Setting Aside Default Judgments Without Excusable Neglect

set aside default final judgment

Occasionally, a client seeks help after a default has been entered against it, and there may be no reasonable basis to vacate the default within the excusable neglect framework. In some cases not all hope is gone, there maybe another tool in the attorney’s toolbox. If the Complaint that serves as the predicate for the default judgment was not well-pled (does … Read more

Failing to Perform Contract Promise is Not Fraudulent Inducement

Florida Law is well settled that a contractual promise not performed is not tantamount to fraud. As a general rule, fraud cannot be predicated upon a mere promise not performed.  Alexander/Davis Properties, Inc. v. Graham, 397 So.2d 699, 706 (Fla. 4th DCA 1981), petition for review denied, 408 So.2d 1093 (Fla. 1981).  Moreover, to cross … Read more

Unjust Enrichment Claims Against Project Owner, Not so Fast.

subcontractor unjust enrichment

When are subcontractor claims against an owner for unjust enrichment appropriate ? In Maloney v. Therm Alum Industries, Corp., 636 So. 2d 767 (FL. 4th DCA 1994), the Court held that a subcontractor could not sue an owner for unjust enrichment unless and until the subcontractor had exhausted its legal remedies against the general contractor with … Read more

Judgment Attaches to Real Property Only After Recordation of Certified Copy of Judgment

final judgment construction attorney

The normal course of action when a Florida Court (or a South Florida Court at least in my experience) enters a final judgment is for the clerk to record such judgment in the Official Records of the same County. However, this action by the Clerk does not cause such judgment to attach to real property of … Read more

Proving Damages for Substantially Completed Construction Projects

subcontractor unjust enrichment

Where a building contractor has substantially performed a contract between the parties, the contractor is entitled to be paid the full contract price diminished only by damages which the owner has suffered as the result of such breaches of the contract as may be established by competent evidence. See Fleming v. URDL’s Waterfall Creation, Inc., … Read more

Construction Law: Qualifier/Qualifying Agreement, Sample Provisions, Florida General Contractor

subcontractor unjust enrichment

(Need a Qualifier Agreement?, Go to our main qualifier agreement page for more infomation, Click Here!) For any contracting business to legally operate in the State of Florida, a qualifying agent must be certified or registered with the Department of Business and Professional Regulation in the category of contracting in which the qualifying agent is … Read more

Oral Modifications to Construction Contracts, Florida Construction Law

Oral Modifications to Construction Contracts, Florida Construction Law Many written contracts between contractors and owners contain provisions to the effect of “all modifications to this contract must be made in writing.” And when litigation invariably arises from  non-payment for modifications that are performed without  being reduced to a written change order, or other writing, a … Read more

Significant Issues Test Applicable to Determine Attorney Fee Entitlement in Lien Foreclosure Actions

Significant Issues Test Applicable to Determine Attorney’s Fees Entitlement Under 713.29, Florida Statute for Lien Foreclosure Actions FRANK J. TRYTEK, et al., Petitioners, vs. GALE INDUSTRIES, INC., etc., Respondent. No. SC07-1641 SUPREME COURT OF FLORIDA 3 So. 3d 1194; 2009 Fla. LEXIS 257; 34 Fla. L. Weekly S 247 ” Trial courts are required to … Read more

Calculating Damages for a Partially Completed Construction Project

As a construction attorney the issue of how to calculate damages comes up often. Generally, a contractor has their own idea on how to calculate its damages, but generally they are not correct. In the case where a contract is substantially completed  , the contract price between the parties will likely govern the value of work … Read more

Preparing Your Construction Claim

While trolling the internet I came across an article that gives advice on how to prepare a construction claim, and preserve evidence and documentation. Here are a few tips. Keep written records.  Although conditionsat Projects may constantly change, make sure you have a process in place to reduce to writing all pertinent facts that affect … Read more

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