Peninsular Supply Co. v. C.B. Day Realty of Florida, Inc.

• Decision Date: 14 December 1982
• Docket Number: No. 81-1973,81-1973
• Citation: 423 So.2d 500
• Parties: PENINSULAR SUPPLY COMPANY, Appellant, v. C.B. DAY REALTY OF FLORIDA, INC., and The Haskell Company, Appellees.
• Court: Florida District Court of Appeals

Page 500

423 So.2d 500

PENINSULAR SUPPLY COMPANY, Appellant, v. C.B. DAY REALTY OF FLORIDA, INC., and The Haskell Company, Appellees.

No. 81-1973.

District Court of Appeal of Florida Third District.

Dec. 14, 1982.

Smith & Hulsey and Douglas P. McClurg, Jacksonville, Stephen B. Rakusin, Gainesville, for appellant.

Rogers, Towers, Bailey, Jones & Gay and G. Kenneth Norrie, Jacksonville, for appellees.

Before HENDRY, NESBITT and FERGUSON, JJ.

FERGUSON, Judge.

We reverse the order of the trial court dismissing appellant's complaint seeking to impress an equitable lien against undisbursed construction funds.

Appellant, Peninsular Supply Company, is a materialman not in privity with the owner. The owner C.B. Day entered into a contract with a general contractor HASKELL to construct a motel in Dade County, Florida. HASKELL subcontracted with BUTLER ¹ for plumbing materials and supplies. BUTLER entered into an arrangement with PENINSULAR whereby the latter would furnish supplies on an open account. BUTLER defaulted on its contract to pay PENINSULAR, owing PENINSULAR some $60,000 for materials furnished to the construction project. PENINSULAR'S Notice to Owner, a prerequisite to perfecting a lien under the Mechanics' Lien Statute, Florida Statutes, Chapter 713 (1979), was invalid because it was not filed within 45 days from the first furnishing of materials. § 713.06, Fla.Stat. (1979). The trial court dismissed the complaint to impress an equitable lien upon the undisbursed construction funds for the stated reason that there was no perfected statutory lien. ²

Section 713.06 painstakingly limits its application to perfection of a statutory lien ³ and section 713.30 provides that the remedies provided by that section shall not be an exclusive remedy. ⁴ We therefore cannot accept appellees' argument that because appellant failed to perfect a statutory lien he is without any remedy, particularly an equitable lien, to recover for materials which were furnished for the construction project and for which he has never been paid. ⁵ To the contrary, the doctrine of equitable liens came into existence to remedy those situations where, as here, there is either an absence of an available lien or no adequate remedy at law. Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925); In re Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978). A lien claimant not in privity, who files an untimely notice to the owner, though without a statutory remedy, is entitled to participate with lienors of equal priority out of any funds remaining in the hands of the owner at the time of the filing of the notice, provided the funds are not consumed by other claimants having greater priority. Royal v. Clemons, 394 So.2d 155, 159 (Fla. 4th DCA 1981).

We also disagree that the 1977 Amendments (Ch. 77-353, Laws of Florida) to Chapter 713, Florida Statutes, entitled "AN ACT relating to mechanics' liens; ..." implicitly abrogated the right to an equitable lien. Abrogations by implication are not favored. Tamiami Trail Tours, Inc. v. City of Tampa, 159 Fla. 287, 31 So.2d 468 (1947). Unless a statute clearly and explicitly states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law by implication. Cullen v. Seaboard Air Line R. Co., 63 Fla. 122, 58 So. 182 (1912); State v. Michell, 188 So.2d 684 (Fla. 4th DCA 1966); Reeves v. Eckles, 77 Ill.App.2d 408, 222 N.E.2d 530 (1966). The equitable lien doctrine is firmly established in Florida. 34 Fla.Jur.2d, Liens § 6 (1982). It arises when declared by a court of equity out of a general consideration of right and justice as applied to the relations of the parties and the circumstances of their dealings in the particular case. Jones v. Carpenter, 106 So. at 129; In re Estate of Donner, 364 So.2d at 752. If the legislature had intended that a materialman who failed to give a timely notice to the owner should be without any remedy, specifically an equitable lien, it would have said so explicitly, in light of the number of cases which had previously construed the statute. When the legislature reenacts a statute, it is presumed to know and adopt the construction placed thereon by courts or administrators, except to the extent to which the new enactment differs from prior constructions. See National Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 64 L.Ed. 496 (1920); State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1974). The 1977 Revision made clear that a claimant not in privity with the owner who did not perfect lien rights by giving proper notice was completely without a remedy under the mechanics' lien statute, rejecting Crane Co. v. Fine, 221 So.2d 145 (Fla.1969) (which held plaintiff could perfect both an equitable and statutory lien, though statutory prerequisites had not been met), only insofar as the case allowed a secondary type of statutory mechanics' lien for a claimant who filed a notice after the time for filing had expired. [e.s.].

Appellees, as owner and general contractor, have no right to title or interest in any funds remaining except as security for the payment of materialmen, servicemen, or laborers who, like appellant, remain unpaid by reason of a breach of contract by a subcontractor, and the court will not permit retention by the owner or general contractor of funds which in equity and good conscience belong to an unpaid supplier. Crane Co. v. Fine, 221 So.2d at 149. The purpose of the Mechanics' Lien Law is to prevent an owner from being obligated to pay for an improvement more than once. Morgan v. Goodwin, 355 So.2d 217, 218 (Fla. 1st DCA 1978); W.W. Gay Mechanical Contractors, Inc. v. B.J. Case, 275 So.2d 570 (Fla. 1st DCA 1973). It was not intended, nor shall we interpret it to permit an unjust enrichment.

The complaint alleges that plaintiff furnished materials and supplies which were incorporated into appellees' construction project; that there was a default by a subcontractor of an agreement to pay for the materials and supplies; that the statutory notice was not filed timely which may preclude an action on a mechanics' lien; and that there are undisbursed construction funds held by appellees, payable to the subcontractor, sufficient to pay the subcontractor's debt to appellant. It is asserted here on appeal, without contradiction, that the subcontractor is insolvent. Although the issue was not considered by the trial court, from this record it appears that appellant has, or at least can, sufficiently plead a claim based on an equitable lien theory.

Reversed and remanded for further proceedings.

1 Butler, the plumbing subcontractor, now insolvent, is not a party to this appeal.

2 The order granting appellees' motion to dismiss states, inter alia:

The position of C.B. Day and Haskell on the effect of Section 713.06(2)(a), Florida Statutes (1977), on this action has...