Torres v. MacIntyre, 75--1077

• Citation: 334 So.2d 59
• Decision Date: 02 June 1976
• Docket Number: No. 75--1077,75--1077
• Parties: Marcelo TORRES, Appellant, v. Alexander C. MacINTYRE, Appellee.
• Court: Florida District Court of Appeals

Page 59

334 So.2d 59

Marcelo TORRES, Appellant, v. Alexander C. MacINTYRE, Appellee.

No. 75--1077.

District Court of Appeal of Florida, Third District.

June 2, 1976.

Chopin & Chopin, Miami, for appellant.

Adams, George, Wood, Lee & Schulte and Dewey H. Varner, Jr., Miami, for appellee.

Before BARKDULL, C.J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

Marcelo Torres is a tile subcontractor who did work in the construction of a house owned by Alexander MacIntyre. When he was not paid, Torres filed a claim of lien. His suit to foreclose the lien was decided against him because his 'notice to the owner' pursuant to Fla.Stat. § 713.06(2) was served more than 45 days after Torres commenced his work. ¹ This appeal is from the judgment for the defendant owner.

Torres contracted with a general contractor, beginning his work on April 5, 1973, and completing it on May 29, 1973. He served his Notice of Intention to Claim a Lien on August 21, 1973, and on the same day filed his claim of lien. His suit to foreclose the lien was dismissed with prejudice.

The defendant owner did not pay the general contractor the full amount of the contract. On a date not disclosed by the record the owner discharged the contractor after having paid him $101,000.00 of the $129,000.00 contract price. The owner did not file a notice of 'recommencing completion.' ²

The first question to be decided is whether a subcontractor's failure to file the notice of intention to claim a lien within 45 days of lienor's commencing to furnish his services or materials is an absolute bar to a claim of lien. We hold that it is not an absolute bar and that he may proceed unless it is shown that the owner has proceeded regularly in payments to the general contractor and that no part of the agreed contract price is unpaid. See Crane Co v. Fine, Fla.1969, 221 So.2d 145; 1800 North Federal Corporation v. Westinghouse Electric Supply Company, Fla.App.1969, 224 So.2d 384; and Melnick v. Reynolds Metals Company, Fla.App.1970, 230 So.2d 490.

This record requires a second determination concerning the burden of proceeding with the evidence of proper or improper payments to the general contractor. The lienor here urges that the record does not show proper payments to the general contractor. The owner, on the other hand, urges that the lienor has not shown that there is any money due on the contract because it was necessary for the owner to discharge the general contractor and complete the construction himself. The initial burden must of necessity be upon the lienor to show his performance of the statutory requirements of a lien. In order to do this in a case where he has not properly served his notice of intention to claim lien, the lienor must show an uncompleted contract at the time that the owner received notice by the service of a late notice of intention or service of the claim of...