No. 75-277 | Fla. Dist. Ct. App. | Jul 29, 1975
The defendant to a lien foreclosure suit appeals an order denying its motion to dismiss the complaint. The single ground set forth in the motion to dismiss is that “Plaintiff has failed to provide an Affidavit as required by Florida Statute § 713.-06(3) (d) 1: ‘ . . . stating, if that be the fact, that all lienors have been paid in full or, if the fact be otherwise, showing the names of each lienor who has not been paid in full and the amount due or to become due, each for labor, services or material furnished.’ ”
Attached to the complaint is the contract between the plaintiff and the defendant. It affirmatively appears from the contract that some prospective lienors were to be paid by the owner and others were to be paid by the contractor. In view of this fact, we hold that plaintiff’s sworn statement attached to his complaint as Exhibit D, which purports to list all the material-men and labor paid by him and makes claim therefor, is sufficient to comply with the statute. Cf. Eastland Investment Company v. J. R. Trueman & Associates, Inc., Fla.App.1973, 287 So. 2d 365" date_filed="1973-12-18" court="Fla. Dist. Ct. App." case_name="Eastland Inv. Co. v. JR TRUEMAN & ASSOC., INC.">287 So.2d 365, where this court held:
“Ordinarily, the general contractor must furnish the sworn statement as a condition precedent to the right to maintain an action to foreclose a mechanic’s lien unless the complaint alleges facts clearly avoiding the necessity to furnish it, and the circumstances peculiar to each case govern. Brown v. First Federal Savings & Loan Association of New Smyrna, Fla.App. 1964, 160 So. 2d 556" date_filed="1964-01-28" court="Fla. Dist. Ct. App." case_name="Brown v. First Federal Sav. & L. Ass'n of New Smyrna">160 So.2d 556.”
Affirmed.