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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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We built a home in Florida and the contractor did not pay suppliers/subs

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We built a home in Florida and the contractor did not pay suppliers/subs resulting in liens being place on the home. One was not valid because it did not meet the required 90 day limit stated in the statute (713.08(5)). Nonetheless to continue the lien they filed a lawsuit in 2005. Discovery revealed/confirmed their lien was not valid and there has been no action on the case since then (2005). Does the court automatically dismiss the case for lack of prosecution or do I have to motion the court to do so? Can I do this Pro Se or do I need an attorney? Thanks, Pete
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

When you contracted with the landscaping company ("CON"), CON became your contractor. The supplies ("SUB") became the sub-contractor.

Under Florida law, subcontractors who provide labor or materials for the construction of improvements on private projects have the ability to file a lien on the property for non-payment by contractor to subcontractor. In other words, the subcontractor can lien you for non-payment to them by the contractor. Ridiculous - I know. It seems that this is what has happened here.

A lien is valid for one year, unless the subcontractor files a lawsuit to enforce the lien prior to the expiration of the year. An owner has a right to file a Notice of Contest of Lien during the one-year period. Upon the filing of a Notice of Contest of Lien, the subcontractor must file a lawsuit to enforce the lien within a certain amount of time. Failure of the subcontractor to timely file a lawsuit renders the lien invalid. Here, it seems they did file a suit.

However, if the Court has found their lien to be invalid, then it should be voided. If it has not been automatically, what you may wish to do is to take a copy of the order/judgment that specifically dismisses the lien and take that to the county recorder in the county where the property is, and use it to void the lien off the title. For this, pro se is normally fine.

If this does not work or if the order/judgment is not specific in its verbiage enough for the county recorder to void the lien going off it, you may need to file a special motion in Court seeking the Court to render a specific order that voids the lien. If so, an attorney is recommended.

I hope this helps and clarifies. Good luck.

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Customer: replied 3 years ago.


The court did not rule the lien invalid because it was never brought there. During discovery (in preparation for court) we found that the supplier had no evidence of what they stated in their claim (that they had supplied materials less than 90 days of when the lien was filed....hence we (and they) knew their lien was not valid, which I assume is why they took no action to prosecute the case.

Pete,

Thank you.

If the suit was dismissed, then the lien was "dismissed" with it. If so, then a copy of the dismissal order (or judgment in your favor) may be enough to wipe the lien off your title if it is still on there. It really depends on the verbiage of the document. It has to state that the lien (and the underlining claim) are dismissed/voided/invalid.

If it is not, then a pleading does have to be filed in court, I am afraid, and if so, then an attorney is recommended.

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Customer: replied 3 years ago.


The case was not formally dismissed as far as I know (how can I find that out?), the plaintiff simply took nor further action on it. That is my primary question.....given the lack of action/prosecution for the last 8 years, does the judge automatically dismiss for lack of prosecution or do I need to file a motion?

Pete,

Ah... okay. What county is this in, please?
Customer: replied 3 years ago.


Walton County Florida....the case number XXXXX XXXXX

You can do a search for the matter here by name to see the status. If this was filed in 2005, and no action has been taken since, then the case was likely dismissed for inaction. However, you may wish to double check. If so, but the lien is still on (check with the county recorder (call (850) 892 - 8115 and ask for the number), then you would have to file a special pleading in Court to neutralize the lien.

That is my primary question.....given the lack of action/prosecution for the last 8 years, does the judge automatically dismiss for lack of prosecution or do I need to file a motion?

The Court almost always dismisses the case if no party has acted on it for 6 or so months, and if they do not respond to any warning to the Court that the matter would be dismissed. So it is very likely dismissed already.

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Customer: replied 3 years ago.


I already searched the site and there was "no data found" which makes me think it has been dismissed. If the case has been dismissed but lien has not (which would be odd given they expire after one year if a lawsuit hasn't been filed) can I file the special pleading pro se or does it have to be an attorney? Is there a standard form used?

Hello,

I already searched the site and there was "no data found" which makes me think it has been dismissed.

Since this is from 2005, likely, yes.

If the case has been dismissed but lien has not (which would be odd given they expire after one year if a lawsuit hasn't been filed) can I file the special pleading pro se or does it have to be an attorney? Is there a standard form used?

There is no standard form. You may have to file a Motion for Clarification for the dismissed case, or a Petition to Quiet Title or another variant. I am afraid that there is no standard form here and either must be drafted from scratch. Also, what pleading is to be filed depends on what exactly happened with the case. Hence, an attorney is recommended.

May I recommend the FL Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

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