Articles Posted in Breach of Contract

504018046-300x200On June 11, Brick Business Law prevailed in the final hearing in a case involving claims of conversion, breach of implied in fact contract and civil theft pursuant to Fla. Stat. 772.11.   Brick represented a national seller of home environmental products which had a long-standing relationship with a vendor for the storage and transportation of its marketing materials.  After the termination of the arrangement, the vendor failed to return the subject property.  Brick’s client made multiple attempts to get its property, but the Vendor refused.  Brick sent the required civil theft demand letter to the future defendant; however, the vendor persisted in refusing to return the property, claiming it was not owned by Brick’s client.  Thereafter, the lawsuit was filed in Hillsborough County Circuit Court.

Florida Statute 772.11 is known as Florida’s Civil Theft Statute.  It carries a higher burden of proof, requiring the Plaintiff to prove the case by a “clear and convincing evidence” standard rather than the “greater weight of the evidence” standard that is prevalent in most civil cases.  The statute permits a Plaintiff that proves that he is the victim of civil theft to recover triple actual damages, attorney’s fees and costs.  However, there is a significant strategic consideration required prior to filing a civil theft claim because if the Plaintiff is unable to prove that his evidence meets the heightened burden, he can be liable for the Defendant’s attorney’s fees and costs.  Despite the risk, Brick pursued the Defendant for statutory civil theft damages.The Court found that Brick’s client’s evidence met the standard required to obtain triple damages, plus attorney’s fees and costs, ultimately rewarding Brick’s client the full amount of damages requested. law-education-series-2-1467427-300x225

Brick Business Law focuses its practice on Florida litigation of business issues.  The firm litigates cases related to the protection and prosecution of business’ interests in regard to breach of contract, civil theft, collections, real estate, consumer, employment and other related issues.  The Firm offers a free initial consultation, which can be arranged by calling the Firm’s main phone number at 813-816-1816 or by visiting the contact page on the Firm’s website.

In the case of Reitz v. Lopez, in the Circuit Court of Hillsborough County in Tampa, Florida, Brick Business Law won a final judgment for the Plaintiff for approximately $100,000 in a hearing held in March, 2018.

law-education-series-2-1467427-300x225The case involved a business dispute whereby the Defendant entered into an oral agreement with Brick’s client to share profits from a proposed internet venture and to pay the Plaintiff wages for the time he spent on the venture.  The Parties worked together for several months during which the Defendant utilized the personal credit accounts of the Plaintiff to run up a substantial debt, supposedly for the benefit of the joint venture, and eventually left the Plaintiff to pay it. The Defendant also stopped paying the Plaintiff his agreed-upon wages for the work he performed for the joint venture.  The Plaintiff was left with tens of thousands of dollars in unpaid credit card debt and several months of unpaid wages.  There was no written agreement in place between the parties and much of the business arrangement was established through various online chats using different usernames over several months.  Despite the significant challenges presented by the lack of a formal business agreement (or even actual conversations between the parties), Brick filed suit against the Defendant for a breach of an implied contract, conversion, civil theft, unjust enrichment and unpaid wages.

The Court ultimately found in favor of the Plaintiff on all counts and also awarded attorney’s fees and costs of the case to Brick’s client.  Additionally, the Court found that Brick’s presentation of evidence satisfied the applicable “clear and convincing evidence” standard under Florida’s Civil Theft Statute.  As such, the Court ordered the Defendant to pay Brick’s client trebled (triple) his actual damages under the civil theft count.

Court-Image-300x200On January 15, 2018, Brick Business Law won a summary judgment motion for approximately $75,000 on behalf of the Plaintiff in the case of Lozon v. FFR Global Inc., et al.  The damages awarded included approximately $10,000 in attorney’s fees and costs.

The case involved a business financing arrangement between a Colorado distributor and a Florida supplier.  The complex structure applied credits, set-offs, interest and payments on inventory shipments to an underlying promissory note entered between the parties.  The founder of the Defendant corporation dissolved the company without repaying the amounts owed pursuant to the financing arrangement.  Brick Business Law sued the dissolved corporation as well as the founder, seeking to pierce the corporate veil, and a guarantor.  The corporation and the founder eventually filed bankruptcy, leaving the guarantor as the sole source of recovery for Brick Business Law’s client.

