Edward L. Nezelek, Inc. v. Concreform Co.

District Court of Appeal of Florida

Edward L. Nezelek, Inc. v. Concreform Co.

351 So. 2d 1046

CourtDistrict Court of Appeal of Florida

DecidedFebruary 11, 1977

DocketNos. 76-528, 76-552

StatusPublished

Cited by1 cases

This text of 351 So. 2d 1046 (Edward L. Nezelek, Inc. v. Concreform Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Edward L. Nezelek, Inc. v. Concreform Co., 351 So. 2d 1046 (Fla. Ct. App. 1977).

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DAUKSCH, Judge.

This is a mechanic’s lien case wherein the Appellee was granted a Final Judgment against the Appellant the effect of which foreclosed a lien which had been transferred pursuant to Section 713.24, Florida Statutes (1975). The Appellant was the surety insuror on the bond at the time the lien was alleged to have matured. At all material times herein there was in existence a payment bond exempting the owner and his surety, the Appellant, pursuant to Section 713.23, Florida Statutes (1975). The Appellee was aware of this payment bond but chose not to go against it as required by the Statute and therefore he should be barred from recovery under the transfer bond posted pursuant to Section 713.24, Florida Statutes (1975). Although the result may seem harsh, we hold under the applicable law and the facts of this case that Appellant has no cause of action against the Section 713.24, Florida Statutes (1975), transfer bond. See Resnick et al. v. Clerici, Fla.App., 340 So.2d 1194, opinion issued. December 10, 1976.

This cause is REVERSED WITH DIRECTION to enter judgment for the Appellant.

ALDERMAN and ANSTEAD, JJ., concur.

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DAUKSCH, Judge.

This is a mechanic’s lien case wherein the Appellee was granted a Final Judgment against the Appellant the effect of which foreclosed a lien which had been transferred pursuant to Section 713.24, Florida Statutes (1975). The Appellant was the surety insuror on the bond at the time the lien was alleged to have matured. At all material times herein there was in existence a payment bond exempting the owner and his surety, the Appellant, pursuant to Section 713.23, Florida Statutes (1975). The Appellee was aware of this payment bond but chose not to go against it as required by the Statute and therefore he should be barred from recovery under the transfer bond posted pursuant to Section 713.24, Florida Statutes (1975). Although the result may seem harsh, we hold under the applicable law and the facts of this case that Appellant has no cause of action against the Section 713.24, Florida Statutes (1975), transfer bond. See Resnick et al. v. Clerici, Fla.App., 340 So.2d 1194, opinion issued. December 10, 1976.

This cause is REVERSED WITH DIRECTION to enter judgment for the Appellant.

ALDERMAN and ANSTEAD, JJ., concur.

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351 So. 2d 1046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edward-l-nezelek-inc-v-concreform-co-fladistctapp-1977.

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