Jenkins v. Graham

• Decision Date: 29 June 1970
• Docket Number: No. 69--292,69--292
• Citation: 237 So.2d 330
• Parties: William S. JENKINS and Alice M. Jenkins, Appellants, v. Robert C. GRAHAM and Super Slide East, Inc., a Delaware corporation, Appellees.
• Court: Florida District Court of Appeals

Page 330

237 So.2d 330

William S. JENKINS and Alice M. Jenkins, Appellants, v.Robert C. GRAHAM and Super Slide East, Inc., a Delaware corporation, Appellees.

No. 69--292.

District Court of Appeal of Florida, Fourth District.

June 29, 1970.

William T. Baker, Jr., of Lowndes, Peirsol, Drosdick & Baker, Orlando, for appellants.

William L. Eagan, of Arnold, Matheny & Eagan, Orlando, for appellee Graham.

REED, Judge.

This is an appeal by the defendants, William S. Jenkins and Alice M. Jenkins, his wife, from a final judgment which adjudicated a mechanic's lien on real property owned by them and directed the foreclosure of the lien.

The plaintiff, Robert C. Graham, filed a complaint in the Circuit Court for Orange County, Florida, on 20 December 1968 against William S. Jenkins and his wife, Alice M. Jenkins, and Super Slide East, Inc., a defendants.The complaint alleges that the plaintiff entered into a contract with the defendantSuper Slide East, Inc., (hereafter, 'Super Slide') to build a toilet facility on land owned by Mr. and Mrs. Jenkins and leased by them to Super Slide.The land was leased by Super Slide for use as a place of public amusement.The plaintiff alleged that he commenced construction on the facility on or about 5 October and completed the same on or about 31 October 1968.The unpaid contract price was stated in the complaint to be $3,483.00.The plaintiff claimed a lien for the full amount of the contract price on the fee title to the real estate owned by Mr. and Mrs. Jenkins rather than a lien on the leasehold interest of the defendant Super Slide.

By way of an affirmative defense the defendants Mr. and Mrs. Jenkins alleged that (a) the lien of the plaintiff extended only to the leasehold interest of Super Slide, and (b)the plaintiff, at the time he commenced work or shortly thereafter, knew that the defendant Super Slide did not intend to comply with its contract with the plaintiff and notwithstanding such knowledge, the plaintiff commenced construction on the toilet facility in violation of plaintiff's legal duty to minimize damages.

The plaintiff moved for a summary judgment and supported the motion by his own affidavit in which he denied knowledge that Super Slide was in financial difficulty until after the toilet facility had been substantially completed.The affidavit of Mr. Jenkins in opposition to the motion for summary judgment stated that on 4 October 1968he told the plaintiff that Super Slide was behind on two months rent and that he(Jenkins) had asked his attorneys to take steps to terminate the lease.

On the basis of the pleadings and affidavits the motion for summary judgment was granted and a summary final judgment was ultimately entered from which this appeal has been taken.

This appeal basically presents two questions.First, did the trial court err in concluding that there was no issue of material fact as to the right of the plaintiff to claim a lien against the interest of the lessors, Mr. and Mrs. Jenkins, as distinguished from a lien against the lessee's interest only?Secondly, did the trial court err in holding that there was no issue of material fact as to the plaintiff's duty to minimize his own damages?

With respect to the first point, we are satisfied from our review of the record and briefs that there was no issue of material fact and that the plaintiff had conclusively demonstrated a right to assert a lien against the lessors' interest in the property under the provisions of F.S.1967, Section 713.10, F.S.A.The lease between Jenkins and Super Slide clearly contemplated that the latter would operate a place of public amusement.The record which was before the trial court clearly demonstrated that in order to accomplish this purpose it was necessary to install the toilet facility in question; therefore, we are of the view that the construction of the toilet was in accordance with the lease between Jenkins and Super Slide.Under the cited provisions of the Mechanics' Lien Lawthe plaintiff was entitled to claim a lien on the lessors' interest in the property as well as the lessee's interest.

Disposition of the second point is considerably more difficult.As stated in State ex rel. Dresskell v. City of Miami, 1943, 153 Fla. 90, 13 So.2d 707,

'* * * The principle of 'avoidable consequences' upon which the reduction of damages rule is grounded is not confined entirely to the narrow limits suggested by the appellant.It finds its application in virtually every type of case in which the recovery of a money judgment or award is authorized * * * It addresses itself to the equity of...