D. EDWARD WOOD, APPELLANT,
v.
MYRTLE B. WILSON, APPELLEE
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Wood appeals a dismissal of his complaint seeking declaration of a mechanic's lien for labor and materials furnished to improve Wilson's homestead property. The Florida Supreme Court affirmed the dismissal, holding that an action to enforce a materialman's lien must comply with statutory time limitations regardless of whether relief is sought as a lien declaration or enforcement, and that the constitutional homestead exemption does not exempt such liens from those time requirements.
The court held that an action to declare a materialman's lien must be brought within the statutory period of limitations, regardless of whether the relief sought is characterized as a declaration or enforcement of the lien. The constitutional homestead exemption for obligations related to repairs or improvements does not prevent the Legislature from requiring that such proceedings be instituted within a stipulated time period, and the appellant's failure to commence suit within the prescribed time bars enforcement of the lien in equity.
“A lien "declared" could be of no value whatsoever and the employment of the judicial process to declare it would be a completely useless gesture if the lien were not enforceable when declared.”
Establishes that the distinction between declaring and enforcing a lien is illusory, and that a lien must be enforceable to have any practical value
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Join FLexlaw to unlock all legal intelligenceBetween October 30, 1953, and that date, Wood furnished labor and materials to improve real estate allegedly owned by single woman Myrtle Wilson and c…
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THORNAL, Justice. .
Appellant Wood, who was plaintiff below, appeals from an order of the Chancellor sustaining a motion to dismiss a complaint seeking a declaration of a lien for furnishing labor and materials for the improvement of real estate.
On and prior to October 30, I9S3, Wood furnished labor and materials for the ,im-, provement of a parcel of real estate allegedly owned by Myrtle B. Wilson,'a single woman, which said real estate is also alleged to have been her homestead. A claim of lien was served upon Miss Wilson on December 27, 1953, but the complaint in the instant case was not filed until March 9, 1955, more than twelve months after the last item of materials was furnished and after the service of the claim of lien.
Appellee attacked the complaint by motion to dismiss on the grounds that it failed to state a claim to support relief and further that it affirmatively appeared from the allegations of the complaint that the action had not been instituted within the period of limitations prescribed by F.S. § 84.21 and § 86.11, F.S.A. These statutes respectively require that-an action to enforce a materialman’s or laborer’s lien shall be instituted within twelve months after the claim of lien is recorded or within twelve months of the performance of the work if notice of the lien has not been recorded. The Chancellor granted the motion to dismiss the complaint. From this order an appeal was taken.
Appellant contends for reversal on the proposition that Article X, Section 1, of the Florida Constitution, F.S.A., defining a homestead and.homestead exemption provides that a homestead shall not be exempt from obligations “for the erection or repair of improvements on the real estate exempted”1 and that inasmuch as he is merely seeking the declaration of a lien rather than the enforcement of a lien, he should not be bound by the time limitations prescribed by the mechanic’s lien law. To support his position he cites cases dealing with separate property of married women as defined by Article XI of the Florida Constitution. Appellant reasons from these cases that since the Constitution requires specifically that property of a married-woman “be charged in equity” that the same fule ap-, plies to the alleged homestead of a-single woman. We cannot agree with appellant’s process of reasoning. The two sections of the Constitution are separate and distinct and, insofar as the factual situation before us is concerned, have no elements of similarity. We have consistently held that absent special or peculiar equities justifying the imposition of a.11 equitable lien as typified by the case of Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A.L.R. 1409, an action to enforce a materialman’s or mechanic’s lien must be brought within the period of limitation stipulated in the applicable statute. See Kimbrell v. Fink, Fla.1955, 78 So. 2d 96.
Appellant attempts to make some distinction between the “declaration of a lien” and the “enforcement of a lien”. Again, we cannot agree with the distinction attempted. A lien “declared” could be of no value whatsoever and the employment of the judicial process to declare it would be a completely useless gesture if the lien were not enforceable when declared.
