RENUART LUMBER YARDS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
EDWARD A. STEARN AND BERNARD N. JARRETT, A SOLE PROPRIETOR, DOING BUSINESS AS PALMER & JARRETT, APPELLEES
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A subcontractor sought to foreclose a materialman's lien against the owner's property when the general contractor remained unpaid. The Florida Supreme Court held that the owner's failure to obtain a sworn statement from the contractor before making the final payment rendered that payment "not properly paid," entitling unpaid lienors to share pro rata in the full amount designated as final payment in the contract, not just the remaining balance.
Unpaid lienors have a right to share pro rata in the amount contractually designated as final payment ($5,500), not merely the remaining unpaid balance ($2,400), because the final payment made without a sworn statement is not "properly paid" as defined by statute.
“a final payment under a building contract made by the owner to the general contractor without first securing the sworn statement from the contractor required by Sec. 84.04(3), supra, is not "properly paid" as the term is defined in Sec. 84.05”
Establishes the core legal principle that final payments without sworn statements are not properly paid and trigger lien liability
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Join FLexlaw to unlock all legal intelligenceThe owner contracted for a $11,000 construction job with payment terms: 10% initial, 40% progress, and 50% ($5,500) as final payment upon completion. …
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ROBERTS, Justice.
In a suit by a subcontractor to foreclose a materialman’s lien under Ch. 84, Fla.Stat. 1955, F.S.A., against the owner’s property, the lower court held that an initial payment, a progress payment and a portion of the final payment made by the owner to the general contractor under the direct contract were “properly paid” so that the plaintiff was entitled only to share pro rata with other lienors the amount ($2,400) remaining due and unpaid under the contract. The plaintiff has appealed.
As to the initial and progress payments, plaintiff relies on the provisions of Ch. 28243, Acts of 1953, appearing as Sec. 84.05 (11) (a), Fla.Stat.1955, F.S.A., in support of its contention that such payments were improper. Since this Act was held to be void and of no effect in Greenblatt v. Goldin, Fla., 94 So. 2d 355, its contention in this respect cannot be sustained.
As to whether the portion of the final payment here in question was “properly paid,” the facts are as follows: The contract price was $11,000 for a completed job, the contract calling for an initial payment of 10 percent, a progress payment of 40 percent, and the remaining 50 percent, or $5,500, upon final inspection. At various times prior to the completion of the job the owner paid the contractor all except $2,400 of the contract price and did not obtain from the contractor a statement under oath that all lienors had been paid, as required by Sec. 84.04(3), Fla.Stat.1955, F.S.A. The question here is whether the plaintiff and other unpaid lienors have a right to have their liens discharged, pro rata, to the extent of the contract price remaining in the owner’s hands ($2,400) or to the extent of the final payment specified in the contract ($5,500).
Since the decisions of this court in Shaw v. Del-Mar Cabinet Co., Inc., Fla. 1953, 63 So. 2d 264, and Curtis v. McCardel, Fla.1953, 63 So. 2d 60, it is settled that a final payment under a building contract made by the owner to the general contractor without first securing the sworn statement from the contractor required by Sec. 84.04(3), supra, is not “properly paid” as the term is defined in Sec. 84.05, Fla.Stat. 1955, F.S.A., and that the owner is responsible to the general contractor’s unpaid subcontractors and materialmen to the amount of such final payment even though no cautionary notices were filed by them. The clear import of such decisions is that the true “final payment" as contemplated by the statute is that specified in the contract. See Curtis v. McCardel, supra, 63 So. 2d 60.
Accordingly, it must be held under the authority of the above-cited decisions that the plaintiff and other unpaid lienors have a right to a lien for their pro rata share of the amount specified in the contract as the final payment, to wit, $5,500.
The decree is affirmed in part and reversed in part and the cause remanded for the entry of a decree not inconsistent with the opinions herein expressed.
TERRELL, C. J., and THOMAS, HOB-SON, DREW, THORNAL and O’CON-NELL, JJ., concur.
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Broderick v. Overhead Door Co. OF Fort Lauderdale, Inc., 117 So. 2d 240 (Fla. 2d DCA 1959)…irements of the statute, section 84.04(3), is not properly made; and the owner becomes responsible to the general contractor’s unpaid subcontractors and materialmen to the amount of such final payment. Renuart Lumber Yards, Inc. v. Stearn, Fla.1957, 95 So. 2d 517; and Curtis v. McCardel, Fla.1953, 63 So. 2d 60. Both Overhead Door and Giffen-were subcontractors and materialmen and as such held liens of a class superior to that of the builder, Moorhead. Section 84.06 (3), Florida Statutes, F.S.A. It is clear…
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Tamarac Vill., Inc. v. Bates & Daly Co., 348 So. 2d 23 (Fla. 4th DCA 1977)…lorida Statutes (1973). However, if the owner makes improper payments, then he has failed to comply with the Mechanics’ Lien Law, and his liability for mechanics’ lien claims may exceed the contract price. See, e. g., Renuart Lumber Yards v. Stearn, 95 So. 2d 517 (Fla.1957). We hold that the payments Tamarac made before it recorded its notice of commencement were improper payments under Section 713.06(3)(a), Florida Statutes (1973). In addition, we hold that Tamarac’s failure to file a notice of re-commence…
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William v. Bybee, 95 So. 2d 529 (Fla. 1957)…more particular statement in his brief, cf. Redditt v. State, Fla., 84 So. 2d 317, the statute in question has been held to be void and of no effect in Greenblatt v. Goldin, Fla., 94 So. 2d 355. Se,e also Renuart Lumber Yards, Inc. v. Stearn, Fla., 95 So. 2d 517, involving the same direct contract and dealing with the question of what payments, were improperly made under the contract and applicable law. The decree appealed from is affirmed in part and reversed in part and the cause remanded for further pro…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shaw et ux. v. Del-Mar Cabinet Co., Inc., 63 So. 2d 264 (Fla. 1953)
- Greenblatt v. Goldin, 94 So. 2d 355 (Fla. 1957)
- Curtis et ux. v. McCARDEL, 63 So. 2d 60 (Fla. 1953)