Gancedo Lumber Co., Inc. v. Flagship First Nat. Bank of Miami Beach, 75--1794
| Decision Date | 09 November 1976 |
| Docket Number | No. 75--1794,75--1794 |
| Citation | 340 So.2d 486 |
| Parties | GANCEDO LUMBER COMPANY, INC., Appellant, v. FLAGSHIP FIRST NATIONAL BANK OF MIAMI BEACH, Appellee. |
| Court | Florida District Court of Appeals |
Anthony Villaamil, Miami, for appellant.
Therrel, Baisden, Peterson, Stanton, Stillman, Brown & Wood, Miami Beach, for appellee.
Before HENDRY, HAVERFIELD and NATHAN, JJ.
This is an appeal by Gancedo Lumber Company, Inc., one of 44 defendants, from a summary final judgment in foreclosure in favor of plaintiff, Flagship First National Bank of Miami Beach, and against all defendants, on plaintiff's complaint to foreclose a mortgage on property owned by the defendant, The Fountains at Fontainebleau Park, Inc.
The bank was the owner and holder of a mortgage and note executed by The Fountains for the construction of improvements on real property in Dade County. The Fountains defaulted on the mortgage and note and abandoned the property without completing the improvements. Gancedo had entered into an agreement with the contractor, Lastra Construction, Inc., also a defendant, for the furnishing of construction materials with respect to the improvement of the property. A substantial sum of money for materials delivered remained due and owing to Gancedo.
By way of answer and affirmative defenses to the complaint filed by the bank, Gancedo claimed an interest in and an equitable lien on the property for the balance due it, superior to that of the bank on the ground that the bank would be unjustly enriched. Gancedo further alleged that the bank had the opportunity and duty to supervise and correct any defaults by The Fountains by the terms of the note and mortgage, and that because of the bank's negligent breach of its duty to correct and supervise, the bank caused the damages suffered by Gancedo, entitling Gancedo to an equitable lien superior to that held by the bank.
The record reflects that the contractor and The Fountains came in with an answer, affirmative defenses and counterclaim, asserting that the bank delayed funding, and ultimately stopped disbursements. Such breach of contract, they contended, resulted in their inability to complete the building. The bank filed a motion for summary judgment. It appears that between the time of the filing of the motion and the entry of judgment thereon, the case was settled between the plaintiff and all defendants except Gancedo. The trial judge entered a...
To continue reading
Request your trial
-
All State Plumbing, Inc. v. Mutual Sec. Life Ins. Co.
...subcontractor cannot establish an equitable lien on the property superior to a prior recorded mortgage. Gancedo Lumber Co. v. Flagship First Nat'l Bank, 340 So.2d 486 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 947 (Fla.1977); Security Life Ins. Co. v. Travis, 340 So.2d 529 (Fla. 1st DCA 19......
-
Matter of Bob Cooper, Inc.
...O.H. Thomason Builders' Supplies, Inc. v. Goodwin, 152 So.2d 797 (Fla. 1st DCA 1963); and Gancedo Lumber Company, Inc. v. Flagship First National Bank of Miami Beach, 340 So.2d 486 (Fla. 3rd DCA 1976) in support of its The Court finds those cases to be distinguishable in that in each of the......
-
Chase Manhattan Bank v. S/D Enterprises, Inc.
...must be first present. See Merritt v. Unkefer, 223 So.2d 723 (Fla.1969); Gancedo Lumber Company, Inc. v. Flagship First National Bank of Miami Beach, 340 So.2d 486 (Fla. 3d DCA 1976); J. G. Plumbing Service, Inc. v. Coastal Mortgage Company, 329 So.2d 393 (Fla. 2d DCA 1976); Snead Construct......
-
Palmer First Nat. Bank v. Rinker Materials Corp., 76-1536
...Inc. v. Coastal Mortgage Co., 329 So.2d 393 (Fla.2d DCA 1976). See this writer's opinion in Gancedo Lumber Co., Inc. v. Flagship First National Bank of Miami Beach, 340 So.2d 486 (Fla.3d DCA 1976). As we have held that appellant has not waived the priority of its mortgage over the appellees......