The owner in this case raised the “gotcha” argument, that being that the lienor extinguished its rights to pursue the unjust enrichment claim because it did not timely foreclose on the lien.
Just because a party does not pursue its lien rights, or waives it lien rights, or satisfies its lien, does NOT mean the party is foreclosed of its other rights, such as breach of contract or unjust enrichment. Florida’s Construction Lien Law even states that it is “cumulative to other existing remedies and nothing contained in this party shall be construed to prevent any lien or assignee under any contract from maintaining an action thereon at law in like manner as if he or she had no lien for the security of his or her debt, and the bringing of such action shall not prejudice his or her rights under this part, except as herein otherwise expressly provided.” See Fla. Stat. s. 713.30.
Mr. Adelstein may be contacted at dma@kirwinnorris.com