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Holding the Construction Lender Liable

February 18, 2011 Construction Industry Legal Blog

By: Harry M. Wilson, IV, Esq. and James D. Stone, III

In these tough economic times many construction liens are often erased by superior mortgages, such as when the lender forecloses on the property. In the past this would often lead to the lienor being left without a way to collect if the project owner was insolvent. Florida Statute §713.3471 and a recent ruling in Whitehead v. Tyndall Federal Credit Union has, however, provided another avenue for a lienor to recover costs. To read more click the title. . .

Protection From False Claims Act in Construction

November 10, 2010 Construction Industry Legal Blog

By Harry M. Wilson IV, Esq. and James D. Stone III

The False Claims Act (FCA) dates back to 1863 and was originally intended to fight fraud by defense contractors. The large majority of the cases filed over the past few years have involved medical and pharmaceutical claims. However, with the recent changes in the FCA lowering the standards needed to file suit and the increase in federally funded spending on construction projects there is a strong possibility of increased FCA claims in the construction industry by current and former disgruntled employees. With the increased possibility for these FCA claims the best way to protect your business is to first understand the basics of the FCA and then to establish a good compliance system.

Pleading Unjust Enrichment in Construction Litigation

September 15, 2010 Construction Industry Legal Blog

By: Emily C. Williams, Esq.

The theory of recovery known unjust enrichment is often used by attorneys in construction litigation actions as an alternative count to claims for breach of contract or for foreclosure of a construction lien. It is not uncommon, however, for unjust enrichment claims to be improperly pled in the complaint, which will often lead to a misguided legal analysis. This, of course, can negatively affect your client’s case at the earliest stage of the dispute.

Unjust enrichment is often referred to as a contract implied in law; however, it is not a contract at all. The theory of unjust enrichment is a legal fiction defined as “an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended.” Tipper v. Great Lakes Chemical Company, 281 So.2d 10, 13 (Fla. 1973). Unlike quantum meruit, unjust enrichment does not require an assent between the parties. Quantum meruit is premised on the expectation of the parties, while unjust enrichment is supported by the interest of society in the prevention of injustice.

One must prove the following elements to recover under the theory of unjust enrichment: 1) lack of an adequate remedy at law; 2) a benefit conferred upon the defendant by the plaintiff coupled with the defendant’s appreciation of the benefit; and 3) acceptance and retention of the benefit under circumstances that make it inequitable for him or her to do so without paying the value of it. Challenge Air Transport, Inc. v. Tranportes Aeros Nacionales, 520 So.2d 323 (Fla. 3d DCA 1988). As this post will reveal, each of these elements present peculiar issues and analytical challenges for the legal practitioner.

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