Nathan is a member of the Professional Liability Department where he focuses his practice on the defense of architects, engineers, owners, developers, general contractors, construction managers, subcontractors and design professionals from claims made against them.
Nathan received his juris doctor from Barry University School of Law. Prior to attending law school, he founded a media company that provided advertising services for local businesses and produced a local magazine that was published quarterly from 2016 to 2021. He received his bachelor's degree from Florida State University as an English major with a minor in Psychology.
In his free time, Nathan enjoys spending time with his wife and daughter as well as cheering on the Magic, Jaguars, and Seminoles.
Nathan is licensed to practice in the state of Florida.
Thought Leadership
Case Law Alerts
3rd District Analyzes Liquidated Damages Provision, Contingency Risk Multiplier in Context of Construction Contract
July 21, 2026
Alan Little and Bath & Kitchen Boutique, LLC (BKB) entered into an agreement wherein BKB would design and renovate Little’s master bathroom. A portion of BKB’s work failed to pass city inspections, after which the parties executed a contract amendment giving BKB additional time to pass final inspection and establishing that BKB would owe Little $1,000 per day for each day it went beyond this additional time. The amendment also contained a provision requiring BKB to pay 100% of Little’s legal fees for preparing the amendment and enforcing it. BKB’s work ultimately passed final inspection 67 days beyond the amendment’s completion date. Little then filed suit against BKB alleging breach of contract and seeking $67,000 in liquidated damages. BKB filed countersuit alleging it was entitled to a judgment declaring the $1,000 per day fine to be an unenforceable penalty, and that Little had breached the agreement by failing to pay BKB for its work. Both parties alleged entitlement to attorneys’ fees based on the fee provision in the amendment, with BKB alleging the provision was reciprocal pursuant to Fla. Stat. 57.105(7). Little obtained the issuance of a $35,000 prejudgment writ of garnishment. BKB moved to dissolve the writ. Two hearings were held on BKB’s motion, but the court never issued final adjudication. Little then filed a notice extending the writ for an additional six months. BKB filed a petition for writ of certiorari challenging the lower court’s discovery order, which was granted. Both parties filed motions for appellate level fees based on the fee provision, and the appeals court then denied Little’s appellate fees motion and conditionally granted BKB’s, provided BKB prevailed in the trial court action and the trial court found the fee provision valid. Both parties then filed competing summary judgment motions in the lower court, which entered partial summary judgment in BKB’s favor, concluding the daily fine was unenforceable. The parties entered a settlement agreement as to BKB’s remaining counterclaim seeking payment for its work, with Little stipulating to BKB’s entitlement to attorney’s fees and costs and requesting an evidentiary hearing to set the amount of fees and costs. A two-day evidentiary hearing was held with the court considering live testimony from BKB’s owner, trial attorney, and fees expert. The court then awarded BKB attorney’s fees for the time spent litigating issues relating to the prejudgment writ of garnishment, at both trial and appellate levels, pursuant to Fla. Stat. 77.032(3) and 57.105(7). It applied a 1.5 contingency risk multiplier. Little then appealed. On appeal, the court analyzed Fla. Stat. 57.105(7), and specifically its use of the language “with respect to the contract,” through the lens of the FL Supreme Court’s opinion in Ham v. Portfolio Recovery Associates, LLC. The Ham court found that even actions that are not “based on” or “pursuant to” the underlying contract may still have a clear and direct relationship so as to fit the statute’s language. Here, the court similarly found there was a clear and direct relationship between the proceedings on Little’s writ and the parties’ contract litigation. However, as to the contingency risk multiplier, the court found that BKB did not offer any direct evidence that, absent availability of a contingency risk multiplier, BKB would have faced substantial difficulty finding an attorney to represent it. BKB merely argued that construction attorneys in the relevant market rarely took on breach of contract actions under a contingency fee. As such, the contingency fee instituted by the trial court was not supported by the requisite evidence and thus improper. The court therefore affirmed the award of costs and fees to BKB, but reversed the application of the contingency risk multiplier to the fees award and remanded for amended judgment consistent with this opinion.
