Florida/Georgia Personal Injury & Workers Compensation

...operty without procedural due process that was actually litigated and necessarily decided in Craig v. Carson, 449 F.Supp. at 396. Of course, defendants Carson and Monroe are not precluded from litigating the defense that the state statute, Fla.Stat. § 85.031(3) facially, or by an interpretive application, affords sufficient due process to satisfy the Fourteenth Amendment....

...The statute challenged by plaintiff's second claim is part of the remedies provided by the Florida Legislature to effectuate the statutorily-created liens for people who perform labor or supply services for the personal property of others. Fla.Stat. § 713.58 (Supp.1971). See *867 Fla.Stat. § 85.031. The specific provision of the statute which plaintiff attacks authorizes a remedy for those who furnish labor or services in connection with motor vehicles. Fla.Stat. § 85.031(3)....

...nt" their disputes and to have errors rectified, the statute deprives motor vehicle owners of their "interest in property without due process of law." Id. 436 U.S. at 22, 98 S.Ct. at 1567, 56 L.Ed.2d at 46-47. Conclusion The Court declares Fla.Stat. § 85.031(3) to be unconstitutional because it authorizes a final deprivation of property without due process of law. Accordingly, the Court will enjoin enforcement of Fla.Stat. § 85.031(3). Additionally, the Court holds that defendants Carson and Monroe are liable to plaintiff for any actual damages that he may be able to prove resulting from the withholding of his car under the authority of Fla. Stat. § 85.031(3)....

...ain his car unless he paid those charges, to foreclose a lien against his car in order to satisfy payment of the charges, and to force the sale *869 of his car within forty-five days if the charges remained unpaid, is derived directly from Fla.Stat. § 85.031(3)....

...Affirmed in part, reversed in part and remanded with directions. NOTES [1] However, it appears that plaintiff's car did not interfere with the ingress or egress of any other automobile. [2] We note that if plaintiff's car had been towed away pursuant to police authority, then F.S. § 85.031 F.S.A....

...The note was secured by a retail installment contract giving Mustang a security interest in the mobile home. Mustang assigned the note and retail installment contract to appellant Midland-Guardian "with recourse." In January 1975 the mobile home was sold at public sale pursuant to § 85.031(3), Fla....

..., and asked for information on selling various boats. One of the boats she listed had the following notation. "FL 0789 RICHWAGEN." 5. On May 17, 1977, Mr. Clark answered the letter of the marina, and explained how to sell boats under Florida Statute 85.031, specifically listing the boat in question as being titled in the name of Mack Wilson, 7931 S.W....

...Annex The Boynton Laundromat The Marina itself 8. On June 21, 1977 a letter was received from Mr. Clark of the Department of Natural Resources re an application of title for the boats, and setting forth how to apply for a title under Florida Statute 85.031....

...(1) [Liens shall exist] in favor of persons performing labor or services for any other persons, upon the personal property of the latter... . Such lien for labor or services on personal property appears in Part II of Chapter 713, Florida Statutes (1975) and may be enforced by a sale of the personal property pursuant to Section 85.031, Florida Statutes (1975). However, unlike Section 677.210, Section 85.031 only permits a public sale and does not specify that a bona fide purchaser at such sale will prevail over the claims of a lienee notwithstanding non-compliance by the lienor with the procedures set forth in the statute. In the present case, the sale to appellee was private and not in compliance with Section 85.031....

...ng to enforce by means of private sale pursuant to Section 677.210, Florida Statutes (1975). We further conclude that while there may have been evidence to support a lien under Section 713.58, there was non-compliance with the procedures required by Section 85.031, Florida Statutes (1975), so that appellee is not entitled to possession of the boat....

...The appellee, The Indiana National Bank, brought suit to foreclose its recorded security interest in an aircraft. One of the defendants named was First National Commerce and Finance Company, who had purchased the aircraft at a mechanic's lien sale pursuant to Section 85.031(2), Florida Statutes (1975)....

...This work resulted in $900.00 of mechanic's charges for labor and parts. The $900.00 was not paid by SUN COUNTRY AIRLINES, INC. No Mechanic's Lien was ever recorded by CORT AVIATION, INC. with the F.A.A. "On July 30, 1976, to satisfy the Mechanic's Lien, CORT sold the subject aircraft, pursuant to Florida Statutes § 85.031(2) to FNC. No actual notice of the sale was every given to INDIANA." The court entered its opinion on the question of law presented. "The issue before the Court is whether the sale of an aircraft conducted pursuant to Florida Statutes § 85.031(2) by a mechanic in possession can extinguish and divest the interest of the holder and owner of a lien validly perfected with the F.A.A....

