Excerpted from Florida Causes of Action by Marc A. Wites

Florida Causes of Action


Table of Contents

§3:10     BREACH OF CONTRACT

§3:10.1     Elements of Cause of Action -Florida Supreme Court

§3:10.1.1       Elements of Cause of Action – 1st DCA

§3:10.1.2       Elements of Cause of Action – 2nd DCA

§3:10.1.3       Elements of Cause of Action – 3rd DCA

§3:10.1.4       Elements of Cause of Action – 4th DCA

§3:10.1.5       Elements of Cause of Action – 5th DCA

§3:10.2     Statute of Limitations

§3:10.3     References

§3:10.4     Defenses

§3:10.5     Related Matters

§3:10.6     Sample Complaint

§3:20     BREACH OF IMPLIED-IN-FACT CONTRACT

§3:20.1     Elements of Cause of Action –Florida Supreme Court

§3:20.1.1       Elements of Cause of Action – 1st DCA

§3:20.1.2       Elements of Cause of Action – 2nd DCA

§3:20.1.3       Elements of Cause of Action – 3rd DCA

§3:20.1.4       Elements of Cause of Action – 4th DCA

§3:20.1.5       Elements of Cause of Action – 5th DCA

§3:20.2     Statute of Limitations

§3:20.3     References

§3:20.4     Defenses

§3:20.5     Related Matters

§3:30     BREACH OF IMPLIED-IN-LAW CONTRACT

§3:30.1     Elements of Cause of Action –Florida Supreme Court

§3:30.1.1       Elements of Cause of Action – 1st DCA

§3:30.1.2       Elements of Cause of Action – 2nd DCA

§3:30.1.3       Elements of Cause of Action – 3rd DCA

§3:30.1.4       Elements of Cause of Action – 4th DCA

§3:30.1.5       Elements of Cause of Action – 5th DCA

§3:30.2     Statute of Limitations

§3:30.3     References

§3:30.4     Defenses

§3:30.5     Related Matters

§3:40     BREACH OF THIRD PARTY BENEFICIARY CONTRACT

§3:40.1     Elements of Cause of Action -Florida Supreme Court

§3:40.1.1       Elements of Cause of Action – 1st DCA

§3:40.1.2       Elements of Cause of Action – 2nd DCA

§3:40.1.3       Elements of Cause of Action – 3rd DCA

§3:40.1.4       Elements of Cause of Action – 4th DCA

§3:40.1.5       Elements of Cause of Action – 5th DCA

§3:40.2     Statute of Limitations

§3:40.3     References

§3:40.4     Defenses

§3:50     ESTOPPEL, PROMISSORY

§3:50.1     Elements of Cause of Action -Florida Supreme Court

§3:50.1.1       Elements of Cause of Action – 1st DCA

§3:50.1.2       Elements of Cause of Action – 2nd DCA

§3:50.1.3       Elements of Cause of Action – 3rd DCA

§3:50.1.4       Elements of Cause of Action – 4th DCA

§3:50.1.5       Elements of Cause of Action – 5th DCA

§3:50.2     Statute of Limitations

§3:50.3     References

§3:50.4     Defenses

§3:50.5     Related Matters

§3:60     RESCISSION

§3:60.1     Elements of Cause of Action -Florida Supreme Court

§3:60.1.1       Elements of Cause of Action – 1st DCA

§3:60.1.2       Elements of Cause of Action – 2nd DCA

§3:60.1.3       Elements of Cause of Action – 3rd DCA

§3:60.1.4       Elements of Cause of Action – 4th DCA

§3:60.1.5       Elements of Cause of Action – 5th DCA

§3:60.2     Statute of Limitations

§3:60.3     References

§3:60.4     Defenses

§3:60.5     Related Matters

§3:70     SPECIFIC PERFORMANCE

§3:70.1     Fla.R.Civ.P. Form 1.941

§3:70.2     Statute of Limitations

§3:70.3     Defenses

§3:70.4     Related Matters

§3:80     TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP

§3:80.1     Elements of Cause of Action -Florida Supreme Court

§3:80.1.1       Elements of Cause of Action – 1st DCA

§3:80.1.2       Elements of Cause of Action – 2nd DCA

§3:80.1.3       Elements of Cause of Action – 3rd DCA

§3:80.1.4       Elements of Cause of Action – 4th DCA

§3:80.1.5       Elements of Cause of Action – 5th DCA

§3:80.2     Statute of Limitations

§3:80.3     References

§3:80.4     Defenses

§3:80.5     Related Matters

§3:90     UNJUST ENRICHMENT

§3:90.1     Elements of Cause of Action -Florida Supreme Court

§3:90.1.1       Elements of Cause of Action – 1st DCA

§3:90.1.2       Elements of Cause of Action – 2nd DCA

§3:90.1.3       Elements of Cause of Action – 3rd DCA

§3:90.1.4       Elements of Cause of Action – 4th DCA

§3:90.1.5       Elements of Cause of Action – 5th DCA

§3:90.2     Statute of Limitations

§3:90.3     References

§3:90.4     Defenses

§3:90.5     Related Matters

§3:90.6     Sample Cause of Action

§3:100   USURIOUS TRANSACTION

§3:100.1    Elements of Cause of Action -Florida Supreme Court

§3:100.1.1     Elements of Cause of Action – 1st DCA

§3:100.1.2     Elements of Cause of Action – 2nd DCA

§3:100.1.3     Elements of Cause of Action – 3rd DCA

§3:100.1.4     Elements of Cause of Action – 4th DCA

§3:100.1.5     Elements of Cause of Action – 5th DCA

§3:100.2    Statute of Limitations

§3:100.3    References

§3:100.4    Defenses

§3:100.5    Related Matters

§3:10     BREACH OF CONTRACT

§3:10.1     Elements of Cause of Action -Florida Supreme Court

[No citation for this edition.]

SEE ALSO

  1. Hazen v. Cobb, 117 So. 853, 859 (Fla. 1928) (“[w]e have held that a cause of action for an entire breach of the contract immediately arises upon the wrongful discharge of an employee under a contract for a definite time, and it is not necessary to await the termination of that period before asking the courts for redress.”).

  2. Fontainbleau Hotel Corp. v. Walters, 246 So.2d 563, 565 (Fla. 1971).

§3:10.1.1     Elements of Cause of Action – 1st DCA

It is elementary that in order to recover on a claim for breach of contract the burden is upon the claimant to prove by a preponderance of the evidence the existence of a contract, a breach thereof and damages flowing from the breach.

SOURCE

Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977).

SEE ALSO

  1. W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297, 301 (Fla. 1st DCA 1999) (Note: Omits the element of damages).

  2. Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845, 848 (Fla. 1st DCA 1990) (“[I]n order to maintain an action for breach of contract, a claimant must first establish performance on its part of the contractual obligations imposed in the contract.”).

§3:10.1.2     Elements of Cause of Action – 2nd DCA

The elements of an action for breach of contract are:

  1. the existence of a contract;

  2. a breach of the contract; and

  3. damages resulting from the breach.

SOURCE

Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006) (“In addition, in order to maintain an action for breach of contract, a claimant must also prove performance of its obligations under the contract or a legal excuse for its nonperformance.”).

SEE ALSO

  1. Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253, 255 (Fla. 2d DCA 1994) (stating that the plaintiff properly pled a breach of contract by alleging an offer, acceptance, consideration, a contract, breach of the contract and damages).

  2. Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985) (“The complaint alleged the execution of an oral contract, the obligation thereby assumed, and a breach. It therefore set forth sufficient facts which taken as true, would state a cause of action for breach of contract.”).

  3. Cerniglia v. Davison Chemical Co., 145 So.2d 254, 255 (Fla. 2d DCA 1962).

§3:10.1.3     Elements of Cause of Action – 3rd DCA

To prevail on a breach of contract action, the plaintiff must prove (1) a valid contract; (2) a material breach; and (3) damages.

SOURCE

Murciano v. Garcia, 958 So. 2d 423, 423 (Fla. 3rd DCA 2007).

SEE ALSO

  1. Collections, USA, Inc. v. City ofHomestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA 2002).

  2. AIB Mortgage Co. v. Sweeney, 687 So.2d 68, 69 (Fla. 3d DCA 1997) (“To establish a breach of contract, a party must show the existence of a contract, a breach thereof, and damages.”).

  3. Industrial Medicine Publishing Co. Inc. v. Colonial Press of Miami, Inc., 181 So.2d 19, 20 (Fla. 3d DCA 1965).

§3:10.1.4     Elements of Cause of Action – 4th DCA

The elements of a breach of contract action are:

  1. a valid contract;

  2. a material breach; and

  3. damages.

SOURCE

Sulkin v. All Florida Pain Management, Inc., 932 So. 2d 485, 486 (Fla. 4th DCA 2006).

SEE ALSO

  1. J.J. Gumberg Co. v. Janis Services, Inc., 847 So. 2d 1048, 1049 (Fla. 4th DCA 2003).

  2. Miller v. Nifakos, 655 So.2d 192, 193 (Fla. 4th DCA 1995) (“To establish a breach of contract, a party must show the existence of a contract, a breach thereof, and damages.”).

  3. Plowden & Roberts, Inc. v.Conway, 192 So.2d 528, 531 (Fla. 4th DCA 1966).

§3:10.1.5     Elements of Cause of Action – 5th DCA

The elements of a breach of contract action are:

  1. a valid contract;

  2. a material breach; and

  3. damages.

SOURCE

Abbott Laboratories, Inc. v. General Electric Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000).

§3:10.2     Statute of Limitations

Fla. Stat. §95.11(2)(b)(five years for written contract); §95.11(3)(k)(four years for oral contract).

§3:10.3     References

  1. 11Fla. Jur. 2d Contracts §§262–273 (2003).

  2. 17A Am. Jur. 2d Contracts §§699–712 (2004).

  3. 17B C.J.S. Contracts §§640–649 (1999).

  4. Florida Standard Jury Instruction (Civ.) MI 12.1.

§3:10.4     Defenses

  1. Abandonment of Contract: Abandonment of contract is an affirmative defense that the defendant must raise in its answer or otherwise is waived. American Enviro-Port, Inc. v. Williams, 489 So.2d 839 (Fla. 1st DCA 1986).

  2. Act of God: If the losses or injuries are caused by an act of God that could not have been foreseen and from which the carrier could not by the exercise of due care protect the goods, the carrier is not liable. Seaboard Air Line Ry.Co. v. Mullin, 70 So. 467, 469 (Fla. 1915).

  3. Breach by Other Party: When one party to a contract unjustifiably refuses to perform his agreement in whole, or in any substantial part, the other party has the option to rescind the entire contract, provided he offers to do so within a reasonable time, and will restore what he has received, and provided that the situation of the parties remains so far unchanged that they can be restored to their original position. Savage v. Horne, 31 So.2d 477, 482 (Fla. 1947). See also Bryan and Sons Corp. v. Klefstad, 237 So.2d 236, 238 (Fla. 4th DCA 1970), appeal after remand, 265 So.2d 382 (Fla. 4th DCA 1972).

  4. Contractors: Generally, the liability of a contractor is cut off after the owner has accepted the work performed if the alleged defect is a patent defect which the owner could have discovered and remedied. However, the test for patency is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care. Florida Dept. of Transportation v. Capeletti Bros., Inc., 743 So.2d 150, 152 (Fla. 3d DCA 1999), rev. denied, 760 So.2d 945 (Fla. 2000).

  5. Damages Required: Not all breaches of contract result in damages and the law furnishes a remedy only for such wrongful acts as result in injury or damage. Scott-Steven Development Corp. v. Gables by the Sea, Inc., 167 So.2d 763, 764 (Fla. 3d DCA 1964), cert. denied, 174 So.2d 32 (Fla. 1965).

  6. Discharge: A material breach by one party may be considered a discharge of the other party’s obligations thereunder. Nacoochee Corp. v. Pickett, 948 So. 2d 26, 30 (Fla. 1st DCA 2006).

  7. Duress: Assuming duress was present in the execution of the instrument, which position we do not favor, the agreement would not have been void, but only voidable.Davis v. Hefty Press, Inc., 11 So.2d 884, 886 (Fla. 1943).

  8. Failure of Consideration: A failure of consideration is a defense to a contract. Vichaikul v. S.C.A.C. Enterprises, Inc., 616 So.2d 100 (Fla. 2d DCA 1993). The slightest detriment to the promisee is sufficient consideration to bind the promisor. Maryland Casualty Company v. Krasnek, 174 So.2d 541, 543 (Fla. 1965).

  9. Fraud, Contract Induced by: It is a fundamental proposition that a contract induced by fraud is voidable. Lance Holding Co. v. Ashe, 533 So.2d 929, 930 (Fla. 5th DCA 1988).

  10. Frustration of Purpose: Frustration of purpose refers to that condition surrounding the contracting parties where one of the parties finds that the purposes for which it bargained, and which purposes were know to the other party, have been frustrated because of the failure of consideration, or impossibility of performance by the other party. Even under theories which permit a broader application of the doctrine of commercial frustration, the defense is not available concerning difficulties which could reasonably have been foreseen by the promisor at the creation of the contract. Home Design Center–Joint Venture v.CountyAppliances ofNaples, 563 So.2d 767, 770 (Fla. 2d DCA 1990).

  11. Hindering the Performance of the Other: One who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its nonperformance. Hanover Realty Corp. v. Codomo, 95 So.2d 420, 423 (Fla. 1957).

  12. Illegality: An agreement that is violative of a provision of a constitution or a valid statute, or an agreement which cannot be performed without violating such a constitutional or statutory provision, is illegal and void. When a contract or agreement, express or implied, is tainted with the vice of such illegality, no alleged right founded upon the contract or agreement can be enforced in a court of justice. Where the parties to such an agreement are in pari delicto the law will leave them where it finds them, relief will be refused in the courts because of the public interest. Local No. 234 of United Association of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. Henley & Beckwith, Inc., 66 So.2d 818, 821 (Fla. 1953). See also McIntyre v. Norman, 429 So.2d 1296, 1297 (Fla. 3d DCA 1983), rev. denied, 438 So.2d 833 (Fla. 1983).

  13. Impossibility of Performance: Impossibility of performance refers to those factual situations, too numerous to catalog, where the purposes, for which the contract was made, have, on one side, become impossible to perform. As a general rule, a contract is not invalid, nor is the obligor discharged from its binding effect, because the contract turns out to be difficult or burdensome to perform.HomeDesignCenter—Joint Venture v.CountyAppliances ofNaples, 563 So.2d 767, 769 (Fla. 2d DCA 1990). See also McIntyre v. Norman, 429 So.2d 1296, 1297 (Fla. 3d DCA 1983), rev. denied, 438 So.2d 833 (Fla. 1983). The doctrine of “impossibility” must be applied with caution and is not available concerning intervening difficulties which could reasonably have been foreseen and could have been controlled by an express provision of the agreement. See Am. Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So.2d 809 (Fla. 4th DCA 1998); Home Design Ctr.Joint Venture v. County Appliances of Naples, Inc., 563 So.2d 767 (Fla. 2d DCA 1990); Walter T. Embry, Inc. v. LaSalle Nat. Bank, 792 So.2d 567, 570 (Fla. 4th DCA 2001), subsequent appeal, 868 So.2d 661 (Fla. 4th DCA 2004).

  14. Mistake: Florida law permits a party to rescind a contact based on unilateral mistake unless the mistake results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contact that it would be inequitable to order rescission. Florida Insurance Guaranty Association, Inc. v. Love, 732 So.2d 456, 457 (Fla. 2d DCA 1999). A mistake, whether unilateral or mutual, must go to a material, substantial element of a contract in order to justify rescission. Williams, Salomon, Kanner, Damian, Weissler & Brooks v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233, 235 (Fla. 3d DCA 1983).

