Tamarac Village, Inc. v. Bates & Daly Co.Tamarac Village, Inc. v. Bates & Daly Co.
TAMARAC VILLAGE, INC., Appellant,
v.
BATES & DALY CO., a Florida Corporation, Appellee.
District Court of Appeal of Florida, Fourth District.
*24 Herbert Buchwald, Miami Beach, for appellant.
Philip M. Warren, Pompano Beach, for appellee.
DOWNEY, Judge.
Wе have for review a final summary judgment for appellee, Bates & Daly Co., foreclosing its mechaniс's lien against appellant, Tamarac Village, Inc., the owner of the real property in question.
The primary issue on appeal is whether the owner may claim as proper payments a) сertain payments it made to the general contractor before the owner recorded a notice of commencement and before appellee began to furnish any labor and mаterial under appellee's subcontract, and b) payments it made to complete the cоnstruction without recording a notice of recommencement after the general contraсtor had abandoned the construction project.
The following is the pertinent chronology of events:
a) On August 27, 1973, Tamarac, as owner, contracted with a general contractor to improve its property;
b) between September 10, 1973, and Octobеr 12, 1973, Tamarac paid the contractor a total of $15,315.08;
c) on October 16, 1973, Tamarac recorded its Notice of Commencement;
d) between October 26, 1973, and November 1, 1973, Bates furnished labor and materials to the improvement to the extent of $1,762.52;
e) on November 23, 1973, the general contractor abandoned the job;
f) on November 30, 1973, Bates served notice to owner upon Tamarac;
g) on December 3, 1973, Bates recorded its claim of lien.
After the genеral contractor abandoned the contract, Tamarac had the construction completed at a cost of $64,963.36. Tamarac paid $100,226.56 toward the improvement, or $20,501.56 in excess of the adjusted contract price of $79,725.00.
Several of the critical events which must be kept in mind are:
1) Tamaraс paid $15,315.08 to the general contractor prior to recording its notice of commencemеnt;
2) Bates served its notice of intention to claim a lien pursuant to Section 713.06(2)(a) within 45 days of the time it commenced its work but 7 days after the general contractor abandoned the contract;
3) Tamarac had the construction completed, but it did not record a notice of recommencement as required by Section 713.07(4), Florida Statutes (1973).
The circuit court entered summary judgment in which it found that:
"counsel for еach of the parties having agreed that there is no genuine issue of material fact, and that therefore the Court can and should now decide this cause as a matter of law, the Court finds that there was а failure on the part of the Defendant-Owner to timely file a Notice of Commencement, prior tо the Owner making some payment under the contract, and the Court further finding that there was a failure on the part of Defendant-Owner to file a Notice of Re-Commencement, therefore, a surplus of funds has bеen created from which the Plaintiff is entitled to recover on its lien in the amount of $1,762.52."
The court thereupon adjudged that Bates was entitled to have Tamarac's property sold to satisfy Bates's lien clаim (plus interest, costs, and attorney's fees).
On appeal, Tamarac contends that: (a) since Bаtes did not commence work until after Tamarac had paid the general contractor $15,315.08, thosе payments were not improper, even though they were made before Tamarac recоrded its notice of commencement; (b) even if the $15,315.08 payments were improper, Bates still cannot recover because the reasonable cost of completion exceeded thе contract price and therefore there was no surplus fund to satisfy Bates's claim of lien; and (c) sinсe Bates, contrary to the requirements of Section 713.06(2)(a), did not serve its Notice to Owner before the general contractor abandoned *25 the job, the lien is unenforceable. We disagree with all of Tamarac's contentions.
If an owner fulfills all the duties the Mechanics' Lien Law places upon him, his liability for all mechanics' lien claims cannot exceed the contract price.[1] See Alton Towers, Inc. v. Coplan Pipe & Supply Co.,
We hold that the payments Tamarac made before it recorded its notice of сommencement were improper payments under Section 713.06(3)(a), Florida Statutes (1973). In addition, we hold thаt Tamarac's failure to file a notice of re-commencement as required by Section 713.07(2), Florida Statutes (1973), rendered the payments Tamarac made to complete the project also improper payments. See Melnick v. Reynolds Metals Company,
For the foregoing reasons the judgment appealed from is affirmed.
AFFIRMED.
ALDERMAN, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.
NOTES
Notes
[1] See Section 713.01(3), Florida Statutes (1973) for the definition of "contract price".