Florida/Georgia Personal Injury & Workers Compensation

...If at the time the writ of replevin was, or should have been, executed, the goods were not so incorporated or affixed to the realty that they had lost their legal character as personal property and had become fixtures, the remedy of replevin was available under section 78.01, Florida Statutes (1981). See also § 713.15, Fla....

...1169, 12 L.Ed.2d 178 (1964)) It follows that the fourth defense should not have been stricken. That defense raises a material issue of fact as to whether plaintiff failed to mitigate its damages. An issue to be resolved at trial is whether plaintiff should have pursued its remedy under F.S. 713.15 as part of its duty to mitigate damages. [1] The summary judgment should not have been entered. Reversed and remanded for further proceedings consistent herewith. McCORD, J., and SCHLEGEL, LEW, Associate Judge, concur. NOTES [1] F.S. 713.15 provides, in pertinent part: "If for any reason the completion of an improvement is abandoned or though the improvement is completed, materials delivered are not used therefor, a person who has delivered materials for the improvement which...

...ment had been abandoned; that the materials had not been removed from the real property to which they were delivered; and that appellant is therefore entitled to replevy these materials pursuant to the specific statutory right of replevin granted by Section 713.15, Florida Statutes (1975), "Repossession of materials not used." It was further alleged that any interest claimed by appellee Ellis First National Bank of New Port Richey [hereinafter "Ellis Bank"] or by appellee Clearwater Oaks Bank [h...

...urther. This appeal ensued. We are of the view that the allegations of appellant's second amended complaint, which must be taken as true at this stage of the proceedings, state a cause of action for the replevin of the building materials, founded on Section 713.15, Florida Statutes (1975), which provides: If for any reason the completion of an improvement is abandoned or though the improvement is completed, materials delivered are not used therefor, a person who has delivered materials for the i...

...ection on refunding the part of the purchase price which has been paid. Only two of the various arguments advanced by the appellees below and in this court to sustain the dismissal of the complaint merit discussion. First, the appellees contend that Section 713.15 does not give appellant an independent right to replevy the materials, but rather appellant as vendor of the materials must first allege its initial entitlement to possession under the replevin statute, Chapter 78, Florida Statutes (1975) by way of its retention of some right, title or security interest. Only then, it is argued, could appellant look to the requirements of Section 713.15 providing for repossession and removal or replevin of the materials....

...porated therein and for which he has not received payment may peaceably repossess and remove such materials or replevy the same and thereupon ... shall have the same rights in regard to the materials as if he had never parted with their possession." Section 713.15 thus gives the person who delivered the materials two distinct courses of action, peaceable repossession and removal of the materials (i.e., through self-help) or replevin (i.e., through the judicial process)....

...If he elects to institute a legal action for replevin, as did appellant here, this statute itself confers the right to maintain such an action whether or not he may also have a security interest in the materials. Furthermore, we note that the forerunner of the present Section 713.15, Florida Statutes (1975), was Section 84.10, Florida Statutes (1961) which was first enacted in 1935....

...xcept it merely provides "... may repossess and remove such materials... ." The phrase "or replevy the same" was first added by the legislature in the 1963 session, resulting in Section 84.151, Florida Statutes (1963) which was renumbered in 1967 as Section 713.15....

...is thus clear that the legislature intended the plaintiff to have two distinct remedies, either self-help or judicial action. Appellees further argue that appellant's second amended complaint fails to state a cause of action for replevin pursuant to Section 713.15 because appellant does not allege that it has refunded the part of the purchase price paid by Myrick....

...This provision seems entirely logical to us, as it will prevent the self-help repossessor from getting a windfall. On the other hand, no possibility of a windfall exists when the avenue of replevin is followed because the court, pursuant to the first sentence of Section 713.15, may properly limit the amount of materials replevied in cases of partial payment to the amount of such materials "for which he has not received payment......

occurred in the course of these transactions under section 713.15, Florida Statutes (1993). No such entitlement

ORFINGER, Judge. Florida Federal Savings. & Loan Association appeals a final judgment allowing Britt’s Inc., pursuant to section 713.15, Florida Statutes (1983), to repossess certain appliances which had been installed in a residence foreclosed upon by Florida Federal....

...All of the appliances were affixed to the premises by screws and wires so that their removal was easily achieved without damage to the realty. In response to the foreclosure action, Britt’s filed a cross-claim seeking repossession of the appliances pursuant to section 713.15, Florida Statutes (1983)....