...o the contrary would be itself contrary to Florida law, inequitable in the extreme and unconstitutional in that the holder and owner of the lien would be divested of an interest in property without due process of law. "The purpose of Florida Statute § 85.031(2) is to allow a mechanic who or which has put labor and materials into a chattel to receive payment for that labor and for those materials....

...To the extent that FNC took the position of CORT, and only to that extent, it has a first lien, i.e., to the extent of $900.00. As to extinguishing the $76,279.96 interest of INDIANA, the sale did not, because it lawfully could not, effect the result. "If Florida Statute § 85.031(2) allowed a mechanic in possession to extinguish by sale prior liens, without notice to secured parties, then that statute would be unconstitutional in that a taking of an interest in property would be authorized under color of state law but without due process of law....

...v. Commerce Trust Company, 289 So.2d 37 (Fla. 4th DCA 1974); and Gables Lincoln-Mercury, Inc. v. First Bank & Trust Company of Boca Raton, 219 So.2d 90 (Fla. 3d DCA 1969). These cases all hold that the mechanic's lien against an aircraft provided in Section 85.031(2), Florida Statutes (1975), is prior to a federally recorded security interest....

...prior, recorded security interest, that both liens be foreclosed and that the boat be sold to satisfy the amounts in that priority. Here again, there had been no prior sale under the statute. The question presented thus becomes whether a sale under Section 85.031(2), Florida Statutes (1975), for a prior lien gives a purchaser title free and clear of the claim of a recorded security interest where the holder thereof does not have actual notice of the sale....

...ice, then ironically, the rights of due process to be accorded such party must be preserved by the courts. See the principles of law in McQueen v. Lambert, 348 F. Supp. 1334 (M.D.Fla. 1972). Therefore, we hold that taking into consideration Sections 85.031(2) and 679.9-310, Florida Statutes (1975), together with the *797 demands of due process, in the present case, (1) the sale of the subject aircraft is valid and the purchaser takes title thereto, (2) statutory and due process requirements pres...

...act held by the Indiana National Bank which had financed the purchase of the plane. Section 679.9-310, Florida Statutes (1975), the Uniform Commercial Code. See: Carolina Aircraft Corp. v. Commerce Trust Company, 289 So.2d 37 (Fla. 4th DCA 1974). By Section 85.031(2), Florida Statutes (1975), the lien holder, Cort, was entitled to sell the plane as a means of enforcing its lien, subject to the conditions therein, and upon giving notice of sale as therein required....

...3.585, Florida Statutes (1987), in selling plaintiff’s truck after plaintiff’s lessee had failed to pay defendant for repair work done on the truck. The trial court ruled that section 713.585, which concerns liens on motor vehicles, governs over section 85.031(2), which concerns generally liens on personal property, and that therefore defendant was not entitled to- choose which section to follow....

...As Gries explained, “In a purist sense, if we did not have jurisdiction, we had no jurisdiction to relinquish_” Id. at 1282 n. 4. Thus, we have jurisdiction. With regard to the merits of this appeal, we conclude that the trial court properly ruled that as between sections 85.031(2) and 713.585, section 713.585 was *1303 the controlling statute. Though the two statutes overlap, section 85.031(2) pertains generally to liens on personal property while section 713.585 pertains specifically to liens on motor vehicles....

...As plaintiff argues, it should not be concluded that when the legislature enacted the provisions of section 713.585, which are detailed and comprehensive, are tailored for the type of situation involved here, and were enacted while the more generalized provisions of section 85.031 were in effect, the legislature intended that section 85.031 could continue to govern this situation....

...Un *665 der section 559.917 a garageman may not hold a vehicle hostage, even for three months, since the owner can have it released at any time by posting a bond. Additional support for the holding of Eastern Airlines is found in section 85.011(1) and section 85.031, Florida Statutes (1983), which provide: 85.011 Enforcement by persons in privity with the owner All liens on real or personal property provided for by part I or part II of Chapter 713 are enforceable by persons in privity with the owners, except when otherwise provided, as follows: (1) Retention of possession. — By retention of possession of the property on which the lien has attached for a period of not exceeding three (3) months by the person entitled to the lien, if he was in possession at the time the lien attached. 85.031 Remedies against personal property only;, all lienors (1) By injunction and attachment....

...(section 713.74). Section 559.917, while affording a practical solution to the problem of the lienor inconveniently holding the vehicle hostage for three months, appears to recognize the need to protect the lienor. Third, because sections 85.011 and 85.031, Florida Statutes, provide, respectively, for a three month possessory period in the event of a lien, and for sale of the collateral after that period, it seems that section 713.-74 probably is not intended to give a lien a life of only three months....

