Wesley Const. Co. v. Yarnell
| Decision Date | 02 November 1972 |
| Docket Number | No. 71--157,71--157 |
| Citation | 268 So.2d 454 |
| Parties | WESLEY CONSTRUCTION COMPANY, Appellant, v. Arthur W. YARNELL, Jr., a/k/a Dick Yarnell, d/b/a Dick Yarnell, Drywell, Appellee. |
| Court | Florida District Court of Appeals |
Edward C. Vining, Jr., and R. M. MacArthur, Miami, for appellant.
Ernest G. Simon, Delray Beach, and H. Laurence Cooper, Jr., of O'Connell & Cooper, West Palm Beach, for appellee.
This is an interlocutory appeal. It concerns the proper method of enforcing a mechanic's lien and requires a somewhat fine dissection and application of pleading rules and statutes.
Our survey is conducted in the light of Rule 1.010, Fla.R.Civ.Proc., 30 F.S.A., which provides that the rules 'shall be construed to secure the just, speedy and inexpensive determination of every action.'
There was a construction project. Plaintiff was its general contractor and defendant a sub-contractor. As a consequence, the defendant filed a mechanic's lien. Plaintiff, under the provisions of F.S. 713.21(4), Laws of 1969, F.S.A., 1 filed its complaint against the defendant statutorily asking that the defendant show cause why his lien should not be enforced by action or vacated and canceled.
Defendant filed an answer and counterclaim. His answer admitted the mechanic's lien claim and said 'The defendant has filed herewith his counterclaim . . . and that by virtue thereof, defendant has instituted action to enforce and foreclose his lien.' Defendant then counterclaimed in full and appropriate form, asking for the foreclosure of his mechanic's lien.
Plaintiff filed a motion to strike, saying there, as here, that the statute, F.S. 713.21(4), F.S.A., does not permit a counterclaim and that the avenue available to defendant was to file a separate timely proceeding. Since that was not done, plaintiff feels that the mechanic's lien should be canceled as a matter of law.
The trial court considered the matter in detail and ruled that the defendant lienor was within his rights in foreclosing his lien via counterclaim. Plaintiff appeals. We affirm.
Repetitively, F.S.A. 713.21(4), F.S.A., provides the means whereby perfected liens may be discharged. Any interested party may file a complaint and cause a summons to be issued to the lienor, who must within twenty days show cause why his lien should not be discharged or commence an action before the return date of the summons. The lien will be canceled if the lienor does neither of these things.
This statute providing for discharge of a perfected mechanic's lien is not an ordinary civil action, but is a special statutory proceeding. To protect a mechanic's lien, one must comply with the statutory provisions. Tom Joyce Realty Corp. v. Popkin, Fla.App.1959, 111 So.2d 707.
F.R.Civ.Proc. 1.010 specifically provides that the rules shall apply to '. . . all suits of a civil nature and all special statutory proceedings . . . Except that the form, content, procedure and time for pleading in all special statutory proceedings shall be prescribed by the statutes providing for such proceedings unless these rules specifically provide to the contrary.'
The Florida Common Law Rule 61 contained a provision similar to Rule 1.010 specifying that they applied to all special statutory proceedings, except as to the form, content, procedure and time for pleading. In a discussion of this rule, J. T. Wigginton, 'New Florida Common Law Rules,' 3 U.Fla.L.Rev. 1 (1950), at p. 3, stated:
It is important to keep the above reasoning in mind in the following discussion.
Plaintiff has cited numerous cases for the proposition that counterclaims are not allowed in special statutory proceedings: Trak Microwave Corp. v. Medaris Management, Inc., Fla.App.1970, 236 So.2d 189; Seven Seas Frozen Products, Inc. v. Fast Frozen Foods, Inc., Fla.1949, 43 So.2d 181; National Leasing Corp. v. Bombay Hotel, Inc., Fla.App.1963, 159 So.2d 111; Maco Supply Corp. v. Masciarelli, Fla.App.1968, 213 So.2d 265. All of the above, except Trak, were replevin cases. F.S. section 46.08, F.S.A. which governed the cases, specifically prohibited the joinder of replevin with any other cause of action. These cases seemingly do not apply here, since there is no comparable statute prohibiting joinder of an action of foreclosure of a mechanic's lien with any other kind of action.
Two cases touch on the point raised by this appeal. In McCluskey v. Klock, Fla.1948, 160 Fla. 537, 35 So.2d 646, an interested party...
To continue reading
Request your trial
-
Nachon Enterprises Inc. v. Alexdex Corp., 92-1456
...194 (Fla. 4th DCA 1991); Goldberger v. United Plumbing and Heating, Inc., 358 So.2d 860 (Fla. 4th DCA 1978); Wesley Constr. Co. v. Yarnell, 268 So.2d 454 (Fla. 4th DCA 1972). Section 713.22(1) provides that a lien is not enforceable after one year from the recording of the claim of lien "un......
-
Scott v. Premium Development, Inc., Z--82
...and 1.540(b), R.C.P. Metcalf v. Langston, 296 So.2d 81 (Fla.App.1st), cert. dism. 302 So.2d 414 (Fla.1974); Wesley Constr. Co. v. Yarnell, 268 So.2d 454 (Fla.App.4th, 1972). Contrast Knight v. Gainer, 310 So.2d 58 (Fla.App.1st, 1975); Palmer Johnson, Inc. v. Buxton, 262 So.2d 892 (Fla.App.2......
-
Genstar Southern Development Corp. v. Troup Bros., Inc., 80-1430
...(1979), see Goldberger v. United Plumbing & Heating Company, Inc., 358 So.2d 860 (Fla. 4th DCA 1978); Wesley Construction Co. v. Yarnell, 268 So.2d 454 (Fla. 4th DCA 1972), in filing a claim of lien and counterclaiming for foreclosure were acts calculated to secure such debt as might otherw......
-
Matrix Const. Corp. v. Mecca Const., Inc., 90-2179
...special statutory proceedings. Federated Stores Realty, Inc. v. Burnstein, 392 So.2d 573 (Fla. 4th DCA 1980); Wesley Constr. Co. v. Yarnell, 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......
-
Special statutory proceedings for the discharge of construction liens.
...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, proce......