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If your business is in the position of defending a commercial litigation action, there may be a variety of ways advance that defense, some of which are rooted in the law more than the facts of your case. You may, for example, be able to assert that the trial court lacks the jurisdiction to give the plaintiff the relief it seeks. You may also be able to oppose an award of damages on the grounds that the court did not hold a required hearing. Whether your defenses rely primarily upon legal arguments, procedural assertions, factual arguments or all of the above, it is important to make sure that you have skilled South Florida commercial litigation counsel advocating for your business interests.

A dispute over a sea vessel spawned a commercial litigation action that recently came before the state appeals court in West Palm Beach. The seeds of this dispute were sown in a contract for the construction of a sport fishing vessel. The manufacturer began building the craft, but never finished it. Still with no boat, the entity that had commissioned the craft sued for breach of contract, among other claims. While the lawsuit was going on, the purchaser and the manufacturer, without counsel, executed a settlement agreement. The settlement called for the manufacturer to purchase the incomplete craft “as is/where is” from the purchaser for $200,000.

The manufacturer paid the purchaser $30,000 but never paid the remaining $170,000. That non-payment was the basis for the money damages that the purchaser sought. The trial court was persuaded and entered a judgment for the purchaser in the amount of $170,000. The manufacturer appealed the verdict. It argued that the trail court did not have jurisdiction to enforce the settlement agreement because that contract “did not support a money damages award.”

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In an important new ruling, the 11th Circuit Court of Appeals clarified the process for analyzing a creditor’s subsequent new value defense to a preferential transfer under Section 547(c)(4) in a debtor’s Chapter 11 case. The court rejected the “remains unpaid” standard, which is good news for creditors who desire to continue doing business with financially troubled entities, as the ruling gives them an even more robust subsequent new value defense and reduces the amount that a bankruptcy trustee can claw back. If you are a creditor of a business that has filed for Chapter 11 bankruptcy, you obviously want to keep all payments to which you are entitled, so you should be sure to put experienced South Florida bankruptcy counsel on your side to protect your interests.

The case that spawned the ruling involved a struggling chain of supermarkets with locations in Florida and Alabama, and the well-known ice cream maker that sold its products to the supermarket on credit. In 2008, amid liquidity problems, the supermarket began paying the ice cream vendor only once a week instead of twice and began delaying some payments by a week or more.

The supermarket was not successful in addressing its liquidity problems and filed for Chapter 11 on February 5, 2009. The bankruptcy trustee filed an adversary action against the ice cream company, seeking to avoid certain payments the supermarket had made to the ice cream vendor. The $563,000 sum the trustee sought represented the total amount that the supermarket paid to the vendor during the 90 days immediately preceding the bankruptcy filing. During that same 90-day period, the vendor made $435,000 worth of new deliveries on credit.

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The commercial contracts you create can provide you with many potential benefits if negotiated and executed properly. One of these benefits can, in some circumstances, be protection against certain types of legal claims. For example, if a party seeks to sue you under a quasi-contract theory of unjust enrichment, it can only do that if the subject matter that was the basis of your alleged unjust enrichment wasn’t covered by an actual contract. In other words, you can’t be sued under a quasi-contract theory about something if it is governed by an actual contract. For help with these and other commercial and business issues, it is wise to rely upon experienced South Florida commercial litigation counsel.

A recent case from the Florida Panhandle provides an illustration of this issue of contract versus quasi-contract. The dispute involved the ownership of commercial space in a condo building in Panama City Beach. A resort LLC owned four commercial spaces on the ground floor of the condo building and owned them in fee simple, meaning that the LLC had absolute ownership of those properties. The condo building’s owners association sued the LLC, alleging that the spaces could not be owned outside the “condominium form of ownership.” The relief the association sought was the LLC’s ejection from the building and the distribution of the ground floor commercial spaces to the association’s members. The association also alleged that the resort was being unjustly enriched because it wasn’t paying its fair share of “utilities and other expenses in the building.”

The trial court ruled for the resort on the ownership issue, granting summary judgment in favor of the LLC. That meant that the resort did not have to go to trial on the issue of its ownership of the ground-floor spaces and its right to occupy that property. The court did hold a trial on the association’s unjust enrichment claim, and ultimately issued a judgment in the association’s favor, ordering the resort to pay $332,000 in unjust enrichment damages.

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Sometimes, commercial litigation actions come down primarily to merits. One side’s facts were stronger than the other side’s, and the former received a successful result. Other times, however, success in a commercial litigation action is less about the facts; it comes down to the law and the rules of procedure, using those effectively to achieve a winning outcome. Giving yourself the best chance of success means making sure you have a Florida commercial litigation attorney who can effectively represent you both in your factual arguments and your legal ones.

