H. MCGUIRE ET AL., APPELLANTS,
v.
CONSOLIDATED ELECTRICAL SUPPLY, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 4th DCA | 1976-04-02
No. 75-54
WALDEN, C. J., and OWEN, J., concur.
329 So. 2d 411 Florida District Court of Appeal, Fourth District (1976) Positive Treatment
Cited by 20 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

A materialman who furnished supplies to a subcontractor sought to foreclose a mechanic's lien against property that had been conveyed to a corporation. The court reversed judgment against the original owners and their surety bond company, holding that the actual property owner (the corporation) was never made a party to the foreclosure suit, which was fatal to the lien claim.


Holding

The judgment against the McGuires and Royal Globe Insurance Company was reversed because the actual property owner was not made a party to the suit. A mechanic's lien cannot be successfully foreclosed without joining the property owner as a defendant, and a surety's liability is coextensive with that of the principal, so the surety cannot be liable when the principal is not a party to the suit.


Headnotes

[1] A mechanic's lien foreclosure suit requires the property owner to be made a party to the action.

[2] A surety's liability is generally coextensive with that of the principal.

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Key Quotes

“the lien could not be successfully foreclosed unless the property owner was made a party to the suit”

Establishes the fundamental requirement that the actual property owner must be a party to a mechanic's lien foreclosure action

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Facts & Procedural History

The McGuires owned land in Broward County that they conveyed to McGuire Development Corporation on April 13, 1973. Prior to that conveyance, the appel…

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Opinion of the Court
DOWNEY, Judge.

DOWNEY, Judge.

Appellants H. McGuire and Marilyn McGuire owned a tract of land in Broward County, Florida, which they conveyed to McGuire Development Corporation on April 13, 1973. Just prior to that time appellee, a materialman, commenced furnishing materials to a subcontractor for the improvement of a portion of said tract.

On April 25, 1973, McGuire Development Corporation as owner filed a “notice of commencement.” On May 4, 1973, appel-lee sent to appellants Mr. and Mrs. McGuire a “notice to owner” stating that it was furnishing material to the job. On October 25, 1973, appellee filed a claim of lien stating the property was owned by Mr. and Mrs. McGuire. Suit was commenced against the McGuires to foreclose the mechanic’s lien and in due course the lien was transferred to a bond posted by the owner of the property, McGuire Development Corporation. Appellant Royal Globe Insurance Company, the surety on the said bond, was made a party defendant.

Although on numerous occasions appellee was put on notice that appellants Mr. and Mrs. McGuire were not the owners of the property, the true owner, McGuire Development Corporation, was never made a party to the suit. The case went to trial against the appellants (Mr. and Mrs. McGuire and Royal Globe Insurance Company), and final judgment was entered against them for $7076.51.

Since appellee was a materialman furnishing materials to a subcontractor and there was no privity of contract between appellee and either the appellants or McGuire Development Corporation, appellee can only prevail by proving it was entitled to foreclose a mechanic’s lien against the property in question. But regarding, argu-endo, appellee’s lien as valid, the lien could not be successfully foreclosed unless the property owner was made a party to the suit. It is appropriate here to point out that nowhere in this litigation did appellee suggest any fraud on the part of Mr. and Mrs. McGuire, nor did it attempt to pierce the corporate veil of McGuire Development Corporation. So we are faced with a judgment against Mr. and Mrs. McGuire individually by one not in privity with them arising out of an alleged mechanic’s lien on property owned by a corporation not a party to the suit. In no event was appellee entitled to a judgment against Mr. and Mrs. McGuire. Even if appellee had been successful in proving its entitlement to a lien against the property in question, it would have no right in this case to subject the McGuires individually to a judgment.

We also hold the judgment against the bonding' company was improper. The record shows the property was owned by the McGuire Development Corporation, which is not a party to the suit. In order to remove the lien from its property McGuire Development Corporation put up a bond with appellant Royal Globe Insurance Company as surety. Appellee thereupon made the surety a party to the suit without the principal being made a party. Ordinarily, the liability of a surety is measured by the liability of the principal. The surety liability is generally coextensive with that of the principal. 30 Fla.Jur., Suretyship & Guaranty, § 14. Since the bond was never offered in evidence we cannot determine whether appellee could maintain this suit against the surety without the principal being made a party. In any event, the 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. 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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Citator

Cited By

  • Morganti S., Inc. v. Hardy Contractors, Inc., 397 So. 2d 378 (Fla. 4th DCA 1981)
    …ions precedent to perfection and enforcement of the lien before recovery against the bond can be achieved. Fidelity & Deposit Company of Maryland v. Accel, Inc., 354 So. 2d 424 (Fla. 4th DCA 1978) and McGuire v. Consolidated Electrical Supply, Inc., 329 So. 2d 411 (Fla. 4th DCA 1976). We find it unnecessary to directly answer the question of whether the cause of action is in rem in nature in view of the provisions of Section 713.24(3), Florida Statutes (1977), which states in relevant part as follows: Any p…
  • Gesco, Inc. v. Edward L. Nezelek, Inc., 414 So. 2d 535 (Fla. 4th DCA 1982)
    …not relieve the lien claimant from proving all the conditions precedent to perfection and enforcement of a lien against improved property. See, Resnick Developers South, Inc. v. Clerici, Inc., supra; McGuire v. Consolidated Electrical Supply, Inc., 329 So. 2d 411 (Fla. 4th DCA 1976); Corry Construction Co. v. Hector Construction Companies, 363 So. 2d 1125 (Fla. 1st DCA 1978). However, proof of priority over a mortgage is not such a condition precedent. The issue of priority is pertinent only after the validi…
  • Corry Constr. Co., Inc. v. Hector Constr. Cos., Inc., 363 So. 2d 1125 (Fla. 1st DCA 1978)
    …ove all the conditions precedent to the perfection and enforcement of his lien against the improved real property. Resnick Developers South, Inc. v. Clerici, Inc., 340 So. 2d 1194 (Fla. 4th DCA 1977); McGuire v. Consolidated Electrical Supply, Inc., 329 So. 2d 411 (Fla. 4th DCA 1976). The judgment is AFFIRMED. Corry’s motion for fees on account of appellate legal services is DENIED. MELVIN and BOOTH, JJ., concur.…

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