Symons Corp. v. Tartan-Lavers Delray Beach, Inc.

• Decision Date: 26 September 1984
• Docket Number: No. 83-536,TARTAN-LAVERS,83-536
• Citation: 456 So.2d 1254
• Parties: SYMONS CORPORATION, Appellant/Cross Appellee, v.DELRAY BEACH, INC., d/b/a Lavers Racquet Club, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 1254

456 So.2d 1254

SYMONS CORPORATION, Appellant/Cross Appellee, v. TARTAN-LAVERS DELRAY BEACH, INC., d/b/a Lavers Racquet Club, Appellee/Cross Appellant.

No. 83-536.

District Court of Appeal of Florida Fourth District.

Sept. 26, 1984.

Robert T. Clelland, Jr., Fort Lauderdale, for appellant/cross appellee.

Jeffrey Allan Hirsch and Ronald F. Shapiro of Holland & Knight, Fort Lauderdale, for appellee/cross appellant.

SMITH, CHARLES E., Associate Judge.

The outcome of this appeal for an award of attorney's fees and appellee's cross appeal of the appellant's successful suit on a mechanic's lien hinges on the answer to one question; namely, was there proper service of the statutorily required Notice to Owner? We hold that there was. This is not to say that the corporate veil was pierced. The corporate veil may not be pierced unless it is shown not only that one business entity dominated or was the alter ego of the other, but that the relationship was created or used in order to mislead or defraud creditors. See, e.g., Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984). In the instant case, piercing the corporate veil is beside the point, and does not determine the question whether appellant adequately noticed the owner of the construction project. Boux v. East Hillsborough Apartments, Inc., 218 So.2d 202 (Fla. 2d DCA 1969).

In its final judgment, the trial court found that by virtue of various subsidiaries, fictitious names, and interlocking management, the defendant is the owner/developer and general contractor of the Lavers Racquet Club project. The trial court also found that "[p]laintiff properly served its Notice to Owner pursuant to Florida Statute Section 713.06, upon the defendant on May 29, 1981." While the testimony and evidence contained in the record on appeal is deplorably scanty, we find the trial court was not "clearly erroneous" nor "totally without any substantial evidence" to support its findings of fact.

Symons sent a Notice to Owner by certified mail to "Lavers Delray Racquet Club" at 755 Dotterel Road, Delray Beach, Florida and also to "Tartan Dev." at 2350 Jaeger Drive, Delray Beach, Florida. The second Notice to Owner was sent to "Tartan Dev." in an attempt to satisfy the requirement set out in Section 713.06(2)(a), Florida Statutes, that "a sub-subcontractor or materialman to a subcontractor shall serve a copy of the notice on the contractor as a prerequisite to perfecting a lien under this chapter and recording a claim of lien." However, since the owner and general contractor were subsidiaries of the same parent corporation, with a common corporate officer, it is not necessary that the Notice to Owner be sent to both of them. Broward Atlantic Plumbing v. R.L.P., Inc., 402 So.2d 464 (Fla. 4th DCA 1981).

James Venable, an officer of the owner corporation, testified that all of the companies involved in the Lavers Racquet Club project do occasionally receive mail at 755 Dotterel Road. James Venable testified that the project presently called Laver's International Tennis Resort was also known as Lavers Racquet Club. He further stated that a number of names similar to Lavers Racquet Club and Laver's International Tennis Resort are reserved in Tallahassee. James Venable admitted being an officer in a number of Tartan companies registered in Florida, and that all these companies are tied together "in one way or another." He testified that Amy C. Stern was an employee of Clubhouse Restaurant, Inc., which is a subsidiary of Tartan-Laver Delray, Inc., owner-developer of the Lavers Racquet Club project. He conceded that Tartan-Laver Delray, Inc., was owner-developer of the "Lavers project."

After admitting all of the above facts, Mr. Venable stated from his own personal knowledge that Tartan-Laver Delray, Inc., did not receive a Notice to Owner from Symons which was sent to 755 Dotterel Road and signed on certified receipt by Amy C. Stern. Mr. Venable testified that Amy Stern did not have any supervisory or managerial responsibilities with Tartan-Laver Delray, Inc., nor any connection with the general contractor, Tartan Construction Company. Yet, Amy Stern apparently had the authority to receive and sign for certified mail addressed to "Lavers Delray Racquet Club" at 755 Dotterel Road, even though she was an employee of Clubhouse Restaurant, Inc., not Lavers Racquet Club. ¹ Curiously, Amy Stern also happened to receive and sign for mail addressed to "Tartan Dev." at 2350 Jaeger Drive, Delray Beach, Florida, on the same day she received the certified mail for "Lavers Delray Racquet Club" at 755 Dotteral Road, a different address. Unfortunately, Symons did not have Amy Stern present at trial to inquire why she felt she had the authority to sign for certified mail addressed to two different entities, at two different addresses, by neither of which she was employed. Perhaps Amy Stern could have clarified what her job responsibilities were, and what her connection was with the Tartan companies who are all tied together "in one way or the other." However, even without Amy Stern's testimony, the trial court could have made an inference of fact that the owner, Tartan-Laver Delray, Inc., had implied actual notice of the Notice to Owner, based on Mr. Venable's testimony above and on the evidence before the trial court.

