Geiger Mut. Agency, Inc. v. Wright
| Decision Date | 30 March 1970 |
| Docket Number | No. 69--326,69--326 |
| Court | Florida District Court of Appeals |
| Parties | GEIGER MUTUAL AGENCY, INC., a Florida corporation, Appellant, v. Louella F. WRIGHT, Roy E. Miller and Genevieve Miller, his wife, d/b/a Miller's Bakery, Standard Brands Sales Company, Inc., a corporation, and Berger& Rachelson, Inc., a Florida corporation, Appellees. |
William Murrell, Jr., Orlando, for appellant.
Robert H. Roth, of Roth, Segal & Levine, Orlando, for appellee Louella F. Wright.
Appellant-defendant, Geiger Mutual Agency, Inc., a chattel mortgagee, appeals a final judgment entered in favor of the plaintiff-appellee, Louella F. Wright, a lessor, in an action to evict a tenant and to impress and foreclose a landlord's lien for rent. We reverse.
On January 31, 1966, the plaintiff, louella F. Wright, leased a store building to one Roy E. Miller and Genevieve Miller, his wife, doing business as Miller's bakery. The lease, which was not recorded, was for a term of five years commencing February 1, 1966.
On January 10, 1968, a chattel mortgage on personal property located upon the leased premises was executed by the Millers to the defendant, Geiger Mutual Agency, Inc. This chattel mortgage was recorded on January 12, 1968.
On October 1, 1968, the Millers failed to pay the monthly rent. This default continued until January 1969, when the plaintiff, Louella F. Wright, commenced proceedings to evict the Millers from the leased premises and to impress and foreclose a landlord's lien for rent. Geiger Mutual Agency, Inc., was made a party defendant as having or claiming to have some interest in the personal property on which plaintiff sought to impose and foreclose a landlord's lien as the result of the chattel mortgage executed by the Millers to Geiger Mutual on January 10, 1968.
Geiger Mutual, in answer to the amended complaint, generally denied the allegations of the complaint, except as to paragraph 15 of count two which was admitted. Count two, paragraph 15 of the amended complaint is as follows:
(Emphasis added.)
Pretrial procedures having been completed, plaintiff moved for summary judgment. A default judgment had been previously entered against the Millers for failure to answer or otherwise plead to the complaint within the time allowed. In opposition to plaintiff's motion for summary judgment Geiger Mutual filed an affidavit of one Dewey O. Greene, who merely asserted that he was the President of Geiger Mutual and that Geiger Mutual held a chattel mortgage dated January 10, 1968 and recorded in the Public Records of Orange County, Florida, and that there was due and owing and unpaid to Geiger Mutual from the defendants, the Millers, a certain stated amount of money plus interest.
The trial court granted plaintiff's motion for summary judgment, determined plaintiff was entitled to possession of the premises; that plaintiff's landlord's lien was superior to Geiger Mutual's chattel mortgage; that plaintiff was due a certain amount of money for rent from default to termination of the lease, costs and attorneys' fees. Final judgment was subsequently entered in accordance with the order on plaintiff's motion for summary judgment.
Geiger Mutual, being dissatisfied, petitioned for a rehearing. The petition was denied. This appeal followed.
We have for determination two issues. First, it is asserted by Geiger Mutual that it as a chattel mortgage holder has priority over a landlord's lien upon the chattels of the tenant which are brought upon the leasehold premises and later mortgaged, since it as a chattel mortgagee recorded its mortgage and the landlord did not record the lease between it and its tenant.
This contention is without merit. Geiger Mutual admitted in its answer that 'whatever interest said Geiger Mutual Anency, Inc., has is subject and inferior to the plaintiff's lien claimed herein * * *'; it is bound by its answer. Notwithstanding this, however, there is authority that a landlord's lien attaches either at the time of commencement of a tenacy or when a chattel is brought on the premises and that the landlord's lien is superior to subsequently created chattel liens, and without specific acts of the landlord agreeing to subordinate his...
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In re Miller Engineering, Inc., Bankruptcy No. 07-20298-BKC-JKO.
...as here, the lease was entered into prior to the perfection of the chattel mortgagee's security interest. Geiger Mut. Agency, Inc. v. Wright, 233 So.2d 444, 446 (Fla. 4th DCA 1970). A waiver is generally characterized as "the intentional relinquishment of known right," Dooley v. Weil (In re......
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...Co., 71 Fla. 536, 71 So. 627 (1916); Flowers v. Centrust Savings Bank, 556 So.2d 1123 (Fla. 3d DCA 1989); Geiger Mutual Agency, Inc. v. Wright, 233 So.2d 444 (Fla. 4th DCA 1970); United States v. S.K.A. Associates, Inc., Thus, Citizens National Bank's security interest under which the inves......
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Hudson Pest Control, Inc. v. Westford Asset Management, Inc.
...measured by the rent payments which accrue in the future after the landlord has retaken possession. See Geiger Mutual Agency, Inc. v. Wright, 233 So.2d 444 (Fla. 4th DCA 1970); Deringer v. Pappas, 164 So.2d 569 (Fla. 3d DCA 1964). The rationale for this result is that the lease has been "su......
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IPC Retail Properties v. Oriental Gardens, Inc.
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