EUGENE M. ROBERTS, D/B/A ROBERTS ENGINEERING, APPELLANT,
v.
SAMUEL LESSER, APPELLEE
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A subcontractor sued to foreclose a mechanic's lien against property owned by Samuel Lesser, but the lower court dismissed the complaint for failure to allege privity with the owner and failure to serve notice of intention to claim a lien. The Florida Supreme Court affirmed, holding that while subcontractors may enforce liens without the cautionary notice, they must allege either an unpaid balance owed by the owner to the contractor or improper payment by the owner.
The failure to file notice of intention to claim a lien does not categorically bar a subcontractor from enforcing the lien. However, a subcontractor not in privity with the owner must allege either that an unpaid balance of the contract price remains in the owner's hands or that payments were improperly made by the owner to the contractor in order to state a valid cause of action.
“It has long been settled that a subcontractor has a valid and enforceable lien against the improved premises to the extent of, or for his proportionate part of, the unpaid balance of the contract price, even though he did not file the cautionary notice.”
Establishes that failure to file notice does not categorically bar subcontractor liens.
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Join FLexlaw to unlock all legal intelligenceEugene Roberts, operating as Roberts Engineering, performed work allegedly at the request of Miami Lawn Sprinkler Co., Inc., which acted as contractor…
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ROBERTS, Justice.
This is an appeal from a final order dismissing plaintiff-appellant’s suit to foreclose a mechanic’s lien against property owned by the defendant-appellee and improved by plaintiff allegedly “at the request of Miami Lawn Sprinkler Co., Inc., the Contractor and defendant Samuel Lesser’s agent.” Upon motion of the defendant that the complaint be dismissed for failure “to state a claim upon which relief can be granted,” the lower court entered an order finding that “the Plaintiff had not contracted with the Defendant owner of the property, and * * * the Plaintiff had not served the Defendant with a Notice of Intention to Claim a Lien, as required by law, * * * ” and dismissing plaintiff’s complaint. Plaintiff has appealed.
No contention is made here by plaintiff that he was, in fact, in privity with the owner, either directly or indirectly; and the principal issue here is whether his failure to file with the owner a notice of intention to claim a lien, as provided for by Sec. 84.04(1), Fla.Stat.19S5, F.S.A., bars his suit to foreclose his Claim of Lien.
It has long been settled that a subcontractor has a valid and enforceable lien against the improved premises to the extent of, or for his proportionate part of, the unpaid balance of the contract price, even though he did not file the cautionary notice. Investors Syndicate v. Henderson, 148 Fla. 696, 6 So. 2d 629. Nor will the failure to file the cautionary notice bar subcontractors from enforcing their liens “in a sum up to that portion of the contract price which was not ‘properly paid’ under the Mechanics’ Lien Law.” All State Pipe Supply Co. v. McNair, Fla.1956, 89 So. 2d 774, 776.
Since the right of the subcontractor to enforce his lien in this situation must, however, depend upon there being either an unpaid balance of the contract price in the owner’s hands or, if not, on the fact that payments were “improperly made” by the owner to the contractor, it would appear that in order to state a cause of action against the owner appropriate allegations to this effect should be made. See Flamingo Apartments, Inc., v. Paintrite Co., Inc., Fla.1950, 48 So. 2d 523, holding that where the complaint failed to show that any amounts were due on the general contract by the owner to the general contractor, the complaint of a subcontractor not in privity with the owner should have been dismissed.
No such allegations having been made by plaintiff, it was not error to dismiss his complaint and the order appealed from is affirmed without prejudice to the right of the plaintiff to amend his complaint, if he be so advised.
Affirmed without prejudice.
TERRELL, C. J., and THOMAS,, THORNAL and O’CONNELL, JJ., concur.
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Crane Co. v. Fine, 221 So. 2d 145 (Fla. 1969)…ereas, under the for-, mer Act, no cautionary notice was necessary in order to record and foreclose a Claim of Lien against the unpaid balance [*152] of the contract price or that portion that was not properly paid. See Roberts v. Lesser, Fla. 1957, 96 So. 2d 222, 223. However, under both the old and the new Acts, no notice to the owner is necessary for a lienor to participate in the final payment, since the contractor is required to list all unpaid lienors in his final-payment affidavit, whether or not such…
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Ward v. Miami Lock & Hardware Co., 119 So. 2d 395 (Fla. 3d DCA 1960)…estors’ Syndicate v. Henderson, 148 Fla. 696, 6 So. 2d 629; Curtis v. McCardel, Fla. 1953, 63 So. 2d 60; Shaw v. Del-Mar Cabinet Co., Fla.1953, 63 So. 2d 264; All State Pipe Supply Co. v. McNair, Fla.1956, 89 So. 2d 774; Roberts v. Lesser, Fla.1957, 96 So. 2d 222; Stone Arts, Inc. v. Dwyer, Fla. App.1958, 99 So. 2d 880. And see 22 Fla. Jur., Mechanic’s Liens, § 19. [*398] In Foley Lumber Company v. Koester, Fla.1953, 61 So. 2d 634, 637, the Supreme Court said: “Although a materialman’s lien may be valid wit…
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Fichtenbaum v. Bald Eagle Constr. Co., 131 So. 2d 513 (Fla. 2d DCA 1961)…o allege or prove that there was any unpaid balance of the contract price. This they were required to do in order to prevail. Flamingo Apartments, Inc., v. Paintrite Co., Inc., Fla., 48 So. 2d 523; Roberts, d/b/a Roberts Engineering v. Lesser, Fla., 96 So. 2d 222. After appellees had rested their case in the lower Court, the appellants moved to dismiss. This motion should have been granted as to appellees Clark and Bald Eagle. As to the decree in reference to appellee McLaughlin, we find no error. He contra…
Authorities Cited
- ALL State Pipe Supply Co., Inc. v. McNAIR, 89 So. 2d 774 (Fla. 1956)