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Tracy Valente

Wed, Oct 9, 2019 6:37 AM

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

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

BP

Bruce Partington

Wed, Oct 9, 2019 1:19 PM

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@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@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of Tracy Valente
Sent: Wednesday, October 9, 2019 1:37 AM
To: clc-discussion@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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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@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@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Tracy Valente Sent: Wednesday, October 9, 2019 1:37 AM To: clc-discussion@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 _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/clc-discussion

K

KAshby (at) foley.com

Wed, Oct 9, 2019 1:52 PM

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@lists.flabarrpptl.org clc-discussion-bounces@lists.flabarrpptl.org On Behalf Of Tracy Valente
Sent: Wednesday, October 9, 2019 2:37 AM
To: clc-discussion@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

CLC-Discussion mailing list
CLC-Discussion@lists.flabarrpptl.org
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The information contained in this message, including but not limited to any attachments, may be confidential or protected by the attorney-client or work-product privileges. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message and any attachments or copies. Any disclosure, copying, distribution or reliance on the contents of this message or its attachments is strictly prohibited, and may be unlawful. Unintended transmission does not constitute waiver of the attorney-client privilege or any other privilege. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Unless expressly stated otherwise, nothing contained in this message should be construed as a digital or electronic signature, nor is it intended to reflect an intention to make an agreement by electronic means.

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@lists.flabarrpptl.org <clc-discussion-bounces@lists.flabarrpptl.org> On Behalf Of Tracy Valente Sent: Wednesday, October 9, 2019 2:37 AM To: clc-discussion@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 _______________________________________________ CLC-Discussion mailing list CLC-Discussion@lists.flabarrpptl.org https://urldefense.proofpoint.com/v2/url?u=http-3A__mailman.fsr.com_mailman_listinfo_clc-2Ddiscussion&d=DwIGaQ&c=Rlm5WhGmPEr8srpDE4r86Q&r=FM9mUDzhKLYuOCzjcbalZA&m=aolXobmAFzPufyu7_fdmn12HXM9CkQa31n6N2wFj6q0&s=A6q4AZlYYKE6KfvjzS00HF9GsdioQzhoC91hbAyQ3kw&e= The information contained in this message, including but not limited to any attachments, may be confidential or protected by the attorney-client or work-product privileges. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this message in error, please (i) do not read it, (ii) reply to the sender that you received the message in error, and (iii) erase or destroy the message and any attachments or copies. Any disclosure, copying, distribution or reliance on the contents of this message or its attachments is strictly prohibited, and may be unlawful. Unintended transmission does not constitute waiver of the attorney-client privilege or any other privilege. Legal advice contained in the preceding message is solely for the benefit of the Foley & Lardner LLP client(s) represented by the Firm in the particular matter that is the subject of this message, and may not be relied upon by any other party. Unless expressly stated otherwise, nothing contained in this message should be construed as a digital or electronic signature, nor is it intended to reflect an intention to make an agreement by electronic means.