  15. Rescission: While we have found noFlorida cases expressly stating that rescission is an affirmative defense, it appears that rescission falls within the general definition of that which is included within the nature of an affirmative defense. Joseph Buckeck Construction Corp. v. Music, 420 So.2d 410, 414 (Fla. 1st DCA 1982).Florida law permits a party to rescind a contract based on unilateral mistake unless the mistake results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contract that it would be inequitable to order rescission.Florida Insurance Guaranty Assoc., Inc. v. Love, 732 So.2d 456, 457 (Fla. 2d DCA 1999).

  16. Sovereign Immunity: In County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049 (Fla. 1997), the court ruled that under section 768.28, the legislature authorized state entities to enter into contracts and waived sovereign immunity as to express contracts. It concluded that if disputed work is not expressly part of the original contract or a change order, and it is not an implied part of the contract, sovereign immunity bars recovery for the disputed work because it is “outside” the contract.W&J Construction Corp. v. Fanning/Howey Associates, 741 So.2d 582, 584 (Fla. 5th DCA 1999).

  17. Unconscionability: Unconscionability is an affirmative defense which must be raised by proper pleading. Barakat v. BrowardCountyHousing Authority, 771 So.2d 1193, 1194 (Fla. 4th DCA 2000).

§3:10.5     Related Matters

  1. Anticipatory Repudiation: Anticipatory repudiation relieves the non-breaching party of its duty to further perform and creates in it an immediate cause of action for breach of contract. Twenty-Four Collection, Inc. v. M. Weinbaum Construction, Inc., 427 So.2d 1110, 1111 (Fla. 3d DCA 1983).

  2. Lost Chance orOpportunity: It is now an accepted principle of contract law, nonetheless, that recovery will be allowed where a plaintiff has been deprived of an opportunity or chance to gain an award or profit even where damages are uncertain.Miller v. Allstate Insurance Co., 573 So.2d 24, 29 (Fla. 3d DCA 1990), rev. denied, 581 So.2d 1307 (Fla. 1991).

  3. Lost Profits: To recover damages for lost profits in a breach of contract action, a party must prove a breach of contract, that the party actually sustained a loss as a proximate result of that breach, that the loss was or should have been within the reasonable contemplation of the parties, and that the loss alleged was not remote, contingent, or conjectural and the damages were reasonably certain. Frenz Enterprises, Inc. v. PortEverglades, 746 So.2d 498, 504 (Fla. 4th DCA 1999).

  4. Oral Contract: To state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to “a certain and definite proposition” and left no essential terms open. Jacksonville Port Authority v. W.R. Johnson Enterprises, Inc., 624 So.2d 313 (Fla. 1st DCA 1993), rev. denied, 634 So.2d 629 (Fla. 1994); W.R. Townsend Contracting, Inc. v. Jensen Civil Const., Inc. 728 So.2d 297, 300 (Fla. 1st DCA 1999). See Complaint Library, Form 3:10-2 (oral contract) on the CD-ROM.

  5. Prejudgment Interest: Prejudgment interest is an element of damages for a breach of contract. Pelaez v. Persons, 664 So.2d 1022, 1023 (Fla. 2d DCA 1995).

  6. Rescission: A mere breaching of a contract is not necessarily a rescinding of the contract. When a contract is rescinded it is done away with and ceases to be a contract. When a contract is breached the contract continues to live and the parties have their rights to damages for the breach instead of on the theory of the contract being rescinded. If one party to a contract renders performance impossible, the opposite party may at his election rescind it. Givens v. Vaughn-Griffin Packing Co., 1 So.2d 714, 719 (Fla. 1941).

  7. Settlement Agreements: Settlements are construed in accordance with the rules for interpretation of contracts. Treasure Coast, Inc. v. Ludlum Construction, Inc., 760 So.2d 232, 234 (Fla. 4th DCA 2000).

§3:10.6     Sample Complaint

See Complaint Library, Form 3:10-2 (oral contract) on the CD-ROM; see also Form 3:10-3 (construction contract).

§3:20     BREACH OF IMPLIED-IN-FACT CONTRACT

§3:20.1     Elements of Cause of Action –Florida Supreme Court

A court should determine and give to the alleged implied contract the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly thereto.

SOURCE

Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla.1950).

SEE ALSO

  1. Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 13 (Fla. 1973) (Contracts implied in fact rest upon the assent of the parties).

  2. Rodriguez v. Powell, 172 So. 849 (Fla. 1937) (holding that promise of company’s agent to cover a plaintiff’s medical expenses in exchange for a release created a contract and plaintiff could sue company for breaching it).

§3:20.1.1     Elements of Cause of Action – 1st DCA

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words.

SOURCE

Waite Dev., Inc. v. City of Milton, 866 So.2d 153 (Fla.1st DCA 2004).

SEE ALSO

  1. Rabon v. Inn of Lake City, Inc., 693 So.2d 1126, 1131-32 (Fla. 1st DCA 1997) (In a contract implied in fact, the assent of the parties is derived from other circumstances, including their course of dealing or usage of trade or course of performance. In inferring a contract implied in fact, a court should give to the implied contract the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly in reference thereto).

  2. Mecier v. Broadfoot, 584 So.2d 159, 161 (Fla. 1st DCA 1991) (Contracts implied in fact are inferred from facts and circumstances of case).

§3:20.1.2     Elements of Cause of Action – 2nd DCA

While contracts implied in fact require the assent of the parties, contracts implied in law do not.

SOURCE

Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA 1991).

§3:20.1.3     Elements of Cause of Action – 3rd DCA

Unlike express contracts or contracts implied in fact, contracts implied in law do not rest upon the assent of the contracting parties.

SOURCE

Variety Children’s Hospital, Inc. v. Vigliotti, 385 So.2d 1052, 1053 (Fla. 3d DCA 1980).

SEE ALSO

  1. Aldebot v. Story, 534 So.2d 1216, 1217 (Fla. 3d DCA 1988) (as opposed to express contracts and contracts implied in fact, where assent of parties is required, contracts implied in law are obligations imposed by law on grounds of justice and equity and do not rest upon assent of contracting parties).

§3:20.1.4     Elements of Cause of Action – 4th DCA

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. Common examples of contracts implied in fact are where a person performs services at another’s request or where services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances fairly raising the presumption that the parties understood and intended that compensation was to be paid. In these circumstances, the law implies the promise to pay a reasonable amount for the services.

SOURCE

Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997).

SEE ALSO

  1. GEM Broadcasting v. Minker, 763 So.2d 1149, 1150 (Fla. 4th DCA 2000) (the enforceability of a contract implied in fact is based on an implied promise, not on whether the defendant has received something of value).

  2. CDS & Assoc. of Palm Beaches, Inc. v. 1711 Donna Rd. Assoc., 743 So.2d 1223 (Fla. 4th DCA 1999) (a contract implied in fact is an enforceable contract that is inferred in whole or part from the parties’ conduct, not solely from their words).

  3. Policastro v. Myers, 420 So.2d 324, 326 (Fla. 4th DCA 1982) (contracts implied in fact rest upon the assent of the parties).

§3:20.1.5     Elements of Cause of Action – 5th DCA

[No citation for this edition]

§3:20.2     Statute of Limitations

Four Years. Fla.Stat. § 95.11(3)(k).

§3:20.3     References

  1. Restatement (Second) of Contracts § 4, cmt. a (1982).

  2. 1 Arthur Linton Corbin, Corbin on Contracts, §§ 1.18-1.20 (Joseph M. Perillo ed. 1993).

  3. 3 Corbin on Contracts § 562 (1960).

  4. 17 Am.Jur.2d “Contracts” § 3 (1964).

§3:20.4     Defenses

  1. Burden: It is our view that a greater burden should be placed upon a plaintiff who relies upon an implied contract than one who uses reasonable care and foresight in protecting himself by means of an express contract. To hold otherwise would be to encourage loose dealings and place a premium upon carelessness. Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1949)

  2. Lack of Assent: While contracts implied in fact, such as an action in quantum meruit, require the assent of the parties, contracts implied in law do not require such assent. Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA 1991).

  3. Familial Relationship: When a person provides services to another without a written agreement regarding compensation, a promise to pay for those services will generally be implied. However, this general rule is not applicable if the services are rendered by and for members of the same family or relatives who live together. In such cases, no presumption arises that one is to be paid for the services rendered. In the absence of an express contract or promise to pay, no right of action accrues for the services, especially where the relationship evinces the mutuality or reciprocity of services, benefits and duties, which characterize normal family life. McLane v. Musick, 792 So.2d 702, 705 (Fla. 5th DCA 2001).

  4. Failure to Comply With Statutory Requirements: This consumer protection statute [Fla. Stat. § 559.905] must necessarily be construed to be a limitation on the common law principle of quantum meruit because the recognition of a quasi-contractual obligation by the law in this situation would necessarily circumvent the very dictates of the statute by enabling a motor vehicle repair shop to ignore the statutory requirements of providing a written estimate or obtaining a written waiver. Osteen v. Morris, 481 So.2d 1287, 1290 (Fla. 5th DCA 1986).

§3:20.5     Related Matters

1.      Contract Implied in Fact and Contract Implied in Law: A contract implied in fact is an enforceable contract that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in law is an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. In short, a contract implied in law does not require an agreement, however, a contract implied in fact does. A quasi-contract is a contract implied in law since it does not require an agreement. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, 743 So.2d 1223, 1224 (Fla. 4th DCA 1999).

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated that contracts implied in fact rest upon the assent of the parties.

A contract implied in law, or quasi-contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.

To describe the cause of action encompassed by a contract implied in law, Florida courts have synonymously used a number of different terms—“quasi-contract,” “unjust enrichment,” “restitution,” “constructive contract,” and “quantum meruit.” This profusion of terminology has its roots in legal history. Concerned about the confusion between contracts implied in law and fact, two legal scholars sought to extirpate the term “contract implied in law” from legal usage and to substitute for it the term “quasi-contract.” As Corbin explains, although the term “quasi-contract” took hold, the older term successfully resisted extirpation to the further confusion of law students and lawyers.

The term “quantum meruit” derives from common law forms of pleading. The action of assumpsit was available for the recovery of damages for the breach or non-performance of a simple contract or upon a contract implied by law from the acts or conduct of the parties. There were two divisions of assumpsit, general, upon the common counts, and special. In general assumpsit, on the common counts, only an implied contract could be the basis of the action. The common counts were abbreviated and stereotyped statements that the defendant was indebted to the plaintiff for a variety of commonly recurring reasons, such as goods sold and delivered or work and labor done. The count asking judgment for work done was quantum meruit; for goods sold the count was quantum valebant. The common counts were used to enforce contracts implied both in law and in fact. Because so many quasi-contract actions were brought in the common counts, and because courts and lawyers were not careful to draw the distinction, the term “quantum meruit” is often used synonymously with the term “quasi-contract.”

In Florida, all implied contract actions were part of the action of assumpsit, which was an action at law under the common law. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383 (Fla. 4th DCA 1997).

§3:30     BREACH OF IMPLIED-IN-LAW CONTRACT

§3:30.1     Elements of Cause of Action – FloridaSupreme Court

Contracts implied in law, commonly called “quasi-contracts,” are obligations imposed by law on grounds of justice and equity, and do not rest upon the assent of the contracting parties.

SOURCE

Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 13 (Fla.1973).

§3:30.1.1     Elements of Cause of Action – 1st DCA

A contract implied in law (or quasi-contract), unlike a true contract based upon the express or apparent intention of the parties, is not based on a promissory agreement or the apparent intention of the parties to undertake the performance in question. Quasi-contracts or contracts implied in law are obligations imposed by law to prevent unjust enrichment. The essential elements for an action under this theory are a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof. Quasi-contracts, therefore, are obligations created by the law for reasons of justice, not by the express or apparent intent of the parties. Thus, it may be said that obligations of this type should not properly be considered contracts at all, but a form of the remedy of restitution.

SOURCE

Rabon v. Innof Lake City, Inc., 693 So.2d 1126, 1131-32 (Fla. 1st DCA 1997)

§3:30.1.2     Elements of Cause of Action – 2nd DCA

Contracts implied in law are obligations imposed by law to prevent unjust enrichment. The essential elements for an action under this theory are a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof. While contracts implied in fact, such as an action in quantum meruit, require the assent of the parties, contracts implied in law do not require such assent.

SOURCE

Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA 1991).

SEE ALSO

  1. Craig W. Sharp, P.A. v. Adalia Bayfront Condo., Ltd., 547 So.2d 674 (Fla. 2d DCA 1989).

  2. Henry M. Butler, Inc. v. Trizec Properties, Inc., 524 So.2d 710, 711-12 (Fla. 2d DCA 1988).

§3:30.1.3     Elements of Cause of Action – 3rd DCA

Unlike express contracts or contracts implied in fact, quasi-contracts do not rest upon the assent of the contracting parties. Quasi-contracts are based primarily upon a benefit flowing to the person sought to be charged. The person unjustly enriched is required to compensate the person furnishing the benefit. Thus, the preliminary question in determining whether the law should imply a contract in this case turns upon whether the mother has been unjustly enriched, and that determination turns upon whether the mother has an obligation or legal duty that has been satisfied by the efforts of another.

SOURCE

Variety Children’s Hospital, Inc. v. Vigliotti, 385 So.2d 1052, 1053 (Fla. 3d DCA 1980).

SEE ALSO

  1. Aldebot v. Story, 534 So.2d 1216, 1217 (Fla. 3d DCA 1988) (As opposed to express contracts and contracts implied in fact, where assent of parties is required, contracts implied in law are obligations imposed by law on grounds of justice and equity and do not rest upon assent of contracting parties).

§3:30.1.4     Elements of Cause of Action – 4th DCA

The elements of a cause of action for a quasi-contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it. Because the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.

SOURCE

Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997).

SEE ALSO

  1. GEM Broadcasting v. Minker, 763 So.2d 1149, 1150-51 (Fla. 4th DCA 2000) (a necessary element of a cause of action for a contract implied in law is that the plaintiff has conferred a benefit on the defendant — it is not based upon the finding of an agreement between the parties).

  2. CDS & Assoc. of Palm Beaches, Inc. v.1711 Donna Rd. Assoc., 743 So.2d 1223 (Fla. 4th DCA 1999).

  3. Nursing Care Services, Inc. v. Dobos, 380 So.2d 516 (Fla. 4th DCA 1980).

  4. Hillman Const. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994).

§3:30.1.5     Elements of Cause of Action – 5th DCA

A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. The elements of a cause of action for a quasi-contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred; and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

SOURCE

American Safety Ins. Service, Inc. v. Griggs, 959 So.2d 322, 331 (Fla.5th DCA 2007)

§3:30.2     Statute of Limitations

Four Years. Fla. Stat. §95.11(3)(k); Swafford v. Schweitzer, 906 So.2d 1194, 1195 (Fla. 4th DCA 2005).

§3:30.3     References

  1. Restatement (Second) of Contracts § 4, cmt. b (1982).

  2. 11Fla. Jur. 2d Contracts §282 (2003).

  3. 66 Am. Jur. 2d Restitution and Implied Contracts §§8, 9, 12 (2001).

  4. 7 C.J.S. Assumpsit, Action on §§1–3 (2004).

  5. Restatement of the Law of Restitution §1 (1937).

  6. George B. Klippert, Unjust Enrichment (1983). ISBN 0-409-84293-1 (discussing Canadian law).

  7. H. Hugh McConnell, Distinguishing Quantum Merit and Unjust Enrichment in the Construction Setting, 71Fla. Bar J. 88 (March 1997).

