Ruocco v. Brinker

• Decision Date: 09 July 1974
• Docket Number: No. 73-1607-CIV-CA.,73-1607-CIV-CA.
• Citation: 380 F. Supp. 432
• Parties: Salvatore and Maria RUOCCO, husband and wife, Plaintiffs-Intervenors, v. Richard P. BRINKER, as Clerk of the Circuit Court, in and for the Eleventh Judicial Circuit and all others similarly situated, Defendants.
• Court: U.S. District Court — Southern District of Florida

380 F. Supp. 432

Salvatore and Maria RUOCCO, husband and wife, Plaintiffs-Intervenors, v. Richard P. BRINKER, as Clerk of the Circuit Court, in and for the Eleventh Judicial Circuit and all others similarly situated, Defendants.

No. 73-1607-CIV-CA.

United States District Court, S. D. Florida.

July 9, 1974.

Alfred Feinberg, Legal Services of Greater Miami, Miami, Fla., for plaintiffs-intervenors.

Gus Efthimiou, Jr., Miami, Fla., for defendants.

Before DYER, Circuit Judge, and ATKINS and FAY, District Judges.

MEMORANDUM OPINION AND ORDER

The issue before this Court is whether Florida's Mechanics' Lien Law F.S. §§ 713.01-713.26, F.S.A., satisfies the requisite standards of procedural due process under the Fourteenth Amendment. Our decision is made with the realization that the once ominous spectre of the Sniadach¹-Fuentes² doctrine has faded into the past.³

Plaintiffs instituted this action pursuant to 42 U.S.C.A. § 1983 seeking declaratory and injunctive relief against the operation of Florida's Mechanics' Lien Law. Jurisdiction has been invoked under 28 U.S.C. § 1343(3) and 28 U.S.C. §§ 2201 and 2202. A Three-Judge Court properly has been convened pursuant to 28 U.S.C. §§ 2281 and 2284.

Plaintiffs, Salvatore and Maria Ruocco, are homeowners residing in Dade County, Florida. On May 7, 1973 the defendant, Brinker, as Clerk of the Circuit Court in and for the Eleventh Judicial Circuit entered and recorded a Claim of Lien filed by Raymond Swier, agent for the lienor, All Seasons Air Conditioning Corporation, for "furnished labor, services or materials consisting of . . . preparation of ductwork, plans, engineering, etc." The claim of lien is in the amount of $416.00.

I

Plaintiffs have sought to certify this case as a bilateral class action pursuant to F.R.Civ.P. 23 and Local Rule 19. The proposed class of plaintiffs consists of all real property owners in the State of Florida whose real property has or may be encumbered by a Claim of Lien under the Mechanics' Lien Law of Florida. This class is sought under F. R.Civ.P. 23(a) and (b)(2).

The proposed class of defendants consists of all clerks of the judicial circuits in the State of Florida. Certification of this class is sought under F.R.Civ.P. 23(a) and (b)(1)(A).

With respect to both proposed classes the Court finds that each is so numerous that joinder of all members is impracticable; that there are questions of law and fact common to each class; that the claims and defenses of the representative parties are typical of the claims and defenses of both classes; and that the representative parties will fairly and adequately protect the interests of the classes.

Moreover, the Court concludes with respect to the proposed class of plaintiffs that the party opposing the class has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Furthermore, the Court finds that the prosecution of separate actions against individual members of the proposed class of defendants would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.

In light of the foregoing, it is appropriate that this cause proceed as a bilateral class action. Plaintiffs' motion for certification, then, is granted.

II

This cause is before the Court on cross motions for summary judgment. Upon consideration of the record in this case which reflects that no genuine issue as to any material fact exists, the Court will proceed to the merits.

The issue as first presented to this Court was whether the Florida Mechanics' Lien statutory scheme was fatally defective because it did not provide an opportunity for a hearing prior to the filing, or imposition, of a claim of lien. As will be shown, the issue to be resolved cannot be so delimited. Rather, the issue before the Court is whether Florida's Mechanics' Lien Law comports with traditional standards of procedural due process under the Fourteenth Amendment.

Under Florida's Mechanics' Lien Law every lienor except a lienor contracting directly with the owner or through his agent as against the owner, must record a claim of lien to perfect his lien. See Foley Lumber Co. v. Koester, 61 So.2d 634 (Fla.1952).