...Plaintiff’s complaint challenges the constitutional validity of the detention and sale provisions of Florida’s “Repairman’s Lien” statute (or “Garagemen’s Lien” statute). This action is based upon 42 U.S.C. § .1983 and seeks a declaratory judgment that Florida Statutes §§ 85.031(2), 85.031 (3) , 713.58(2), 713.58(3) and 713.58 (4) , F.S.A....

...Plaintiff does not challenge the statute creating the lien itself, § 713.58(1). The complaint requests a Three-Judge Court to enjoin the operation, enforcement and execution of the state statutes by the Attorney General. Briefly summarized, the Florida Statutes under attack are as follows: 1. § 85.031(2) — Remedy of lienor against personal property by sale without judicial proceedings after public notice; 2. § 85.031(3) — Remedy of lienor against personal property; motor vehicles subject to “Repairman’s Lien” may be sold without judicial proceedings after public notice and notice to owner; 3....

...Thus, plaintiff lacks standing to litigate the constitutional validity of Florida Statutes 713.58(2), (3) and (4), F.S.A. and plaintiff’s attack upon these statutes must be dismissed for lack of jurisdiction. A controversy does exist, however, with regard to the notice and sale provisions of Florida Statutes § 85.031(2), F.S.A. and in particular § 85.031(3). Florida Statutes § 85.031(2) and (3), F.S.A....

...New York, 359 F.2d 26 (2nd Cir. 1966); 28 U.S.C. § 2281 . THE ATTORNEY GENERAL’S MOTION TO DISMISS Attorney General Robert L. Shevin has moved to dismiss Count II of the complaint for failure to state a claim upon which relief can be granted since Florida Statutes § 85.031 et seq., F.S.A....

PETERSON, Judge. Charles A. Lloyd appeals a declaratory judgment proclaiming subsection 85.031(2), Florida Statutes (1995), constitutional....

...Section 713.65, Florida Statutes (1995) creates a lien in favor of all persons who provide for the care and maintenance of horses and othesp animals. The lien may be enforced or foreclosed in the traditional manner through judicial process, or it may be enforced through the self-help provisions of section 85.031. That section provides: 85.031 Remedies against personal property only; all lienors.— * * * * * * * * (2) BY SALE WITHOUT JUDICIAL PROCEEDINGS....

...2 USC § 1983 [42 USCS § 1983], The judgment of the Court of Appeals holding otherwise is reversed. Flagg Brothers at 199, 98 S.Ct. 1729 . Likewise, we find the Florida legislature has not invoked state action through the self-help provisions of subsection 85.031(2), Florida Statute (1995), and that therefore, the statute is not violative of the due process clauses of the United States and Florida Constitutions. Notwithstanding, we note that subsection 85.031(2) was enacted over thirty years ago and its notice provision could stand some modernization....

...of the amount of the lien, and the date, time and location of the sale. We also note that a debtor has pre-sale and post-sale judicial remedies not emanating from this statute that are available to test the propriety of a private sale pursuant to subsection 85.031(2) if the indebtedness is believed to be unjust. The appellant has done that in his complaint and the procedure followed by the creditor will be considered upon remand. We affirm the trial court’s determination that section 85.031, Florida Statutes (1995) is constitutional. We remand to the circuit court to dispose of the remaining issues raised by Lloyd as to compliance with subsection 85.031(2), Florida Statutes (1995)....

...The Court remanded the case to the district court to abstain from a decision until the parties had an opportunity to obtain a construction of the law from the New York courts. . §§ 83.11, 83.12, 83.14-.19, Fla.Stat. (1975). . §§ 77.031, 77.04, 77.06, 77.07, Fla.Stat. (1975). . § 85.031(2), Fla.Stat....

SIMONS, STUART M., Associate Judge. Appellant Sheldon Lake timely appeals a finding that he lacked sufficient title to sell a boat which he had bought through a supposedly invalid mechanics’ lien sale under Section 85.031(2), Florida Statutes (1975)....

...Export and Manufacturing Corporation, for the storage and maintenance of the boat in exchange for a monthly fee. When Temple could not reach or communicate with Smith for several months, Temple prepared to sell the boat at public auction pursuant to Section 85.031(2), Florida Statutes (1975), in order to cover expenses incurred in conjunction with the boat....

...Bernier failed to pay any storage bills. Finally, in April, 1980, Broward Marine resorted to self-help. Claiming a valid possessory lien under sections 713.58(1) 1 and 713.60, 2 Florida Statutes (1983), Broward Marine sold *869 “the Dagon” pursuant to section 85.031(2), Florida Statutes (1983)....

