This month Bernhard Law Firm successfully got his client a 99%+ reduction in damages in defense of a $500K Miami medical center construction lawsuit for breach of contract and unjust enrichment. See Miami Circuit Civil 2017-2809-CA. (Florida Bar disclaimer: results may not be typical. You may not have as beneficial a result, or same or similar results). If you have questions about construction litigation, medical zoning and buildout, and trial in construction disputes, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

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Bernhard Law Firm was engaged as emergency trial counsel first chair, when the Court ordered trial within two months. Bernhard Law Firm’s client was sued for her ownership of the medical center real estate, on which a former spouse had allegedly constructed a medical center without Bernhard Law Firm’s client’s knowledge or consent. Bernhard Law Firm successfully argued that marriage is not indentured servitude, and Bernhard Law Firm’s client could not liable for her ex-husband’s bad business with Plaintiff. Bernhard Law Firm successfully showed its client had no knowledge, involvement, agreement, or benefit from the construction project. § 689.11, Fla. Stat. (2023) (“the requirement that husband and wife join”); § 708.08, Fla. Stat. (2023) (“Married women’s rights”); § 725.01, Fla. Stat. (2023) (statute of frauds and lack of written signed agreement for “promise to pay another’s debt”); Riba v. Pila, 543 So. 2d 429, 430–31 (Fla. 1989) (holding the wife’s oral promise to pay husband’s debts was unenforceable under statute of frauds and for lack of consideration, and there was no competent evidence to support the finding the wife was a direct obligor on husband’s two loans); Juliana, Inc. v. Salzman, 181 So. 2d 3, 4 (Fla. 3d DCA 1965) (promises to pay the debt of another must be in writing and signed); In re Irizarry, 2012 WL 592886, at *3 (M.D. Fla. Feb. 17, 2012) (spouses incur debts separately).

Additionally, Bernhard Law Firm showed that the Plaintiff’s complaint was frivolous because:

1. Plaintiff testified that it had no contract with Bernhard Law Firm’s client whatsoever, made no offers to Bernhard Law Firm’s client, accepted no offers from the client, had no power-of-attorney as to the client, communicated no terms to the client, and only sought negotiation or contract with the ex-spouse alone.[1]
2. Plaintiff testified that it never had any lease whatsoever; that its proposed terms for a written contract for buildout and medical facility partnership were rejected by the ex-spouse;[2] and that even the purported oral discussions of an arrangement lacked the material terms to create an oral contract, including for an exact amount of money in expenses or reimbursement, any specific duration/term, and consideration for repayment by the ex-spouse to Plaintiff—thus, none of the parties had a contract, a breach, or damages caused by that breach.[3]
3. Plaintiff testified that it never had any communication with Bernhard Law Firm’s client as to the lease or buildout of the property, and thus did not have an agreement, a breach, or causation of damages by the clien.[4]
4. Plaintiff testified that it finished its buildout of the property by July 2012 without any written contract or payment, and thus any claim for failure to pay for that buildout became time-barred in July 2016 (almost a year before this lawsuit was filed in 2013).[5]
5. Plaintiff testified that it received office space for two years from which Plaintiff ran myriad businesses for at least four hours per day, and from which Plaintiff ran its own medical facility in exchange for any purported refurbishing of the commercial space at issue, which legally vitiated an unjust enrichment claim given “value in exchange” for the refurbishing.[6]
6. Plaintiff testified that its purported oral agreements at issue contemplated performance for more than one year, barring their enforcement given lack of signed writing.[7]
7. Plaintiff testified that it never had any communication with Bernhard Law Firm’s client as to the lease or buildout of the property, and thus did not confer a benefit directly to the client, could not show that the client had knowledge of any benefit alleged, and most certainly could not show that the client voluntarily accepted and retained any purported benefit from Plaintiff.[8]
8. Plaintiff’s testimony shows that it had no communications with Bernhard Law Firm’s client, and in fact took no steps to get any agreements in writing, pursue relief with the client, or even notify the client of its purported work—Plaintiff assumed the risk for its bad business decisions, and thus the circumstances were such that it would be inequitable to allow a claim against Bernhard Law Firm’s client. [9]
9. Plaintiff testified that it never had any actual lease at the property, and thus Plaintiff could not show contract consideration or benefit conferred to sustain Plaintiff’s claims.[10]
10. Plaintiff testified that it understood Bernhard Law Firm’s client’s divorce settlement agreement to mean that the clien did not receive any benefit from Plaintiff’s purported buildout or tenancy, did not retain any benefit purportedly conferred by Plaintiff to the ex-spouse, and thus the circumstances show no inequality for Plaintiff as to Bernhard Law Firm’s client.[11]