The guarantor disputed numerous factual contentions of the Plaintiff, including, most specifically, the calculations used to arrive at the claimed damages figures.  Over strenuous argument from the Defendant at the hearing on the Plaintiff’s Motion for Summary Final Judgment, Brick Business Law was able to persuade the Court that there was no genuine issue of material fact and that its client was entitled to the full amount of claimed damages, pre- and post-interest judgment at the highest rate allowable by law, attorney’s fees and costs.   The Court agreed and entered the judgment.

gavel-1238036-300x201A deposition is a discovery tool used by attorneys to compel witnesses and opposing parties to answer questions under oath.  Generally, they should be used for three purposes: to gather information, to gain admissions and to test out theories of the case.  As a former prosecutor and a business litigator, I have had the opportunity to witness attorneys who were very skilled at taking depositions, but most were not.  When an attorney takes a great deposition, the case and facts become more clear and, as a result, a favorable and faster outcome is likely to occur.  In the best circumstances, the deposition of a party opponent or a key witness is often where the opposing party sees their case fall apart.  This occurs if an attorney’s deposition reveals useful information, gains admissions and successfully undermines (or bolsters) a witness’ credibility as well as the attorney’s theory of the case.

law-education-series-2-1467427-300x225I recently had a business contracts case where we represented a business seeking recourse for the breach of a business contract.  The defendant’s main defense was that it was a third party who signed the contract, not the defendant.  Throughout the course of the deposition, I gained a number of admissions from the defendant which (a) undermined the factual credibility of her defenses; and, (b) gained testimony which supported one of our alternate theories of the case – that the third party had her authority to execute the document on her behalf and that it was reasonable for my client to rely upon this apparent authority; and, (c) gained information about the existence of other documents which supported my client’s positions.  The case settled at the deposition table for full damages plus my client’s attorney’s fees, due to the fact that the opposing party realized in the deposition that we were very likely to win at trial.

The groundwork for making a deposition successful is laid long before the day of the deposition.  Here are some deposition preparation practices which have helped me have success on the day of the deposition:

Appearing before the Circuit Court in Pasco County, Attorney Kevin Brick argued for and obtained a judgment and an attorney’s fees award on behalf of his clients in a Florida Deceptive and Unfair Trade Practices Act case in February, 2017.  The case involved a corporate and an individual defendant who wrongly held themselves out as licensed contractors able to perform certain home improvement construction projects, which were left uncompleted in 2016 after the contractors had been paid.  Brick’s clients were then left to hire other contractors, at a higher cost, to complete the job.

At the hearing, Brick argued for – and won – an award of the higher costs paid to the other contractors as compensatory damages.  Although the Defendants argued against the higher damages award, the Court agreed that the higher additional expenses incurred were a direct result of the Defendant’s breach of the contract.  law-order-1240301-300x225The main issue in the case was a breach of contract, but Attorney Brick also sued the defendants under a statutory cause of action under the Florida Deceptive and Unfair Trade Practices Act (or “FDUTPA”) due to the deception used by the Defendants.

Under FDUTPA, anyone who is damaged by a deceptive act or unfair practice in furtherance of a trade or business is entitled to be protected under the Statute.  Florida case law provides that, even if the breach of the contract and the deceptive act were one and the same, plaintiffs can still proceed under both causes of action so long as the breach is also a deceptive act.  The damages under both causes of action were cumulative; however, suing under the statute allowed for Attorney Brick to argue for and obtain an additional award of attorney’s fees and costs, which would not have been available under the terms of the contract.

contract-1426885Generally, for a person to recover damages under a theory of breach of contract, that person has to prove that the other party committed a “material” breach of a contract causing damages to the plaintiff.  Normally, a failure to perform a certain important task before a required contractual deadline would constitute a material breach if the contract states that “time is of the essence”.  However, many people write their own contracts without the assistance of a lawyer or have no written contract at all.  The result is that the contract may not contain the necessary terms to establish that time is of the essence or the contract does not state a time for completion of performance by the other person.

So what happens if performance does not occur for a long time but there is no deadline in the contract?  Can the non-performing party be held in breach?

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