02 September

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You cannot Profit from Your Own Illegality

Remember this adage: You cannot profit from your own illegality. In a recent case, parties entered into a promissory note for the repayment of gambling debts. Naturally, the promissory note was not repaid and a lawsuit on the note was initiated. However, the promissory note was illegal as a matter of law and parties cannot ratify an otherwise illegal transaction: [Florida Statute] Section 849.26 provides that “[a]ll promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities . . . for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being...

24 April

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Reminder: Not Every Breach is a Material Breach of Contract

Posted by David Adelstein

in Trial Perspectives

This is a short reminder. Not every breach of contract is a material breach. That's right - a breach can be a minor or technical breach that does not actually go to the essence of the contract. If it does not go to the essence of the contract, then how can it be a material breach? It cannot. This is important because you do not want to make strategic decisions on a breach that is not regarded a material breach. “To constitute a vital or material breach, a party's nonperformance must ‘go to the essence of the contract.’ A party's ‘failure...

19 December

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Just because You Recovered an Affirmative Judgment does NOT Mean you Are the Prevailing Party for Purposes of Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

The prevailing party in a litigation for purposes of being awarded attorney's fees is NOT determined by how the money flows at the conclusion of the litigation. In other words, just because you recovered an affirmative judgment does NOT mean you are the prevailing party for purposes of being entitled to attorney's fees. See Skylink Jets, Inc. v. Klukan, 45 Fla.L.Weekly D2829a (Fla. 4th DCA 2020). To be the prevailing party for purposes of being entitled to attorney's fees, a party must have prevailed on the significant issues in the litigation. Id. And a trial court has broad discretion to...

20 June

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Statute of Limitations Accrual for Breach of Contract

Posted by David Adelstein

in Trial Perspectives

A claim must be filed within the applicable statute of limitations. A person or entity that believes they have a claim needs to consult with counsel regarding the statute of limitations associated with their claim. A claim filed outside of the statute of limitations is time-barred. This should be avoided in all circumstances. A key is always when does the statute of limitations accrue with respect to a claim. Accrual is tied to when the last element of a cause of action occurs. See Fla. Stat. s. 95.031. The time starts to tick when a claim accrues. When it comes to a...

28 March

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A Misrepresentation is Not the Same as a Breach of Contract

Posted by David Adelstein

in Trial Perspectives

A claim based on a misrepresentation is NOT the same as a claim based on a breach of contract. Two notes to self one must consider before throwing a misrepresentation-type claim into the fray: First note to self: when pleading a claim based on a misrepresentation, whether fraudulent misrepresentation, fraudulent inducement, or negligent misrepresentation, it is imperative to plead those misrepresentations with specificity. See Fla. R. Civ. P. 1.120. Second note to self: a fraud claim is NOT a replacement to a breach of contract claim. “It is well settled that a party may not recover damages for both breach of contract...

08 September

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You Can’t Sue Someone for Unjust Enrichment when there is a Contract

Posted by David Adelstein

in Trial Perspectives

You cannot sue someone for unjust enrichment (or quantum meruit) if there is a contract between the parties. You can sue them for breach of contract; but you cannot try to circumvent the parameters of the contract by suing them for unjust enrichment (an equitable quasi-contract theory of liability). For example, in Sterling Breeze Owners' Association, Inc. v. New Sterling Resorts, LLC, 43 Fla.L.Weekly D2040c (Fla. 1st DCA 2018), a condominium association sued the developer for, among other claims, unjust enrichment. The claim stemmed from the fact that the developer (in developing the condominium) reserved in the condominium documents ground...

25 November

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Trial Court’s Responsibility is NOT to Rewrite a Contract

Posted by David Adelstein

in Appeal

Many business disputes involve the interpretation and the application of a contract. This is because business transactions typically involve a contractual relationship governing the rights, liabilities, risks, and recourse relating to the transaction. When there is a dispute regarding the transaction, this gives rise to a breach of contract claim. It is important to understand that a trial court’s responsibility is NOT to rewrite the terms of a contract so that the risks are allocated differently. As explained: [C]ourts are ‘powerless to rewrite [a] contract to make it more reasonable or advantageous to one of the parties…or to substitute [their] judgments for...

17 November

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What Constitutes an Enforceable Contract?

Posted by David Adelstein

in Appeal

An enforceable or valid contract requires an offer, acceptance of that offer, consideration, and sufficient specification of material terms. Jericho All-Weather Opportunity Fund, LP v. Pier Seventeen Marina, 41 Fla. L. Weekly D2565a (Fla. 4th DCA 2016). Whether a contract actually constitutes an enforceable contract is subject to a de novo standard of appellate review; this is the same appellate standard of review pertaining to an appeal of a trial court’s interpretation of a contract. See id. The case in Jericho All-Weather Opportunity Fund exemplifies a party suing on the wrong contract and, thus, an appellate court reversing a judgment in...

03 November

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Prevailing Party for Purposes of Attorney’s Fees in Breach of Contract Claims

Posted by David Adelstein

in Trial Perspectives

To be entitled to attorney’s fees, there needs to be a contractual or statutory basis to recover attorney’s fees (absent serving a proposal for settlement). There is oftentimes the misconception in breach of contract cases that the party that recovers a positive net judgment will automatically recover their attorney’s fees. While, certainly, sometimes this is the case, this is NOT what you should be banking on. The law has tried to progress to a point where it does not want certain cases to be driven solely by the prospect of recovering attorney’s fees just because you won $1. The Florida Supreme Court in Moritz v....