In July 2024, Florida’s Fourth District Court of Appeal issued an important decision in Scherf v. Tom Krips Construction, Inc., 390 So. 3d 34 (Fla. 4th DCA 2024), that carries a clear warning for property owners, contractors, and lawyers alike: you cannot sit on a technical defense for years and then deploy it at the last minute if it could have been raised earlier.

The case arose out of a residential construction project in Broward County. The homeowners, Frederick and Lori Scherf, owned property where a new single-family home was built. A contractor, Tom Krips Construction, performed shell construction work worth roughly $220,000. The work was completed, but the contractor was never paid. A construction lien was recorded, and a lien foreclosure lawsuit followed.

What turned this case into an appellate decision was not whether the work was done, or whether money was owed. Instead, the fight centered on procedural defenses under Florida’s Construction Lien Law and, critically, when those defenses were raised.

The heart of the dispute was about “conditions precedent.” Florida’s lien statute requires contractors to comply with certain statutory steps before enforcing a lien, such as serving a Notice to Owner in some circumstances and delivering a Final Contractor’s Affidavit before filing suit. These requirements can be powerful defenses if they are violated. But they must be raised properly and timely.

From the beginning of the case, the property owners took the position that they were not in direct contract with the contractor and therefore that the lien was invalid because no Notice to Owner had been served. That argument was litigated early and consistently.

Years later—more than five years after the case was filed, and after the case had already been set for trial—the homeowners, now with new counsel, attempted to amend their answer to assert a brand-new defense. This time, they argued that even if there was a direct contract, the contractor failed to deliver the required Final Contractor’s Affidavit before filing suit.

The trial court refused to allow the amendment, calling it a “gotcha” tactic. The Fourth District affirmed.

The appellate court’s reasoning is straightforward and important. Florida courts allow amendments to pleadings liberally at the beginning of a case. But that liberality diminishes as a case ages. At some point, fairness and finality matter more than theoretical perfection in pleading.

Here, the proposed new defense was based on facts that were apparent from the very beginning of the case. If the homeowners had raised the contractor’s affidavit issue early, the contractor could have cured the defect within the one-year statute of limitations for lien foreclosure. By waiting until after the statute of limitations had expired, the homeowners would have deprived the contractor of any ability to fix the problem.

That is prejudice, and prejudice is the key test under Florida law.

The court relied heavily on Florida Supreme Court precedent holding that defenses based on curable statutory prerequisites are waived if they are not timely asserted. Courts will not allow a party to lie in wait, allow the clock to run, and then spring a procedural trap that could have been avoided earlier.

The takeaway for property owners is clear. Construction lien defenses can be extremely powerful, but they must be raised early and correctly. A vague denial or a “lack of knowledge” response is not enough. Conditions precedent must be specifically denied, and statutory defects must be identified before the opposing party loses the ability to cure them.

The takeaway for contractors is equally important. Even when a lien appears technically vulnerable, courts are not eager to reward late-stage ambushes. If you have substantially complied with the lien law and the other side failed to timely raise curable defects, you may still be able to enforce your lien.

Finally, the case is a reminder that litigation strategy matters as much as substantive law. Changing theories mid-stream, especially years into a case, is risky. Courts expect consistency and diligence, not gamesmanship.

In short, Scherf v. Tom Krips Construction reinforces a fundamental rule of Florida litigation: the law favors timely, fair notice of defenses, not procedural “gotchas” sprung after the clock has run out.