JOHN F. MICHEL, APPELLANT,
v.
BAYSHORE MARINA, INC., A FLORIDA CORPORATION, APPELLEE
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A civil engineer sued to foreclose a mechanic's lien on property, but the trial court dismissed for failure to state a cause of action under the Mechanic's Lien Statute. On appeal, the court affirmed the dismissal of the mechanic's lien claim but reversed the portion of the decree that barred all future actions, remanding for entry of a more limited decree.
The court affirmed the dismissal of the mechanic's lien claim but reversed and remanded on the issue of whether the decree's broad language precluding any further action was appropriate, requiring entry of an amended decree limited to dismissing the mechanic's lien foreclosure without barring other potential causes of action for damages.
“the court erred in its final decree in that it precluded by the terms of that decree any further action between the parties”
The court's basis for reversing the portion of the decree that barred all future litigation
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Join FLexlaw to unlock all legal intelligenceJohn F. Michel, a civil engineer, was employed to draw plans for Bayshore Marina, Inc. Michel filed a complaint seeking to foreclose a mechanic's lien…
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The appellant alleged in his complaint that he was employed as a civil engineer to draw certain plans for the defendant. His complaint as amended claimed a lien pursuant to Chapter 84, Fla.Stat.1963, which is the Mechanic’s Lien Law. At the conclusion of the plaintiff’s case, the chancellor entered a decree dismissing the cause in the following language:
“1. That the Defendant’s motion for a directed verdict for failure of the Plaintiff to state a cause of action for damages or foreclosure of a mechanics lien against the Defendant be, and the same is hereby granted.
“2. That the lis pendens filed by the Plaintiff in the above cause be, and the same is hereby cancelled and discharged.
“3. That the plaintiff herein shall take nothing against said Defendant, nor against the property of said Defendant, nor shall the alleged lien here-inbefore sought to be foreclosed against the property, and that said lien is, as against said property of said Defendant, fully satisfied and discharged, and that said property is hereby released from such claim, lien and demand.”
On this appeal it is conceded by the appellant that he did not and could not establish a lien under the Mechanic’s Lien Statute. It is urged that there was a sufficient showing before the court on plaintiff’s case to establish a lien pursuant to § 85.05, Fla. Stat., which is as follows:
“Liens in favor of professional engineers and surveyors. — In favor of professional engineers, and registered land surveyors, who in the practice of their profession shall perform by themselves, or others, any professional engineering or land surveying as defined by law, upon or in connection with any property and also upon the land upon which any of said property may stand. Such liens shall be superior to all others accruing thereafter, except only the statutory liens of material men, mechanics, artisans and laborers. If such professional engineering or surveying shall be done or furnished by the procurement of the owner of the property or his agent, or from a person contracting with such owner to have the work done, the lien shall be upon the interest of such o'wner; but if the professional engineering or surveying be done by the procurement of a person having less than the absolute interest, or of his agent, or of any person contracting with him to have the work done, the lien shall be only upon the limited interest of such person.”
The contention for a lien pursuant to the quoted statute was not made in the *296trial court; therefore, we will not decide the issue. Nelson v. Cravero Constructors, Inc., Fla.App.1960, 117 So.2d 764. Nevertheless, the court erred in its final decree in that it precluded by the terms of that decree any further action between the parties. See Stilley v. Post, Fla.App.1963, 148 So.2d 569. We do not infer that a basis for a judgment in another action was established. The question is not presented on this appeal because it has never been submitted to the trial court. Nelson v. Cravero Constructors, Inc., supra.
Accordingly, the final decree is affirmed as to the dismissal of the cause for the enforcement of a Mechanic’s Lien, and the cause is remanded for the entry of an amended final decree eliminating from the final decree appealed all reference to the discharge of the defendant from a cause of action for damages.
Affirmed in part, reversed in part and remanded.
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Cited By
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Whitted v. State, 362 So. 2d 668 (Fla. 1978)…Florida Power Corp. v. Pinellas Utility Board, 40 So. 2d 350 (Fla. 1949); Hartford Fire Insurance Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); Jackson v. Whitmire Construction Co., 202 So. 2d 861 (Fla.2d DCA 1967); Michel v. Bayshore Marina, Inc., 183 So. 2d 294 (Fla.3d DCA 1966). Appellant’s second contention, that the term “lewdness” is constitutionally defective for vagueness, was rejected in our decision in Bell v. State, 289 So. 2d 388 (Fla. 1973). Similarly, appellant’s third point on appeal which po…
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Jackson v. Whitmire Constr. Co., Inc., 202 So. 2d 861 (Fla. 2d DCA 1967)…undamental principle of law that a ground for relief not presented at the trial level will not be considered for the first time on appeal. Sands v. Ivy Liquors, Inc., Fla.App.1966, 192 So. 2d 775, 776; Michel v. Bayshore Marina, Inc., Fla.App. 1966, 183 So. 2d 294, 296; Nelson v. Cravero Constructors, Inc., Fla.App.1960, 117 So. 2d 764, 766; Slatcoff v. Dezen, Fla.1954, 76 So. 2d 792, 793; Gautier v. Biscayne Shores Imp. Corp., Fla. 1953, 68 So. 2d 386, 389-390. See generally 2 Fla.Jur., Appeals, Secs. 66, 29…
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Scott v. Haufler, 526 So. 2d 996 (Fla. 1st DCA 1988)…ing, the remaining appel-lees/lienors have lost their liens for failure to comply with the mechanics lien law. We offer no opinion concerning the availability of other remedies, since the issue is not before us. See, Michel v. Bayshore Marina, Inc., 183 So. 2d 294 (Fla. 3d DCA 1966).…
Authorities Cited
- Nelson v. Cravero Constructors, Inc., 117 So. 2d 764 (Fla. 3d DCA 1960)
- Sydney H. Stilley t/a Sydney H. Stilley & Assocs. v. Post, 148 So. 2d 569 (Fla. 1st DCA 1963)