Opinion
Nos. 76-528, 76-552.
February 11, 1977. On Rehearing May 6, 1977.
Appeal from the Circuit Court, Broward County, James F. Minnet, J.
John M. Downing, Jr., of Kelley, Tompkins, Frazier Kelley, Fort Lauderdale, for appellant.
Merle Litman of Litman, Muchnick Wasserman, Hollywood, for appellee.
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.
ON PETITION FOR REHEARING
Upon rehearing our prior opinion in case 76-528 is withdrawn as it applies to Edward L. Nezelek, Inc., the contractor, and the Judgment below as pertains to that appellant is affirmed.
ALDERMAN and ANSTEAD, JJ., concur.