The constitutional provision with reference to homesteads defines the exemption and then delineates the particular claims for which a homestead may be made liable. These include claims for repairs or improvements. The Constitution does not prevent the Legislature from stipulating additional prerequisites to the enforcement of a materialman’s lien even though a homestead is involved. This the Legislature has done and it has required that the proceedings to enforce the lien be instituted within a stipulated time. Having failed to start his suit within the time prescribed by law, the appellant is, therefore, barred from enforcing the lien in equity.
It is contended further on appeal that the Chancellor should have transferred the cause to the law side of the Court and awarded appellant a judgment for the amount of his claim. We find no request in the complaint that a judgment be entered nor do we find any motion or other evidence on record that the appellant, as plaintiff below, requested the Chancellor to take the action suggested by the appeal.' We do1 not consider it the responsibility of the trial Judge under such circumstances to transfer the cause ex mero motu. It is the duty of a party to bring to the attention u>f the trial Court his contentions relating to his claims for relief. When he fails to do so, he cannot assert that a trial Judge was in error for failure to anticipate his desires. See Edmun Realty Corporation v. Kearns, 158 Fla. 558, 28 So. 2d 834.
The decree appealed from is, therefore, affirmed, but without prejudice to 'the appellant to proceed in the appropriate forum to enforce his rights at law, if any he has.
DREW, C. J., and TERRELL and HOB-SON, JJ., concur.
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Crane Co. v. Fine, 221 So. 2d 145 (Fla. 1969)…Palmer v. Edwards, Fla.1951, 51 So. 2d 495; Green v. Putnam, Fla.1957, 93 So. 2d 378; Tucker v. Prevatt Buildings, Inc., Fla.App.1st 1959, 116 So. 2d 437, 438; and Dewing v. Davis, Fla.App.2d 1960, 117 So. 2d 747. See also Wood v. Wilson, Fla.1955, 84 So. 2d 32, in which we noted that in the absence of special or peculiar equities a suit to enforce a materialman’s or mechanic’s lien must be brought within the statutory time limit, citing Kimbrell v. Fink, supra, 78 So. 2d 96. To set this matter at rest, we…
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B. Irwin Emery et ux. v. Int'l Glass & MFG., Inc., 249 So. 2d 496 (Fla. 2d DCA 1971)…hereby, affirmed. Affirmed. LILES, A. C. J., and MANN, J., concur. . See, Shad v. Arnow (1944), 155 Fla. 164, 19 So. 2d 612 and Halifax Construction Co. v. Chastain Groves, Inc. (Fla.App.1966), 192 So. 2d 15. Also, cf., Wood v. Wilson (Fla.1955), 84 So. 2d 32 and Miami Highland Park, Inc. v. Leslie (Fla.App.1962), 142 So. 2d 754. . See, Miníele v. Miníele Drug Co. (1935), 120 Fla. 621, 163 So. 228; Venice East, Inc. v. Manno (Fla.App.1966), 186 So. 2d 71; and Coleman v. Davis (Fla.App.1958), 106 So. 2d…
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Alliance FOR Conservation OF Natural Res. IN Pinellas Cnty. v. Furen, 122 So. 2d 51 (Fla. 2d DCA 1960)…to bring to the attention of the trial court his contentions relating to his claim for relief, and when he fails to do so, he certainly cannot assert that the trial judge was in error for failure to anticipate his desires. Wood v. Wilson, Fla.1955, 84 So. 2d 32. An appellate court should confine the parties to the points raised and determined in the court below and briefed in the assignment of errors except for questions such as jurisdiction or other issues raising obvious fundamental errors. Ewing v. Dupe…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morgan F. Jones in Bankr. of Jacksonville Bread Co. v. Carpenter, 106 So. 127 (Fla. 1925)
- Edmun Realty Corp. & A. E. Munyer v. Kearns, 158 Fla. 558 (Fla. 1947)
- Kimbrell v. Fink, 78 So. 2d 96 (Fla. 1955)