In short: A Florida construction lien is fraudulent only when the lienor willfully exaggerated the amount, included work it did not perform, or compiled the lien with such gross negligence that it amounts to willful exaggeration; a minor mistake or a good-faith dispute over the amount is not enough. In Cherry Bomb Electric, Inc. v. Tomahawk Drive Associates, LLC, an electrical contractor argued the trial court found its liens fraudulent just because they were overstated. The Fifth District affirmed the judgment for the property owner without a written opinion on January 28, 2020.
The Facts
This summary comes from the oral argument, because the court issued no opinion. Facts are what the parties argued or described from the record, not findings by the appellate court.
Cherry Bomb Electric did electrical work under several contracts for Tomahawk Drive Associates, which does business as Beachside Storage & Business Park in Brevard County. The relationship ended in August 2010 in a payment dispute. On September 29, 2010, Cherry Bomb recorded five claims of lien, prepared by a board-certified construction lawyer from invoices Cherry Bomb supplied. That lawyer wrote to Cherry Bomb the same day questioning whether it had really received no payments.
Cherry Bomb sued to foreclose the liens and for breach of contract. Tomahawk defended and counterclaimed that the liens were fraudulent. Years into the case, after a motion to compel, Cherry Bomb served new interrogatory answers in 2016 that reduced several lien amounts, dropped one lien entirely, and admitted a payment had been misapplied. The trial court granted summary judgment that two of the liens were fraudulent and, after a three-day bench trial, entered final judgment for Tomahawk. Cherry Bomb appealed (No. 5D18-3799). At argument:
- Cherry Bomb argued the trial court applied the wrong legal standard. It said section 713.31 requires willful exaggeration, or gross negligence amounting to willful exaggeration, and that the court found only that the liens were overstated and grossly negligent. Its counsel said the words “willful exaggeration” do not appear in the final judgment.
- It argued it relied on its lawyer, who testified he would not have recorded the liens without enough information and still stood by his numbers at trial in 2018, and that no lien included work it did not do.
- Tomahawk argued the problems were not math errors. It said lien amounts rested on duplicate invoices, Cherry Bomb’s explanation of which invoices supported each lien changed over the years, and it ignored its lawyer’s request to check its numbers. It pointed to the final judgment’s credibility findings and its statement that one invoice was at best poor recordkeeping and at worst created in anticipation of the lawsuit.
- Judges asked why Cherry Bomb did not correct the liens within the 90-day window after its own lawyer raised the payment question, and noted the gap between an earlier demand of about $17,000 and liens totaling about $22,000. Others asked whether the summary judgment rested on anything beyond the size of the overstatement.
The Decision
The Fifth District affirmed per curiam on January 28, 2020, without a written opinion, and the mandate issued February 18, 2020. The judgment for Tomahawk stands.
A per curiam affirmance does not tell us whether the court found the trial court applied the right standard, found the error harmless, or found the issue unpreserved. Tomahawk argued at the hearing that any error would not change the outcome, and the panel asked whether a defect in the form of the final judgment had to be raised on rehearing first. The case sets no precedent on what findings section 713.31 requires.
The Law
Under section 713.31(2)(a), a lien is fraudulent if the lienor willfully exaggerated the amount claimed, included a claim for work not performed or materials not furnished, or compiled the claim with such willful and gross negligence as to amount to a willful exaggeration.
Under section 713.31(2)(b), a fraudulent lien is a complete defense to an action to enforce it, and the lien is unenforceable. The same subsection says a minor mistake or error in a claim of lien, or a good-faith dispute as to the amount due, does not by itself make a lien fraudulent. That line between an honest accounting error and gross negligence amounting to willfulness was the heart of this appeal.
Under section 713.31(2)(c), an owner hurt by a fraudulent lien can sue for damages, the prevailing party can recover attorney’s fees and costs, and punitive damages are possible. Section 713.31(3) makes willfully filing a fraudulent lien a third-degree felony.
Current law (2026): two of the liens here were found fraudulent on summary judgment under the old version of rule 1.510. Since May 1, 2021, Florida follows the federal summary judgment standard. Whether a lienor acted willfully is usually a fact question, so summary judgment on a fraudulent lien claim still requires that the record leave no genuine dispute on that point.
Lessons
- Check every number before a lien is recorded. Match each invoice to the work and each payment to the right job. Duplicate invoices and misapplied payments are what turned this dispute into a fraudulent lien case.
- Relying on your lawyer helps only if you gave the lawyer accurate information. When your own lawyer questions the numbers, answer and correct them promptly.
- If a lien is wrong, fix it early. Amending years later, after a motion to compel, looks like concealment, not an honest mistake.
- If you are appealing a fraudulent lien finding, ask the trial court for specific findings on willfulness and raise any gap in a motion for rehearing.
- A fraudulent lien can cost a contractor the lien, the contract claim it secured, and the owner’s attorney’s fees.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
💼 Willful Exaggeration or Just Gross Negligence? Florida's §713.31 Fraudulent Lien Standard
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- Contractor's Lien Found Late and Fraudulent After a Driveway Dispute (Gregan v. Arencibia)
- Fraudulent Construction Lien and FDUTPA Claims on Appeal (Riverfront v. Wisenbaker)
- Unlicensed Contractor's Lien and a Sanctions Award Reversed (MacAlister v. Bevis)
Frequently Asked Questions
What makes a construction lien fraudulent in Florida?
Under section 713.31, a lien is fraudulent if the lienor willfully exaggerated the amount, claimed work or materials it did not provide, or prepared the lien with gross negligence amounting to willful exaggeration. In Cherry Bomb Electric, the trial court’s fraudulent lien judgment against the contractor was affirmed without an opinion.
Is an overstated lien automatically fraudulent?
No. Section 713.31 says a minor mistake or a good-faith dispute over the amount due is not willful exaggeration. The contractor in Cherry Bomb argued its liens were found fraudulent only because they were overstated, but the Fifth District affirmed, so the argument did not succeed in that case.
What happens if a contractor files a fraudulent lien?
The lien is unenforceable and is a complete defense to the contractor’s foreclosure action. The owner can recover damages and attorney’s fees, punitive damages may be available, and willfully filing a fraudulent lien is a third-degree felony under section 713.31(3).
Can I rely on my lawyer to prepare my claim of lien?
Advice of counsel can matter in deciding whether an error was willful, but the lawyer can only work with the invoices and payment records you provide. In Cherry Bomb, the contractor relied on its lawyer, yet the owner argued the invoices themselves were wrong and the contractor ignored the lawyer’s request to check them.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