Notice is of two kinds, actual and constructive. Sapp v. Warner, 105 Fla. 245, 141 So. 124, aff'd, 143 So. 648 (1932). Actual notice is itself comprised of two types: (1) express, based on direct information; and (2) implied, which includes notice inferred from the fact that a person had the means of knowledge, which it was his duty to use. Id. Implied actual notice is an inference of fact. Id.; see also, Reinhart v. Phelps, 150 Fla. 382, 7 So.2d 783 (1942). Implied actual notice, being an inference of fact, may be drawn by the court as a matter of law when warranted by the circumstances of the particular case calling for its application in order to grant equitable relief. Sapp v. Warner, supra. United Contractors, Inc. v. United Constr. Corp., 187 So.2d 695 (Fla. 2d DCA 1966).

A review of the evidence shows that both the Notice to Owner and the Claim of Lien were addressed to "Lavers Delray Racquet Club" at 755 Dotterel Road, Delray Beach, Florida. Apparently Tartan-Laver Delray, Inc., received the Claim of Lien even though it was also addressed to "Lavers Delray Racquet Club" at 755 Dotterel Road (just as the Notice to Owner had been). The Claim of Lien was apparently received because ten days after receiving the Claim of Lien by certified mail the attorneys for "Lavers Racquet Club" bonded off the lien against the property described as "Lavers Racquet Club." A copy of the Clerk's Certificate of Bonding was sent to Symons Corporation at its address on Bryan Road, as set out in the Claim of Lien. We do not see how the attorneys for "Lavers Racquet Club" could have bonded off a lien claimed by lienor Symons Corporation unless the owner, Tartan-Laver Delray, Inc., had received the Claim of Lien sent to "Lavers Delray Racquet Club" at 755 Dotterel Road. Additionally, the Claim of Lien referred to the Notice to Owner previously mailed to the Lavers Delray Racquet Club, thus putting Tartan-Laver Delray, Inc. on notice that such document had been sent to the owner by certified mail. From the evidence above and the testimony of James Venable admitting that the various companies did receive mail at the 755 Dotterel Road address, the trial court could have made an inference of fact that the Notice to Owner was received by the Owner, Tartan-Laver Delray, Inc., at the 755 Dotterel Road address. Therefore, the trial court's finding is not "clearly erroneous" or "totally unsupported" by the record.

It is not necessary that one be an employee of a corporation to be its agent. Babson Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976) (citing Economic Research Analysts, Inc. v. Brennan, 232 So.2d 219 (Fla. 4th DCA 1970) ). When, in the usual course of business of a corporation, an officer or other agent is held out by the corporation or has been permitted to act for it or manage its affairs in such a way as to justify third persons who deal with him in inferring or assuming that he is doing an act within the scope of his authority, the corporation is bound thereby. Edward J. Gerrits, Inc. v. McKinney, 410 So.2d 542 (Fla. 1st DCA 1982). See also, S & S Air Conditioning Co. v. Cantor, 343 So.2d 923 (Fla. 3d DCA 1977). See also cases on apparent authority: American Ladder and Scaffold Co. v. Miami Ventilated Awning Mfg. Co., 161 So.2d 699 (Fla. 3d DCA 1964) (An agent's authority need not be conferred in express terms, but may be apparent or implied under justifying circumstances); Aetna Ins. Co. v. Holmes, 59 Fla. 116, 52 So. 801 (1910); Parsley Bros. Constr. Co. v. Humphrey, 136 So.2d 257 (Fla. 2d DCA 1962); One Hour Valet, Inc. v. Keck, 157 So.2d 83 (Fla. 2d DCA 1963) (stating that whether acts are within scope of an agent's apparent authority or whether acts were ratified by the principal are questions of fact, and will not be set aside unless clearly erroneous). The trial court could have inferred from the testimony and evidence that Amy Stern had apparent authority to receive and sign for certified mail addressed to Lavers Delray Racquet Club at 755 Dotterel Road, and that, having received the signed certificates, Symons relied on this evidence of delivery that Notice to Owner had properly been served.

For serving its Notice to Owner, Symons utilized one of the methods prescribed in Section 713.18, as follows:

By mailing the same, postage prepaid, by registered or certified mail to the person to be served at his last known address and evidence of delivery.

Section 713.18(1)(c), Florida Statutes (1983).

Analogous to this method of service of Notice to Owner is Substituted Service of Process:

The statute which provides a method of substituted service on a...