WALTER STANCIL, D/B/A RIVER BEND PLUMBING, APPELLANT,
v.
T. D. GARDNER, APPELLEE
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A subcontractor with no privity with a property owner sought to enforce a mechanic's lien against the owner, but failed to provide notice to the owner as required by Florida statute. The court held that statutory notice is a prerequisite to perfecting a mechanic's lien, and the owner's own non-compliance with posting requirements does not relieve the subcontractor of this obligation.
The court held that statutory notice to the owner is a prerequisite to perfecting a mechanic's lien under Florida Statute Section 84.061(2)(a), and that the subcontractor's failure to provide such notice is fatal to the lien claim. The owner's non-compliance with posting requirements does not relieve the subcontractor of this obligation.
“This notice to owner under Section 84.061(2) (a) Florida Statutes, F.S.A., " * * * is a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner."”
Establishes that statutory notice to the owner is a mandatory prerequisite to perfecting a mechanic's lien
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Join FLexlaw to unlock all legal intelligenceWalter Stancil, a plumber, contracted with general contractor Clarence Dowling to perform rough-in plumbing work on a house to be built on property ow…
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This is a timely appeal from a final order • denying appellant’s, plaintiff below, motion for summary judgment, dismissing plain-tiff’s complaint with prejudice and the -granting of appellee’s, defendant below, ore ■tenus motion for summary decree.
Plaintiff, Walter Stancil, d/b/a River ■Bend Plumbing, entered into a contract -with Clarence Dowling as a subcontractor wherein the plaintiff was to do a complete irough-in plumbing job in a house being built by the said Clarence Dowling. This house was to be built on certain properties which are described in a complaint filed in this cause, said lands being owned by the defendant, T. D. Gardner. The plaintiff at no time had any type of contact with the defendant and there is no indication that he, in fact, even knew anything about the defendant. All of the plaintiff’s dealings were with Clarence Dowling and, therefore, he falls into the category known as “those persons not in privity with the owner.”
On or about 9 March 1964, the plaintiff began his subcontract for Clarence Dow-ling. He continued his subcontract with Mr. Dowling up until the 16th day of April 1964, when he concluded the same.
Complete payments were made to the contractor by the defendant but the contractor failed to pay the plaintiff for the materials furnished by him.
On or about the 25th day of May 1964, after owner had already paid the contractor, the plaintiff executed a Notice to Owner stating that he was proceeding under Florida Statute 84.061, F.S.A., and advising the defendant that he should make his payments under said section. The defendant caused a copy of that to be delivered to T. D. Gardner, P. O. Box 284, Crystal River, Florida.
Plaintiff filed his complaint on 15 June 1964 to foreclose his previously recorded mechanic’s lien.
The defendant filed his answer denying the material allegations of plaintiff’s complaint
On or about 27 July 1964, plaintiff moved for summary final decree with supporting affidavits.
At the hearing on plaintiff’s summary final decree, the defendant made an ore tenus motion for summary final decree setting forth the opinion that, with the use of plaintiff’s affidavit, there could be no *342question as to defendant’s right to a summary final decree.
There appears to have been no objections made by the plaintiff to defendant’s above described motion.
There is no dispute that T. D. Gardner, the defendant below, did not record and post on the property a notice of commencement and paid monies to the general contractor without an affidavit as required by Section 84.061(3) (c), par. 1, Florida Statutes, F.S.A. There is also no dispute that plaintiff did not give notice to owner as required by Section 84.061(2) (a) Florida Statutes, F.S.A. This notice to owner under Section 84.061(2) (a) Florida Statutes, F.S.A., “ * * * is a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner.”
The fact that the defendant did not comply with the Statute does not relieve the plaintiff from complying with Section 84.-061(2) (a). Since it is a prerequisite to give said notice and plaintiff failed to comply, the trial court was correct in dismissing the plaintiff’s complaint. Also, the fact that the defendant had not complied with filing and posting his notice of commencement should have put the plaintiff on notice and he should have complied with Section 84.061(2) (a) Florida Statutes, F.S.A.
Mermell v. McKinley, Fla.App., 126 So.2d 902, which is a Second District case, holds that a contractor’s affidavit to the owner of the land is a prerequisite to the institution of any suit to enforce his lien, is similar to this case in that the Notice to Owner in Section 84.061(2) (a) is a prerequisite to recording and to perfecting a lien under Chapter 84.061 Florida Statutes, F.S.A.
We affirm the final decree.
SHANNON, Acting C. J., and LILES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Crane Co. v. Fine, 221 So. 2d 145 (Fla. 1969)…ithin 45 days of commencing to furnish the materials barred its claim for a statutory lien, citing Tarlow v. Helmholtz, Fla.App.1967, 198 So. 2d 109; Babe’s Plumbing, Inc. v. Maier, Fla.App.1966, 194 So. 2d 666; and Stancil v. Gardner, Fla.App.1966, 192 So. 2d 340. These cases are distinguishable on their facts from the instant case. In Tar-low and Babe’s Plumbing, Inc., no notice whatsoever was given by the materialman to the owner prior to recording the claim of lien sued upon. In Stancil, the notice was gi…
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Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So. 2d 1254 (Fla. 4th DCA 1984)…have held that untimely service of the notice to owner is a fatal defect. See, e.g., Falovitch v. Gunn & Gunn Construction Co., 348 So. 2d 560 (Fla. 3d DCA 1977); Babe’s Plumbing, Inc. v. Maier, 194 So. 2d 666 (Fla. 2d DCA 1966); Standi v. Gardner, 192 So. 2d 340 (Fla. 2d DCA 1966). Thus, I would hold that constructive knowledge is not an acceptable substitute for full statutory compliance.4 Of course, a trial court’s finding comes to this court clothed with a presumption of correctness. Beck v. Beck, 383 S…
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Tarlow v. Helmholtz, 198 So. 2d 109 (Fla. 2d DCA 1967)…ing the notice as provided under § 84.061(2) (a), Fla.Stat. 1963, F.S.A. Subsequent to the entry of the learned chancellor’s final decree, the above contentions of the respective parties were directly ruled upon in Stancil v. Gardner, Fla.App.1966, 192 So. 2d 340, wherein this court on page 342 held as follows: “There is no dispute that T. D. Gardner, the defendant below, did not record and post on the property a notice of commencement and paid monies to the general contractor without an affidavit as requir…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mac Mermell and Peggy Mermell v. McKINLEY, 126 So. 2d 902 (Fla. 2d DCA 1961)