  8. David M. Holliday, Annotation, Equipment Leasing Expenses as Element of Construction Contractor’s Damages, 52 A.L.R.4th 712 (1987).

  9. J. R. Kemper, Annotation, Building and Construction Contracts: Right of Subcontractor Who Has Dealt Only With Primary Contractor to Recover Against Property Owner in Quasi-Contract, 62 A.L.R.3d 288 (1975).

§3:30.4     Defenses

  1. Burden: Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1949) (“It is our view that a greater burden should be placed upon a plaintiff who relies upon an implied contract than one who uses reasonable care and foresight in protecting himself by means of an express contract. To hold otherwise would be to encourage loose dealings and place a premium upon carelessness.”).

  2. Express Contract: An action for unjust enrichment fails upon a showing that an express contract exists. Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998), rev. denied, 737 So.2d 550 (Fla. 1999).

  3. Payment Made: Unjust enrichment cannot exist where payment has been made for the benefit conferred. N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672, 675 (Fla. 3d DCA 2000).

  4. Received in Good Faith: The law seems to be settled that money paid under a mistake of facts cannot be reclaimed where the plaintiff has derived a substantial benefit from the payment, nor where the defendant received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience. Pensacola & A. R. Co. v. Braxton, 16 So. 317, 321 (Fla. 1894).

§3:30.5     Related Matters

1.      Contract Implied in Fact and Contract Implied in Law: A contract implied in fact is an enforceable contract that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in law is an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. In short, a contract implied in law does not require an agreement, however, a contract implied in fact does. A quasi-contract is a contract implied in law since it does not require an agreement. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, 743 So.2d 1223, 1224 (Fla. 4th DCA 1999).

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated that contracts implied in fact rest upon the assent of the parties.

A contract implied in law, or quasi-contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.

To describe the cause of action encompassed by a contract implied in law, Florida courts have synonymously used a number of different terms—“quasi-contract,” “unjust enrichment,” “restitution,” “constructive contract,” and “quantum meruit.” This profusion of terminology has its roots in legal history. Concerned about the confusion between contracts implied in law and fact, two legal scholars sought to extirpate the term “contract implied in law” from legal usage and to substitute for it the term “quasi-contract.” As Corbin explains, although the term “quasi-contract” took hold, the older term successfully resisted extirpation to the further confusion of law students and lawyers.

The term “quantum meruit” derives from common law forms of pleading. The action of assumpsit was available for the recovery of damages for the breach or non-performance of a simple contract or upon a contract implied by law from the acts or conduct of the parties. There were two divisions of general assumpsit upon the common counts, and special. In general assumpsit, on the common counts, only an implied contract could be the basis of the action. The common counts were abbreviated and stereotyped statements that the defendant was indebted to the plaintiff for a variety of commonly recurring reasons, such as goods sold and delivered or work and labor done. The count asking judgment for work done was quantum meruit; for goods sold the count was quantum valebant. The common counts were used to enforce contracts implied both in law and in fact. Because so many quasi-contract actions were brought in the common counts, and because courts and lawyers were not careful to draw the distinction, the term “quantum meruit” is often used synonymously with the term “quasi-contract.”

In Florida, all implied contract actions were part of the action of assumpsit, which was an action at law under the common law. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383 (Fla. 4th DCA 1997).

2.      Second Real Estate Broker: The elements of a cause of action against a second real estate broker to recover the commission from the sale of property on the theory of unjust enrichment require the first real estate broker to show either the existence of an implied contract to pay him for his services in finding and negotiating with the ultimate purchasers or that he was the procuring factor in the sale. Framer Realty, Inc. v. Ross, 768 So.2d 5 (Fla. 3d DCA 2000), rev. denied, 789 So.2d 348 (Fla. 2001).

§3:40     BREACH OF THIRD PARTY BENEFICIARY CONTRACT

§3:40.1     Elements of Cause of Action – FloridaSupreme Court

Essential to the right of a third party beneficiary of a contract to maintain an action for its breach is the clear intent and purpose of the contract to directly and substantially benefit the third party.

SOURCE

Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259, 262 (Fla. 1971).

SEE ALSO

  1. Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969).

  2. Auto Mutual Indemnity, Co. v. Shaw, 184 So. 852, 856 (Fla. 1938).

  3. Marianna Lime Products Co. v. McKay, 147 So. 264 (Fla. 1933).

  4. East Coast Stores, Inc. v. Cuthbert, 133 So. 863 (Fla. 1931).

  5. Woodbury v. Tampa Waterworks Co., 49 So. 556 (Fla. 1909).

  6. Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994).

§3:40.1.1     Elements of Cause of Action – 1st DCA

To prevail under a third-party beneficiary theory, Clark must prove that the provisions of the reinsurance treaties “clearly show an intention primarily and directly to benefit” Clark. Additionally, it must be shown that both parties to the reinsurance treaties intended that Clark be directly benefited therefrom—it is not sufficient to show that only one party, in this case Eastern, unilaterally intended that result.

SOURCE

Clark and Co., Inc. v. Dept. of Insurance, 436 So.2d 1013, 1016 (Fla. 1st DCA 1983).

SEE ALSO

  1. McKinney-Green, Inc. v.Davis, 606 So.2d 393, 396 (Fla. 1st DCA 1992).

  2. Crabtree v. Aetna Casualty and Surety Co., 438 So.2d 102, 105 (Fla. 1st DCA 1983) (“If a contract shows its clear intent and purpose to be a direct and substantial benefit to third parties, such third parties may maintain an action for its breach, and where a contact creates a right or imposes a duty in favor of a third person, the law presumes that the parties intended to confer a benefit upon him and furnish him a remedy.”).

  3. Health Application Systems, Inc. v. Hartford Life & Accident Insurance Co., 381 So.2d 294, 298 (Fla. 1st DCA 1980).

§3:40.1.2     Elements of Cause of Action – 2nd DCA

A party is an intended beneficiary only if the parties clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party or a class of persons to which that party claims to belong. To find the requisite intent, it must be shown that both contracting parties intended to benefit the third party; it is insufficient to show that only one party unilaterally intended to benefit the third party.

SOURCE

Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 400 (Fla.2d DCA 2000).

SEE ALSO

  1. Deanna Const. Co., Inc. v. Sarasota Entertainment Corp., 563 So.2d 150, 151 (Fla. 2d DCA 1990).

  2. Sachse v. Tampa Music, Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972), reversed and remanded following remand, 289 So.2d 785 (Fla. 2d DCA 1974) (citing Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3d DCA 1969)).

  3. Highland Insurance Co. v.Walker Memorial Sanitarium and Benevolent Assoc., 225 So.2d 572, 574 (Fla. 2d DCA 1969), cert. denied, 232 So.2d 181 (Fla. 1969).

§3:40.1.3     Elements of Cause of Action – 3rd DCA

A cause of action for breach of contract brought by a third party beneficiary must include the following allegations:

  1. the existence of a contract;

  2. the clear or manifest intent of the contracting parties that the contract primarily and directly benefit the third party;

  3. breach of the contract by a contracting party; and

  4. damages to the third party resulting from the breach.

SOURCE

Networkip, LLC v. Spread Enters., Inc., 922 So. 2d 355, 358 (Fla.3rd DCA 2006).

SEE ALSO

  1. Biscayne Inv. Group, Ltd. v. Guarantee Management Services, Inc., 903 So. 2d 251 (Fla. 3d DCA 2005).

  2. Technicable Video Systems, Inc. v. Americable of Greater Miami, Ltd., 479 So.2d 810, 811 (Fla. 3d DCA 1985).

  3. Hialeah Hospital, Inc. v. Raventos, 425 So.2d 1205, 1206 (Fla. 3d DCA 1983).

  4. Security Mutual Casualty Co. v. Pacura, 402 So.2d 1266, 1267 (Fla. 3d DCA 1981).

  5. Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3d DCA 1969).

§3:40.1.4     Elements of Cause of Action – 4th DCA

Thus, in order to plead a cause of action for breach of a third party beneficiary contract, the following elements must be set forth:

  1. a contract between A and B;

  2. an intent, either expressed by the parties, or in the provisions of the contract, that the contract primarily and directly benefit C, the third party (or a class of persons to which that party belongs);

  3. breach of that contract by either A or B (or both); and

  4. damages to C resulting from the breach.

SOURCE

Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994).

SEE ALSO

  1. Morgan Stanley DW Inc. v. Halliday, 873 So.2d 400, 403 (Fla. 4th DCA 2004).

  2. Decarlo v.Griffin, 827 So.2d 348, 351 (Fla. 4th DCA 2002).

  3. Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. 4th DCA 2002).

  4. Hollywood Lakes Country Club, Inc. v. Community Association Services, Inc., 770 So.2d 716, 719 (Fla. 4th DCA 2000).

  5. Horizon Images, Inc. v. Delta Color Graphics, Inc., 639 So.2d 186 (Fla. 4th DCA 1994), appeal after remand, 693 So.2d 988 (Fla. 4th DCA 1997).

  6. Cigna Fire Underwriters Ins. Co., Inc. v. Leonard, 645 So.2d 28, 30 (Fla. 4th DCA 1994).

  7. Jacobson v. Heritage Quality Const. Co., Inc.,604 So.2d 17, 18 (Fla. 4th DCA 1992), cause dismissed, 613 So.2d 5 (Fla. 1993).

  8. Aetna Casualty & Surety, Co. v. Jelac Corp., 505 So.2d 37, 38 (Fla. 4th DCA 1987).

  9. Weimar v. Yacht Club Point Estates, Inc., 223 So.2d 100, 102 (Fla. 4th DCA 1969).

§3:40.1.5     Elements of Cause of Action – 5th DCA

A person who is not a party to a contract may not sue for breach of that contract where that person receives only an incidental or consequential benefit from the contract. The exception to this rule is where the entity that is not a party to the contract is an intended third party beneficiary of the contract. A third party may sue under a contract as an intended third party beneficiary only if the parties express, or the contract clearly expresses, the intention to primarily and directly benefit the third party. The right of an intended, third party beneficiary to sue under a contract is recognized only if the parties clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party.

SOURCE

Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp., 850 So.2d 536, 543 (Fla. 5th DCA 2003), rev. denied, 860 So.2d 977 (Fla. 2003).

SEE ALSO

  1. Qubty v. Nagda, 817 So.2d 952, 957 (Fla. 5th DCA 2002).

  2. Hirshenson v. Spaccio, 800 So.2d 670, 673 (Fla. 5th DCA 2001).

  3. Jim Macon Bldg. Contractors, Inc. v.LakeCounty, 763 So.2d 1223, 1226 (Fla. 5th DCA 2000).

§3:40.2     Statute of Limitations

Five Years. Fla.Stat. §95.11(2)(b).

§3:40.3     References

  1. 11Fla. Jur. 2d Contracts §§197–205 (2003).

  2. 17A Am. Jur. 2d Contracts §§425–453 (2004).

  3. 17A C.J.S. Contracts §§612–632 (1999).

  4. Annotation, What Constitutes Reservation of Right to Terminate, Rescind, or Modify Contract, as against Third-Party Beneficiary, 44 A.L.R.2d 1270 (1955).

  5. Restatement (Second) of Contracts §302 (1979).

§3:40.4     Defenses

  1. Only one contracting party intended to benefit the third party: It is insufficient to show that only one party unilaterally intended to benefit the third party. Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994) (citing to Clark and Co. v. Department of Insurance, 436 So.2d 1013, 1016 (Fla. 1st DCA 1983)). See also Health Application Systems, Inc. v. Hartford Life and Accident Insurance Co., 381 So.2d 294, 298 (Fla. 1st DCA 1980).

  2. Test: In such cases the test is, not that the promisee is liable to the third person, or that there is some privity between them, or that some consideration moved from the third person, but that the parties to the contract intended that a third person should be benefited by the contract. It is the undertaking on the part of the promisor, as a consideration to the promisee, to benefit the third person, that gives rise to a cause of action by the beneficiary against the promisor, resting upon the contract itself. Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. 4th DCA 2002).

§3:50     ESTOPPEL, PROMISSORY

§3:50.1     Elements of Cause of Action – FloridaSupreme Court

The basic elements of promissory estoppel are set forth in Restatement (Second) of Contracts §90 (1979), which states:

(1)  A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

The character of the reliance protected is explained as follows:

The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice.Satisfaction of the latter requirement may depend on the reasonableness of the promisee’s reliance, on its definite and substantial character in relation to the remedy sought, on the formality with which the promise is made, on the extent to which the evidentiary, cautionary, deterrent and channeling functions of form are met by the commercial setting or otherwise, and on the extent to which such other policies as the enforcement of bargains and the prevention of unjust enrichment are relevant.

Id.(emphasis added).

SOURCE

W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla.1989).

SEE ALSO

  1. Crown Life Insurance Company v. McBride, 517 So.2d 660, 662 (Fla. 1987).

  2. Mount SinaiHospital of Greater Miami, Inc. v.Jordan, 290 So.2d 484, 486 (Fla. 1974).

  3. Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d 777, 779 (Fla. 1966).

  4. South Inv. Corp. v. Norton, 57 So.2d 1, 3 (Fla. 1952).

  5. Hygema v. Markley, 187 So. 373, 380 (Fla. 1939).

§3:50.1.1     Elements of Cause of Action – 1st DCA

To state a cause of action for promissory estoppel, a plaintiff must allege facts that, if taken as true, would show

  1. that the plaintiff detrimentally relied on a promise made by the defendant,

  2. that the defendant reasonably should have expected the promise to induce reliance in the form of action or forbearance on the part of the plaintiff or a third person, and

  3. that injustice can be avoided only by enforcement of the promise against the defendant.

SOURCE

W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297, 302 (Fla. 1st DCA 1999).

SEE ALSO

  1. Atlantic Masonry v. Miller Construction, 558 So.2d 433, 434 (Fla. 1st DCA 1990).

  2. Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800 (Fla. 1st DCA 1991).

  3. American States Insurance Company v. McGuire, 510 So.2d 1227, 1229 (Fla. 1st DCA 1987), rev. denied, 518 So.2d 1273 (Fla. 1987).

  4. Dorsey v. Bacon, 436 So.2d 1017, 1021 (Fla. 1st DCA 1983).

  5. Baxter’s Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461, 466 (Fla. 1st DCA 1981), reversed on other grounds, 421 So.2d 505 (Fla. 1982).

§3:50.1.2     Elements of Cause of Action – 2nd DCA

To state a cause of action for promissory estoppel, a plaintiff must establish the following three elements: (1) a representation as to a material fact that is contrary to a later-asserted position; (2) a reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.

SOURCE

FCCI Ins. Co. v. Cayce’s Excavation, Inc., 901 So.2d 248, 251 (Fla.2d DCA 2005).

SEE ALSO

  1. City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510 (Fla. 2d DCA 1990), rev. denied, 577 So.2d 1330 (Fla. 1991) (“Our supreme court discussed at length the elements of promissory estoppel and the circumstances under which that doctrine should be applied in W.R. Grace and Co. v. Geodata Services, 547 So.2d 919 (Fla. 1989).”).

  2. Geodata Services, Inc. v. W. R. Grace and Company, 526 So.2d 922 (Fla. 2d DCA 1988), reversed, 547 So.2d 919 (Fla. 1989).

  3. In re Estate of Ingram v. Ingram, 302 So.2d 204 (Fla. 2d DCA 1974).

  4. Southeastern Sales and Service Co. v. T. T. Waston, Inc., 172 So.2d 239 (Fla. 2d DCA 1965).

§3:50.1.3     Elements of Cause of Action – 3rd DCA

To state a cause of action for promissory estoppel, the plaintiff is required to allege three elements:

  1. a representation as to a material fact that is contrary to a later-asserted position;

  2. a reasonable reliance on that representation; and

  3. a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.

