[CLC-Discussion] Show Cause Lien Discharge & Fraudulent Lien Hearing

[RPPTL CLC-Discussion]

Good afternoon.  I seek the collective knowledge of fellow experts on the above topic, specifically on procedure.

Section 713.21(4) establishes the show cause procedure.  Owner follows that procedure in initiating a lien discharge action.  The implication of the statute is that this is an expedited proceeding.  The owner is entitled, pursuant to section 713.31(c), to include in that proceeding a claim for fraudulent lien damages.  The implication is that since 713.21 is an expedited proceeding, a determination of fraudulent lien damages (and attorney's fees incurred in procuring lien discharge) should also be expedited.  Florida Rule of Civil Procedure 1.010 indicates that the "form, content, procedure, and time for pleading in all special statutory proceedings shall be as prescribed by the statutes governing the proceeding unless these rules specifically provide to the contrary."

Now to the fact pattern since procedure is not easily applied in a vacuum.  Owner seeks all of the above-described relief in its complaint.  Contractor files a pleading within the 20 days but does not commence foreclosure or show cause why the lien should not be discharged.  In that pleading contractor consents to immediate discharge of the lien (while making no admission of grounds alleged by owner) and files a counterclaim for breach of contract damages against owner.  Contractor and Owner submit an agreed order to the court discharging the lien and reserving jurisdiction as to the remaining relief sought in owner's complaint.

It seems that since a counterclaim is a pleading and that counterclaims are not expressly authorized by section 713.21, no counterclaim should be allowed.  That would leave the court left to adjudicate fraudulent lien damages and both the right attorney's fees and amount.  That would not require a massive undertaking by the court (the grounds for discharge and fraudulent lien damages are:  (1) a request for sworn statement was not timely responded to but the lien was recorded anyway, and (2) on the same date the lien was recorded the contractor issued a written statement claiming it was owed roughly $14k but liened for roughly $200k.)

Here are the questions:


  1.  Are counterclaims permitted in a 713.21 proceeding?
  2.  Is an owner entitled to an expedited evidentiary hearing to determine fraudulent lien damages and entitlement and amount of attorney's fees to be awarded?
  3.  Is discovery available in such a proceeding?




Justin R. Zinzow
Admitted to Practice Florida & Texas
AV Preeminent(r) Rated Attorney
Fla. Board Certified in Construction Law

P: (727) 787-3121
F: (727) 375-5593
8750 Hawbuck Street
Trinity, Florida 34655
www.zinzowlaw.com
[cid:image001.jpg at 01D6EF44.EFA2B240]
Construction | Real Estate | Equine | Business


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