Based on these fatal deficiencies in Plaintiff’s action, Bernhard Law Firm was able to leverage a 99%+ reduction in damages as to its client. Dictiomatic, Inc. v. U.S. Fid. & Guar. Co., 127 F. Supp. 2d 1239, 1245–46 (S.D. Fla. 1999) (holding plaintiff and its attorney were liable for defendant’s attorney’s fees and costs for frivolous lawsuit, calculated from filing of the complaint, even though plaintiff had managed to avoid dismissal and summary judgment); Aspen Air Conditioning, Inc. v. Safeco Ins. Co. of Am., 170 So. 3d 892, 896–97 (Fla. 3d DCA 2015) (granting fees for frivolous claim, where either action was without merit, contradicted by overwhelming evidence, undertaken to prolong resolution or harass, or asserted material factual statements that were false);  Suarez v. Bank of New York Mellon Trust Co., 325 So. 3d 205, 209 (Fla. 2d DCA 2021) (awarding fees for frivolous motion).

If you have questions about construction litigation, medical zoning and buildout, and trial in construction disputes, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

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[1] Winter Haven Citrus Growers Ass’n v. Campbell & Sons Fruit Co., 773 So. 2d 96, 97 (Fla. 2d DCA 2000) (no oral contract, mutual assent is absolute condition precedent to formation contract).

[2] Plaintiff testified that the ex-spouse reviewed the proposed written agreement and rejected it without signing. Juliana, Inc. v. Salzman, 181 So. 2d 3, 4 (Fla. 3d DCA 1965) (holding alleged guaranty, which was proposed and rejected prior to execution of notes, was not enforceable).

[3] Winter Haven at 97 (holding plaintiff “failed to prove the existence of an enforceable oral contract because it failed to provde that it and [defendant] had agreed upon such material terms as the amount of [product] to be packed and the time for performance.”); Metropolitan Dade Cnty. v. Estate of Hernandez, 591 So. 2d 1124, 1124 (Fla. 3d DCA 1992) (no oral contract given failure to establish all material terms in settlement); Sorocka v. Severe, 858 So. 2d 388, 389 (Fla. 3d DCA 2003) (same).

[4] Id.

[5] § 95.11(3), Fla. Stat. (2023) (requiring oral contracts and unjust enrichment to be brought within four years of accrual); Merle Wood & Assocs., Inc. v. Trinity Yachts, LLC, 857 F. Supp. 2d 1294, 1308 (S.D. Fla. 2012) (holding claims for oral contract and unjust enrichment time-barred, with accrual when plaintiff allegedly conferred a benefit).

[6] Fineman v. Ferragamo USA Inc., 2023 WL 3778264, *6 (S.D. Fla. May 12, 2023) (“it is not inequitable for a defendant to retain payment when the defendant “gave value in exchange” for the payment.”).

[7] § 725.01, Fla. Stat. (2023); LaRue v. Kalex Const. and Dev., Inc., 97 So. 3d 251, 253 (Fla. 3d DCA 2012) (oral claim unenforceable, as statute of frauds was enacted to prevent the enforcement of claims based on loose verbal statements made faulty by the lapse of time).

[8] Pincus v. Am. Traffic Sols., Inc., 333 So. 3d 1095, 1097 (Fla. 2022) (holding plaintiff failed to establish defendant’s acceptance and retention of fee, or inequitable nature of retention, as required to state claim for unjust enrichment).

[9] This fulfills the doctrines of avoidable consequences, assumption of risk, and failure to mitigate damages. See Banks v. Salina, 413 So. 2d 851, 853 (Fla. 4th DCA 1982) (doctrine of avoidable consequences required plaintiff to mitigate damages and protect self).

[10] Smith v. Locklear, 906 So. 2d 1273, 1274 (Fla. 5th DCA 2005) (holding contract unenforceable for lack of consideration and lack of sufficient specificity for enforcement, as “providing past services rendered without the expectation of compensation is not adequate consideration to support a contract.”).

[11] Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331–33 (Fla. 5th DCA 2007) (unjust enrichment claim failed where plaintiff real estate development investor did not confer a direct benefit on particular defendant, and where investments occurred before agreement was entered);  Murphy v. Pankauski, 357 So. 3d 149, 152 (Fla. 4th DCA 2023) (holding plaintiff’s unjust enrichment claim failed given failure to show specific defendant was unjustly enriched).