Case Law Alerts
Contractor Prevails on Contractual Risk of Loss Provision
July 21, 2026
Carnaval Home hired Berman Construction to renovate an existing home owned by Carnaval. Their contract set the date of substantial completion at September 4, 2019, and included a risk of loss provision placing risk predominantly on Carnaval. Berman hired subcontractors, including an electrician and project supervisor, to carry out the renovations. On July 29, 2019, with renovation 90% complete, a fire destroyed the home. Carnaval then sued Berman for breach of contract, negligence, and violation of Florida building code. Carnaval based its breach of contract theory primarily on Berman failing to deliver the renovated property by substantial completion. At trial, Carnaval presented evidence that faulty attic wiring caused the fire, while Berman claimed it was caused by arson or another cause beyond its control. During the charge conference, Berman requested a question on the verdict form regarding the risk of loss provision and its other defenses of impossibility of performance and frustration of purpose. The trial court granted a directed verdict on impossibility of performance and frustration of purpose, holding the risk of loss provision eliminated those defenses, and also denied Berman’s request for the risk of loss question on the verdict form. The verdict form ultimately included questions regarding the breach, negligence, and code violation claims. Its questions regarding the breach claim included the following: whether Carnaval did what was required by contract; whether Carnaval was excused from doing what was required by contract; whether Berman failed to do what was required by contract; and whether Carnaval was damaged by Berman’s failure to perform. The jury found Berman was not negligent but did violate the building code and breach its contract, though the code violation did not cause Carnaval’s damages. Carnaval was awarded $928,850 pursuant to the breach claim. The trial court denied Berman’s post-trial motions and granted Carnaval’s motion for attorneys fees. On appeal, the 4th DCA noted that Carnaval presented evidence that the fire occurred the day electrical work was completed and power was restored to the house for the first time since construction began, when the home was under the exclusive control of Berman and its subcontractors. It presented testimony from the carpenter that the kitchen and family room lights went out while he was at the property that evening, which was also corroborated by Carnaval principal Luis Ormo. It presented expert testimony that the fire likely started in the attic and was not a result of arson. Berman offered testimony that traces of gas were detected along with unusual burn patterns and heat deformation at the bottom of door frames. Its expert testified that the fire had multiple points of origin. Berman established the home was engulfed in flames emanating from the roof within twenty minutes of Carnaval leaving the property and argued the fire could not have moved so fast absent arson. It further suggested the electrician and Ormo had separate dealings in violation of their subcontract, thus some of the electrician’s conduct was beyond Berman’s control. The 4th DCA held Berman’s claim of inconsistency between the negligence, building code violation, and breach jury verdicts was to be remedied by a new trial, not directed verdict, and further held that it did not have to decide whether the verdict was truly inconsistent as Berman did not raise this issue before the jury was discharged and did not seek the appropriate remedy of a new trial. As such, it held the trial court was correct in denying Berman’s motion for directed verdict. However, the court held that the trial court erred in denying Berman’s special interrogatory request as to the risk of loss provision. It explained that, where interrogatory verdict forms are used, it should include questions on both the plaintiff’s claims and any affirmative defenses. Without allowing a question regarding whether the risk of loss provision excused Berman from performance, the trial court did not resolve “the major question in the case.” The jury, having found Berman not negligent, made Berman’s defense, and the verdict form question, particularly significant. The court rejected Carnaval’s argument that Berman had waived its demand for arson-specific instructions and that Berman bore the risk of loss from non-arson-induced fires. It also held that Carnaval incorrectly applied the negative-implication canon, wherein the express mention of one thing implies the exclusion of another, stating not every positive statement of rights or obligations carries a negative implication. Further, the risk of loss provision’s clause including “perils beyond contractor’s reasonable control” amounted to a catch-all, to which the negative-implication canon cannot be applied. When read in totality, the provision clearly places risk of loss on Carnaval for perils such as arson. Berman was therefore entitled to have the jury decide whether the loss was caused by arson or another peril beyond its control. Final judgment in favor of Carnaval was reversed, as was the trial court’s order denying Berman’s motion for attorneys fees, and the matter was remanded for a new trial.
