Fine v. Crane Co.

• Decision Date: 07 May 1968
• Docket Number: No. 67--507,67--507
• Citation: 211 So.2d 219
• Parties: Martin FINE, J. I. Kislak and R. W. Johnson, d/b/a Park Towers Associates, Ltd., Arkin Building Corp., a Florida corporation, the First National Bank of Miami, a banking corporation, and the Travelers Indemnity Company, a Connecticut corporation, Appellants, v. CRANE CO., an Illinois corporation, Appellee.
• Court: Florida District Court of Appeals

Page 219

211 So.2d 219

Martin FINE, J. I. Kislak and R. W. Johnson, d/b/a Park Towers Associates, Ltd., Arkin Building Corp., a Florida corporation, the First National Bank of Miami, a banking corporation, and the Travelers Indemnity Company, a Connecticut corporation, Appellants, v. CRANE CO., an Illinois corporation, Appellee.

No. 67--507.

District Court of Appeal of Florida, Third District.

May 7, 1968.

As Amended on Rehearing June 26, 1968.

Meyer, Weiss, Rose & Arkin, and Gerald M. Higier, Miami Beach, for appellants.

Shutts & Bowen, and Karl Vance Hart, Miami, for appellee.

Before BARKDULL, HENDRY and SWANN, JJ.

PER CURIAM.

This is an appeal from a summary final decree in favor of the plaintiff below, Crane Co. The material facts are not in dispute. The individual defendants, Martin Fine, J. I. Kislak and R. W. Johnson, are members of a partnership doing business as Park Towers Associates, Ltd. The partnership entered into a contract with a general contractor, Arkin Building Corp., a co-defendant, for construction of an apartment building located in Dade County. Construction financing was obtained through defendant, First National Bank of Miami, and defendant, Travelers Indemnity Company, acted as surety upon the performance bond.

Arkin Building Corp. subcontracted certain work to Murray's Plumbing and Heating Company, who was not a party to this suit. Murray's in turn ordered materials from Crane Co., the plaintiff. These materials were manufactured by Crane Co. and shipped to the construction site on September 13, 1965. However, Crane Co. did not serve notice upon the owner as it was required to do under § 84.061(2)(a), Fla.Stat., F.S.A. The materials were accepted by Murray's and incorporated into the building. Subsequently, Murray's abandoned the contract with Arkin, and the general contractor took over completion of that portion of the construction. On December 2, 1965, Crane Co. notified the owners, Park Towers Associates, that it had furnished materials in the amount of $4,428.00. A claim of lien was recorded by Crane Co. on May 11, 1966, and on May 25, 1966, Crane Co. filed its complaint seeking to foreclose a mechanic's lien. In the alternative, plaintiff prayed for creation of an equitable lien, for right of recovery under the surety bond, or for judgment against the individual defendants. As mentioned above, Murray's was not made a party to this suit. It appears that the reason Murray's abandoned the contract is that the company is now insolvent, although there is still a portion of the subcontract price due to the company by virtue of work not paid for under a percentage hold-back clause in the construction loan agreement. Plaintiff's motion for summary judgment was granted, whereupon defendants appeal. We find error and reverse.

The plaintiff sought to recover below upon four separate and distinct theories of action. By the first of these, plaintiff has attempted to establish a mechanic's lien as provided for by statute. However, § 84.061(2) (a), Fla.Stat., F.S.A., then in effect, provides:

'All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner setting forth the lienor's name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. This notice must be served before commencing or not later than forty-five days from commencing to furnish his services or materials but in any event before the date of furnishing the affidavit under subsection (3)(d) 1., of this section, or abandonment, whichever shall occur first. The serving of this notice shall not dispense with recording the claim of lien. This notice shall not be deemed to constitute a lien, cloud or encumbrance on said real property nor actual nor constructive notice of any of the same.'

It is clear from a reading of the above quoted section and of the cases construing it that compliance with the notice provision is an absolute prerequisite to the creation of a statutory lien; and, it is equally clear that dereliction of...