Keeping up with all of your lien deadlines can be a challenging process. Missing a deadline, even by a day, can put your lien rights in jeopardy.
One particularly aggravating challenge many potential claimants face is getting their claim filed with the county clerk’s office. Rejections or delays can be a huge pain point for any contractor trying to secure their right to payment.
But a glimmer of hope came in the form of a recent Florida Appellate Court decision that held county clerk’s offices must record lien claims when they are received.
Florida lien filing deadline
The deadline to file a Florida construction lien can be found under Fla. Stat. §713.08(5), which states:
“[t]he claim of lien may be recorded at any time during the progress of the work or thereafter but not later than 90 days after the final furnishing or labor or services or materials by the lienor.”
Unfortunately, a county clerk’s office (or insert other applicable recording offices) isn’t necessarily a model of consistency. Take, for example, a recent Florida subcontractor who had missed their lien deadline — not because they filed late, but because the county clerk was inexcusably delayed in recording the document.
Clerk unjustifiably delays recording a lien claim
The case in question: Honorable Jody Phillips v. Pritchett Trucking, Inc.
- Subcontractor: Pritchett Trucking, Inc. (Pritchett)
- Represented by: Mark C. Bryan of Lippes & Bryan PA, Ponte Vedra
- Duval County Clerk: Hon. Jody Phillips (Clerk)
- Represented by: Craig D. Feiser, Assistant General Counsel, City of Jacksonville
Pritchett was hired to supply lime rock materials and related trucking services to a project in Jacksonville. As the project neared completion, Pritchett claimed they were still owed over $118,000 for the services and materials they provided.
Accordingly, Pritchett decided to file a construction lien against the property. Their last date of furnishing labor/materials to the project was January 26, 2018. For those counting along at home, that gave Pritchett (at the latest) until April 26 to get their claim filed.
Pritchett had mailed their lien claim and a check to the Duval county clerk’s office by certified mail, return receipt requested; which was received by the office on April 23rd. However, the claim was never recorded by the Clerk until April 30th. Seven days after the claim was received by the office, and four days past their lien filing deadline.
Pritchett then filed suit against the clerk seeking a writ to compel the clerk to backdate the claim to April 23, which the trial court granted. The Clerk then appealed.
The Appeals Court rejected the Clerk’s argument. They began by citing Fla. Stat. §28.222(3), which states “[t]he clerk of the circuit court shall record… instruments presented to him or her for recording, upon payment of the service charges prescribed by law…”
The Court further noted that “[i]n the performance of his duties as the court’s record keeper, the clerk is a ministerial officer of the court devoid of discretion.”
The Clerk’s argument that a different statute should apply to this case was also rejected by the court. The Clerk contended that under Fla. Stat. §695.11, a document is deemed to have been officially accepted by the clerk and officially recorded when the clerk stamps a registered recording number. But the court determined that the Clerk was mixing the issues of when a document is required to be recorded and when a document is deemed to have been recorded.
Thus, the court affirmed the lower court’s decision, and stated “Here, there were seven days between when the duty to record arose and when the duty was carried out, which was not ‘upon payment.'”
County clerks are required to record liens upon receipt and payment
Although waiting until the last minute to file a lien claim is never a good idea, delays at the clerk’s office shouldn’t put your lien rights at risk.
Therefore, this decision is great news for Florida lien claimants — and drew a fair amount of public attention.
So much in fact, that the South Atlantic division of the National Association of Credit Managers filed an Amicus Brief in support of Pritchett. The attorney who filed on their behalf, Barry Kalmanson, had this to say about the case in a recent article:
“As a practitioner, this issue had arisen in my cases numerous times before I took part in this case. In each situation, I was able to have the trial court mandate the clerk to place the correct date of recording so that the liens were timely and could be foreclosed.”
“The appeal by the Duval County Clerk of Court was a case of first impression for the appellate courts in Florida,” Kalmanson continued. “This recent ruling will hopefully make it easier for trial court judges to mandate clerks to re-record construction liens with the proper dates. Additionally, this court decision will apply to other instruments such as deeds, mortgages and judgment liens and any other document where recording priority is important.”