Special statutory proceedings for the discharge of construction liens.

• Author: Hollander, Howard J.
• Position: Florida

This article discusses the discharge of construction liens to F.S. [subsection] 713.21 and 713.22 as special statutory proceedings that exist apart from the application of the Civil Procedure Rules.

Florida has long been under the procedural mandate that special statutory proceedings are authorized by the Supreme Court of Florida as long as they do not conflict with the Florida Rules of Civil Procedure. Fla. R. Civ. P. 1.010 states in part:

These rules apply to all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply. The form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceedings unless these rules specifically provide to the contrary.

The discharge of construction liens under F.S. [subsection] 713.21 and 713.22 are such special statutory proceedings, but the courts are not consistent as to when it is appropriate to fall back on a rule of procedure. In most instances, the statute prescribes nonadversarial means of discharging construction liens. See F.S. [section] 713.21(1) permitting the satisfaction of the lien upon the margin of the record in the clerk's office when not otherwise prohibited by law. Additionally, subsection (2) authorizes the filing of a satisfaction by the lienor "duly acknowledged and recorded in the clerk's office." Subsection (5) directs that construction liens may be satisfied "[b]y recording in the clerk's office the original or a certified copy of a judgment or decree of a court of competent jurisdiction showing a final determination of the action."

Far more difficult is the application of subsection (4) which provides for the discharge of a construction lien:

By an order of the circuit court of the county where the property is located, as provided in this subsection. 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.

In a series of rulings, courts have emphasized the strict construction of the statute, and have further discussed the limitation of their own discretionary power under the rules of procedure that exist apart from the authorized statutory scheme. In Matrix Construction Corp. v. Mecca Construction, Inc., 578 So. 2d 388 (Fla. 3d DCA 1991), the lienor opted to file a motion for enlargement of time so as to select a substitute attorney. Having failed to foreclose the claim of lien or alternatively show "cause" why the lien should not be vacated and cancelled of record within the 20 days prescribed by the statute, the court remanded with directions to discharge the lien, stating:

The procedures of the above section have been held to constitute special statutory proceedings. Federated Stores Realty, Inc., v. Burnstein, 392 So. 2d 573 (Fla. 4th DCA 1980; Wesley Constr. Co. v. Yarnel, 268 So. 2d 454 (Fla. 4th DCA 1972). Florida Rule of Civil Procedure 1.010 provides that the rules of civil procedure do not apply to the "form, content, procedure and time for pleading in all special statutory proceedings." These matters shall be controlled by the statute itself unless the rules specifically provide otherwise. Federated Stores, 392 So. 2d at 574; Wesley Constr., 268 So. 2d at 455. Thus, the time element of [section] 713.21 is one established by the legislature and recognized by the Supreme Court in the promulgation of the Florida Rules of Civil Procedure.

Consequently, the statute is not subject to the ordinary exercise of judicial discretion. In the present case, although the trial court's intuitive reaction and rulings were entirely consistent with our common law heritage, it nonetheless ignored the statutory time frame in which the...