CONNIE BROOKSHIRE AND CHARLES J. BROOKSHIRE, PETITIONERS,
v.
GP CONSTRUCTION OF PALM BEACH, INC., A FLORIDA CORPORATION, RESPONDENT
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The Florida Fourth District Court of Appeal granted a writ of mandamus to compel discharge of a contractor's mechanics lien because the contractor failed to comply with the statutory twenty-day deadline to commence an action to enforce the lien. The court held that filing a motion to compel arbitration does not satisfy the statutory requirement and that the trial court had no discretion to excuse the contractor's failure to comply.
The court held that filing a motion to compel arbitration does not satisfy the statutory requirement to commence an action to enforce the lien within twenty days. The court concluded that the lien and the underlying dispute are not one and the same, and that the trial court had no discretion to excuse the contractor's failure to comply with the statutory deadline. Therefore, the lien must be discharged.
[1] A contractor's failure to commence an action to enforce a lien within twenty days of an order to show cause requires the court to discharge the lien.
[2] Filing a motion to compel arbitration does not satisfy the statutory requirement to commence an action to enforce a lien within twenty days of an order to show cause.
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Join FLexlaw to unlock all legal intelligence“Upon failure of the lienor to show cause why his or her lien should not be enforced or the lienor's failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.”
Establishes the mandatory statutory requirement that failure to commence an action within twenty days requires automatic cancellation of the lien.
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Join FLexlaw to unlock all legal intelligenceA contractor filed a lien against the homeowners' property. The homeowners filed a complaint seeking discharge of the lien and the clerk issued an ord…
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KLEIN, J.
Petitioner seeks a writ of mandamus to compel the trial court to discharge a claim of lien filed by a contractor against peti tioner’s home. We grant the petition because the contractor failed to comply with the statutory lien procedure.
Following the recording of the contractor’s lien, the owners filed a complaint seeking discharge of the lien, which was served on the contractor, along with an order to show cause issued by the clerk under section 713.21(4), Florida Statutes. That subsection provides in part:
Upon filing a complaint therefor by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his or her lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his or her lien should not be enforced or the lienor’s failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.
Within the twenty-day period the contractor did not commence an action to enforce the lien, but rather filed a motion to compel arbitration, per the construction contract, as well as a notice of hearing on the motion to arbitrate. At the hearing on the motion to arbitrate, the owners argued that the lien should be discharged, because the contractor had not complied with the order to show cause. The contractor responded that this was unnecessary, because the claim had to be arbitrated. The contractor represented that it would forward its counterclaim for enforcement of the lien to the American Arbitration Association. The trial court agreed with the contractor, granted the motion for arbitration, and the owners seek mandamus relief to compel the court to discharge the lien. Federated Stores Realty, Inc. v. Burnstein, 392 So. 2d 573 (Fla. 4th DCA 1980) (mandamus is the appropriate remedy to compel the trial court to discharge a mechanics lien); Sturge v. LCS Dev. Corp., 643 So. 2d 53 (Fla. 3d DCA 1994) (the failure to comply with the twenty-day period following the order to show cause leaves the court with no discretion and the lien must be discharged).
The contractor contends that its motion to compel arbitration, filed within the twenty-day period, satisfies the requirements of the statute, because the dispute would ultimately be arbitrated in any event. It did so in order to avoid any issue as to whether it was waiving arbitration. The lien, however, and the dispute, are not one and the same. The disposition of the lien would not resolve the contractor’s claim for payment.
The contractor could have complied with the twenty-day statutory period by filing a counterclaim within the owner’s action. Mainlands Const. Co. v. Wen-Dic Constr. Co., 482 So. 2d 1369 (Fla.1986); Goldberger v. United Plumbing & Heating, Inc., 358 So. 2d 860 (Fla. 4th DCA 1978). Any concern about whether the contractor was waiving arbitration could have been satisfied by filing a motion to arbitrate those issues which were subject to arbitration. Zager Plumbing, Inc. v. JPI Nat’l Constr., Inc., 785 So. 2d 660 (Fla. 3d DCA 2001).
The twenty day period provided in section 713.21(4) does not allow for exceptions, such as extensions of time, Dracon Construction, Inc. v. Facility Const. Mgmt, Inc., 828 So. 2d 1069 (Fla. 4th DCA 2002), nor does it leave the court with any discretion to excuse a failure to comply. Sturge. We grant the petition and direct the trial court to discharge the lien.
FARMER and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Unnerstall v. Designerick, Inc., 17 So. 3d 900 (Fla. 2d DCA 2009)…on of the lien. Although the Unnerstalls filed a petition for a writ of certiorari in this court seeking to have the lien discharged, we treat the petition as one for mandamus and grant the petition. See Brookshire v. GP Constr. of Palm Beach, Inc., 993 So. 2d 179 (Fla. 4th DCA 2008) (holding that mandamus is the appropriate vehicle to compel the trial court to discharge a lien). Designerick recorded a claim of lien against the Unnerstalls’ property because the Unnerstalls failed to pay the balance of $21,98…
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Snell v. Mott's Contracting Servs., Inc., 141 So. 3d 605 (Fla. 2d DCA 2014)…n for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ” (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla.1984))); see, e.g., Brookshire v. GP Constr. of Palm Beach, Inc., 993 So. 2d 179, 180 (Fla. 4th DCA 2008) (holding that the lienor’s motion to arbitrate filed in response to a complaint to discharge the lien did not meet the requirement of section 713.21(4) that an action to enforce the lien be commenced within twenty days); GCA…
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KA Props., LLC v. USA Constr., Inc., 35 So. 3d 1015 (Fla. 5th DCA 2010)…property because Respondent failed to timely assert its rights after it was served with a summons pursuant to section 713.21(4), Florida Statutes (2008). We have jurisdiction and grant the petition. See Brookshire v. GP Constr. of Palm Beach, Inc., 993 So. 2d 179, 180 (Fla. 4th DCA 2008). [*1016] After Respondent recorded a construction lien against Petitioner’s property, Petitioner invoked the special statutory procedure authorized by section 713.21(4). This procedure is intended to hasten the resolution of…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mainlands Constr. Co., Inc. v. Wen-Dic Constr. Co., Inc., 482 So. 2d 1369 (Fla. 1986)
- Dansig v. Roman, 358 So. 2d 860 (Fla. 4th DCA 1978)
- Dracon Constr., Inc. v. Facility Constr. Mgmt., Inc., 828 So. 2d 1069 (Fla. 4th DCA 2002)
- Federated Stores Realty, Inc. v. The Honorable Miette K. Burnstein, 392 So. 2d 573 (Fla. 4th DCA 1980)
- Sexton v. State, 643 So. 2d 53 (Fla. 2d DCA 1994)
- Zager Plumbing, Inc. v. JPI Nat'l Constr., Inc., 785 So. 2d 660 (Fla. 3d DCA 2001)