RUG MART, INC., APPELLANT,
v.
FRANK S. PELLICCI AND BETTY PELLICCI, HIS WIFE, APPELLEES
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Rug Mart installed carpeting in the Pelliccis' home under a contract retaining a security interest and UCC remedies. The trial court dismissed Rug Mart's mechanics' lien foreclosure claim, holding that the security interest provision limited remedies to UCC enforcement. The appellate court reversed, holding that the security interest clause did not bar Rug Mart from alternatively pursuing mechanics' lien remedies.
The contract provision retaining a security interest did not establish the seller's sole remedy for breach or classify the carpeting as personalty. Rather, it merely entitled Rug Mart to pursue UCC remedies as an alternative. By electing to file a mechanics' lien and treat the installed carpeting as realty, Rug Mart validly abandoned its right to pursue UCC remedies and is entitled to foreclose its lien under Florida's mechanics' lien statute.
[1] A contractual provision granting a seller the remedies of a secured party under the Uniform Commercial Code does not preclude the seller from foreclosing a claim of lien…
[2] A seller who installs goods permanently in a home may elect to treat the installed goods as realty and pursue foreclosure of a mechanics' lien, thereby abandoning the rig…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We do not think the contract provision established Rug Mart's sole remedy for breach or that the carpeting was personalty. Rather, it merely entitled Rug Mart to pursue remedies available to a secured party under the Uniform Commercial Code.”
The court's holding that the security interest clause was permissive rather than exclusive and did not limit Rug Mart to UCC remedies only.
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Join FLexlaw to unlock all legal intelligenceIn March 1978, Rug Mart installed carpeting in the Pelliccis' new home pursuant to a written contract that retained a purchase money security interest…
The full statement of facts, procedural history, and disposition for this case are member content.
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SCHEB, Judge.
Appellant installed carpeting in the appellees’ new home, retaining a security interest and a contractual entitlement to pursue the remedies of a secured party under the Florida Uniform Commercial Code. The trial court held that this entitlement barred appellant from foreclosing a claim of lien against the appellees’ homeplace under the mechanics’ lien law. We disagree and reverse. In March 1978 Rug Mart, Inc., installed carpeting in the Pelliccis’ new home pursuant to a written contract. The contract contained a provision whereby Rug Mart retained a security interest in the goods until the Pelliccis paid the total purchase price. It further provided that in the event the Pelliccis breached the contract, Rug Mart was entitled to the remedies of a secured party under Chapter 679, Florida Statutes (1979).1
When the Pelliccis failed to complete their payments, Rug Mart filed a claim of lien for the unpaid balance plus interest, and timely sued to foreclose its claim of lien under Chapter 713, Florida Statutes (1979). The Pelliccis moved to dismiss, contending that by the contractual provision they and Rug Mart implicitly agreed to treat the carpeting as personalty. Thus, they argued, the provision limited Rug Mart to the remedies of a secured party under the Uniform Commercial Code. The trial court granted the Pelliccis’ motion and dismissed Rug Mart’s complaint with prejudice. This appeal ensued.
We do not think the contract provision established Rug Mart’s sole remedy for breach or that the carpeting was personalty.2 Rather, it merely entitled Rug Mart to pursue remedies available to a secured party under the Uniform Commercial Code.3 Presumably, Rug Mart may have chosen to do so if the carpeting had not yet been installed when the Pelliccis breached the contract. By suing to foreclose its claim of lien, Rug Mart elected to treat the installed carpeting as realty and abandoned its right to treat the property as personalty and to pursue contractual remedies under the written agreement. See North Dade Plumbing, Inc. v. LaSalle Building Corp., 114 So. 2d 707 (Fla. 3d DCA 1959). We hold that if Rug Mart can prove the allegations of its complaint, it is entitled to the remedy of foreclosure under Chapter 713, Florida Statutes (1979).
Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion.
BOARDMAN, Acting C. J., and OTT, J., concur. . The contract provided:
CONDITIONS: It is agreed that a purchase money security interest is retained by the seller in the above described goods to secure such purchase price until the total amount above specified shall have been paid and that the goods covered in this contract shall not be removed from address where originally installed, without written consent of seller. Any violation of the above contract or failure to make payments as agreed shall entitle the seller to all remedies of a secured party under the Florida Uniform Commercial Code.
. Although not applicable in the present case, Section 713.01(7), Florida Statutes (1979), as amended by Chapter 77-353, Section 1, Laws of Florida (effective July 1, 1978), provides that furnishing carpeting or rugs to be permanently installed constitutes an improvement tc realty.
. Presumably, by retaining a security interest, Rug Mart would have had this right irrespective of the provision.
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- N. Dade Plumbing, Inc. v. LA Salle Bldg. Corp., 114 So. 2d 707 (Fla. 3d DCA 1959)