School Bd. of Palm Beach County for Use and Ben. of Major Elec. Supplies of Stuart, Inc. v. Vincent J. Fasano, Inc., 81-108

• Decision Date: 28 July 1982
• Docket Number: No. 81-108,81-108
• Citation: 417 So.2d 1063
• Court: Florida District Court of Appeals
• Parties: The SCHOOL BOARD OF PALM BEACH COUNTY For the Use and Benefit of MAJOR ELECTRICAL SUPPLIES OF STUART, INC., Appellant, v. VINCENT J. FASANO, INC., a New York corporation, and United States Fidelity & Guaranty Company, a Maryland corporation, Appellees.

Page 1063

417 So.2d 1063

The SCHOOL BOARD OF PALM BEACH COUNTY For the Use and Benefit of MAJOR ELECTRICAL SUPPLIES OF STUART, INC., Appellant, v. VINCENT J. FASANO, INC., a New York corporation, and United States Fidelity & Guaranty Company, a Maryland corporation, Appellees.

No. 81-108.

District Court of Appeal of Florida,

Fourth District.

July 28, 1982.

Clarification Denied Aug. 31, 1982.

Donald F. Wright of Wright & Fulford, Orlando, for appellant.

Larry R. Leiby of Kavanaugh & Leiby, Miami, for appellees.

ANSTEAD, Judge.

The School Board of Palm Beach County, on behalf of Major Electrical Supplies of Stuart, Inc., a supplier on a school construction project, appeals from the trial court's dismissal of Major's claim against Vincent J. Fasano, Inc., the School Board's contractor, and its surety, United States Fidelity & Guaranty Company (USF&G). At issue is whether Major has alleged sufficient compliance with certain statutory notice provisions to entitle it to recover against the contractor and surety.

A mechanics lien cannot be secured against property held by a political subdivision. § 713.01(14), Fla.Stat. (1979). However, SECTION 255.05(1), FLORIDA STATUTES (1979)¹, provides an alternative remedy to subcontractors and suppliers in the form of a right of action against the contractor and the contractor's performance bond. Section 255.05(2) conditions the grant of the cause of action upon compliance with the following notice provisions:

A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the contractor with a notice that he intends to look to the bond for protection. A claimant who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the non-payment. No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given. No action shall be instituted against the contractor or the surety on the bond after 1 year from the performance of the labor or completion of delivery of the materials or supplies.

In May 1978 the School Board of Palm Beach County contracted with Vincent Fasano, Inc., for the construction of the West Area Technical School in Palm Beach County. Fasano obtained a bond securing the performance of the contract with United States Fidelity & Guaranty Company (USF&G). Fasano's electrical subcontractor for the job was Carter Electric. On September 18, 1978, Major Electrical Supplies of Stuart, Inc. sent a written notice to the School Board stating that it was furnishing electrical materials to the West Area Technical Center under an agreement with Carter Electric. ² Major sent a copy of this notice by certified mail to both Fasano and USF&G. Thereafter, Major furnished supplies to Carter from October 2, 1978, to February 22, 1980. On March 14, 1980, Major sent a letter to Fasano requesting payment of $26,866.28, the balance allegedly due to Major from Carter, and sent copies of this letter to the School Board and to USF&G. When payment was refused Major filed suit against Fasano and USF&G to recover on the USF&G bond. The trial court dismissed Major's claim with prejudice on the basis that Major failed to comply with the notice provisions of Section 255.05(2), Florida Statutes (1977).

Appellees urge us to uphold the dismissal because appellant's initial notice was defective in two respects: the notice was furnished before any materials were supplied, and the notice did not specifically inform the contractor that Major "intends to look to the bond for protection." The appellees concede that the letter sent on March 14, 1980, fulfilled the statutory requirement of a second notice of performance and non-payment.

We agree that compliance with the notice provisions constitutes a condition precedent to the action. However, as in most cases of statutory construction, our primary task is to determine the intent of the legislature and, if possible, to see that the purpose of the statute is accomplished. Gracie v. Deming, 213 So.2d 294 (Fla. 2d DCA 1968); Worden v. Hunt, 147 So.2d 548 (Fla. 2d DCA 1962).

Clearly, the major purpose of Section 255.05(1) is to protect subcontractors and suppliers by providing them with an alternative remedy to a mechanics lien on public projects. ³ City of Ft. Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1969). In addition, however, Section 255.05(2) protects the contractor and the contractor's surety from having to account to unknown suppliers and subcontractors by putting the burden on the claimants to advise the contractor and surety of their participation on the project and to advise if they are not promptly paid.

Initially, we reject the notion that the first notice was invalid because it was sent too soon. It is clear that the statute's purpose in seeing that the contractor and...