1800 North Federal Corp. v. Westinghouse Electric Supply Co.1800 North Federal Corp. v. Westinghouse Electric Supply Co.
Lead Opinion
Westinghouse furnished materials to an electrical subcontractor who incorporatеd such materials into improvements on appellant’s property. Westinghouse served thе notice to owner required by Section 84.061 (2) (a), F.S.1965, F.S.A., 53 days after the first delivery of materials to the appellant owner’s construction site. When Westinghouse brought suit against the owner alleging a liеn under Chapter 84, F.S.1965, appellant sought a summary judgment on the grounds that Westinghouse had not given timely notice to the owner as required under Section 84.061(2) (a), F.S. 1965, F.S.A. Finding that the owner received the notice prior to making any payments and prior to the contractor furnishing the affidavit required for finаl payment, and that the owner had not been prejudiced in any manner by failure of Westinghouse to serve the notice to owner from the date of first delivery of materials, the court denied the owner’s motion for summary judgment. Subsequently, the court entered summary judgment in favor of Westinghousе for the amount claimed by it.
The sole issue for determination upon this appeal is whethеr the failure of Westinghouse to serve the notice to owenr within 45 days from the first delivery of matеrials invalidates and terminates any lien which Westinghouse otherwise might have had under Chapter 84, F.S.1965.
In Bard Manufacturing Co. v. Albert & Jamerson Building Supply Corp., Fla.App.1968,
Appellee suggested on oral argument before this сourt that should we reverse
The summary judgment in favоr of appellee is reversed and this cause remanded with instructions to enter final judgment in favor of appellant.
Reversed and remanded.
Rehearing
ON PETITION FOR REHEARING GRANTED
While this court still had under consideration appellee’s timely рetition for rehearing addressed to our opinion filed February 12, 1969, the Supreme Court of Floridа filed its opinion in Crane Co. v. Fine, Fla.1969,
In Crane Co. v. Fine, supra, the Supreme Cоurt held that while a notice to the owner given in compliance with the time limitations providеd in Section 84.061(2) (a), F.S.1965 [renumbered as Section 713.06(2) (a), F.S.1967, F.S.A.], placed the lienor in a “priority” catеgory, nonetheless a notice to owner given after the expiration of the 45-day period [subject to certain other time limitations nоt relevant here] could be the basis for perfecting a valid lien. While a lienor who gave such delayed notice might, under certain circumstances, be unable to enforce his liеn to the same extent as he might have done had he given notice so as to be in the “priority” category, the fact remains that the court’s opinion expressly recognized that thе failure to give the notice to owner within 45 days from the first delivery of materials did not, in and of itself, аbsolutely bar the lienor from perfecting a lien under Chapter 84, F.S.1965, F.S.A.
Appellant’s sole point on appeal was that its motion for summary judgment should have been granted because the failure of Westinghouse to serve the notice to owner within 45 days from the first delivery of materials absolutely barred Westinghouse from perfecting a lien under Chapter 84, F.S.1965. On the basis of the statutory and case аuthority cited 'in the original opinion, we had been of the view that appellant’s positiоn was well founded. In the light of Crane Co. v. Fine, supra, it was not, and the trial court was eminently corrеct in denying the defendant owner’s motion for summary judgment.
This was the only error argued on the apрeal, appellant not having argued in its brief the question of whether the sum allowed ap-pellee in the summary final judgment in its favor was shown to be within the sum remaining due from the owner to the contractor after the payment in full of the “priority” lienors.
The appellant having failed tо demonstrate error, the summary judgment in favor of appellee should be affirmed. We therеfore recede from our decision and opinion of reversal filed February 12, 1969, and by this modified opinion it is now the decision of this court on rehearing granted (hat the summary judgment in favor of appellee be and the same is hereby affirmed.
Affirmed.