MORETRENCH CORPORATION, A FOREIGN CORPORATION, APPELLANT,
v.
BRONSON & VEAL ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLEE
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The court held that failure to provide timely notice of a mechanic's lien does not bar foreclosure if funds remain after all timely lienholders are paid, as per statutory interpretation.
Plaintiff failed to provide timely notice to the owner of a mechanic's lien as required by statute. The trial court dismissed the foreclosure complain…
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Plaintiff failed to give the owner notice that he had recorded a mechanic’s lien. That was in direct violation of Ch. 713.06 (2) (a), F.S.1969, F.S.A., which requires notice be given the owner within forty-five days of cessation of furnishing materials and services.
When plaintiff later tried to foreclose his lien, the trial court dismissed his amended complaint with prejudice solely due to his noncompliance with the above requirement. We disagree and reverse.
This case is controlled by Crane Co. v. Fine, Fla.1969, 221 So.2d 145, and its interpretation of Ch. 713.06(3) (c) 4, F.S.1969, F.S.A. Crane held that the statute requiring timely notice to the owner (713.06(2)) (a) only established priorities. Ch. 713.06 (3) (c) 4, supra, operated as a savings provision. If funds remained available after all lienholders filing timely notice had been discharged, then the tardy lienholder could also receive payment.
Crane made a logical and fair interpretation of the various statutes. We are in complete agreement.
Since we feel plaintiff should be allowed to participate in any remaining funds despite its non-compliance with the notice statute, we reverse and remand for further proceedings consistent with the views herein expressed.
Reversed and remanded with directions.
MAGER, J., and WHITE, JOSEPH S., Associate Judge, concur.
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Tuttle/White Constructors, Inc. v. Hughes Supply, Inc., 371 So. 2d 559 (Fla. 4th DCA 1979)…2] However, the failure of a prospective lienor to file notice to owner within forty-five days does not act as an absolute bar to recovery. Konsler Steel Co. v. Partin, 356 So. 2d 264 (Fla.1978); Moretrench Corp. v. Bronson & Veal Enterprises, Inc., 262 So. 2d 206 (Fla. 4th DCA 1972). The case of Crane Co. v. Fine, 221 So. 2d 145 (Fla.1969), recognized the right of a supplier of services or materials to proceed to establish an equitable lien. Under the holding in Crane, lienors who file notice after the forty…
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Konsler Steel Co. v. Partin, 356 So. 2d 264 (Fla. 1978)…the sums due under the direct contract to which such lienor would be entitled. [*266] 1800 North Federal Corporation v. Westinghouse Electric Supply Company, 224 So. 2d 384 (4th DCA 1969); Moretrench Corporation v. Bronson & Veal Enterprises, Inc., 262 So. 2d 206 (4th DCA Fla. 1972); Warren v. Bill Ray Construction Co., Inc., 269 So. 2d 25 (3rd DCA Fla. 1972). In the last cited case of Warren v. Bill Ray Construction Co., Inc., supra, 269 So. 2d 25 at page 27 the District Court states: “That delay in furni…1 / 2
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E. E. Dean Snavely, Inc. v. Weatherking, Inc., 343 So. 2d 58 (Fla. 4th DCA 1977)…ity over, or are equal in dignity to his; otherwise, the claimant would be entitled only to a pro rata share of the fund, or, if priority “liens” exhaust it, to nothing. Crane Co. v. Fine, supra; Moretrench Corp. v. Bronson & Veal Enterprises, Inc., 262 So. 2d 206 (Fla. 4th DCA 1972). As the Bell case squarely holds, a lienholder who has not given proper notice must himself demonstrate — in fact, his complaint must so allege — that these preconditions to recovery exist.' The same rules apply, we hold, to an a…
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- Crane Co. v. Fine, 221 So. 2d 145 (Fla. 1969)