A recent South Florida case was an example of procedural rules, litigation strategies, and the profound impacts both can have. The case was a battle between two creditors regarding which creditor’s lien had priority. One of the creditors was based in Miami Beach, the other was a Panamanian entity. The case started when the Miami Beach entity’s predecessor-in-interest filed an action in state court in Miami-Dade County.

At some point, the Miami Beach entity sought, and obtained, a default judgment in the case. Default judgments can be helpful tools in obtaining relief from the courts, even though the opposing party has refused to participate in the litigation. In order for a default to be valid, though, the plaintiff must ensure that the defendant received service of process that complied with the law.

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A dispute over a commercial loan in a recent case served as the background for a very important lesson in any type of civil litigation. That lesson is that it is also essential to make sure that you are using the correct vehicle for the outcome you want to achieve. In the loan litigation, a lender’s failure to pursue the proper remedy resulted in an unsuccessful outcome both in the trial court and the Court of Appeal. In any commercial litigation, it is important to be strong on the facts, the law and the rules of procedure, which is why it pays to have representation from an experienced South Florida commercial litigation attorney.

The origin of the case was a loan a Palm Beach County entity made to an Orange County property company. As part of that loan transaction, several individuals signed personal guarantees for the loan. The property company allegedly defaulted on the loan and the lender sued the borrowers and all of the individual guarantors in Florida. As the lender began its Florida lawsuit over the loan, it was already involved in litigation with one of the guarantors, T.D., regarding its business dealings with that individual. That ongoing lawsuit, in which T.D. was suing the company for breach of fiduciary duty, fraud and conspiracy, was taking place in New Jersey.

After the lender sued in Florida, T.D. filed a countersuit. In his counterclaim, T.D. alleged several causes of action – and they were almost exactly identical to the causes of action T.D. had alleged in his New Jersey lawsuit. The lender asked the judge in Florida to dismiss the guarantor’s counterclaim on the basis of priority. The trial judge rejected the request and allowed both the lender’s claims and the guarantor’s counterclaims to proceed forward.

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A breach of contract lawsuit can lead to a variety of negative consequences. One of those consequences may be a temporary injunction imposed against you. These injunctions may have a powerful negative impact on your business, so it is wise to oppose them vigorously, as one software company successfully did in its recent appellate case. Wherever you are in the litigation process, make sure you have experienced South Florida commercial litigation counsel on your side.

Recently, a software vendor-vendee contract was the source of this kind of dispute and ensuing litigation. A “health, home and travel products” company contracted with a software company for the use of the latter’s software, through which the former could allow its customers to make credit card payments. The merchant often paid its $10,000 monthly obligation late, and missed its June, July and August 2017 payments entirely. At some point, the software company stopped delivering on the services it promised in the contract. According to the merchant, that happened before it missed its June 2017 payment.

The products company sued for breach of contract. Specifically, the merchant alleged that the software company owed it $117,000 that the software company had taken into its merchant services account but failed to distribute to the merchant. When you are sued for breach of contract, the other side may undertake various techniques to achieve an outcome it considers successful. One possible outcome is to file a request for an injunction. An injunction, if granted, would force you to refrain from taking certain actions or else face possible contempt-of-court penalties.

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In a commercial lease dispute, the outcome of the case may hinge upon the plaintiff’s ability to prove that the other side’s conduct met the legal standard for a breach of the lease agreement. Even if the plaintiff successfully shows that its opponent breached the contract, the defense may still be able to reduce or eliminate the damages award by succeeding in showing that the plaintiff failed to mitigate its damages. There are many different issues that can decide a commercial lease case. Be prepared for your litigation by making sure you have experienced South Florida commercial leasing counsel on your side.One recent case from Brevard County was an example of such a lease dispute, in which the issue of mitigation of damages was central. The case began when each side accused the other of breaching the lease. The landlord eventually filed two different complaints against the tenant for breaching the lease.

In this case, the key issues were deciding which party breached the lease and when the landlord retook possession of the property. Why was the date of the landlord’s retaking possession so important? It comes down to something called “mitigation of damages.” The law says that, if you are harmed by another party’s breach of contract, you are entitled to recover the damages you suffered, but you are required to take all reasonable steps to reduce your harm.

You do not have to go to extremes or make major sacrifices to mitigate; just take those actions that are reasonable. If, for example, a commercial tenant vacates leased property before the lease term ends (and ceases paying rent), the tenant has breached the lease. If the landlord, however, retakes control of the property and does absolutely nothing, the landlord has failed to mitigate its damages by failing to re-rent the space, and that failure to mitigate may reduce the amount of damages to which the landlord is entitled.

