1800 North Federal Corp. v. Westinghouse Electric Supply Co. 224 So. 2d 384

OWEN, Judge.

Westinghouse furnished materials to an electrical subcontractor who incorporated such materials into improvements on appellant’s property. Westinghouse served the 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 lien 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 final 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 Westinghouse for the amount claimed by it.

The sole issue for determination upon this appeal is whether the failure of Westinghouse to serve the notice to owenr within 45 days from the first delivery of materials 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, 212 So.2d 13, we held that the proper construction to be placed upon Section 84.061(2) (a), F.S.1965, F.S.A., required that the notice to owner be given not later than 45 days from the commencing to furnish materials, otherwise such a notice was not timely. The statute expressly provides that the giving of notice in compliance with the statute is a prerequisite to perfecting a lien under Chapter 84, F.S.1965. See Fine v. Crane, Fla.App.1968, 211 So.2d 219; Stancil v. Gardner, Fla.App.1966, 192 So.2d 340; Babe’s Plumbing, Inc. v. Maier, Fla.App.1966, 194 So.2d 666; and Tarlow v. Helmholtz, Fla.App.1967, 198 So.2d 109.

Appellee suggested on oral argument before this court that should we reverse *385the summary judgment in favor of ap-pellee, on remand the cause should be permitted to continue on the theory of a claim for an equitable lien against the owner. Our decision in Bard and the decision of the Third District Court of Appeal in Fine requires, on the undisputed facts, entry of judgment in favor of the appellant owner.

The summary judgment in favor of appellee is reversed and this cause remanded with instructions to enter final judgment in favor of appellant.

Reversed and remanded.

CROSS and REED, JJ., concur.

ON PETITION FOR REHEARING GRANTED

OWEN, Judge.

While this court still had under consideration appellee’s timely petition for rehearing addressed to our opinion filed February 12, 1969, the Supreme Court of Florida filed its opinion in Crane Co. v. Fine, Fla.1969, 221 So.2d 145. We granted the petition for rehearing for the purpose of considering the effect, if any, which the Supreme Court’s decision in Crane Co. v. Fine, supra, had upon our decision and opinion filed February 12, 1969.

In Crane Co. v. Fine, supra, the Supreme Court held that while a notice to the owner given in compliance with the time limitations provided 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” category, nonetheless a notice to owner given after the expiration of the 45-day period [subject to certain other time limitations not 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 lien 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 the failure to give the notice to owner within 45 days from the first delivery of materials did not, in and of itself, absolutely 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 authority cited 'in the original opinion, we had been of the view that appellant’s position was well founded. In the light of Crane Co. v. Fine, supra, it was not, and the trial court was eminently correct in denying the defendant owner’s motion for summary judgment.

This was the only error argued on the appeal, 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 to demonstrate error, the summary judgment in favor of appellee should be affirmed. We therefore 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.

CROSS and REED, JJ., concur.