Archive: November 2008

1
Court Rules Contractor’s Failure to File Action or Counterclaim to Enforce Lien within 20 days in Compliance with the Statute Requires Discharge of the Lien

Court Rules Contractor’s Failure to File Action or Counterclaim to Enforce Lien within 20 days in Compliance with the Statute Requires Discharge of the Lien

Brookshire v. GP Constr. of Palm Beach, Inc., 99 So.2d 179 (Fla. Dist. Ct. App. 2008)

In Brookshire, an owner filed a complaint to discharge a contractor’s lien and the clerk issued an order to show cause under Florida Statute Sec. 713.21(4).  Accordingly, the contractor had 20 days to show cause as to why his lien should not be enforced by action or vacated and cancelled of record.  Failure to do so would result in cancellation of the contractor’s lien.  The contractor filed a motion to compel arbitration and set it for hearing within the 20 day period, but did not respond to the show cause order.  The contractor argued that the motion to compel satisfied Section 713.21.  The appellate disagreed and directed the trial court to discharge the lien.

The contractor had argued that the motion to compel arbitration satisfied Section 713.21 because the dispute would ultimately be arbitrated and the contractor wanted to avoid any issue as to whether he was waiving arbitration.  The court held that Section 713.21 does not allow for exceptions, such as extensions of time, nor does it leave the court with any discretion to excuse a failure to comply.  The court also noted that any concern regarding waiving arbitration could have been satisfied by contemporaneously filing a motion to arbitrate those issues that were allegedly subject to arbitration.

Copyright © 2019, K&L Gates LLP. All Rights Reserved.