25 Fla. L. Weekly Supp. 968a
Online Reference: FLWSUPP 2511HOLTInsurance — Homeowners — Standing — Assignment — Where plaintiff/assignee was not in compliance with fictitious name statute at time assignment was executed in fictitious name and action was filed, but subsequently came into compliance, noncompliance was cured, and plaintiff can maintain suit from that point forward — Count seeking declaratory relief is dismissed where count for breach of contract involves same issues, and plaintiff can obtain full, adequate and complete relief under breach of contract count
A.J. WELLS ROOFING CONTRACTORS, a/a/o Michael and Gaea Holt, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2017-CC-004810. September 18, 2017. Lester B. Bass, Judge. Counsel: Dale S. Shelton, The Bush Law Group, LLC, Jacksonville, for Plaintiff. Robert A. Kingsford, Alfano Kingsford, P.A., Maitland, for Defendant.
ORDER ON DEFENDANT’S MOTION TODISMISS PLAINTIFF’S COMPLAINT
THIS CAUSE, having come before this Court upon Defendant’s Motion to Dismiss Plaintiff’s Complaint and the Court having considered the motion, Plaintiffs response thereto, arguments of counsel, and being advised in the premises, finds as follows:
1. The Plaintiffs Complaint in this case was filed on April 26, 2017. Prior to filing the Complaint, the Plaintiff apparently performed work on the home of Tom and Susan Gillis [sic], who executed an Assignment Of Benefits (“AOB”) to A.J. Wells Roofing Contractors, a copy of which was attached to the Plaintiff’s Complaint. At the time the AOB was executed, the fictitious name of A.J. Wells Roofing Contractors was not registered with the State of Florida. However, the fictitious name was registered on April 5, 2017.
2. Defendant argues in its motion that Plaintiff’s failure to comply with Florida Statute §865.09, Florida’s Fictitious Name Act (the “Act”), renders the assignment of benefits invalid and divests the Plaintiff of standing to bring this action. The Defendant cites Progressive Express Ins. Co. v. Hartley, 21 So. 3d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c] and Progressive Insurance Company v. McGrath Cmty. Chiropractic, 913 So. 2d 1281 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b].
3. Florida Statute §865.09(9)(b) expressly states that “[t]he failure of a business to comply with this section does not impair the validity of any contract . . . .”
4. Although the AOB was in violation of Florida State § 865.09 on the date of execution, the Court concludes that the AOB is valid and enforceable. Fla. Stat. § 865.09(9)(b) (2016) and Worm World, Inc. v. Ironwood Prods., Inc., 917 So. 2d 274 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2850b].
5. Florida Statute §865.09(9)(a) states that “[i]f a business fails to comply with this section, the business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court of this state until this section is complied with.” (emphasis added).
6. In Burton v. Oliver Farm Equipment Sales, the Florida Supreme Court interpreted similar statutory language, which prohibited a foreign corporation from maintaining an action or suit in any Florida court until it qualified to transact business in Florida:
It will be observed that the statute inhibits the maintenance of any action or suit. It makes no reference to the institution of one. The rule generally approved is that where the statute merely forbids the maintenance of a suit by a foreign corporation, it is not prohibited from instituting one; but, if challenged, further action on it is stayed or it becomes dormant pending the corporation’s compliance with the law. In the case at bar appellee had not qualified at the time suit was instituted, but did so during the progress of the suit and prior to final decree. This was sufficient.
121 Fla. 148, 149, 163 So. 468, 469 (Fla. Div. B 1935) (emphasis added); See also McNayr v. Cranbrook Investments, Inc., 158 So.2d 129 (Fla. 1963) (“It is our opinion that the word ‘maintained’, as used in Sec. 196.14, . . . does not prohibit the institution of an action, but, if challenged, further action is stayed pending compliance with the law.”) (citing Burton in approval).
7. Specifically addressing § 865.09, the Third District Court of Appeals has held that “[f]ailure to comply with [§ 865.09] is not a prohibition preventing activation of the jurisdiction of the trial court, but is an inhibition to maintain an action which would arise when the infirmity is timely called to the attention of the trial judge.” Cor-Gal Builders, Inc. v. Southard, 136 So.2d 244, 246 (Fla. 3d DCA 1962) (citing the Florida Supreme Court’s decision in 1825 Collins Ave. Corp. v. Rudnick, 67 So. 2d 424 (Fla. 1953) for support); See also, Rapid Rehabilitation, Inc. a/a/o Forbes, Cyrus v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 649a (17th Judicial Circuit, Broward County, 2012).
8. The Hartley and McGrath cases are distinguishable from the instant case. In Hartley, the defect was never cured. In McGrath, there was a lack of standing because the initial assignment occurred after the case was filed. The AOB in the instant case was valid.
9. During the hearing on the motion to dismiss, Defendant further argued that Count II of Plaintiff’s Complaint for declaratory relief should be dismissed because Count I of Plaintiff’s Complaint for breach of contract involves the same issues as Count II and the Plaintiff can obtain full, adequate, and complete relief under Count I. McIntosh v. Harbour Club Villas Condo. Ass’n, 468 So. 2d 1075 (Fla. 3d DCA 1985) (citing Taylor v. Cooper, 60 So. 2d 534, 535-36 (Fla. 1952)).
10. Plaintiff conceded that Count II should be dismissed based upon the district court’s ruling in McIntosh.
Therefore, it is
ORDERED AND ADJUDGED:
(I) The Defendant’s Motion to Dismiss Plaintiff’s Complaint is DENIED as it relates to Count I (breach of contract) of Plaintiff’s Complaint; and
(II) The Defendant’s Motion to Dismiss Plaintiff’s Complaint is GRANTED as it relates to Count II (declaratory relief) of Plaintiff’s Complaint.
