FORT LAUDERDALE BUSINESS LITIGATION: CONTRACT REMEDIES

Breach of contract is a common cause of action in business disputes. When deciding whether to file a lawsuit for breach of contract, one must determine the remedies are available for the particular breach of contract in question. Florida law allows remedies for damages, restitution, and specific performance. Ocean Commc’ns, Inc. v. Bubeck, 956 So. 2d 1222 (Fla. 4th DCA 2007). A plaintiff should carefully consider the potential remedies before lodging the lawsuit to obtain the best possible recovery. The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A party may maintain an action at law for breach of contract to recover damages. The typical measure of damages in Florida is expectancy damages. See Capitol Environmental Servs., Inc. v. Earth Tech, Inc., 25 So. 3d 593 (Fla. 1st DCA 2009). Expectancy damages are “monetary damages that will put [the injured party] in the same position it would have been had the other party not breached the contract.” In other words, expectancy damages place the non-breaching party in the position they expected to be in but for the breach. A subcategory of expectancy damages are general damages and special damages. General damages are those damages that naturally flow from the breach of contract. Hardwick Properties, Inc. v. Newbern, 711 So. 2d 35 (Fla. 1st DCA 1998). While special damages do not normally result from the breach of contract, but “may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract.” Lost profits are a common form of special damages in business disputes.

But what if a business does not want expectancy damages, but instead wants to be placed in the position it was in immediately prior to the entering into the contract? This is covered by restitution. “The purpose of restitution . . . is to require the wrongdoer to restore that which he has received and thus tend to put the injured party in as good a position as he occupied before the contract was made; in this context the injured party may be said to have considered the contract as ‘terminated’ or ‘ended.’” Beefy Trail, Inc. v. Beefy King Intern’l, Inc., 267 So. 2d 853 (Fla. 4th DCA 1972). Restitution may be applicable if, for example, a business wants the breaching party to return the money it paid the breaching party pursuant to the contract terms. A plaintiff may elect between restitution and expectancy damages discussed above when there is a total breach of contract. McCray v. Murray, 423 So. 2d 559 (Fla. 1st DCA 1982).

The third type of remedy is specific performance. Specific performance is an equitable remedy whereby the court requires the breaching party to perform its obligations under the contract. “Specific performance may only be granted when (1) the plaintiff is clearly entitled to it, (2) there is no adequate remedy at law, and (3) the judge believes that justice requires it.” Castigliano v. O’Conner, 911 So. 2d 145 (Fla. 3d DCA 2005). In breach of contract cases, there is no adequate remedy at law when it is impossible to ascertain the amount of a party’s damages. E.g., Liza Danielle, Inc. v. Jamko, Inc., 408 So. 2d 735 (Fla. 3d DCA 1982). In this regard, specific performance is similar to an injunction. The difference is that specific performance requires a party to affirmatively perform an act, while an injunction prohibits a party from performing certain acts. Either way, the party must show there is no other adequate remedy at law.

If a business wants to commence litigation for breach of contract, there might be several options for remedies available. It is important to consider between these options to determine the most desirable result for the business.

The Fort Lauderdale business litigation lawyers of the Mavrick Law Firm also represent clients in Miami , Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.