HARRY KLEINMAN, D/B/A COLLINS GLASS & MIRROR CO., AND EASTERN ERECTORS, INC., A FLORIDA CORPORATION, PETITIONERS-CROSS-RESPONDENTS,
v.
BAL HARBOUR TOWERS, INC., SUPERIOR WINDOW CO., A FLORIDA CORPORATION, AND AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, RESPONDENTS-CROSS-PETITIONERS
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The Florida Supreme Court resolved whether a mechanic's lienor can pursue a surety directly in an equity foreclosure action after a property owner transfers the lien to a bond under Florida Statute § 84.24(2), or must file a separate action on the bond. The Court held that the surety is a proper party to the original equity proceeding and the lienor may proceed directly against the surety if successful.
The surety on a bond under Florida Statute § 84.24(2) is a proper party in a mechanic's lien proceeding in equity, and if the lienor successfully establishes its right to payment, it may proceed directly against the surety in the original equity suit rather than filing a separate action on the bond.
“If the owner of property elects to transfer a mechanic's lien to bond, pursuant to the provisions of Florida Statute § 84.24(2), F.S.A. (1961), does the lienor, if successful in establishing in equity his right to payment, have the right to go directly against the surety or must he resort to an independent suit on the bond?”
Statement of the principal legal question presented to the Court
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Join FLexlaw to unlock all legal intelligenceA mechanic's lien was filed against property. The property owner elected to transfer the mechanic's lien to a bond pursuant to Florida Statute § 84.24…
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This cause is before us on petition and cross-petition for writ of certiorari to review a decision1 certified by the District Court of Appeal, Third District, as passing on a question of great public interest, “because it involves a question of practice in the State of Florida.” The question for determination is: If the owner of property elects to transfer a mechanic’s lien to bond, pursuant to the provisions of Florida Stat*831ute § 84.24(2), F.S.A. (1961)2, does the lienor, if successful in establishing in equity his right to payment, have the right to go directly against the surety or must he resort to an independent suit on the bond? The Chancellor and District Court held the surety was not a proper party to the lien foreclosure proceedings and that separate action at law on the bond was required.
The dissenting opinion, which distinguished Fidelity and Casualty Co. v. D. N. Morrison Construction Co., 99 Fla. 309, 126 So. 151 (1930), the principal authority cited by the majority, as having involved a different statute and a different type of bond, reasoned as follows :
“The law should not be ridiculous. When the mechanic’s lien was filed, the lienor had a right to seek redress in a court of chancery if he elected and, if successful, to secure a decree directing the amount of the payment of the indebtedness due him; and, in default of same, to have the property improved sold to satisfy the amount. When the property owner elected to transfer the lien to bond, pursuant to the provisions of § 184.24(2), Fla.Stat., F.S.A., the surety [which was obviously compensated] substituted its obligation to pay in place of the property encumbered. And, if the lienor is successful in establishing its right to payment and if same is not forthcoming within a day certain, then it should have a right to go directly against the surety who joined in the issuance of the bond and caused the release of lien in the first instance. To say that the lienor must resort to an independent suit on the bond, when he has been successful in the original action, should not be countenanced by a court of equity.”
We agree with the dissent and hold the surety on a bond under Florida Statute § 84.24(2), F.S.A. (1961) is a proper party in a mechanic’s lien proceeding in equity and the lienor, if successful in establishing his right to payment, may proceed against the surety in the original equity suit. In all other respects we affirm the decision of the District Court.
Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.
THORNAL, C. J., THOMAS, CALDWELL and ERVIN, JJ., and McMULLEN, Circuit Judge, concur.
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Am. Cas. Co. of Reading v. Am. Fire & Cas. Co., 212 So. 2d 80 (Fla. 3d DCA 1968)…PER CURIAM. Affirmed. See Kleinman v. Bal Harbour Towers, Inc., Fla.App.1966, 188 So. 2d 398 and Fla. 1967, 198 So. 2d 830; Shearn v. Orlando Funeral Home, Fla. 1956, 88 So. 2d 591; Bear v. Duval Lumber Co., 112 Fla. 240, 150 So. 614 (1933); and Irving Nat. Bank v. Law, 10 F. 2d 721 (2d Cir. 1926).…
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McGUIRE v. Consol. Elec. Supply, Inc., 329 So. 2d 411 (Fla. 4th DCA 1976)…he removal of a mechanic’s lien from property by a bond pursuant to § 713.24, F.S.1973, does not change the lien claimant’s burden to prove he is entitled to payment under the mechanic’s lien law. See Kleinman v. Bal Harbour Towers, Inc., Fla. 1967, 198 So. 2d 830. [*413] Accordingly, the judgment against appellants H. McGuire and Marilyn McGuire, his wife, and Royal Globe Insurance Company, is reversed with directions to enter judgment in favor of appellants. WALDEN, C. J., and OWEN, J., concur.…
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Midway Shopping Mall, Inc. v. Corky Corp., 257 So. 2d 905 (Fla. 3d DCA 1972)…epeated statement that the mechanic’s lien law is to be liberally construed for the lienor. United States v. Griffin-Moore Lumber Co., Fla.1953, 62 So. 2d 589; Crane Co. v. Fine, Fla.1969, 221 So. 2d 145. In Kleinman v. Bal Harbour Towers, Fla.1967, 198 So. 2d 830, the Supreme Court held that it is proper to bring an action to foreclose a mechanic’s lien against both the owner and the surety on the bond to which the property has been transferred. The dismissal of the counterclaim of appellant Midway Shopping…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Fid. & Cas. Co. of N.Y. v. D. N. Morrison Constr. Co., Inc., 99 Fla. 309 (Fla. 1930)
- Kleinman v. BAL Harbour Towers, Inc., 188 So. 2d 398 (Fla. 3d DCA 1966)