Settecasi v. Board of Public Instruction of Pinellas County, for Use and Benefit of General Elec. Supply Co.

• Decision Date: 09 October 1963
• Docket Number: No. 3689,3689
• Citation: 156 So.2d 652
• Parties: Frank P. SETTECASI and Joe Chillura, d/b/a Settecasi and Chillura, and the Fidelity and Casualty Company of New York, a New York corporation, Appellants, v. BOARD OF PUBLIC INSTRUCTION OF PINELLAS COUNTY, Florida, for the Use and Benefit of GENERAL ELECTRIC SUPPLY COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 652

156 So.2d 652

Frank P. SETTECASI and Joe Chillura, d/b/a Settecasi and Chillura, and the Fidelity and Casualty Company of New York, a New York corporation, Appellants, v. BOARD OF PUBLIC INSTRUCTION OF PINELLAS COUNTY, Florida, for the Use and Benefit of GENERAL ELECTRIC SUPPLY COMPANY, Appellee.

No. 3689.

District Court of Appeal of Florida, Second District.

Oct. 9, 1963.

Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellants.

Allen, Dell, Frank & Trinkle, Tampa, for appellee.

SMITH, Chief Judge.

The appellants, general contractors and the surety upon their bond, were defendants in the court below in a suit at law ¹ brought by the appellee, the school board, for the use and benefit of General Electric Supply Company, a materialman who furnished supplies for a subcontractor in the course of construction of a public school. This appeal is from a final summary judgment in favor of the materialman and against the general contractors and their surety.

The complaint alleged in substance that the general contractors entered into a contract with the school board for the construction of a school; that the general contractors thereafter entered into a contract with L. E. Dyal Electric Company as electrical subcontractor on the school project; that the plaintiff supply company sold materials to the subcontractor for use on the project for which there remained owing a balance of $60,222.49; and that the general contractors and the surety are liable on their payment and performance bond for the amount owing from the subcontractor to the supplier. The plaintiffs requested the balance due, interest, attorney's fees, and costs.

In answer, the defendants admitted the contract and the bond, denied knowledge of the sale of materials from the supplier to the subcontractor, and set forth two affirmative defenses. One of these alleged that the subcontractor had furnished the general contractor with a payment bond and that the supplier had, in consideration of the obtaining and furnishing of this bond, elected to make its claim thereunder. The other affirmative defense alleged that the supplier misapplied payments received from the general contractor through the subcontractor to other accounts of the subcontractor.

On July 9, 1962, the plaintiff supplier moved to strike the affirmative defenses and on September 6, 1962, moved for summary judgment. Both of these motions were set for hearing on September 17, 1962. The motion for summary judgment was accompanied by affidavits supporting the allegations of the complaint as to receipt of the materials and nonpayment, and an affidavit alleging $5,000.00 to be a reasonable attorney's fee. The plaintiffs' proofs submitted with its motion for summary judgment did not set forth any facts pertaining to any possible defenses.

On September 14, 1962, defendants filed counter-affidavits alleging that the supplier had directed application of funds received by the subcontractor to certain accounts regardless of their source and that the supplier had knowledge of the source of the funds paid to it.

At the hearing on September 17, 1962, the court first considered the motion to strike the two affirmative defenses and orally announced its ruling sustaining the motion to strike these defenses with leave to amend. The court then took up the motion for summary judgment and, after argument, orally announced its intention to enter a summary judgment for the plaintiff. On September 19, 1962, the court entered a written order striking the two affirmative defenses with leave to amend and entering the summary judgment for the plaintiff. On the same day, the defendants filed an amendment to their answer which did not reallege the first affirmative defense involving election but did reallege in greater detail the second affirmative defense regarding misapplication of funds. At the same time the defendants filed a further affidavit alleging that the supplier had notice of all payments to the subcontractor, and that a representative of the supplier had informed the general contractors' agent that the subcontractor's credit was unlimited and that it was current on the school construction materials account.

On September 28, 1962, the defendants moved for rehearing and reopening of the judgment, which motion was denied, and this appeal ensued. We concur in the appellants' contention that the court erred in entering the summary judgment.

In analyzing the status of this case at the time of the hearing, after which summary judgment for the plaintiff was granted, it is noted that an answer containing affirmative defenses had been stricken with leave to the defendants to amend, and that the time for such amendment had not passed. Under such circumstances, the pleading was as if the defendants had not answered and the time for answer had not arrived. Although a plaintiff may move for summary judgment before the defendant has answered, the motion should not be granted unless it is clear that an issue of material fact cannot be presented. At such point in the pleading when the plaintiff moved for summary judgment, the plaintiff had the burden of showing the absence of any genuine issue as to all the...