A claim of lien may be recorded with the Clerk of the County Court at any time during the progress of the work but not later than ninety days after the final furnishing of the labor, services, or materials by the lienor.⁴

A claim of lien must set forth the following:⁵ (1) the person on whom and the address where notices or process may be served; (2) the name of the person with whom the lienor contracted or by whom he was employed; (3) a description of the labor, services, or materials furnished and the contract price thereof; (4) a description of the real property sufficient for identification; (5) the name of the owner; (6) the time when the first and the last item of labor or service or materials was furnished; and (7) if the lien is claimed by a person not in privity with the owner, the date and method of service of the notice to the owner.⁶ Moreover, the claim of lien must be signed and verified on personal oath by the lienor, his agent or attorney. The individual must be acquainted with the facts stated in it.⁷

After a claim of lien is recorded, a copy must be served on the owner in the manner set forth in F.S. § 713.18, F.S. A.⁸

The Florida statutes provide that a mechanics' or materialman's lien may be discharged in a number of ways. A lien may be discharged by failure to enforce the lien within one year.⁹ Also, any interested person may institute a proceeding in which the lienor is required to show cause why his lien should not be enforced by action or vacated and cancelled of record.¹⁰ The return time on the rule to show cause is twenty days. The owner can also file a notice of contest of lien which requires the lienor to bring suit within sixty days.¹¹

The filing of a claim of lien is an integral step in the perfection of a mechanics' lien. Liens for professional services and liens for performing services or furnishing materials for subdivision improvements (making real property suitable as the site of an improvement) attach and take priority at the time the claim of lien is recorded. All other mechanics' liens (laborers, contractors, and subcontractors in privity¹² or not in privity with the owner¹³) attach and take priority as of the time of notice of commencement which must be filed by the owner.¹⁴ If a notice of commencement is not recorded, the liens attach and take priority at the time the claim of lien is recorded.¹⁵

In attacking this statutory scheme, the plaintiffs rely chiefly on the pronouncements in Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The plaintiffs maintain that the filing of a claim of lien, which places a cloud or encumbrance upon their property, without a prior opportunity to be heard impedes their ability to freely alienate their property or otherwise use that property for loan security. This, the plaintiffs argue, violates essential notions of procedural due process.

The defendant on the other hand urges this Court to adopt the rationale of two recent opinions which have upheld the mechanics' lien laws of South Dakota and Arizona. Cook v. Carlson, 364 F.Supp. 24 (S.D.S.D.1973); Spielman-Fond, Inc. v. Hansons, Inc., 379 F. Supp. 997 (D.Ariz.1973), aff'd 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974).

We conclude that Florida's Mechanics' Lien Law does satisfy the requisite standards of procedural due process. Subsequent to oral argument in this case, however, the Supreme Court rendered its decision in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). That decision compels a re-evaluation of the rationale of Cook v. Carlson, supra and Spielman-Fond, supra, in particular, and the applicable standards of procedural due process in general.

In Sniadach, supra, the Court held that Wisconsin's garnishment procedure in which creditors could, without the opportunity for a prior hearing, effectively freeze one-half the wages due an alleged debtor, violated fundamental principles of due process.

Justice Harlan, concurring, elaborated on the premises underlying the holding:

"The `property' of which petitioner has been deprived is the use of the garnished portion of her wages during the interim period between the garnishment and the culmination of the main suit. Since this deprivation cannot be characterized as de minimis, she must be accorded the usual requisites of procedural due process: notice and a prior hearing . . . .

Apart from special situations . . . I think that due process is afforded only by kinds of `notice' and `hearing' which are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property or its unrestricted use. I think this is the thrust of the past cases in this Court." 395 U.S. at 342-343, 89 S.Ct. at 1823 (citations omitted).

Three years later the Court, in a 4-3 decision, adopted Justice Harlan's reasoning in striking down the replevin laws of Florida and Pennsylvania. Fuentes, supra. Under the replevin laws of both states a creditor could obtain from a court clerk a writ of replevin by posting a bond and filling out the appropriate forms for submission to the clerk. Under the Florida law anyone whose goods or chattels were "wrongfully detained" could obtain a writ. There was no requirement that an applicant make a convincing showing that the goods were "wrongfully" detained. In fact an applicant merely had to recite in a conclusory fashion that he was ...