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How Effective Affirmative Defenses May Help You Strengthen Your Position in Your Florida Commercial Litigation Case

In any commercial litigation matter, there are at least two sides. For the purposes of this discussion, those sides are not “plaintiff” and “defendant.” They are: (1) the side who initially might appear to have the “upper hand” and (2) the side who initially appears potentially to have the relatively weaker case. Obviously, everyone prefers to be in category #1. However, even if you find yourself in group #2, that is not cause for simply giving up. Success — either partial or complete — is still possibly within reach, and it starts by keeping your case alive. In other words, it starts with securing representation from an experienced South Florida commercial litigation attorney and developing a case that is strong enough to survive a motion to dismiss or a motion for summary judgment.

A good example of this is a South Florida dispute around a broker contract. In 2016, the owner of a Fort Lauderdale nightclub negotiated a contract with a business broker to facilitate the sale of the nightclub. The broker received back a contract with a signature that bore the name of the principal owner, L.A., followed by “MGRM,” indicating the owner was signing as managing member of the nightclub’s LLC and in his individual capacity as a guarantor.

Several months later, the broker learned that the club owner planned to close the business and re-open it under new ownership, so the broker demanded payment of its commission. The demand was refused, and the broker sued. If that the contract had a clear provision that stated that a decision by the client to close the business and re-open it under new ownership triggered an obligation to pay the broker its commission, then those facts might potentially seem to give the broker a clear advantage.

However, the club owner had affirmative defenses. The owner’s primary affirmative defense was a basic one: the broker was owed no commission because no representative of the LLC signed the agreement. L.A. provided to the court an affidavit that said that “his” signature on the contract was not authentic. He did not write the signature and he did not authorize anyone else to sign on his behalf, according to the affidavit. The affidavit also stated that L.A.’s English language skills were limited, and he would not have been able to communicate with the broker except with the assistance of an interpreter.

This, according to the appeals court, was enough to prevent a resolution based on summary judgment. A trial court can only award summary judgment when the case has no valid dispute about any element of material fact. In this case, whether or not an authorized person signed the contract on behalf of the ownership was definitely a material factual issue and it clearly was in dispute. That meant that the case could proceed to trial. The case might ultimately end with a judgment in favor of the club owner or it might not but, by defeating the broker’s motion for summary judgment, the owner placed itself in a much stronger position than if it had failed. That improved position was worth fighting for.

An ancient Chinese proverb says that a “journey of a thousand miles begins with a single step.” A commercial litigation case is somewhat like that as success is not achieved in one “fell swoop,” but involves taking on (and clearing) each of a series of hurdles in your path. To best position yourself to clear enough hurdles to obtain a positive outcome in your case, rely on the skilled South Florida commercial litigation attorneys at Stok Kon + Braverman and our many decades of experience providing effective counsel and representation to clients in breach of contract and other commercial disputes.

Contact us online or by calling (954) 237-1777 to schedule your consultation.

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