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

[KAshby at foley.com]

There is an argument that the factual issue of intent and "willfulness" is one for the finder of fact.

Gator Boring & Trenching, Inc. v. Westra Constr. Corp., 210 So.3d 175 (Fla. App., 2016)

Kimberly A. Ashby
Foley & Lardner LLP
111 North Orange Avenue
Orlando, Florida 32801
D. 407-244-3265  c. 407-619-3492

-----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 2:37 AM
To: clc-discussion at lists.flabarrpptl.org
Subject: [CLC-Discussion] Can Fraudulent Lien be heard by jury?

** EXTERNAL EMAIL MESSAGE **

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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