Hence, all the trial judge had before him was an uncontroverted claim for the payment of a sum certain and a demand for a lien to enforce the payment. The trial judge, therefore, did not err in denying the defendants' alternative motion for arbitration.
To avoid a further appeal in this cause, we take the liberty of expressing the view that if after remand and the filing of defensive pleadings, a controversy between the parties should appear either as to the plaintiff's right to final payment or the amount thereof, an application may be made to the trial court in accordance with Section 682.03(2), F.S.1971, F.S.A., for an order for arbitration. Normally such an application should be granted. The order for arbitration should stay the judicial proceedings pending a determination of the controversy submitted to arbitration (see Section 682.03(3)). Once the arbitration is completed, the trial court may on motion of either party dissolve the stay order and proceed to confirm, vacate, or modify the...
To continue reading
Request your trial
-
Cvn Group, Inc. v. Delgado
...Inc., 565 A.2d 313 (Me.1989); Pine Gravel, Inc. v. Cianchette, 128 N.H. 460, 514 A.2d 1282 (1986). 42. Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla.Dist.Ct.App.1973). 43. Harris v. Dyer, 292 Or. 233, 637 P.2d 918 (1981), aff'g as modified, 50 Or.App. 223, 623 P.2d 662 44. JUDAH LI......
-
Corbin Well Pump and Supply, Inc. v. Koon
...v. Haas, 59 So.2d 640 (Fla.1952); Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938).4 See Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973); Stel-Den of America, Inc. v. Roof Structures, Inc., 438 So.2d 882 (Fla. 4th DCA 1983), review denied, 450 So.2d 4......
-
Adams v. Nelsen, 833DC359
...did not thereby waive his right to file a lien claim and institute court action to enforce such lien. See Mills v. Robert Gottfried, Inc., 272 So.2d 837 (Fla.App.1973); Frederick Contr. v. Bel Pre Med., 274 Md. 307, 334 A.2d 526 (1975). Plaintiff is entitled to enforce any award in his favo......
-
Pine Gravel, Inc. v. Cianchette
...Such a waiver should not be presumed; a clear expression of intent to waive the right must exist. See Mills v. Robert W. Gottfried, Inc., 272 So.2d 837, 839 (Fla.Dist.Ct.App.1973). We therefore hold that the arbitration provision is not a waiver of the plaintiffs' right to a materialman's l......