Federated Stores Realty, Inc. v. Burnstein, 80-463
| Decision Date | 05 November 1980 |
| Docket Number | No. 80-463,80-463 |
| Citation | 392 So.2d 573 |
| Parties | FEDERATED STORES REALTY, INC., Federated Department Stores, Inc., Alan Restaurant Corp. d/b/a Danny's Restaurant, Swensen's of Plantation, Inc., and Palm Beach Confections, Inc., Petitioners, v. The Honorable Miette K. BURNSTEIN, a Judge of the Circuit Court of theSeventeenth Judicial Circuit in and for Broward County, Florida, Respondent, v. KINGLAND CONTRACTING CORPORATION, Intervenor. |
| Court | Florida District Court of Appeals |
Miles E. Shlopack of Gubman, Sitomer & Lubitz, Miami, for petitioners.
Mitchell B. Luber of Watson, Hubert, LaSalle & Clark, Fort Lauderdale, for intervenor.
No appearance for respondent.
Petitioners seek a writ of mandamus to compel the trial court to discharge certain mechanics' liens under the provisions of Section 713.21(4), Florida Statutes (1979).
Claims of lien were filed against various leasehold interests in The Broward Mall for improvements made by subcontractors and materialmen pursuant to a construction contract with Kingland Contracting Corporation, the general contractor. An attempt to lien the underlying fee simple title in a similar manner was disallowed by the trial court.
Owners of the property interests (leaseholds) subjected to the liens filed a complaint for a rule to show cause pursuant to the statute.
The parties then stipulated that the lienors need not take action in the litigation within the 20 day period established by the statute.
Subsequently the question arose as to whether such a stipulation was viable or whether, instead, the statutory time limitation was mandatory and jurisdictional. Memoranda were submitted and after due consideration the trial court entered an order, a portion of which, pertinent to these proceedings, provided that:
It has been further argued, and memoranda submitted, based upon the Court's query, that Section 713.21(4) Florida Statutes requires as a jurisdictional matter that liens included in Plaintiff's Complaint for a Rule to Show Cause should be discharged and cancelled upon the expiration of the twenty day answer period. The Court examined such memoranda and, being advised that Plaintiff, Federated, and Defendant, Kingland, entered into a written stipulation extending the period of time within which answers must be filed, orders that such stipulated extensions are not jurisdictional in nature and may be given the same effect as any stipulation to extend time for the filing of an Answer.
If the 20 day period is jurisdictional then discharge of the liens is a ministerial act permitting no exercise of discretion by the trial court. Mandamus is available "to compel the performance of some ministerial act, often one requiring a court to dismiss actions where such dismissal is required because of intervening events or because the court is about to proceed in excess of its jurisdiction." Wincor v. Turner, 215 So.2d 3, 5 (Fla.1968). Thus mandamus is the appropriate remedy to test the correctness of the trial court's ruling.
The statute provides:
A lien properly perfected under this chapter may be discharged by any of the following methods:
(4) 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 lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his lien should not be enforced or his failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.
Thus specific language of the statute requires that an action for enforcement be filed within 20 days or that...
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