SOURCE

Romo v. Amedex Ins. Co., 930 So. 2d 643, 650 (Fla. 3rd DCA 2006).

SEE ALSO

  1. Friends of Lubavitch/Landow Yeshivah v. Northern Trust Bank ofFlorida, 685 So. 2d 951, 952 (Fla. 3d DCA 1996) (“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”).

  2. Coral Way Properties, Ltd. v. Roses, 565 So.2d 372, 374 (Fla. 3d DCA 1990).

  3. Jordan v. Mount Sinai Hospital of Greater Miami, Inc., 276 So.2d 102 (Fla. 3d DCA 1973), affirmed, 290 So.2d 484, 486 (Fla. 1974).

  4. Elgin National Industries, Inc. v. Howard Industries, Inc., 264 So.2d 440 (Fla. 3d DCA 1972).

  5. Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 173 So.2d 492 (Fla. 3d DCA 1965), affirmed, 190 So.2d 777 (Fla. 1966).

§3:50.1.4     Elements of Cause of Action – 4th DCA

The basic elements of promissory estoppel are set forth in Restatement (Second) of Contracts §90 (1979), which states:

(1)  A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

The character of the reliance protected is explained as follows:

The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice. Satisfaction of the latter requirement may depend on the reasonableness of the promisee’s reliance, on its definite and substantial character in relation to the remedy sought, on the formality with which the promise is made, on the extent to which the evidentiary, cautionary, deterrent and channeling functions of form are met by the commercial setting or otherwise, and on the extent to which such other policies as the enforcement of bargains and the prevention of unjust enrichment are relevant.

SOURCE

Advanced Marketing Systems Corp. v. ZK Yacht Sales, 830 So.2d 924, 927 (Fla.4th DCA 2002).

SEE ALSO

  1. Leonardi v. City of Hollywood, 715 So.2d 1007, 1008 (Fla. 4th DCA 1998) (The quote in Leonardi has omitted the following sentence included in W.R. Grace and Co. v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989): “The remedy granted for breach may be limited as justice requires.”).

  2. Waterfront Properties, Inc. v. Coast to Coast Real Estate, Inc., 679 So.2d 48, 49 (Fla. 4th DCA 1996).

  3. Revlon Group Incorporated v. LJS Realty, Inc., 579 So.2d 365, 367 (Fla. 4th DCA 1991) (“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. . . . The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice.”).

  4. Perry Publications, Inc. v. Bankers Life and Casualty Company, 246 So.2d 604, 605 (Fla. 4th DCA 1971).

§3:50.1.5     Elements of Cause of Action – 5th DCA

[No citation for this edition.]

SEE ALSO

  1. Homrich v. American Chambers Life Insurance Company, 594 So.2d 348 (Fla. 5th DCA 1992).

  2. Ubersee Handels Gesellschaft, Inc. v. Semenjuk, 540 So.2d 136, 138 (Fla. 5th DCA 1989).

§3:50.2     Statute of Limitations

Four Years. Fla.Stat. §95.11(3)(p).

§3:50.3     References

  1. 22Fla. Jur. 2d Estoppel and Waiver §§46–49 (2005).

  2. 28 Am. Jur. 2d Estoppel and Waiver §§55–59 (2000).

  3. 31 C.J.S. Estoppel and Waiver §§92, 93 (1996).

  4. Restatement (Second) of Contracts §90 (1979).

  5. Annotation, Promissory Estoppel of Lending Institution Based on Promise to Lend Money, 18 A.L.R.5th 307 (1994).

  6. Annotation, Promissory Estoppel as Basis For Avoidance of UCC Statute of Frauds (UCC §2-201), 29 A.L.R.4th 1006 (1984).

  7. Annotation, Promissory Estoppel as Basis for Avoidance of Statute of Frauds, 56 A.L.R.3d 1037 (1974).

  8. Annotation, Promissory Estoppel, 48 A.L.R.2d 1069 (1956).

  9. Eric M. Holmes, The Four Phases of Promissory Estoppel, 20SeattleU. L. Rev. 45 (1996).

  10. Michael I. Swygert & Donald W. Smucker, Promissory Estoppel inFlorida: Growing Recognition of Promissory Obligation, 16 Stetson L. Rev. 1 (1986).

  11. Jay M. Feinman, Promissory Estoppel and Judicial Methods, 97 Harv. L. Rev. 678 (1984).

  12. Michael B. Metzger & Michael J. Phillips, The Emergence of Promissory Estoppel as an Independent Theory of Recovery, 35Rutgers L. Rev. 472 (1983).

  13. Michael B. Metzger & Michael J. Phillips, Promissory Estoppel and Section 2-201 of the Uniform Commercial Code, 26 Vill. L. Rev. 63 (1980).

§3:50.4     Defenses

  1. Definite Promise: The promise must be definite as to terms and time. W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989).

  2. Evidence Required: For promissory estoppel to be applied, the evidence must be clear and convincing. W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 925 (Fla. 1989).

  3. Express Contract: An action for promissory estoppel fails upon a showing that an express contract exists. Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998), rev. denied, 737 So.2d 550 (Fla. 1999).

  4. Illegal Result: Estoppel cannot be applied against a governmental entity to accomplish an illegal result. Branca v. City of Miramar, 634 So.2d 604 (Fla. 1994); Morgran Co., Inc. v. Orange County, 818 So.2d 640, 644 (Fla. 5th DCA 2002), rev. denied, 839 So.2d 699 (Fla. 2003).

  5. Limited Application: The doctrine, however, only applies where to refuse to enforce a promise, even though not supported by consideration, “would be virtually to sanction the perpetration of fraud or would result in other injustice.” Crown Life Insurance Company v. McBride, 517 So.2d 660, 662 (Fla. 1987). In any event, the doctrine of promissory estoppel should not be applied if injustice can otherwise be avoided. Brine v. Fertitta, 537 So.2d 113, 115 (Fla. 2d DCA 1988).

  6. Lost Profits / Bidding Statute: We consider that it would be unjust to allow a recovery for loss of profits based on the theory of promissory estoppel due to a violation of a public bidding statute. Baxter’s Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461, 468 (Fla. 1st DCA 1981), reversed on other grounds, 421 So.2d 505 (Fla. 1982).

  7. Oral Employment Contracts: Promissory estoppel is not controlling on oral employment contracts. Keller v. Penovich, 262 So.2d 243, 244 (Fla. 4th DCA 1972).

  8. Sovereign, The: The law of this state recognizes that the theory of promissory estoppel applies to the sovereign only under exceptional circumstances. State ofFlorida, Department of Health and Rehabilitative Services v. Law Offices of Donald W. Belveal, 663 So.2d 650, 652 (Fla. 2d DCA 1995). Courts usually shrink from finding an estoppel against a governmental entity where the actions of the official are unauthorized or unlawful.MartinCounty v. Indiantown Enterprises, Inc., 658 So.2d 1144, 1146 (Fla. 4th DCA 1995).

  9. Statute of Frauds: “The question that emerges for resolution by us is whether or not we will adopt by judicial action the doctrine of promissory estoppel as a sort of counter action to the legislatively created Statute of Frauds. This we decline to do.” W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989); Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d 777, 779 (Fla. 1966); Coral Way Properties, Ltd. v. Roses, 565 So.2d 372, 374 (Fla. 3d DCA 1990).

  10. Truthful Statements: Ordinarily, a truthful statement as to the present intention of a party with regard to his future act is not the foundation upon which an estoppel may be built. W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989).

§3:50.5     Related Matters

  1. Insurance Coverage: The form of equitable estoppel known as promissory estoppel may be utilized to create insurance coverage where to refuse to do so would sanction fraud or other injustice. Crown Life Insurance Company v. McBride, 517 So.2d 660, 662 (Fla. 1987); Doe v. Allstate Insurance Company, 653 So.2d 371 (Fla. 1995); Tradewinds Construction v. Newsbaum, 606 So.2d 708, 709 (Fla. 1st DCA 1992), rev. denied, 618 So.2d 210 (Fla. 1993); Emanuel v. United States Fidelity and Guaranty Company, 583 So.2d 1092, 1093 (Fla. 3d DCA 1991); State Farm Mutual Automobile Insurance Company v. Hinestrosa, 614 So.2d 633, 636 (Fla. 4th DCA 1993).

  2. Pledge, Breach of: Therefore, in order for a pledge to survive the death of the donor and be considered a valid claim against the estate, two elements must coincidentally exist. First, the document stating the conditions of the pledge must recite with particularity the specific purpose for which the funds are to be used. . . . Secondly, the donee must affirmatively show actual reliance of a substantial character in furtherance of the specified purpose set forth in the pledge instrument before the claim may be honored by the estate.Mount SinaiHospital of Greater Miami, Inc. v.Jordan, 290 So.2d 484, 486 (Fla. 1974). The view most commonly held is that such a subscription is an offer to contract which becomes binding as soon as the work towards which the subscription was promised has been done or begun, or liability incurred in regard to such work on the faith of the subscription. Using that reasoning then it becomes simple to understand that once the element of promissory estoppel is found, a cause of action for the breach of a pledge accrues where the pledge was agreed to be performed. Friends of Lubavitch/Landow Yeshivah v. Northern Trust Bank ofFlorida, 685 So.2d 951, 952 (Fla. 3d DCA 1996).

  3. Second Bite at the Apple: Promissory estoppel is not a doctrine designed to give a party to a negotiated commercial bargain a second bite at the apple in the event it fails to prove breach of contract. Gen. Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d 1038, 1042 (6th Cir. 1990), (quoting Walker v. KFC Corp., 728 F.2d 1215, 1220 (9th Cir. 1984)). Advanced Marketing Systems Corp. v. ZK Yacht Sales, 830 So.2d 924, 928 (Fla. 4th DCA 2002).

  4. Third Parties: Promissory estoppel may be asserted by third parties. Atlantic Masonry v. Miller Construction, 558 So.2d 433, 434 (Fla. 1st DCA 1990).

§3:60     RESCISSION

§3:60.1     Elements of Cause of Action – FloridaSupreme Court

[No citation for this edition.]

§3:60.1.1     Elements of Cause of Action – 1st DCA

[No citation for this edition.]

§3:60.1.2     Elements of Cause of Action – 2nd DCA

The fundamental requirements necessary to state a cause of action for rescission or cancellation of a contract are:

  1. The character or relationship of the parties;

  2. The making of the contract;

  3. The existence of fraud, mutual mistake, false representations, impossibility of performance, or other ground for rescission or cancellation;

  4. That the party seeking rescission has rescinded the contract and notified the other party to the contract of such rescission;

  5. If the moving party has received benefits from the contract, he should further allege an offer to restore these benefits to the party furnishing them, if restoration is possible;

  6. Lastly, that the moving party has no adequate remedy at law.

SOURCE

Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So.2d 614, 617 (Fla. 2d DCA 1965), cert. denied, 180 So.2d 656 (Fla.1965).

§3:60.1.3     Elements of Cause of Action – 3rd DCA

[No citation for this edition.]

§3:60.1.4     Elements of Cause of Action – 4th DCA

The second district has identified those factors that must appear in a complaint to state a cause of action for rescission of a contract:

  1. The character or relationship of the parties;

  2. The making of the contract;

  3. The existence of fraud, mutual mistake, false representations, impossibility of performance, or other ground for rescission or cancellation;

  4. That the party seeking rescission has rescinded the contract and notified the other party to the contract of such rescission;

  5. If the moving party has received benefits from the contract, he should further allege an offer to restore these benefits to the party furnishing them, if restoration is possible;

  6. Lastly, that the moving party has no adequate remedy at law.

SOURCE

Billian v. Mobile Corporation, 710 So.2d 984, 991 (Fla. 4th DCA 1998), rev. denied, 725 So.2d 1109 (Fla.1998).

§3:60.1.5     Elements of Cause of Action – 5th DCA

[No citation for this edition.]

§3:60.2     Statute of Limitations

Four Years. Fla.Stat. §95.11(3)(l).

§3:60.3     References

  1. 9Fla. Jur. 2d Cancellation, Rescission, and Reformation of Instruments §§1–51 (2004).

  2. 11Fla. Jur. 2d Contracts §288 (2003).

  3. 13 Am. Jur. 2d Cancellation of Instruments §§50–53 (2000).

  4. 12A C.J.S. Cancellation of Instruments; Rescission §§19–70, 122–143 (2004).

§3:60.4     Defenses

  1. Adequate Remedy At Law: Rescission should not be granted if damages for breach of contract or warranty are available. Central Florida Antenna Service, Inc. v. Crabtree, 503 So.2d 1351, 1353 (Fla. 5th DCA 1987). See also Collier v. Boney, 525 So.2d 971, 972 (Fla. 1st DCA 1988).

  2. Harsh Remedy: Rescission and cancellation are harsh remedies and therefore not favored by the court. Rood Company v. Board of Public Instruction ofDadeCounty, 102 So.2d 139, 142 (Fla. 1958).

  3. Indispensable Party: In an action for rescission of a transaction, the parties to the transaction are indispensable. Allman v. Wolfe, 592 So.2d 1261, 1263 (Fla. 2d DCA 1992).

  4. Modification of Contract: An action to cancel or rescind an agreement based on fraudulent inducement cannot be maintained where the agreement has been modified by the parties after the original fraud has been discovered. Sunrise Farms, Inc. v. Wright, 376 So.2d 457, 458 (Fla. 1st DCA 1979).

  5. Waiver: See Rood Company v. Board of Public Instruction ofDadeCounty, 102 So.2d 139, 142 (Fla. 1958).

§3:60.5     Related Matters

  1. Consideration Inadequate: Inadequacy of consideration when coupled with other inequitable circumstances may afford a basis for rescission. Harrell v. Branson, 344 So.2d 604, 606 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 675 (Fla. 1977).

  2. Election of Remedies: Florida law provides for an election of remedies in fraudulent inducement cases: rescission, whereby the party repudiates the transaction, or damages, whereby the party ratifies the contract. Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So.2d 306, 313 (Fla. 2000).

  3. Equitable Lien: As part of the relief granted in rescission, a court may impose an equitable lien. Billian v. Mobile Corporation, 710 So.2d 984, 991 (Fla. 4th DCA 1998), rev. denied, 725 So.2d 1109 (Fla. 1998).

  4. Jury Trial Improper: It is error to submit equitable issues to a jury. Chabad House-Lubavitch of Palm Beach County, Inc. v. Banks, 602 So.2d 670, 672 (Fla. 4th DCA 1992).

  5. Promise to Perform Act in the Future: See Steak House, Inc. v. Barnett, 65 So.2d 736, 738 (Fla. 1953).

  6. Status Quo: In granting rescission, the court should attempt to restore the parties to the status quo. Where restoration to the status quo is impossible, however, a court may still grant rescission, provided the equities between the parties can be balanced. Braman Dodge, Inc. v. Smith, 515 So.2d 1053, 1054 (Fla. 3d DCA 1987).

  7. Stranger Bringing Action: A stranger may bring an action for rescission of a contract if his legal or equitable rights are affected thereby. ADCA Corp. v. Blumberg, 403 So.2d 547 (Fla. 2d DCA 1981).

§3:70     SPECIFIC PERFORMANCE

§3:70.1     Fla.R.Civ.P. Form 1.941

COMPLAINT

Plaintiff, A.B., sues defendant, C.D., and alleges:

  1. This is an action for specific performance of a contract to convey real property in____________ County,Florida.

  2. On _____(date)_____, plaintiff and defendant entered into a written contract, a copy being attached.

  3. Plaintiff tendered the purchase price to defendant and requested a conveyance of the real property described in the contract.

