2D09-1764 / Unnerstall v. Designerick, Inc.

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State: Florida

Court: Florida Southern District Court

Docket No: 2D09-1764

Case Date: 09/18/2009

Plaintiff: 2D09-1764 / Unnerstall

Defendant: Designerick, Inc.

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

CHRISTOPHER J. UNNERSTALL and ) LYNETTE M. UNNERSTALL, ) ) Petitioners, ) ) v. ) ) DESIGNERICK, INC., a Florida ) corporation, ) ) Respondent. ) ________________________________ ) Opinion filed September 18, 2009. Petition for Writ of Mandamus to the Circuit Court for Sarasota County; Charles E. Williams, Judge. Peter F. Carr, Jr., of Carr Law Firm, P.A., Orlando, for Petitioners. Dennis A. Creed, III, of Robbins Equitas, St. Petersburg, for Respondent.

Case No.

2D09-1764

KELLY, Judge. Christopher and Lynette Unnerstall seek review of an order that denies their motion to discharge Designerick, Inc.'s construction lien on their property. They argue that Designerick's answer and counterclaims failed to strictly comply with the

requirements of section 713.21(4), Florida Statutes (2008),1 to avoid cancellation of the lien. Although the Unnerstalls filed a petition for a writ of certiorari in this court seeking to have the lien discharged, we treat the petition as one for mandamus and grant the petition. See Brookshire v. GP Constr. of Palm Beach, Inc., 993 So. 2d 179 (Fla. 4th DCA 2008) (holding that mandamus is the appropriate vehicle to compel the trial court to discharge a lien). Designerick recorded a claim of lien against the Unnerstalls' property because the Unnerstalls failed to pay the balance of $21,985 due for the installation of cabinets. The Unnerstalls filed a complaint to cancel the lien and for an order to show cause. Designerick responded with an answer to the complaint asserting affirmative defenses and counterclaims alleging breach of oral contract, open account, and unjust enrichment. When the Unnerstalls moved to discharge the lien, Designerick served its opposition to the motion to discharge the lien, stating that it had properly filed its counterclaims within the twenty days, as required by section 713.21(4). The trial court denied the motion to discharge the lien on the ground that Designerick's counterclaims satisfied the requirements of the statute.
1

Section 713.21, states, in pertinent part: 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 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.

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The language of the lien discharge statute requires that an action for lien enforcement be filed within twenty days or that cause be shown within that period why enforcement should not be commenced.

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