[CLC-Discussion] Can Fraudulent Lien be heard by jury?

[Bruce Partington]

I don't think language in a statute can override a constitutional right to a jury trial if one is properly and timely demanded, and on disputed facts. It's not often we get into things in this type of law of constitutional moment, but this is one of them.

There is a bit of the old law (jury trial) versus equity (no jury trial) distinction here -- a jury cannot foreclose a lien, and a jury could not make the legal finding that a lien is unenforceable, but it can make the predicate factual findings (on a lien foreclosure, the amount due, improvement or not, etc.; on a fraudulent lien, the question of "willful exaggeration" or "not furnished", and even damages). But the equitable remedies (ordering a foreclosure sale or declaring a lien unenforceable based upon predicate factual findings by the jury) can only be by a court. The fraudulent lien statute provides a mix of legal and equitable remedies, so I think the jury addresses the factual findings and legal remedies (damages) and the court then rules on the equitable remedies (unenforceable lien).


Bruce Partington | Shareholder
bpartington at clarkpartington.com | (850) 432-1399

CLARK PARTINGTON
Office: (850) 434-9200 | Fax: (850) 432-7340
125 East Intendencia Street, 4th Floor
Pensacola, Florida 32502
clarkpartington.com


-----Original Message-----
From: clc-discussion-bounces at lists.flabarrpptl.org <clc-discussion-bounces at lists.flabarrpptl.org> On Behalf Of Tracy Valente
Sent: Wednesday, October 9, 2019 1:37 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Can Fraudulent Lien be heard by jury?

We have a case heading to trial. The judge just ruled, over my objection, that the Fraudulent Lien counterclaim will be heard by the jury instead of the court.  I need to file a Motion for Rehearing today since jury selection is Monday.

 I argued the language of 713.31 2(b) which specifically uses the phrase “..and the court so finding is empowered to and shall declare the lien unenforceable...”. I also had 6+ cases where the contract claims were heard by the jury and the fraudulent lien claims were decided by the court. Those cases don’t discuss whether that was required, but just mention it occurred.

Opposing counsel argued the language of  713.31 2(c) which uses the phrase “an owner...shall have a right of action for damages occasioned thereby”. He suggested that this means it’s not an action in equity and thus he has a right to jury trial for it. He also found 2 cases from our district where the jury decided the fraudulent lien count. These cases did not hold that was proper but just mentioned it occurred.

Neither side has been able to find a case where there is an actual holding that the fraudulent lien counterclaim must be decided by the court as opposed to the jury or vice versa. Does such a case exist?  Any other suggestions?

Sent from my iPhone

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