  4. Defendant refused to accept the tender or to make the conveyance.

  5. Plaintiff offers to pay the purchase price.

WHEREFORE plaintiff demands judgment that defendant be required to perform the contract for damages.

NOTE: A copy of the sales contract must be attached.

Committee Notes: 1980 Amendment. Paragraph 3 is divided into 2 paragraphs to properly accord with rule 1.110(f).

See Amendments to the FloridaRules of Civil Procedure, 773 So.2d 1098 (Fla. 2000).

Author’s Note: The “WHEREFORE” clause may need the word “and” between the words “contract” and “for.” Also, the word “sued” has been changed to “sues.”

§3:70.2     Statute of Limitations

One Year. Fla. Stat. §95.11(5)(a).

§3:70.3     Defenses

  1. Ambiguity: Specific performance may be denied when a contract is unenforceable because, based on an ambiguity in the contract, the parties never reached a meeting of the minds regarding an essential term of the agreement. King v. Bray, 867 So.2d 1224, 1226 (Fla. 5th DCA 2004).

  2. Compliance with Contractual Obligations: Specific performance was properly denied where the buyer had not complied with its contractual obligations. JNC Enterprises, Ltd. v. ICP 1, Inc., 777 So.2d 1182, 1185 (Fla. 5th DCA 2001), rev. denied, 792 So.2d 1214 (Fla. 2001).

  3. Contract Terms: The complaint was insufficient in that it did not have attached a copy of the entire contract sued upon nor did it set forth the terms of the contract adequately. Pletts v. Pletts, 258 So.2d 297 (Fla. 3d DCA 1972).

  4. Equitable Remedy: A decree of specific performance is an equitable remedy “not granted as a matter of right or grace but as a matter of sound judicial discretion” governed by legal and equitable principles. Humphrys v. Jarrell, 104 So.2d 404, 410 (Fla. 2d DCA 1958). Specific performance shall 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. Mrahunec v. Fausti, 121 A.2d 878, 880 (1956). Castigliano v. O’Connor, 911 So.2d 145 (Fla. 3d DCA 2005). See also L’Engle v. Overstreet, 55 So. 381, 384 (Fla. 1911).

  5. Unable to Comply: A court of equity will not demand that a contract be specifically enforced against a party who, due to future circumstances, is unable to comply with the agreement.Camp v. Parks, 314 So.2d 611, 615 (Fla. 4th DCA 1975).

§3:70.4     Related Matters

  1. Purpose: The purpose of specific performance is to compel a party to do what it agreed to do pursuant to a contract. Anthony James Development, Inc. v. Balboa Street Beach Club, Inc., 875 So.2d 696, 698 (Fla. 4th DCA 2004).

§3:80     TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP

§3:80.1     Elements of Cause of Action – FloridaSupreme Court

If one maliciously interferes with a contract between two persons, and induces one of them to breach the contract to the injury of the other, the injured party may maintain an action against the wrongdoer, and where the act was intentional, malice will be inferred. To do intentionally that which is calculated in the ordinary course of events to damage, and which in fact does damage, another person in his property or trade, is malicious in the law, and is actionable if it is done without just cause or excuse.

SOURCE

Dade Enterprises, Inc. v. Wometco Theatres, Inc., 160 So. 209, 210 (Fla.1935).

SEE ALSO

  1. Bankers Multiple Line Insurance Co. v. Farish, 464 So.2d 530, 532 (Fla. 1985) (“In order to prevail in his suit Farish had to prove, among other things, that Bankers intentionally and unjustifiedly interfered with the Farish-Smith contract.”).

§3:80.1.1     Elements of Cause of Action – 1st DCA

The elements of a cause of action for tortious interference with a contractual relationship are:

  1. The existence of a contract,

  2. The defendant’s knowledge of the contract,

  3. The defendant’s intentional procurement of the contract’s breach,

  4. Absence of any justification or privilege, [and]

  5. Damages resulting from the breach.

SOURCE

McKinney-Green, Inc. v. Davis, 606 So.2d 393, 397 (Fla. 1st DCA 1992).

SEE ALSO

  1. Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 899 So.2d 1222, 1228 (Fla. 1st DCA 2005).

  2. McCurdy v. Collis, 508 So.2d 380 (Fla. 1st DCA 1987), rev. denied, 518 So.2d 1274 (Fla. 1987).

  3. Smith v. Ocean State Bank, 335 So.2d 641, 643 (Fla. 1st DCA 1976).

§3:80.1.2     Elements of Cause of Action – 2nd DCA

To be actionable, tortious interference requires:

  1. the existence of an advantageous business relationship under which the plaintiff has legal rights;

  2. an intentional and unjustified interference with that relationship by the defendant; and

  3. damage to the plaintiff as a result of the breach of the business relationship.

SOURCE

Amedas, Inc. v. Brown, 505 So.2d 1091, 1093 (Fla. 2d DCA 1987), rev. denied, 639 So.2d 975 (Fla.1994).

§3:80.1.3     Elements of Cause of Action – 3rd DCA

To establish the tort of interference with a contractual or business relationship, it is well-settled in Floridathat one must allege and prove:

  1. the existence of a business relationship under which the plaintiff has legal rights,

  2. an intentional and unjustified interference with that relationship by the defendant, and

  3. damage to the plaintiff as a result of the breach of the business relationship.

SOURCE

Ethyl Corporation v. Balter, 386 So.2d 1220, 1223 (Fla. 3d DCA 1980), petition for rev. denied, 392 So.2d 1371 (Fla.1981), cert. denied, 101 S.Ct. 3099 (1981).

SEE ALSO

  1. Peninsula Federal Savings and Loan Association v. DKH Properties, Ltd., 616 So.2d 1070, 1073 (Fla. 3d DCA 1993),rev. denied, 626 So.2d 204 (Fla. 1993).

§3:80.1.4     Elements of Cause of Action – 4th DCA

The elements of tortious interference with a contract or business relationship are:

  1. the existence of a business relationship between the plaintiff and a third person, not necessarily evidenced by an enforceable contract, under which the plaintiff has legal rights;

  2. the defendant’s knowledge of the relationship;

  3. an intentional and unjustified interference with the relationship by the defendant which induces or otherwise causes the third person not to perform; and

  4. damage to the plaintiff resulting from the third person’s failure to perform.

SOURCE

Seminole Tribe of Florida v. Times Pub. Co., Inc., 780 So.2d 310, 315 (Fla.4th DCA 2001).

SEE ALSO

  1. Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 385 (Fla. 4th DCA 1999).

  2. Wackenhut Corporation v. Maimone, 389 So.2d 656, 657 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d 383 (Fla. 1981).

§3:80.1.5     Elements of Cause of Action – 5th DCA

The elements of a cause of action for tortious interference with a contractual relationship are:

  1. The existence of a contract,

  2. The defendant’s knowledge of the contract,

  3. The defendant’s intentional procurement of the contract’s breach,

  4. Absence of any justification or privilege, [and]

  5. Damages resulting from the breach.

SOURCE

Florida Telephone Corporation v. Essig, 468 So.2d 543, 544 (Fla. 5th DCA 1985).

SEE ALSO

  1. Farah v.Canada, 740 So.2d 560, 561 (Fla. 5th DCA 1999), rev. denied, 744 So.2d 452 (Fla. 1999).

  2. Sullivan v. Economic Research Properties, 455 So.2d 630, 631 (Fla. 5th DCA 1984).

  3. Heavener, Ogier Services, Inc. v R. W. Florida Region, Inc., 418 So.2d 1074, 1076 (Fla. 5th DCA 1982).

  4. McDonald v. McGowan, 402 So.2d 1197, 1201 (Fla. 5th DCA 1981), petition for rev. dismissed, 411 So.2d 380 (Fla. 1981).

§3:80.2     Statute of Limitations

Four Years. Fla.Stat. §95.11(3)(p).

§3:80.3     References

  1. 32Fla. Jur. 2d Interference §§1–4, 11–13 (2003).

  2. 45 Am. Jur. 2d Interference §§3–35 (1999).

  3. 86 C.J.S. Torts §§59–65, 98 (1997).

  4. Restatement (Second) of Torts §§762–774A (1979).

§3:80.4     Defenses

  1. Absolute Immunity: In balancing policy considerations, we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as tortious interference with a business relationship so long as the act has some relation to the proceeding. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So.2d 606, 608 (Fla. 1994).

  2. Act Legal in Itself: Where one does an act which is legal in itself, and violates no right of another person, it is true that the fact that the act is done from malice, or other bad motive toward another, does not give the latter a right of action against the former. Ethyl Corporation v. Balter, 386 So.2d 1220, 1225 (Fla. 3d DCA 1980), petition for rev. denied, 392 So.2d 1371 (Fla. 1981), cert. denied, 101 S.Ct. 3099 (1981).

  3. Contract Required: An essential element for the establishment of a tortious interference with a contractual relationship is the existence of a contract. McKinney-Green, Inc. v.Davis, 606 So.2d 393, 397 (Fla. 1st DCA 1992).

  4. Contract Terminable At Will: The general rule is that an action for tortious interference will not lie where a party tortiously interferes with a contract terminable at will. This is so because when a contract is terminable at will there is only an expectancy that the relationship will continue. In such a situation, a competitor has a privilege of interference in order to acquire the business for himself. Greenberg v.Mount SinaiMedicalCenter of Greater Miami, Inc., 629 So.2d 252, 255 (Fla. 3d DCA 1993). See also Perez v. Rivero, 534 So.2d 914, 916 (Fla. 3d DCA 1988); Wackenhut Corp. v. Maimone, 389 So.2d 656, 658 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d 383 (Fla. 1981). However, even if the contract is terminable at will, the interferer’s actions are tortious and actionable if the motive is purely malicious and not coupled with any legitimate competitive economic interest. Heavener, Ogier Services, Inc. v. R. W. Florida Region, Inc., 418 So.2d 1074, 1076 (Fla. 5th DCA 1982).

  5. First Amendment: Although the trial court had subject matter jurisdiction over the rabbi’s breach of contract claim, the court lacked jurisdiction over his complaint for defamation and tortious interference because resolving these disputes would require the court to become excessively entangled with religious beliefs. Goodman v. Temple Shir Ami, Inc., 712 So.2d 775 (Fla. 3d DCA 1998), appeal dismissed, 737 So.2d 1077 (Fla. 1999), cert. denied, 120 S.Ct. 789 (2000).

  6. Interference: In order to maintain an action for tortious interference with contractual rights, a plaintiff must prove that a third party interfered with a contract by influencing, inducing or coercing one of the parties to breach the contract, thereby causing injury to the other party. The defendant may not be held liable where it is found that the breach by the party to the contract rather than the persuasion by the defendant was the proximate cause of the plaintiff’s damage. Farah v. Canada, 740 So.2d 560, 561 (Fla. 5th DCA 1999), rev. denied, 744 So.2d 452 (Fla. 1999).

  7. Knowledge of the Contract: The intent element of the cause of action encompasses the requirement that the defendant know about the contract he is interfering with. Heavener, Ogier Services, Inc. v. R. W. Florida Region, Inc., 418 So.2d 1074, 1076 (Fla. 5th DCA 1982).

  8. Negligent Interference: There is no such thing as a cause of action for interference which is only negligently or consequently effected. Peninsula Federal Savings and Loan Association v. DKH Properties, Ltd., 616 So.2d 1070, 1073 (Fla. 3d DCA 1993), rev. denied, 626 So.2d 204 (Fla. 1993). See also Ethyl Corporation v. Balter, 386 So.2d 1220, 1224 (Fla. 3d DCA 1980), petition for rev. denied, 392 So.2d 1371 (Fla. 1981), cert. denied, 101 S.Ct. 3099 (1981).

  9. Own Business Interest: Absent proof of a duty owed by defendant to plaintiff, defendant was entitled to conduct its business and legal affairs in the manner it determined to be in its own best interests without regard to the effects on plaintiff.Paparone v. Bankers Life & Casualty Company, 496 So.2d 865, 868 (Fla. 2d DCA 1986); Bruce v. American Development Corp., 408 So.2d 857, 858 (Fla. 3d DCA 1982). UnderFlorida law, a party is privileged to act, and his actions are non-actionable, if the actions are taken to safeguard or promote the party’s own financial interests. Horizons Rehabilitation, Inc. v. Health Care And Retirement Corp., 810 So.2d 958, 964 (Fla. 5th DCA 2002), rev. denied, 832 So.2d 104 (Fla. 2002). See also Perez v. Rivero, 534 So.2d 914, 916 (Fla. 3d DCA 1988); Knight Enterprises, Inc. v. Green, 509 So.2d 398 (Fla. 4th DCA 1987); Genet Co. v. Annheuser-Busch, Inc., 498 So.2d 683, 684 (Fla. 3d DCA 1986).

  10. Party to the Contract: A cause of action for interference does not exist against one who is himself a party to the contract allegedly interfered with. Ethyl Corporation v. Balter, 386 So.2d 1220, 1224 (Fla. 3d DCA 1980), petition for rev. denied, 392 So.2d 1371 (Fla. 1981), cert. denied, 101 S.Ct. 3099 (1981). The rule generally applied to interconnected contracts, is that a party may not be charged with interference with its own contract. Peninsula Federal Savings and Loan Association v. DKH Properties, Ltd., 616 So.2d 1070, 1073 (Fla. 3d DCA 1993), rev. denied, 626 So.2d 204 (Fla. 1993).

  11. Tortious Interference with Advantageous Business Relationship: See the defenses under Tortious Interference with Advantageous Business Relationship.

  12. Voidable Contracts: It usually is held that contracts which are voidable by reason of the statute of frauds, formal defects, lack of consideration, lack of mutuality, or even uncertainty of terms, or harsh and unconscionable provisions, or conditions precedent to the existence of the obligation, can still afford a basis for a tort action when the defendant interferes with their performance. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668, 672 (Fla. 1979).

§3:80.5     Related Matters

  1. Factors to Consider: The factors to consider in evaluating the propriety of interference with contractual relations are stated in Restatement (Second) of Torts §767 (1977), as:

       In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:

  1. the nature of the actor’s conduct,

  2. the actor’s motive,

  3. the interests of the other with which the actor’s conduct interferes,

  4. the interests sought to be advanced by the actor,

  5. the social interests in protecting the freedom of action of the actor and the contractual interests of the other,

  6. the proximity or remoteness of the actor’s conduct to the interference and

  7. the relations between the parties.

       See McCurdy v. Collis, 508 So.2d 380, 383 (Fla. 1st DCA 1987), rev. denied, 518 So.2d 1274 (Fla.1987). See also Seminole Tribe of Florida v. Times Pub. Co., Inc., 780 So.2d 310, 315 (Fla.4th DCA 2001).

  1. Freedom from Unreasonable Interference: This cause of action recognizes that economic relations are entitled to freedom from unreasonable interference. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668, 672 (Fla. 1979).

  2. Historical Background: This remedy made its first appearance in modern times in Lumley v. Gye, 2 El. & Bl. 216, 118 Eng.Rep. 749 (1853). Wackenhut Corporation v. Maimone, 389 So.2d 656, 657 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d 382, 383 (Fla. 1981).

  3. Single Contractual Provision: The tort of interference with a contractual relationship can include attempts to alter or change only a single contractual provision, whether the attempt is to extinguish the provision entirely or instead simply to alter it, so long as the effect is to interfere with benefits otherwise due the plaintiff. See Ingalsbe v. Stewart Agency, Inc., 869 So.2d 30, 33 (Fla. 4th DCA 2004), rev. dismissed, 889 So.2d 779 (Fla. 2004); Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 899 So.2d 1222, 1228 (Fla. 1st DCA 2005).

