Sheffield-Briggs Steel Products, Inc. v. Ace Concrete Service Co., SHEFFIELD-BRIGGS

• Decision Date: 31 March 1953
• Docket Number: SHEFFIELD-BRIGGS
• Citation: 63 So.2d 924
• Parties: STEEL PRODUCTS, Inc. et al. v. ACE CONCRETE SERVICE CO., Inc
• Court: Florida Supreme Court

Page 924

63 So.2d 924

SHEFFIELD-BRIGGS STEEL PRODUCTS, Inc. et al. v. ACE CONCRETE SERVICE CO., Inc

Supreme Court of Florida, Division B.

March 31, 1953.

George C. McCaughan, Miami, for appellants.

Padgett & Teasley and Daisy Richards, Miami, for appellee.

DREW, Justice.

This is an appeal from the Circuit Court of Dade County holding that the appellee, Ace Concrete Service Co., Inc., a lienor under Chapter 84, F.S.A., was entitled to priority of payment over other lienors by virtue of the fact that 72 days after it commenced to furnish materials on a construction job, but prior to completion, it gave cautionary notice under Chapter 84.04, F.S.A. The appeal is taken by the other lienors who gave no notice under said Section.

All parties agree that each is entitled to some recovery as lienors from the found paid into the registry of the court by the owner after the insolvency of the general contractor. The only question in the correctness of the lower court's decree granting priority to the appellee.

We are thus presented with a question under Chapter 84, F.S.A., which has not been heretofore decided by this Court. Succinctly stated, the question is this:

In order for a subcontractor-materialman to be entitled to priority in payment over other lienors, must 'notice of intention to claim a lien' under Section 84.04, F.S.A., be given before beginning work or furnishing materials, or within thirty days in event after beginning work or furnishing materials?

It is stipulated here that appellee began work on October 16, 1950, continued such work to and beyond December 27, 1950, and gave notice to the owner under Section 84.04, F.S.A., on December 27, 1950. Thus, there was a lapse of 72 days after beginning wrok before the notice was given.

Section 84.04(1)(a), F.S.A., reads:

'Notice to owner by lienors and by statement under oath given by contractor.

'(1) (a) Excepting a person contracting directly with the owner and excepting a laborer by whomever employed, any lienor, or any prospective lienor may, before beginning, or within thirty days after beginning but not later than the day of completing his labor or services or his furnishing of materials, give to the owner a written notice of intention to claim a lien, hereinafter called a 'notice."

Section 84.02, F.S.A., provides that a '* * * sub-contractor, materialman * * * subject to his compliance with the provisions of this chapter * * * and to the provisions of §§ 84.04 and 84.05 and subject to the priorities established by §§ 84.06 and 84.20 * * * have a lien' etc. Section 84.06 provides, inter alia: 'In determining amounts for which liens under any direct contract shall be allowed * * * the court shall allow such liens in the following classes and n the following order:

'(1) Liens of all laborers. [Not involved here]

'(2) Liens covered by notices given in compliance with the requirements of subsection one of § 84.04.

'(3) All other liens except the lien of the contractor.' (Emphasis supplied.)

Section 84.20 provides, inter alia, 'All liens provided by this chapter except those of laborers shall, subject to the provisions of §§ 84.04 [the cautionary notice Section quoted above], 84.05 [relating to payments properly made by the owner] and 84.06 [order of allowance of priority among lienors], be on a parity and shall be settled pro rata'. (Emphasis supplied.)

The appellants argue that in order for a sub-contractor-materialman to be entitled to priority over other lienors of his class the statute mandatorily requires him to give the notice required by Section 84.04(1) before beginning work or (2) within 30 days after beginning but not later than the day of completion of work. They argue that the words 'before beginning' are set out as a complete phrase as are the words 'within thirty days after beginning but not later than the day of completing his labor' and the latter must be read together as one integral part of the limitation as set forth in the Act, not as two separate and distinct limitations. They contend that to hold otherwise would make the words 'within thirty days after beginning' superfluous, unnecessary and ridiculous in the surroundings. They boil down their argument with the statement: 'The earliest the prospective lienor may thus act is beore beginning furnishing his labor, services or materials, and the last possible time at which he can avail himself of this opportunity is within thirty days after his commencement.'

On the other hand, appellee contends a reasonable construction of the statute requires that the prospective lienor, in order to be entitled to priority of other like lienors, has three different periods within which to serve the notice under Section 84.04, viz.: (1) Ten days (sic) prior to beginning; (2) within thirty days after beginning, and (3) any time prior to completion.

With the exception of one Section, which is not material here, Chapter 84, F.S.A., is a copy of The Model Mechanics's Lien Act, which was approved by the National Conference of Commissioners on Uniform State Law in 1932. Vol. 9 U.L.A. 495. It was adopted by the Florida Legislature in 1935 as Chapter 17097. No other State has adopted it.

Mechanics' liens are purely creatures of the statute. In order to acquire a lien or obtain priority over other lienors, the positive mandate of the statute must be observed. Curtiss-Bright Ranch Co. v. Selden Cypress Door Co., 91 Fla. 534, 107 So. 679; Shaw v. Del-Mar Cabinet Co., Inc., Fla., 63 So.2d 264. Chapter 84 is overflowing with admonitions such as 'subject to his compliance with the provisions of this chapter' (Chapter 84.02); 'subject to the provisions of §§ 84.04, * * *.' Section 84.20.

A careful study of the statute and particularly the Section with which we are primarily concerned here, 84.04, leads us to the conclusion that the appellants are...