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Certainly, it is preferable in any commercial setting to make sure that the terms of any contractual agreement are carefully negotiated and then put down in writing in a clear and accurate written document. Sometimes, though, the reality of business is different, and some commercial agreements are consummated through express oral contracts. Oral contracts are potentially valid and enforceable in the Sunshine State. When the party with whom you’ve contracted breaches your express oral contract, it is extremely important to understand what the law requires in order to achieve a successful result in your breach of contract action; or, more directly, it is important to make sure that you have experienced South Florida commercial litigation counsel to present the arguments you need and pursue the outcome you deserve.Florida courts have made it clear that, to advance a case of breach of an express oral contract, you need only to assert that a contract existed, that you performed, that the other side materially breached, and that the breach caused you to suffer damages. Florida law does not require you to allege, or provide evidence of, monetary consideration. Consideration doesn’t need to be anything of monetary value; it can anything that is a potential detriment to you or a benefit to the other party.

In one recent case from the Tampa Bay area, a commercial real estate company entered into an oral contract with a developer. The oral contract provided that, if the real estate company persuaded CVS pharmacy to lease a Pinellas County property that the developer owned, the developer would pay the real estate company a commission of $150,000. The real estate company allegedly was able to procure the pharmacy giant as a tenant for the property, but, after CVS inked the lease, the developer paid the real estate company nothing.

These allegations that the real estate company made were all it needed to have the necessary requirements to advance a claim of breach of oral contract. Florida requires that all valid and enforceable oral contracts demonstrate a mutual agreement to a definite proposition and avoid leaving any essential terms open. In this case, the real estate company’s allegations said that the two sides had a certain and definite contractual meeting of the minds (namely, a $150,000 commission in exchange for getting CVS to lease the developer’s property). The real estate company also had sufficient assertions to show performance (CVS leased the property) and breach (the real estate company got paid $0). Finally, the real estate company had allegations of financial damages that it incurred in the form of expenses incurred in getting CVS to lease the space, for which the plaintiff received nothing.

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Negotiating effective commercial contracts involves many considerations. You must achieve terms that are mutually acceptable. Then you also have to be certain that the terms that end up in black and white comply with the law. Including a provision that violates federal or state law can ultimately lead to an outcome far different than what your contract document says, and different that you want. The key is to get a contract that meets your needs and meets the law’s requirements. At every step in the process, make sure you have an experienced Florida business and commercial representing your interests.

A failure to ensure that all provisions of a contract comply with the law can result in a term in your document being declared void. A case where that was a potential outcome was the dispute that arose after a Coral Gables drywall company signed a subcontractor agreement to perform drywall services for an improvement of a property in Naples. The contractor was an LLC from Detroit, Michigan. The contract included a paragraph that declared that disputes between the two sides “may be submitted to mediation and/or arbitration pursuant to the Construction Industry Rules of the American Arbitration Association.” The provisions also stated that any such arbitration would occur in, or within 20 miles of, Southfield, Michigan.

A dispute eventually did occur, and the subcontractor sued the contractor in Florida for breach of contract. Based upon the contract document, it might seem that the contractor would be entitled to demand arbitration in Michigan. However, as the subcontractor argued, Florida has a statute that says that any term in a contract for improvement of real property that requires legal action against a Florida contractor or subcontractor in someplace other than Florida is “void as a matter of public policy” and unenforceable. Based on that Florida statute, the trial court sided with the subcontractor and declared the arbitration paragraph void.

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A few decades ago, a U.S. president once famously responded to a question under oath by noting that “it depends on what the meaning of ‘is’ is.” Whatever one’s opinions of that statement, the reality is that, in the law, sometimes the outcomes of disputes hinge upon small phrases or even single words, and the very precise definition of those terms. That is especially true when it comes to commercial contracts and commercial litigation. That is why you should make sure you have highly skilled Florida business and commercial attorneys to meet your commercial contract needs.

As an example, take a recent case that originated in Palm Beach County. A real estate contract called for the making of payment if one of a list of several triggers took place. The first of those criteria was a “sale of the property’ at a designated street address. Eventually, the property in question was sold… at a foreclosure sale.

The party scheduled to receive payment under the contract argued that this was a valid trigger and payment was owed. The party owing payment contended it was not and refused to make the payment. The case went to trial and the singular key to the outcome was: what did the contract mean when it said “sale of the property”? Did that term include any sale or did it implicitly exclude involuntary sales like foreclosure sales? More specifically, was it clear what the contract meant? If it was not, then the parties were entitled to bring in outside “parol evidence” at trial. If it was clear, then outside evidence was inadmissible.

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