  4. Temporary Injunction: Temporary injunctions have been recognized as a viable form of relief in a suit for tortious interference with a contract. Heavener, Ogier Services, Inc. v. R. W. Florida Region, Inc., 418 So.2d 1074, 1075 (Fla. 5th DCA 1982).

§3:90     UNJUST ENRICHMENT

§3:90.1     Elements of Cause of Action – FloridaSupreme Court

The elements of an unjust enrichment claim are a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.

SOURCE

Florida Power Corp. v. City of Winter Park, 887 So.2d 1237, 1242 (Fla. 2004).

SEE ALSO

  1. Yeats v. Moody, 175 So. 719 (Fla. 1937).

§3:90.1.1     Elements of Cause of Action – 1st DCA

The elements of a cause of action for unjust enrichment are:

  1. plaintiff has conferred a benefit on the defendant, who has knowledge thereof;

  2. defendant voluntarily accepts and retains the benefit conferred; and

  3. the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.

SOURCE

Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 899 So.2d 1222, 1227 (Fla. 1st DCA 2005).

SEE ALSO

  1. Cole Taylor Bank v. Shannon, 772 So.2d 546, 551 (Fla. 1st DCA 2000).

  2. W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297, 303 (Fla. 1st DCA 1999).

  3. Rabon v.Inn of Lake City, Inc., 693 So.2d. 1126, 1131 (Fla. 1st DCA 1997).

  4. Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996).

  5. Circle Finance Co. v. Peacock, 399 So. 2d 81, 84 (Fla. 1st DCA 1981), petition for rev. denied, 411 So.2d 380 (Fla. 1981).

  6. Interior Design Concepts, Inc. v. Curtin, 473 So.2d 1374, 1376 (Fla. 1st DCA 1985).

§3:90.1.2     Elements of Cause of Action – 2nd DCA

The essential elements of a claim for unjust enrichment are:

  1. a benefit conferred upon a defendant by the plaintiff;

  2. the defendant’s appreciation of the benefit; and

  3. the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.

SOURCE

Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla.2d DCA 2006).

SEE ALSO

  1. Rite-Way Painting & Plastering, Inc. v. Tetor,582 So. 2d 15, 17 (Fla. 2d DCA 1991), rev. dismissed, 587 So.2d 1329 (Fla. 1991).

  2. Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla. 2d DCA 1998).

  3. Ruck Brothers Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So.2d 205, 207 (Fla. 2d DCA 1995), rev. denied, 676 So.2d 1368 (Fla. 1996).

  4. Gomes v. Stevens, 548 So.2d 1163, 1164 (Fla. 2d DCA 1989).

  5. Craig W. Sharp, P.A. v. Adalia Bayfront Condominium, Ltd., 547 So.2d 674, 677 (Fla. 2d DCA 1989).

  6. CoffeePotPlaza Partnership v. Arrow Air Conditioning and Refrigeration, Inc., 412 So.2d 883 (Fla. 2d DCA 1982).

§3:90.1.3     Elements of Cause of Action – 3rd DCA

The elements of a cause of action for unjust enrichment are:

  1. plaintiff conferred a benefit on the defendant, who has knowledge of that benefit;

  2. the defendant accepts and retains the conferred benefit; and

  3. under the circumstances it would be inequitable for the defendant to retain the benefit without paying for it.

SOURCE

N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672, 675 (Fla.3d DCA 2000).

SEE ALSO

  1. Peoples National Bank of Commerce v. First Union National Bank of Florida, N.A., 667 So.2d 876, 879 (Fla. 3d DCA 1996) (citing to Hillman Construction Corporation v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994)).

  2. Challenge Air Transport, Inc., v. TransportesAereos Nacionales,S.A.,520 So.2d 323, 324 (Fla. 3d DCA 1988).

  3. Edd Helms Electrical Contracting, Inc. v. Barnett Bank ofSouth Fla., N.A., 531 So.2d 238, 239 (Fla. 3d DCA 1988).

§3:90.1.4     Elements of Cause of Action – 4th DCA

To state a claim for unjust enrichment, a plaintiff must plead the following elements:

  1. the plaintiff has conferred a benefit on the defendant;

  2. the defendant has knowledge of the benefit;

  3. the defendant has accepted or retained the benefit conferred; and

  4. the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

SOURCE

Della Ratta v. Della Ratta, 927 So. 2d 1055, 1059 (Fla.4th DCA 2006).

SEE ALSO

  1. Swafford v. Schweitzer, 906 So. 2d 1194, 1195 (Fla. 4th DCA 2005).

  2. ohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 992 (Fla. 4th DCA 2003).

  3. Magwood v. Tate, 835 So.2d 1241, 1243 (Fla. 4th DCA 2003).

  4. Hull & Company, Inc. v. Thomas, 834 So.2d 904, 907 (Fla. 4th DCA 2003).

  5. Greenfield v. Manor Care, Inc., 705 So.2d 926, 930 (Fla. 4th DCA 1997), appeal dismissed, 717 So.2d 534 (Fla. 1998).

  6. Alevizos v. John D. and Catherine T. MacArthur Foundation, 764 So.2d 8, 13 (Fla. 4th DCA 1999).

  7. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383, 386 (Fla. 4th DCA 1997).

  8. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, 743 So.2d 1223, 1224 (Fla. 4th DCA 1999).

  9. Hillman Construction Corporation v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994) (citing to Henry M. Butler Inc. v. Trizec Properties Inc., 524 So.2d 710 (Fla. 2d DCA 1988)).

  10. Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, 1239 (Fla. 4th DCA 1976) (“There can be no strict rule as to what constitutes unjust enrichment, nor can an exhaustive list be given of elements which must be alleged in a pleading in order to state a cause of action for restitution. Everything depends on the circumstances of the individual case and whether or not the pleader has alleged facts which show that an injustice would occur if money were not refunded.”).

§3:90.1.5     Elements of Cause of Action – 5th DCA

To state a claim under the theory of unjust enrichment, it must be shown that:

  1. the plaintiff conferred a benefit on the defendant, who has knowledge of the benefit;

  2. the defendant accepts and retains the conferred benefit; and

  3. under the circumstances it would be inequitable for the defendant to retain the benefit without paying for it.

Duncan v. Kasim, Inc., 810 So.2d 968 (Fla. 5th DCA 2002).

The phrase, “unjust enrichment” is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under circumstances that give rise to a legal or equitable obligation to account therefor. Lowry v. Lowry, 463 So.2d 540, 541 (Fla. 2d DCA 1985) (quoting 66 Am. Jur. 2d, Restitution and Implied Contracts §3 (1973)). It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly. Id.(quoting 66 Am. Jur. 2d, Restitution and Implied Contracts §3 (1973)).

SOURCE

Timberland Consolidated Partnership v. Andrews Land and Timber, Inc., 818 So.2d 609, 611 (Fla. 5th DCA 2002).

SEE ALSO

1.   Duncan v. Kasim, Inc. 810 So.2d 968, 971 (Fla. 5th DCA 2002), rev. denied, 832 So.2d 104 (Fla. 2002).

§3:90.2     Statute of Limitations

Four Years. Fla. Stat. §95.11(3)(k); Swafford v. Schweitzer, 906 So.2d 1194, 1195 (Fla. 4th DCA 2005).

§3:90.3     References

  1. 11Fla. Jur. 2d Contracts §282 (2003).

  2. 66 Am. Jur. 2d Restitution and Implied Contracts§§8, 9, 12 (2001).

  3. 7 C.J.S. Assumpsit, Action on §§1–3 (2004).

  4. Restatement of the Law of Restitution §1 (1937).

  5. George B. Klippert, Unjust Enrichment (1983). ISBN 0-409-84293-1 (discussing Canadian law).

  6. H. Hugh McConnell, Distinguishing Quantum Merit and Unjust Enrichment in the Construction Setting, 71Fla. Bar J. 88 (March 1997).

  7. David M. Holliday, Annotation, Equipment Leasing Expenses as Element of Construction Contractor’s Damages, 52 A.L.R.4th 712 (1987).

  8. J. R. Kemper, Annotation, Building and Construction Contracts: Right of Subcontractor who has dealt only with Primary Contractor to Recover against Property Owner in Quasi Contract, 62 A.L.R.3d 288 (1975).

§3:90.4     Defenses

  1. Burden: Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1949) (“It is our view that a greater burden should be placed upon a plaintiff who relies upon an implied contract than one who uses reasonable care and foresight in protecting himself by means of an express contract. To hold otherwise would be to encourage loose dealings and place a premium upon carelessness.”).

  2. Express Contract: An action for unjust enrichment fails upon a showing that an express contract exists. Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998), rev. denied, 737 So.2d 550 (Fla. 1999).

  3. Payment Made: Unjust enrichment cannot exist where payment has been made for the benefit conferred. N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672, 675 (Fla. 3d DCA 2000).

  4. Received in Good Faith: The law seems to be settled that money paid under a mistake of facts cannot be reclaimed where the plaintiff has derived a substantial benefit from the payment, nor where the defendant received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience. Pensacola & A. R. Co. v. Braxton, 16 So. 317, 321 (Fla. 1894).

§3:90.5     Related Matters

  1. Contract Implied in Fact and Contract Implied in Law: A contract implied in fact is an enforceable contract that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in law is an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. In short, a contract implied in law does not require an agreement, however, a contract implied in fact does. A quasi contract is a contract implied in law since it does not require an agreement. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, 743 So.2d 1223, 1224 (Fla. 4th DCA 1999).
    A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. It is to this process of defining an enforceable agreement thatFlorida courts have referred when they have indicated that contracts implied in fact rest upon the assent of the parties.
    A contract implied in law, or quasi contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.
    To describe the cause of action encompassed by a contract implied in law,Florida courts have synonymously used a number of different terms—“quasi contract,” “unjust enrichment,” “restitution,” “constructive contract,” and “quantum meruit.” This profusion of terminology has its roots in legal history. Concerned about the confusion between contracts implied in law and fact, two legal scholars sought to extirpate the term “contract implied in law” from legal usage and to substitute for it the term “quasi contract.” As Corbin explains, although the term “quasi contract” took hold, the older term successfully resisted extirpation to the further confusion of law students and lawyers.
    The term “quantum meruit” derives from common law forms of pleading. The action of assumpsit was available for the recovery of damages for the breach or non-performance of a simple contract or upon a contract implied by law from the acts or conduct of the parties. There were two divisions of assumpsit, general, upon the common counts, and special. In general assumpsit, on the common counts, only an implied contract could be the basis of the action. The common counts were abbreviated and stereotyped statements that the defendant was indebted to the plaintiff for a variety of commonly recurring reasons, such as goods sold and delivered or work and labor done. The count asking judgment for work done was quantum meruit; for goods sold the count was quantum valebant. The common counts were used to enforce contracts implied both in law and in fact. Because so many quasi contract actions were brought in the common counts, and because courts and lawyers were not careful to draw the distinction, the term “quantum meruit” is often used synonymously with the term “quasi contract.”
    InFlorida, all implied contract actions were part of the action of assumpsit, which was an action at law under the common law. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383 (Fla. 4th DCA 1997).

  2. Second Real Estate Broker: The elements of a cause of action against a second real estate broker to recover the commission from the sale of property on the theory of unjust enrichment require the first real estate broker to show either the existence of an implied contract to pay him for his services in finding and negotiating with the ultimate purchasers or that he was the procuring factor in the sale. Framer Realty, Inc. v. Ross, 768 So.2d 5 (Fla. 3d DCA 2000), rev. denied, 789 So.2d 348 (Fla. 2001).

§3:90.6     Sample Cause of Action

COUNT FOR UNJUST ENRICHMENT

[INSERT PARAGRAPH NUMBER – #]. Plaintiff realleges and incorporates the allegations set forth in paragraphs __-__ above as if set forth herein in full.

#   Plaintiff has conferred a benefit on the defendant, who has knowledge thereof.

#   Defendant voluntarily accepted and retained the benefit conferred.

#   The circumstances render Defendant’s retention of the benefit inequitable unless the Defendant pays to Plaintiff the value of the benefit.

#   Defendant has been unjustly enriched at the expense of Plaintiff

#   Plaintiff is entitled to damages as a result of Defendant’s unjust enrichment, including the disgorgement of all monies unlawfully accepted by Defendant from Plaintiff.

WHEREFORE, Plaintiff demands monetary damages against Defendant for unjust enrichment and such other relief this Court deems just and proper.

WHEREFORE, Plaintiff demands monetary damages against Defendant for slander of title and such other relief this Court deems just and proper.

§3:100   USURIOUS TRANSACTION

§3:100.1   Elements of Cause of Action – FloridaSupreme Court

The Four requisites of a usurious transaction are:

  1. there must be a loan express or implied;

  2. an understanding between the parties that the money lent shall be returned;

  3. that for such a loan a greater rate of interest than is allowed by law shall be paid or agreed to be paid, as the case may be; and

  4. there must exist a Corrupt intent to take more than the legal rate for the use of the money loaned.

SOURCE

Dixon v. Sharp, 276 So.2d 817, 819 (Fla. 1973).

SEE ALSO

1.   Clark v. Grey, 132 So. 832 (Fla.1931).

§3:100.1.1   Elements of Cause of Action – 1st DCA

The four elements of a usurious transaction are:

  1. an express or implied loan;

  2. an understanding between the parties that the money loaned shall be returned;

  3. an agreement that a greater rate of interest than is allowed by law shall be paid or agreed to be paid; and

  4. the existence of a corrupt intent to take more than the legal rate for the use of the money loaned.

SOURCE

Rollins v. Odom, 519 So.2d 652 (Fla. 1st DCA 1988), rev. denied, 529 So.2d 695 (Fla. 1988).

§3:100.1.2   Elements of Cause of Action – 2nd DCA

The four requirements necessary to establish a usurious transaction are:

  1. A loan, either express or implied;

  2. An understanding between the lender and the borrower that the money must be repaid;

  3. For such loan a greater rate of interest than is allowed by law shall be paid or agreed to be paid; and

  4. There must be a corrupt intent on the part of the lender to take more than the legal rate of interest for the use of the money loaned.

SOURCE

Rebman v. Flagship First Nat’l Bank, 472 So.2d 1360, 1362 (Fla. 2d DCA 1985).

SEE ALSO

  1. Florida Trading and Inv. Co., Inc. v. River Const. Services, Inc., 537 So.2d 600, 603 (Fla. 2d DCA 1988), rev. denied, 544 So.2d 200 (Fla. 1989).

  2. River Hills, Inc. v. Edwards, 190 So.2d 415, 423 (Fla. 2d DCA 1966).

  3. Diversified Enterprises, Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962).

  4. Stewart v. Nangle, 103 So.2d 649 (Fla. 2d DCA 1958).

§3:100.1.3   Elements of Cause of Action – 3rd DCA

In order to establish a usurious transaction, certain elements must first be present. Firstly, there must be a loan, either expressed or implied, and an understanding between the parties that the money lent shall be returned. Secondly, it must appear that a greater rate of interest than is allowed by law has been or is about to be paid, or was agreed to be paid. Thirdly, there must exist an intent to willfully and knowingly take more than the legal rate of interest for the use of the money loaned.

SOURCE

Bermil Corp. v. Sawyer, 353 So.2d 579, 583 (Fla. 3d DCA 1977).

SEE ALSO

  1. Antonelli v. Neumann, 537 So.2d 1027, 1028 (Fla. 3d DCA 1988).

  2. Gergora v. Goldstein Professional Association Defined Benefits Pension Plan and Trust, 500 So.2d 695, 697 (Fla. 3d DCA 1987).

§3:100.1.4   Elements of Cause of Action – 4th DCA

The four requisites of a usurious transaction are:

  1. a loan, express or implied;

  2. an understanding between the parties that the money lent shall be returned;

  3. payment or agreement to pay a greater rate of interest than is allowed by law; and

  4. a corrupt intent to take more than the legal rate for the use of the money loaned.