...Summary judgment in favor of Florida Federal was entered in the foreclosure action, excluding the appliances, and the realty was ultimately sold at a judicial sale. Subsequently, in a separate proceeding on Britt’s cross-claim, the trial court found that section 713.15 applied to allow Britt’s to repossess the appliances. Section 713.15 provides: If for any reason the completion of an improvement is abandoned or though the improvement is completed, materials delivered are not used therefor, a person who has delivered materials for the improvement which have not been i...

...owed in this section on refunding the part of the purchase price which has been paid. [Emphasis supplied]. The sole issue on appeal is whether the trial court erred in finding that the kitchen appliances were not incorporated into the premises under section 713.15 and therefore could be repossessed by Britt’s. Clearly, under the statute if the appliances were incorporated, section 713.15 is not applicable; however, if they were not, section 713.15 provides an equitable means by which a supplier may recover furnished materials and have a superior status over all other creditors....

...While the term “incorporated” is neither defined by statute nor in case law, The American Heritage Dictionary of the English Language says it means “united in one body; combined,” and many courts have analogized the application of mechanic’s lien laws, presumably including section 713.15, to the law of fixtures....

...m to become “incorporated” into the premises. Thus, upon their installation, the appliances were so incorporated into the property that to remove them would have left the -realty less than complete. As a result, the trial court erred in applying section 713.15, to allow Britt’s to repossess the appliances, and final judgment in favor of Britt’s is therefore reversed....

...The Trustee filed the instant complaint to avoid the transfer as a preference. *148 It is the Trustee’s position that at the time of the repossession and sale of the ceramic pipe, Davis no longer possessed a perfected statutory lien as provided by § 713.15 Fla.Stat. (Florida Mechanics Lien Law); that Davis elected to file suit on the debt rather than pursue its remedies under § 713.15 Fla.Stat.; that by so doing, the Debtor lost its mechanic lien and was, at the time of the repossession and sale, merely an unsecured creditor; and that the proceeds from the sale of the repossessed pipe constitutes a preferential payment which may be recovered by the Trustee....

...der the law of Florida, a lienor may sue and obtain judgment on its contractual debt without waiving its statutory mechanics lien; (2) that at the time the property was transferred, the property was subject to a perfected statutory lien by virtue of § 713.15 Fla.Stat.; (3) that § 547(c)(6) expressly states that the Trustee may not recover as a preference, property which was secured by a statutory lien that is not avoidable under § 545; and (4) that the Trustee is unable to show any superior interest in the goods....

...amic pipes in a Chapter 7 case by either repossessing the ceramic pipes or if sold by the trustee, by receiving the proceeds of the sale in satisfaction of its lien. The defense asserted by Davis in opposing the trustee’s claim is based on Chapter 713.15 Fla.Stat....

...�charge-like” lien, the Fifth Circuit placed great emphasis on the fact that the Statute under scrutiny is a part of Florida “Mechanics’ Lien Law” which is Part I of Chapter 713 of the Florida Statutes, entitled “Liens, Generally.” Thus, § 713.15 is categorized by the Florida Legislature under both “Liens” and “Mechanics’ Liens.” While it is true that a lien granted to mechanics and materialmen is a lien on the real property to which the improvements were furnished by materialmen and mechanics, it is clear it was granted to assure payment for the goods and services; and, the right to repossess unpaid goods granted by § 713.15 was clearly designed to accomplish the very same result, that is, to assure that the supplier of goods is paid and granted the right to repossess if the job is abandoned or if the job is completed, but the materials sold to the subcontractor were not used. Having concluded, based on Avdoyan, supra, that § 713.15 Fla.Stat. did, in fact, create a lien in favor of Davis, it follows that Davis was a secured creditor at the time it repossessed the ceramic pipes from the job site. This leads to the question whether or not the lien created by Chapter 713.15 Fla.Stat....

...the custodian but the holder of a lien itself. Nor does § 545(1)(F) apply simply because the goods levied upon were levied upon on behalf of the very entity claiming the lien. Based on the foregoing, this Court is satisfied that the lien created by § 713.15 Fla.Stat....

...ng provisions of § 545, this ordinarily would resolve the matter under consideration. The difficulty arises, however, that in this particular instance the ceramic pipes were not repossessed by Davis by utilizing the right of repossession granted by § 713.15 Fla.Stat....

...procured a writ of execution; and delivered the same to the sheriff who ultimately executed the writ and levied upon the pipes and seized them. Thus, it might be contended that Davis obtained the pipes not by exercising its statutory lien granted by § 713.15 Fla....

...Hamilton Electric, Inc., 181 So.2d 183 (Fla. 3d DCA 1965). Neither is the fact that Davis elected to enforce a judgment lien which is the judicial lien to be affected by any provisions of § 545 which only deals with certain types of statutory liens. Thus, it is evident that § 713.15 Fla.Stat....