Articles Posted in Breach of Contract

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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