SOURCE

Valliappan v. Cruz, 917 So. 2d 257, 260 (Fla. 4th DCA 2005).

SEE ALSO

  1. Kraft v. Mason, 668 So. 2d 679, 683 (Fla. 4th DCA 1996), rev. dismissed, 679 So.2d 773 (Fla. 1996).

  2. Jersey Palm-Gross, Inc. v. Paper, 639 So.2d 664, 666 (Fla. 4th DCA 1994), approved, 658 So.2d 531 (Fla. 1995).

  3. Sharp v.Dixon, 252 So.2d 805 (Fla. 4th DCA 1971).

§3:100.1.5   Elements of Cause of Action – 5th DCA

There are four essential elements of a usurious transaction:

  1. an express or implied loan;

  2. a repayment requirement;

  3. an agreement to pay interest in excess of the legal rate; and

  4. a corrupt intent to take more than the legal rate for the money loaned.

SOURCE

Oregrund Ltd. Partnership v. Sheive, 873 So.2d 451, 456 (Fla.5th DCA 2004).

SEE ALSO

1.   Party Yards, Inc. v. Templeton, 751 So.2d 121, 123 (Fla. 5th DCA 2000).

§3:100.2   Statute of Limitations

Four Years. Fla.Stat. §§95.11 (3)(f); 687.147.

§3:100.3   References

  1. 32Fla. Jur. 2d Interest and Usury §§47–79 (2003).

  2. 45 Am. Jur. 2d Interest and Usury §§84–381 (1999).

  3. 42 C.J.S. Interest and Usury; Consumer Credit §§143–164, 184–253 (2005).

  4. Florida Statutes §687.03 (2005) (Unlawful rates of interest defined; proviso).

  5. Florida Statutes §687.071 (2005) (Criminal usury, loan sharking; shylocking).

  6. Chapter 687, Florida Statutes (2005) (Interest and usury; lending practices).

§3:100.4   Defenses

  1. Burden of Proof: The burden to establish these elements of usury is on the borrower. Rebman v. Flagship First Nat’l Bank ofHighlandsCounty, 472 So.2d 1360, 1362 (Fla. 2d DCA 1985).

  2. Defenses, Generally: Neither ignorance of the law of usury, nor the fact that the suggestion of the usurious rate emanated from the borrower, nor that it was the opinion of counsel that the loan was not violative of the statute, nor the fact that a plan or scheme to circumvent usury was embraced by both parties, where the amount of interest is in fact usurious and known to the lender to be, will absolve him from the penalties involved because of usury. See Lee Construction Corp. v. Newman, 143 So.2d 222 (Fla. 3d DCA 1962), cert. denied, 148 So.2d 280 (Fla. 1962); Ross v. Whitman, 181 So.2d 701 (Fla. 3d DCA (1966), cert. denied, 194 So.2d 624 (Fla. 1966); Carr v. Cole, 161 So. 392 (Fla. 1935); Beach v. Kirk, 189 So. 263 (Fla. 1938); Hormuth v. Dickson, 156 So. 127 (Fla. 1934); River Hills, Inc. v. Edwards, 190 So.2d 415, 424 (Fla. 2d DCA 1966).

  3. Speculative Risk: Excluded from the usury statutes are transactions in which a portion of the investment is at speculative risk. Hurley v. Slingerland, 461 So.2d 282, 283 (Fla. 4th DCA 1985); Diversified Enterprises, Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962). This principle has been statutorily validated when the venture exceeds $500,000. See Bailey v. Harrington, 462 So.2d 861 (Fla. 3d DCA 1985), pet. rev. denied, 472 So.2d 1180 (Fla. 1985), pet. rev. denied, 472 So.2d 1181 (Fla. 1985); Oregrund Ltd. Partnership v. Sheive, 873 So.2d 451, 456 (Fla. 5th DCA 2004).

  4. Usury Savings Clause: A usury savings clause cannot, by itself, absolutely insulate a lender from a finding of usury. Rather, we approve and adopt the Fourth District’s holding, that a usury savings clause is one factor to be considered in the overall determination of whether the lender intended to exact a usurious interest rate. Such a standard strikes a balance between the legislative policy of protecting borrowers from overreaching creditors and the need to preserve otherwise good faith, albeit complex, transactions which may inadvertently exact an unlawful interest rate. . . . [W]e also believe that savings clauses serve a legitimate function in commercial loan transactions and should be enforced in appropriate circumstances. For instance, we agree with Judge Pariente’s illustration, in the majority opinion below, of the proper utilization of a savings clause: Where the actual interest charged is close to the legal rate, or where the transaction is not clearly usurious at the outset but only becomes usurious upon the happening of a future contingency, the clause may be determinative on the issue of intent. Jersey Palm-Gross, Inc. v. Paper, 658 So.2d 531, 535 (Fla. 1995).

§3:100.5   Related Matters

  1. Common Law: The defense of usury was unknown at the common law. Yaffee v. International Co., 80 So.2d 910, 912 (Fla. 1955).

  2. Substance over Form: It is the substance of a transaction, rather than its form, that must be scrutinized in ascertaining whether a transaction, not appearing in the form of a loan, is in fact a usurious loan. Growth Leasing, Ltd. v. Gulfview Advertiser, Inc., 448 So.2d 1224 (Fla. 2d DCA 1984); Florida Trading and Inv. Co., Inc. v. River Const. Services, Inc., 537 So.2d 600, 602 (Fla. 2d DCA 1988), rev. denied, 544 So.2d 200 (Fla. 1989).

  3. Usurious Nature of Transaction: The burden of proving usury is on the party who alleges it. See Phillips v. Lindsay, 136 So. 666 (Fla. 1931); Tucker v. Fouts, 76 So. 130 (Fla. 1917); Swanson v. Gulf West Intern. Corp., 429 So.2d 817 (Fla. 2d DCA 1983). The Legislature enacted usury laws to remedy an existing evil, and it has wide discretion in dealing with usury. Cesary v. Second National Bank ofNorth Miami, 369 So.2d 917 (Fla. 1979). The determination of the maximum amount of interest which may be charged for the use of money loaned is within the police power of the state. Cesary v. Second National Bank ofNorth Miami, 369 So.2d 917 (Fla. 1979). Excluded from the usury statutes are transactions in which a portion of the investment is at speculative risk. Hurley v. Slingerland, 461 So.2d 282, 283 (Fla. 4th DCA 1985); Diversified Enterprises, Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962). This principle has been statutorily validated when the venture exceeds $500,000. See Bailey v. Harrington, 462 So.2d 861 (Fla. 3d DCA 1985). Courts look to the substance of the transaction to determine whether a transaction is usurious. Party Yards; Kay v. Amendola, 129 So.2d 170 (Fla. 2d DCA 1961). That is, a finding of usury depends on the intent and understanding of the parties. Indian Lake Estates, Inc. v. Special Investments, Inc., 154 So.2d 883 (Fla. 2d DCA 1963). A key issue is the liability of the borrower under the contract’s terms, or what may be demanded of a borrower, rather than what is demanded of him. First Mortgage. A transaction that is either entirely or partially in the form of a sale, may be usurious when the intent is to make a loan of money for a greater profit than allowed by statute. See, e.g., Griffin v. Kelly, 92 So.2d 515 (Fla. 1957). The usurious nature of a transaction is established at the inception of the transaction. See Home Credit Co. v. Brown, 148 So.2d 257 (Fla. 1963); Shorr v. Skafte, 90 So.2d 604 (Fla. 1956); Carter v. Leon Loan & Finance Co., 146 So. 664 (Fla. 1933); Maxwell v. Jacksonville Loan & Improvement Co., 34 So. 255 (Fla. 1903); First Mortgage; Kay v. Amendola, 129 So.2d 170 (Fla. 2d DCA 1961); Coral Gables First National Bank v. Constructors of Florida, Inc., 119 So.2d 741 (Fla. 3d DCA 1960). The exception to this rule is where an old contract is abandoned and a new one, which has been entered into free from the vice of the old, occurs.Oregrund Ltd. Partnership v. Sheive, 873 So.2d 451, 455 (Fla. 5th DCA 2004).

  4. Usury as a Defense: When usury is raised as a defense, the borrower must affirmatively plead and establish the four elements of a usurious transaction by clear and satisfactory evidence. Dixon v. Sharp, 276 So.2d at 820; Sumner v. Investment Mortgage Company of Florida, 332 So.2d 103, 105 (Fla. 1st DCA 1976), cert. denied, 344 So.2d 327 (Fla. 1977); Gergora v. Goldstein Professional Assoc., 500 So.2d at 697; Rebman v. St. Petersburg Bank, 472 So.2d at 1362. In other words, that the lender willfully and with corrupt intent charged or accepted more than the prohibited interest must be specifically and affirmatively pleaded and established by clear and satisfactory evidence. River Hills, Inc. v. Edwards, 190 So.2d 415, 424 (Fla. 2d DCA 1966).See also American National Growers Corporation v. Harris, 120 So.2d 212, 213 (Fla. 2d DCA 1960); Rollins v. Odom, 519 So.2d 652, 657 (Fla. 1st DCA 1988), rev. denied, 529 So.2d 695 (Fla. 1988).

Excerpted from Florida Causes of Action by Marc A. Wites


Table of Contents

§3:10     BREACH OF CONTRACT

§3:10.1     Elements of Cause of Action -Florida Supreme Court

§3:10.1.1       Elements of Cause of Action – 1st DCA

§3:10.1.2       Elements of Cause of Action – 2nd DCA

§3:10.1.3       Elements of Cause of Action – 3rd DCA

§3:10.1.4       Elements of Cause of Action – 4th DCA

§3:10.1.5       Elements of Cause of Action – 5th DCA

§3:10.2     Statute of Limitations

§3:10.3     References

§3:10.4     Defenses

§3:10.5     Related Matters

§3:10.6     Sample Complaint

§3:20     BREACH OF IMPLIED-IN-FACT CONTRACT

§3:20.1     Elements of Cause of Action –Florida Supreme Court

§3:20.1.1       Elements of Cause of Action – 1st DCA

§3:20.1.2       Elements of Cause of Action – 2nd DCA

§3:20.1.3       Elements of Cause of Action – 3rd DCA

§3:20.1.4       Elements of Cause of Action – 4th DCA

§3:20.1.5       Elements of Cause of Action – 5th DCA

§3:20.2     Statute of Limitations

§3:20.3     References

§3:20.4     Defenses

§3:20.5     Related Matters

§3:30     BREACH OF IMPLIED-IN-LAW CONTRACT

§3:30.1     Elements of Cause of Action –Florida Supreme Court

§3:30.1.1       Elements of Cause of Action – 1st DCA

§3:30.1.2       Elements of Cause of Action – 2nd DCA

§3:30.1.3       Elements of Cause of Action – 3rd DCA

§3:30.1.4       Elements of Cause of Action – 4th DCA

§3:30.1.5       Elements of Cause of Action – 5th DCA

§3:30.2     Statute of Limitations

§3:30.3     References

§3:30.4     Defenses

§3:30.5     Related Matters

§3:40     BREACH OF THIRD PARTY BENEFICIARY CONTRACT

§3:40.1     Elements of Cause of Action -Florida Supreme Court

§3:40.1.1       Elements of Cause of Action – 1st DCA

§3:40.1.2       Elements of Cause of Action – 2nd DCA

§3:40.1.3       Elements of Cause of Action – 3rd DCA

§3:40.1.4       Elements of Cause of Action – 4th DCA

§3:40.1.5       Elements of Cause of Action – 5th DCA

§3:40.2     Statute of Limitations

§3:40.3     References

§3:40.4     Defenses

§3:50     ESTOPPEL, PROMISSORY

§3:50.1     Elements of Cause of Action -Florida Supreme Court

§3:50.1.1       Elements of Cause of Action – 1st DCA

§3:50.1.2       Elements of Cause of Action – 2nd DCA

§3:50.1.3       Elements of Cause of Action – 3rd DCA

§3:50.1.4       Elements of Cause of Action – 4th DCA

§3:50.1.5       Elements of Cause of Action – 5th DCA

§3:50.2     Statute of Limitations

§3:50.3     References

§3:50.4     Defenses

§3:50.5     Related Matters

§3:60     RESCISSION

§3:60.1     Elements of Cause of Action -Florida Supreme Court

§3:60.1.1       Elements of Cause of Action – 1st DCA

§3:60.1.2       Elements of Cause of Action – 2nd DCA

§3:60.1.3       Elements of Cause of Action – 3rd DCA

§3:60.1.4       Elements of Cause of Action – 4th DCA

§3:60.1.5       Elements of Cause of Action – 5th DCA

§3:60.2     Statute of Limitations

§3:60.3     References

§3:60.4     Defenses

§3:60.5     Related Matters

§3:70     SPECIFIC PERFORMANCE

§3:70.1     Fla.R.Civ.P. Form 1.941

§3:70.2     Statute of Limitations

§3:70.3     Defenses

§3:70.4     Related Matters

§3:80     TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP

§3:80.1     Elements of Cause of Action -Florida Supreme Court

§3:80.1.1       Elements of Cause of Action – 1st DCA

§3:80.1.2       Elements of Cause of Action – 2nd DCA

§3:80.1.3       Elements of Cause of Action – 3rd DCA

§3:80.1.4       Elements of Cause of Action – 4th DCA

§3:80.1.5       Elements of Cause of Action – 5th DCA

§3:80.2     Statute of Limitations

§3:80.3     References

§3:80.4     Defenses

§3:80.5     Related Matters

§3:90     UNJUST ENRICHMENT

§3:90.1     Elements of Cause of Action -Florida Supreme Court

§3:90.1.1       Elements of Cause of Action – 1st DCA

§3:90.1.2       Elements of Cause of Action – 2nd DCA

§3:90.1.3       Elements of Cause of Action – 3rd DCA

§3:90.1.4       Elements of Cause of Action – 4th DCA

§3:90.1.5       Elements of Cause of Action – 5th DCA

§3:90.2     Statute of Limitations

§3:90.3     References

§3:90.4     Defenses

§3:90.5     Related Matters

§3:90.6     Sample Cause of Action

§3:100   USURIOUS TRANSACTION

§3:100.1    Elements of Cause of Action -Florida Supreme Court

§3:100.1.1     Elements of Cause of Action – 1st DCA

§3:100.1.2     Elements of Cause of Action – 2nd DCA

§3:100.1.3     Elements of Cause of Action – 3rd DCA

§3:100.1.4     Elements of Cause of Action – 4th DCA

§3:100.1.5     Elements of Cause of Action – 5th DCA

§3:100.2    Statute of Limitations

§3:100.3    References

§3:100.4    Defenses

§3:100.5    Related Matters

§3:10     BREACH OF CONTRACT

§3:10.1     Elements of Cause of Action -Florida Supreme Court

[No citation for this edition.]

SEE ALSO

  1. Hazen v. Cobb, 117 So. 853, 859 (Fla. 1928) (“[w]e have held that a cause of action for an entire breach of the contract immediately arises upon the wrongful discharge of an employee under a contract for a definite time, and it is not necessary to await the termination of that period before asking the courts for redress.”).

  2. Fontainbleau Hotel Corp. v. Walters, 246 So.2d 563, 565 (Fla. 1971).

§3:10.1.1     Elements of Cause of Action – 1st DCA

It is elementary that in order to recover on a claim for breach of contract the burden is upon the claimant to prove by a preponderance of the evidence the existence of a contract, a breach thereof and damages flowing from the breach.

SOURCE

Knowles v. C.I.T. Corp., 346 So.2d 1042, 1043 (Fla. 1st DCA 1977).