...Bernier instituted suit, alleging that the sale constituted a conversion. He asserted that Broward Marine erred by not proceeding under federal admiralty law. The trial court agreed, holding that 46 U.S.C.A. § 975 (West 1975) 4 preempts the operation of section 85.031(2)....

...el. By amended complaint, plaintiff subsequently added an additional count for conversion of his personal effects that were aboard the vessel. A grant of summary final judgment to Bernier in 1983 was appealed to this court. The trial court held that section 85.031(2), Florida Statutes, which pertains to non-judicial sale of property under a mechanics lien had been preempted by 46 United States Code section 975 , under whose provisions Broward Marine should have proceeded; and therefore Broward Marine was liable to Bernier in the amount of his damages....

...er the subject vessel was a dead vessel at the time of its sale. The court granted this motion. Appellant made no objection to a non-jury trial upon this issue. The trial court held the vessel was a dead ship, so that the federal law did not preempt section 85.031(2), Florida Statutes....

...During the next six years, during which the Dagon remained so stored, Bernier paid no storage bills. In April 1980, Broward Marine resorted to self-help, claiming a valid lien pursuant to section 713.58(1) and 713.60, Florida Statutes, Broward Marine sold the Dagon in accordance with the provisions of section 85.031(2), Florida Statutes....

...t reached him for some time, and then did not know his address. An attorney, Robert Paul Keeley, testified he had researched for Broward Marine how it could rid itself of the deteriorating vessel, and he recommended the non-judicial sale pursuant to section 85.031(2), Florida Statutes, saying he had made a diligent search for Bernier both by mail and in *1381 person, but to no avail....

...Whether the trial court erred in finding inapplicable section 371.84 (now section 328.17), Florida Statutes, respecting non-judicial sale of vessels, which statute became effective July 1, 1978. We conclude it did not and further conclude discussion is unnecessary. III.Whether the trial court erred in determining that section 85.031(2) Florida Statutes applied....

...Appellant maintains, we think soundly, that non-judicial sale for storage fees is not authorized by this section. Appellee relies upon Richwagen v. Lilienthal, 386 So.2d 247 (Fla. 4th DCA 1980), for the position that a lien for storage charges may be enforced pursuant to section 85.031. However, the vessel in Rich-wagen, that arguably could have been sold under section 85.031 (had that section been complied with there), had not merely been placed in storage, but had had unpaid for services performed on it in the nature of moving, reblocking and pumping; and according to its dictum this court was prepared to regard this as within the ambit of section 85.031. We now hold section 85.031 refers to what amounts to mechanic’s liens on personal property, and the unpaid for services must result in the repair or alteration of the property....

...However, a warehouseman’s lien is enforceable pursuant to section 677.-210(2), if, as here, the goods involved are not those stored by a merchant in the course of his business; and the procedures required there are quite different from and stricter than those of section 85.031(2), which appellee followed....

...bill in the sum of $6,446 for presinking repairs. Subsequently, appellant received an estimate from ap-pellee as to the cost of remedying the damage occasioned by the boat’s sinking. Ap-pellee proceeded to sell it in a nonjudicial sale pursuant to Section 85.031(2) Florida Statutes, (1981) 2 to recoup charges for pre-sinking repairs and storage....

...had waived any right of action he might otherwise have had to proceed against appellee by not asserting his rights when notified of the impending sale. We disagree. At issue is what, if any, preclusive effect a nonjudicial sale conducted pursuant to Section 85.031(2) has upon a property owner’s legal claims arising out of the underlying agreement or transaction between the property owner and lienor....

...This court answered in the negative, holding that statutes are to be construed in harmony with the common law whenever possible, and that a statutory intent to alter the common law must be clearly expressed. In the instant case, appellant’s claims are cognizable under the common law. 3 We find nothing in Section 85.031 or elsewhere which indicate an intent that a nonjudicial sale under that section cuts off the otherwise available causes of action such as those asserted by this appellant....

...Florida case law suggests, without squarely facing the issue, that such a procedure is permissible, at least in some instances. Pitt v. Abrams, 103 Fla. 1022 , 139 So. 152 (1931); Smith v. Standard Guaranty Insurance Co., 435 So.2d 848 (Fla. 2d DCA 1983). . Section 85.031(2) provides in pertinent part: 85.031 Remedies against personal property only; all lienors.— ****** (2) BY SALE WITHOUT JUDICIAL PROCEEDINGS....

...The Legislature has since provided, via Chapter 85-252, section 5, Laws of Florida, that any nonjudicial sale of an unclaimed vessel held for unpaid costs of repair be conducted according to the provisions of Section 328.17, Florida Statutes. The Legislature has not, however, chosen to amend Section 85.031....