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Case Law Alerts

Competent, Substantial Evidence Is the Name of the Game in Construction Disputes

Q.D.S. Development, Inc. v. National Lining Systems, Inc., 2024 WL 357984 (Fla. 3d DCA Jan. 31, 2024)

April 1, 2024

by Lindsay G. McCormick

It is common in construction disputes between sophisticated parties for the parties to agree to engage in a bench trial, as opposed to a trial by jury. There are a number of reasons to choose this option, such as complicated issues, the belief that the subject is rather dry, and the lack of faith that a jury will follow the intricacies of the arguments and defenses. In any event, it is important to note the impact of proceeding with a bench trial, and a good example of those consequences can be found in the recent case of Q.D.S. Development, Inc. v. National Lining Systems, Inc. First, you must note that in a bench trial, the judge’s findings of fact carry the same weight as that of a verdict from a jury. Second, on appeal from a bench trial, the appellate court can only reverse the judgment if the judge’s findings of fact are not supported by competent, substantial evidence. 

In Q.D.S. Development, there was a dispute involving a liner installed in a pond on a golf course, issues with the work, and the general contractor’s failure to pay final invoices for the liner subcontractor. During a bench trial, the judge entered a judgment in favor of the subcontractor, requiring the general contractor to pay the unpaid invoices, and issued a lengthy order, including findings of fact. The general contractor appealed, arguing the trial court misjudged the situation. The appellate court reviewed the record, but only to determine whether the trial court’s findings were supported by competent, substantial evidence. In doing so, the appellate court is required to “interpret the record and all reasonable inferences and deductions capable of being drawn therefrom in the light most favorable to sustain the trial court’s conclusions.” Thereupon, the appellate court affirmed the trial court’s ruling.

This matter should serve as a reminder that even if you believe you have a good case—with good arguments and good support—the other side likely feels the same way. At the end of the day, there is no guarantee a judge or a jury will agree with you. Appeals are limited in their review, and there is never a guarantee that the judgement will “get it right” in regard to your arguments.  


Case Law Alerts, 2nd Quarter, April 2024 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2024 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.