Scott v. Haufler, BS-355

• Decision Date: 08 June 1988
• Docket Number: No. BS-355,BS-355
• Citation: 526 So.2d 996,13 Fla. L. Weekly 1363
• Parties: 13 Fla. L. Weekly 1363 Thomas M. SCOTT and Dorothea P. Scott, as Trustees of the Thomas M. Scott, D.D.S., P.A. Defined Benefit Plan of Live Oak, Florida, Appellants, v. Oscar E. HAUFLER, Eugene B. Haufler, and Ernest L. Haufler, J. David O'Bryan, Judith L. O'Bryan, A.W.F., Inc., Central Builder Supplies of Gainesville, Inc., O.C. Bass, Chance, Eng, and Denman, Inc., Allied Steel Erectors, Inc., Clemen L. Kutz and G. Blair McCarvey as Partners of World Realty Fund, Ltd., Berry J.C. Walker, Florida Rock Industries, Inc., Shine Co., Inc., Jimmy Cleveland, Guy Cleveland, d/b/a Imperial Construction Management Co., Appellees.
• Court: Florida District Court of Appeals

Page 996

526 So.2d 996

13 Fla. L. Weekly 1363

Thomas M. SCOTT and Dorothea P. Scott, as Trustees of the Thomas M. Scott, D.D.S., P.A. Defined Benefit Plan of Live Oak, Florida, Appellants, v. Oscar E. HAUFLER, Eugene B. Haufler, and Ernest L. Haufler, J. David O'Bryan, Judith L. O'Bryan, A.W.F., Inc., Central Builder Supplies of Gainesville, Inc., O.C. Bass, Chance, Eng, and Denman, Inc., Allied Steel Erectors, Inc., Clemen L. Kutz and G. Blair McCarvey as Partners of World Realty Fund, Ltd., Berry J.C. Walker, Florida Rock Industries, Inc., Shine Co., Inc., Jimmy Cleveland, Guy Cleveland, d/b/a Imperial Construction Management Co., Appellees.

No. BS-355.

District Court of Appeal of Florida,

First District.

June 8, 1988.

Rehearing Denied July 8, 1988.

Barry A. Bobek, P.A., Jacksonville, for appellants.

Nancy E. Yenser and James G. Feiber, Jr. of Salter, Feiber & Yenser, Gainesville, for appellees.

SMITH, Chief Judge.

The Scotts appeal an order setting priorities as to the surplus proceeds of a foreclosure sale. Having determined that the mechanics liens of all of the appellees/lienors, with the exception of Florida Rock Industries, Inc., were discharged upon failure of those appellees to file an enforcement action within one year, as required by section 713.22(1), Florida Statutes (1985), we agree with the Scotts that their mortgage lien was entitled to priority over, and the exclusion of, all of these discharged liens. We reverse.

The Hauflers filed a duly recorded first mortgage on certain real property located in Gainesville. A notice of commencement was filed by the owners on April 12, 1985. On July 9, 1985, the Hauflers filed a foreclosure action on their first mortgage and a notice of lis pendens. The Scotts recorded their mortgage on the property on August 6, 1985. In the meantime, appellees/mechanics lienors had filed their lien claims.

Most of the lienors didn't answer the Hauflers' foreclosure complaint, and only one, Florida Rock Industries, Inc. (Florida Rock), filed a counterclaim, seeking foreclosure of its mechanics lien. Florida Rock's counterclaim was filed within one year from the time it filed its claim of lien, as required by section 713.22(1).

A final judgment of foreclosure was entered ordering the sale of the real property. After the property was sold and the Hauflers paid in full, there remained a surplus in the amount of $71,401.49. Appellees/mechanics- /mechanics lienors filed motions for distribution of the surplus proceeds. They contended that their claims of lien attached and took priority as of April 12, 1985, the date of filing the notice of commencement. The Scotts also filed a motion to obtain surplus proceeds. The trial court ruled that Florida Rock, Allied Steel Erectors, Inc., A.W.F., Inc., O.C. Bass, Central Builder Supplies of Gainesville, Inc., Chance, Eng & Denman, Inc., Guy Cleveland, Jimmy Cleveland, Shine Company, Inc., and Berry J.C. Walker were entitled to first priority to the surplus proceeds, and that the Scotts' claim to the surplus was subordinate to the claims of these appellees.

Section 713.22(1) provides in pertinent part:

713.22 Duration of lien.--

(1) No lien provided by part I shall continue for a longer period than 1 year after the claim of lien has been recorded, unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction....

None of the appellees/lienors, except Florida Rock, brought an action to enforce their respective liens within the one year period, and their liens were accordingly discharged. Section 713.21(3), Florida Statutes (1985); Diversified Mortgage Investors v. Benjamin, 345 So.2d 392 (Fla. 3d DCA 1977). ¹

While it is true that for priority purposes, liens relate back to the date of recordation of the notice of commencement, and take priority from the time of recordation of the notice of commencement, section 713.07(2), Florida Statutes (1985), this assumes a valid and enforceable lien. In this case, the liens of appellees, with the exception of the lien of Florida Rock, were discharged and unenforceable; thus, these appellees did not possess liens to relate back to the notice of commencement. 36...