WINSTON MARSON, APPELLANT,
v.
WILLIAM COMISKY, APPELLEE
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A mechanic's lien claim is void if not strictly compliant with statutory notice requirements, and failure to join all indispensable parties renders the complaint defective.
[1] A mechanic's lien is void if the claimant asserts the claim in an individual capacity but testified that the labor, services, and materials were supplied by a corporation…
[2] Strict compliance with the Mechanic's Lien Law is an indispensable prerequisite for seeking affirmative relief.
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Join FLexlaw to unlock all legal intelligencePlaintiff filed a mechanic's lien claim against defendant, but testified that a corporation owned by him and his wife supplied the labor and materials…
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DURANT, Jr., N. JOSEPH, Associate Judge.
This involves an action brought in the trial court by plaintiff-appellee to enforce a mechanic’s lien. After taking the plaintiff’s deposition, appellant-defendant filed a motion for summary judgment which was denied. This appeal ensued.
The defendant raises two points for reversal, both of which are meritorious. The first point is that the mechanic’s lien claim was defective because it was asserted against the defendant by the plaintiff in his individual capacity, but, at his deposition, the plaintiff testified that the labor, services and materials were not supplied by him in his individual capacity but by a corporation owned by the plaintiff and his wife. By thus failing to comply with the provisions of Section 713.06(2)(a), Florida Statutes, of the Mechanic’s Lien Law, the plaintiff’s lien is void. As was stated in the case of Babe’s Plumbing, Inc. v. Maier, 194 So. 2d 666 (Fla. 2d DCA 1967), in referring to the Mechanic’s Lien Law:
“ . . . strict compliance with the statute is an indispensable prerequisite to either an owner, contractor or subcontractor seeking affirmative relief . . ”
The defendant’s second point involves the failure of the complaint to name the defendant’s wife as a defendant. It is undisputed that the claim of lien filed by the plaintiff alleged that the real property improved with materials allegedly furnished by him was owned by the defendant and his wife. In this instance, the actual owners of the property are each indispensable parties to the cause of action to en force the claim of lien and both should have been joined in the suit. The failure to name the defendant’s wife as a co-defendant rendered the complaint defective. See McGuire v. Consolidated Electrical Supply, Inc., 329 So. 2d 411 (Fla. 4th DCA 1976).
For the foregoing reasons, the order appealed from is reversed with directions to enter a summary judgment for the defendant.
REVERSED AND REMANDED.
DOWNEY and ALDERMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Moore v. Leisure Pool Serv., Inc., 412 So. 2d 392 (Fla. 5th DCA 1982)…s that the failure to join an indispensable party may be raised by motion for judgment on the pleadings or at trial on the merits. As the motion was timely, the trial court should have considered it on its merits. We note that in Marson v. Comisky, 341 So. 2d 1040 (Fla. 4th DCA 1977), the court held that where a mechanic’s lien was alleged against real property owned by a defendant and his wife, the wife was an indispensable party and failure to join her as a co-defendant rendered the complaint defective. We…
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Levine v. Susik, 47 Fla. Supp. 194 (Palm Beach Cty. Cir. Ct. 1978)…e brought this suit “. . . individually, and as members of a class . ...” (emphasis supplied). If this were solely an individual action, defendant’s position would be well taken and would require dismissal of the complaint. Marson v. Comisky, [*199] 341 So. 2d 1040 (Fla. 4th DCA 1977). But in view of the court’s determination that the case is properly pled as a class action, with the wife of each representative-plaintiff before the court as a member of the plaintiff-class, the deficiency (which pertains only t…
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NEW Port Largo, Inc. v. U.S. Excavating & Eng'g, Inc., 490 So. 2d 1045 (Fla. 3d DCA 1986)…the trial court erred in foreclosing a mechanic’s lien where the lienor failed to join or serve two indispensable parties, the record owners of the property. Moore v. Leisure Pool Service, Inc., 412 So. 2d 392 (Fla. 5th DCA 1982); Marson v. Comisky, 341 So. 2d 1040 (Fla. 4th DCA 1977). Reversed.…
Authorities Cited
- Babe's Plumbing, Inc. v. Emil P. Maier and Hildegarde M. Maier, 194 So. 2d 666 (Fla. 2d DCA 1966)
- McGUIRE v. Consol. Elec. Supply, Inc., 329 So. 2d 411 (Fla. 4th DCA 1976)