114 So. 2d 707 | Fla. Dist. Ct. App. | 1959
Plaintiff appeals from an order dismissing its action to foreclose a mechanic’s
The owners of the land involved leased the vacant land to the lessees who undertook to improve it, although neither the lease agreement nor any collateral agreement disclosed by the record required them to do so. The improvement undertaken was the erection of a public eating establishment of the type commonly referred to as a diner. These restaurants originally resembled a railway dining car and it appears that they are now even more elaborate. At any rate, the one placed upon the property leased required a service building and extensive plumbing. The main unit of the diner was purchased from a manufacturer who delivered it to the owners of the leasehold interest under a conditional sales contract. The lessees employed a general contractor to construct the service building, place the main unit upon a proper foundation, and install the plumbing and electric service connections necessary. The plaintiff was employed by the general contractor as the plumbing subcontractor. He furnished materials and labor and upon completion of his work brought this action to procure payment of a balance alleged to be due.
The appellant urges reversal of the decree dismissing the action as to the owners of the fee upon the basis of Anderson v. Sokolik, Fla.1956, 88 So.2d 511. It is contended that the lease to the premises contemplated the improvements made within the meaning of the language in the opinion above mentioned. An examination of the lease involved reveals that the chancellor was correct in his conclusion that the lease did not in its language or by implication provide for the construction of an improvement upon the land. Nor is there in the record any allegation or proof of a separate agreement between the lessor and the lessee which provided for the improvement of the land. Tom Joyce Realty Corp. v. Herman Popkin & Son, Fla. App.1959, 111 So.2d 707, 711. We therefore conclude that the decision of the chancellor is not in conflict with the opinion in Anderson v. Sokolik, supra. Cf. Brenner v. Smullian, Fla.1955, 84 So.2d 44; Dills v. Tomoka Land Co., Fla.App. 1959, 108 So.2d 896.
Having determined that the chancellor correctly found the plaintiff’s lien could not attach upon the fee, the decree will be affirmed insofar as the appellees Wright and Waterfill are concerned. It is still necessary, however, to discuss certain further matters urged in appellees’ brief, because if the positions taken therein are correct the conclusions would bar the existence of a lien against all defendants.
The appellees contend that no lien could attach to either the fee or the leasehold because the improvement erected was a diner which was purchased as a unit by the lessees under a conditional sales contract whereby the title of the diner did not pass to the purchaser. It is clear that the diner was of a stationary type and that it was placed upon the land and affixed thereto. The private contract between the lessees and the manufacturer from whom they purchased the diner unit cannot govern the question of whether the improvement shall be treated as realty or personalty in this suit. The appellant, lienor, was not a party to the contract and was not bound by the description of the improvement contained in the contract of purchase.
The appellee-general contractor and appellees-owners of the leasehold interest, although properly made parties to this appeal, have not appeared nor have they filed briefs. We are at a loss to understand the theory by which they were dismissed from this cause. It is apparent that the inability of the appellant to enforce a lien against the fee can in no way affect his right to enforce his lien against the leasehold interest. It is also apparent that his right of action against the general contractor is not terminated by his inability to establish a lien against the fee. We therefore conclude that the decree must be reversed insofar as it dismissed the suit against the owners of the leasehold and the general contractor.
The decree entered herein is affirmed insofar as it dismissed the action against the owners of the fee and is reversed insofar as it dismissed the action against the other defendants, and the cause is remanded for further proceedings against the defendants who are not dismissed.
Affirmed in part and reversed in part.