JAMES H. BOSTON, SR., AND JUNE E. BOSTON, APPELLANTS,
v.
AMES APPLIANCE CENTER, INC., APPELLEE
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Appellants Boston appealed an order denying their motion to dismiss a mechanic's lien foreclosure complaint, arguing the lienor failed to institute suit within 60 days as required by statute. The court affirmed the denial of the motion to dismiss, holding that the timeliness defense cannot be raised via motion to dismiss but must be asserted by answer at trial.
The court affirmed the denial of the motion to dismiss, holding that any timeliness defense based on failure to serve process within 60 days cannot be asserted through a motion to dismiss but must instead be raised by answer in the trial court.
[1] A defense based on the plaintiff's failure to issue process within the statutory period must be asserted by answer, not by a motion to dismiss.
[2] An action is commenced for purposes of statutory deadlines when the complaint is filed.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The lien of any lienor upon whom such notice is served and who fails to institute a suit * * * within sixty days after service of such notice shall be extinguished automatically.”
States the statutory requirement that a lienor must institute suit within 60 days after service of a notice of contest, or the lien is automatically extinguished.
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Join FLexlaw to unlock all legal intelligenceThe Bostons hired a third party to do remodeling work on their home; that third party purchased equipment from Ames Appliance Center. After the work w…
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BARKDULL, Chief Judge.
This is an interlocutory appeal from an order denying a motion to dismiss a complaint for foreclosure of a mechanic’s lien.
The appellants had certain remodeling work done on their home premises by a third person, who purchased equipment from the appellee. Subsequent to the completion of the work, the appellants were served with a mechanic’s lien by the appel-lee on February 19, 1974. A notice to contest this lien was filed by the appellants on March 12, 1974. Thereafter, the complaint was filed to foreclose the lien on May 13, 1974. [The complaint was timely filed as the sixtieth day expired on a holiday.] However, no summons was tendered by the plaintiff until October 31, 1974 and process was accomplished immediately thereafter. The appellants contend that the plaintiff failed to institute suit within sixty days, as required by the statute, because counsel for the plaintiff made no effort to cause proc ess to issue upon the filing of its complaint. The sixty-day provision of § 713.-22, Fla.Stat., reads in part as follows:
“(2) An owner or his * * * attorney may elect to shorten the time prescribed * * * within which to commence an action to enforce any claim of lien (1 year) * * * by recording in the clerk’s office a notice (of contest)
* * * * * * “The lien of any lienor upon whom such notice is served and who fails to institute a suit * * * within sixty days after service of such notice shall be extinguished automatically. * * * ”
Rule 1.050, R.C.P. provides that an action is commenced when the complaint is filed. Rule 1.070, R.C.P., provides that upon commencement of the action “summons or other process authorized by law shall be issued forthwith by the clerk”.
The purpose of the statute permitting a contest of the lien is to shorten the one-year period within which a lienor would have the right to institute an action.
It is not necessary that we pass on the appellants’ contention at this time. If the act of the plaintiff in failing, without cause, to deliver the summons to the sheriff until after the 60-day period set forth in § 713.22, Fla.Stat., constitutes in law a defense to the action, such defense may not be asserted as a ground for a motion to dismiss but must be asserted by answer. Hawkins v. Bay County Publishers, Inc., Fla.App.1963, 148 So. 2d 561; Rule 1.140(b), R.C.P. The trial court, therefore, would have been in error if it had considered this defense on the motion to dismiss.
Inasmuch as the other contentions raised by the appellant are without merit, the order under review is hereby affirmed without prejudice to the appellants’ right to appropriately raise the question of service of process as a defense in the trial court.
Affirmed.