Opinion
No. 80-1258.
May 12, 1981. Rehearing Denied October 27, 1981.
Appeal from the Circuit Court for Dade County, Moie J.L. Tendrich, J.
David A. Hoines and Sharon M. Sabel, Fort Lauderdale, for appellants.
Fowler, White, Burnett, Hurley, Banick Strickroot and C. Douglas Skinner and John Strickroot, Miami, for appellee.
Before BARKDULL, NESBITT and BASKIN, JJ.
Sun Bank of Miami brought an action to replevy a boat which was pledged to the Bank as collateral for a loan to its titled owner, Thomas P. Murphy, Jr.
The appellants manufactured the boat and, at all times pertinent, maintained possession of it and contended that they had a possessory lien superior to the Bank's security interest. The trial court disagreed and entered a summary judgment for the Bank. We affirm.
Frank Thomas, the sole stockholder and president of Corsa Boats, Inc. at the time of the loan transaction, testified on deposition that he executed a title registration on behalf of the corporation which indicated that the vessel was transferred to the purchaser (Murphy) free and clear of any and all liens. By this action, he placed in commerce a title document or registration which permitted Murphy to borrow the funds from the Bank. In Southeast Foods, Inc. v. Penguin Frozen Foods, 203 So.2d 39 (Fla. 3d DCA 1967), the following is found:
". . . Where one of two innocent parties must suffer through the act or negligence of a third person, the loss should fall upon the one who by his conduct created the circumstances which enabled the third party to perpetrate the wrong or cause the loss. American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942. . . ."
See also: Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA 1963); Harmony Homes, Inc. v. Zeit, 260 So.2d 218 (Fla. 1st DCA 1972); Exchange Bank of St. Augustine v. Florida National Bank of Jacksonville, 292 So.2d 361 (Fla. 1974).
In view of the foregoing, the appellants are estopped from claiming a right superior to the appellee. Therefore, the judgment here under review is hereby affirmed.
Affirmed.
Appellants contend that because they are in possession of the boat, their liens for costs in connection with its manufacture are superior to the bank's perfected security lien. They rely on section 679.310, Florida Statutes (1977) as authority:
Priority of certain liens arising by operation of law. — When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.
In its Order Granting Summary Judgment, the trial court stated:
(14) The Court finds that the Defendants have a possessory lien on the White Hull by virtue of Florida Statute §§ 713.60, 713.61 or 713.62, but rejects Defendants' contention that such possessory lien is superior to that of Sun Bank pursuant to Florida Statute § 679.310.
The bank did not cross-appeal the finding by the court that appellants have a possessory lien.
An unrecorded possessory lien is superior to a recorded security interest. Eastern Airlines Employees Federal Credit Union v. Lauderdale Yacht Basin, Inc., 334 So.2d 175 (Fla. 4th DCA 1976); Carolina Aircraft Corp. v. Commerce Trust Co., 289 So.2d 37 (Fla. 4th DCA 1974); Gables Lincoln-Mercury, Inc. v. First Bank Trust Co. of Boca Raton, 219 So.2d 90 (Fla. 3d DCA 1969); § 679.310, Fla. Stat. (1977). Title does not control. See the Uniform Commercial Code Comment to enactment of section 679.310, Fla. Stat. Ann. (1966). I would therefore reverse and remand for further proceedings.