SEE ALSO

  1. W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297, 301 (Fla. 1st DCA 1999) (Note: Omits the element of damages).

  2. Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845, 848 (Fla. 1st DCA 1990) (“[I]n order to maintain an action for breach of contract, a claimant must first establish performance on its part of the contractual obligations imposed in the contract.”).

§3:10.1.2     Elements of Cause of Action – 2nd DCA

The elements of an action for breach of contract are:

  1. the existence of a contract;

  2. a breach of the contract; and

  3. damages resulting from the breach.

SOURCE

Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006) (“In addition, in order to maintain an action for breach of contract, a claimant must also prove performance of its obligations under the contract or a legal excuse for its nonperformance.”).

SEE ALSO

  1. Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253, 255 (Fla. 2d DCA 1994) (stating that the plaintiff properly pled a breach of contract by alleging an offer, acceptance, consideration, a contract, breach of the contract and damages).

  2. Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985) (“The complaint alleged the execution of an oral contract, the obligation thereby assumed, and a breach. It therefore set forth sufficient facts which taken as true, would state a cause of action for breach of contract.”).

  3. Cerniglia v. Davison Chemical Co., 145 So.2d 254, 255 (Fla. 2d DCA 1962).

§3:10.1.3     Elements of Cause of Action – 3rd DCA

To prevail on a breach of contract action, the plaintiff must prove (1) a valid contract; (2) a material breach; and (3) damages.

SOURCE

Murciano v. Garcia, 958 So. 2d 423, 423 (Fla. 3rd DCA 2007).

SEE ALSO

  1. Collections, USA, Inc. v. City ofHomestead, 816 So. 2d 1225, 1227 (Fla. 3d DCA 2002).

  2. AIB Mortgage Co. v. Sweeney, 687 So.2d 68, 69 (Fla. 3d DCA 1997) (“To establish a breach of contract, a party must show the existence of a contract, a breach thereof, and damages.”).

  3. Industrial Medicine Publishing Co. Inc. v. Colonial Press of Miami, Inc., 181 So.2d 19, 20 (Fla. 3d DCA 1965).

§3:10.1.4     Elements of Cause of Action – 4th DCA

The elements of a breach of contract action are:

  1. a valid contract;

  2. a material breach; and

  3. damages.

SOURCE

Sulkin v. All Florida Pain Management, Inc., 932 So. 2d 485, 486 (Fla. 4th DCA 2006).

SEE ALSO

  1. J.J. Gumberg Co. v. Janis Services, Inc., 847 So. 2d 1048, 1049 (Fla. 4th DCA 2003).

  2. Miller v. Nifakos, 655 So.2d 192, 193 (Fla. 4th DCA 1995) (“To establish a breach of contract, a party must show the existence of a contract, a breach thereof, and damages.”).

  3. Plowden & Roberts, Inc. v.Conway, 192 So.2d 528, 531 (Fla. 4th DCA 1966).

§3:10.1.5     Elements of Cause of Action – 5th DCA

The elements of a breach of contract action are:

  1. a valid contract;

  2. a material breach; and

  3. damages.

SOURCE

Abbott Laboratories, Inc. v. General Electric Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000).

§3:10.2     Statute of Limitations

Fla. Stat. §95.11(2)(b)(five years for written contract); §95.11(3)(k)(four years for oral contract).

§3:10.3     References

  1. 11Fla. Jur. 2d Contracts §§262–273 (2003).

  2. 17A Am. Jur. 2d Contracts §§699–712 (2004).

  3. 17B C.J.S. Contracts §§640–649 (1999).

  4. Florida Standard Jury Instruction (Civ.) MI 12.1.

§3:10.4     Defenses

  1. Abandonment of Contract: Abandonment of contract is an affirmative defense that the defendant must raise in its answer or otherwise is waived. American Enviro-Port, Inc. v. Williams, 489 So.2d 839 (Fla. 1st DCA 1986).

  2. Act of God: If the losses or injuries are caused by an act of God that could not have been foreseen and from which the carrier could not by the exercise of due care protect the goods, the carrier is not liable. Seaboard Air Line Ry.Co. v. Mullin, 70 So. 467, 469 (Fla. 1915).

  3. Breach by Other Party: When one party to a contract unjustifiably refuses to perform his agreement in whole, or in any substantial part, the other party has the option to rescind the entire contract, provided he offers to do so within a reasonable time, and will restore what he has received, and provided that the situation of the parties remains so far unchanged that they can be restored to their original position. Savage v. Horne, 31 So.2d 477, 482 (Fla. 1947). See also Bryan and Sons Corp. v. Klefstad, 237 So.2d 236, 238 (Fla. 4th DCA 1970), appeal after remand, 265 So.2d 382 (Fla. 4th DCA 1972).

  4. Contractors: Generally, the liability of a contractor is cut off after the owner has accepted the work performed if the alleged defect is a patent defect which the owner could have discovered and remedied. However, the test for patency is not whether or not the condition was obvious to the owner, but whether or not the dangerousness of the condition was obvious had the owner exercised reasonable care. Florida Dept. of Transportation v. Capeletti Bros., Inc., 743 So.2d 150, 152 (Fla. 3d DCA 1999), rev. denied, 760 So.2d 945 (Fla. 2000).

  5. Damages Required: Not all breaches of contract result in damages and the law furnishes a remedy only for such wrongful acts as result in injury or damage. Scott-Steven Development Corp. v. Gables by the Sea, Inc., 167 So.2d 763, 764 (Fla. 3d DCA 1964), cert. denied, 174 So.2d 32 (Fla. 1965).

  6. Discharge: A material breach by one party may be considered a discharge of the other party’s obligations thereunder. Nacoochee Corp. v. Pickett, 948 So. 2d 26, 30 (Fla. 1st DCA 2006).

  7. Duress: Assuming duress was present in the execution of the instrument, which position we do not favor, the agreement would not have been void, but only voidable.Davis v. Hefty Press, Inc., 11 So.2d 884, 886 (Fla. 1943).

  8. Failure of Consideration: A failure of consideration is a defense to a contract. Vichaikul v. S.C.A.C. Enterprises, Inc., 616 So.2d 100 (Fla. 2d DCA 1993). The slightest detriment to the promisee is sufficient consideration to bind the promisor. Maryland Casualty Company v. Krasnek, 174 So.2d 541, 543 (Fla. 1965).

  9. Fraud, Contract Induced by: It is a fundamental proposition that a contract induced by fraud is voidable. Lance Holding Co. v. Ashe, 533 So.2d 929, 930 (Fla. 5th DCA 1988).

  10. Frustration of Purpose: Frustration of purpose refers to that condition surrounding the contracting parties where one of the parties finds that the purposes for which it bargained, and which purposes were know to the other party, have been frustrated because of the failure of consideration, or impossibility of performance by the other party. Even under theories which permit a broader application of the doctrine of commercial frustration, the defense is not available concerning difficulties which could reasonably have been foreseen by the promisor at the creation of the contract. Home Design Center–Joint Venture v.CountyAppliances ofNaples, 563 So.2d 767, 770 (Fla. 2d DCA 1990).

  11. Hindering the Performance of the Other: One who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its nonperformance. Hanover Realty Corp. v. Codomo, 95 So.2d 420, 423 (Fla. 1957).

  12. Illegality: An agreement that is violative of a provision of a constitution or a valid statute, or an agreement which cannot be performed without violating such a constitutional or statutory provision, is illegal and void. When a contract or agreement, express or implied, is tainted with the vice of such illegality, no alleged right founded upon the contract or agreement can be enforced in a court of justice. Where the parties to such an agreement are in pari delicto the law will leave them where it finds them, relief will be refused in the courts because of the public interest. Local No. 234 of United Association of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. Henley & Beckwith, Inc., 66 So.2d 818, 821 (Fla. 1953). See also McIntyre v. Norman, 429 So.2d 1296, 1297 (Fla. 3d DCA 1983), rev. denied, 438 So.2d 833 (Fla. 1983).

  13. Impossibility of Performance: Impossibility of performance refers to those factual situations, too numerous to catalog, where the purposes, for which the contract was made, have, on one side, become impossible to perform. As a general rule, a contract is not invalid, nor is the obligor discharged from its binding effect, because the contract turns out to be difficult or burdensome to perform.HomeDesignCenter—Joint Venture v.CountyAppliances ofNaples, 563 So.2d 767, 769 (Fla. 2d DCA 1990). See also McIntyre v. Norman, 429 So.2d 1296, 1297 (Fla. 3d DCA 1983), rev. denied, 438 So.2d 833 (Fla. 1983). The doctrine of “impossibility” must be applied with caution and is not available concerning intervening difficulties which could reasonably have been foreseen and could have been controlled by an express provision of the agreement. See Am. Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So.2d 809 (Fla. 4th DCA 1998); Home Design Ctr.Joint Venture v. County Appliances of Naples, Inc., 563 So.2d 767 (Fla. 2d DCA 1990); Walter T. Embry, Inc. v. LaSalle Nat. Bank, 792 So.2d 567, 570 (Fla. 4th DCA 2001), subsequent appeal, 868 So.2d 661 (Fla. 4th DCA 2004).

  14. Mistake: Florida law permits a party to rescind a contact based on unilateral mistake unless the mistake results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contact that it would be inequitable to order rescission. Florida Insurance Guaranty Association, Inc. v. Love, 732 So.2d 456, 457 (Fla. 2d DCA 1999). A mistake, whether unilateral or mutual, must go to a material, substantial element of a contract in order to justify rescission. Williams, Salomon, Kanner, Damian, Weissler & Brooks v. Harbour Club Villas Condominium Association, Inc., 436 So.2d 233, 235 (Fla. 3d DCA 1983).

  15. Rescission: While we have found noFlorida cases expressly stating that rescission is an affirmative defense, it appears that rescission falls within the general definition of that which is included within the nature of an affirmative defense. Joseph Buckeck Construction Corp. v. Music, 420 So.2d 410, 414 (Fla. 1st DCA 1982).Florida law permits a party to rescind a contract based on unilateral mistake unless the mistake results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contract that it would be inequitable to order rescission.Florida Insurance Guaranty Assoc., Inc. v. Love, 732 So.2d 456, 457 (Fla. 2d DCA 1999).

  16. Sovereign Immunity: In County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049 (Fla. 1997), the court ruled that under section 768.28, the legislature authorized state entities to enter into contracts and waived sovereign immunity as to express contracts. It concluded that if disputed work is not expressly part of the original contract or a change order, and it is not an implied part of the contract, sovereign immunity bars recovery for the disputed work because it is “outside” the contract.W&J Construction Corp. v. Fanning/Howey Associates, 741 So.2d 582, 584 (Fla. 5th DCA 1999).

  17. Unconscionability: Unconscionability is an affirmative defense which must be raised by proper pleading. Barakat v. BrowardCountyHousing Authority, 771 So.2d 1193, 1194 (Fla. 4th DCA 2000).

§3:10.5     Related Matters

  1. Anticipatory Repudiation: Anticipatory repudiation relieves the non-breaching party of its duty to further perform and creates in it an immediate cause of action for breach of contract. Twenty-Four Collection, Inc. v. M. Weinbaum Construction, Inc., 427 So.2d 1110, 1111 (Fla. 3d DCA 1983).

  2. Lost Chance orOpportunity: It is now an accepted principle of contract law, nonetheless, that recovery will be allowed where a plaintiff has been deprived of an opportunity or chance to gain an award or profit even where damages are uncertain.Miller v. Allstate Insurance Co., 573 So.2d 24, 29 (Fla. 3d DCA 1990), rev. denied, 581 So.2d 1307 (Fla. 1991).

  3. Lost Profits: To recover damages for lost profits in a breach of contract action, a party must prove a breach of contract, that the party actually sustained a loss as a proximate result of that breach, that the loss was or should have been within the reasonable contemplation of the parties, and that the loss alleged was not remote, contingent, or conjectural and the damages were reasonably certain. Frenz Enterprises, Inc. v. PortEverglades, 746 So.2d 498, 504 (Fla. 4th DCA 1999).

  4. Oral Contract: To state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to “a certain and definite proposition” and left no essential terms open. Jacksonville Port Authority v. W.R. Johnson Enterprises, Inc., 624 So.2d 313 (Fla. 1st DCA 1993), rev. denied, 634 So.2d 629 (Fla. 1994); W.R. Townsend Contracting, Inc. v. Jensen Civil Const., Inc. 728 So.2d 297, 300 (Fla. 1st DCA 1999). See Complaint Library, Form 3:10-2 (oral contract) on the CD-ROM.

  5. Prejudgment Interest: Prejudgment interest is an element of damages for a breach of contract. Pelaez v. Persons, 664 So.2d 1022, 1023 (Fla. 2d DCA 1995).

  6. Rescission: A mere breaching of a contract is not necessarily a rescinding of the contract. When a contract is rescinded it is done away with and ceases to be a contract. When a contract is breached the contract continues to live and the parties have their rights to damages for the breach instead of on the theory of the contract being rescinded. If one party to a contract renders performance impossible, the opposite party may at his election rescind it. Givens v. Vaughn-Griffin Packing Co., 1 So.2d 714, 719 (Fla. 1941).

  7. Settlement Agreements: Settlements are construed in accordance with the rules for interpretation of contracts. Treasure Coast, Inc. v. Ludlum Construction, Inc., 760 So.2d 232, 234 (Fla. 4th DCA 2000).

§3:10.6     Sample Complaint

See Complaint Library, Form 3:10-2 (oral contract) on the CD-ROM; see also Form 3:10-3 (construction contract).

§3:20     BREACH OF IMPLIED-IN-FACT CONTRACT

§3:20.1     Elements of Cause of Action –Florida Supreme Court

A court should determine and give to the alleged implied contract the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly thereto.

SOURCE

Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla.1950).

SEE ALSO

  1. Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 13 (Fla. 1973) (Contracts implied in fact rest upon the assent of the parties).

  2. Rodriguez v. Powell, 172 So. 849 (Fla. 1937) (holding that promise of company’s agent to cover a plaintiff’s medical expenses in exchange for a release created a contract and plaintiff could sue company for breaching it).

§3:20.1.1     Elements of Cause of Action – 1st DCA

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words.

SOURCE

Waite Dev., Inc. v. City of Milton, 866 So.2d 153 (Fla.1st DCA 2004).

SEE ALSO

  1. Rabon v. Inn of Lake City, Inc., 693 So.2d 1126, 1131-32 (Fla. 1st DCA 1997) (In a contract implied in fact, the assent of the parties is derived from other circumstances, including their course of dealing or usage of trade or course of performance. In inferring a contract implied in fact, a court should give to the implied contract the effect which the parties, as fair and reasonable men, presumably would have agreed upon if, having in mind the possibility of the situation which has arisen, they had contracted expressly in reference thereto).

  2. Mecier v. Broadfoot, 584 So.2d 159, 161 (Fla. 1st DCA 1991) (Contracts implied in fact are inferred from facts and circumstances of case).

§3:20.1.2     Elements of Cause of Action – 2nd DCA

While contracts implied in fact require the assent of the parties, contracts implied in law do not.

SOURCE

Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA 1991).

§3:20.1.3     Elements of Cause of Action – 3rd DCA

Unlike express contracts or contracts implied in fact, contracts implied in law do not rest upon the assent of the contracting parties.

SOURCE

Variety Children’s Hospital, Inc. v. Vigliotti, 385 So.2d 1052, 1053 (Fla. 3d DCA 1980).

SEE ALSO

  1. Aldebot v. Story, 534 So.2d 1216, 1217 (Fla. 3d DCA 1988) (as opposed to express contracts and contracts implied in fact, where assent of parties is required, contracts implied in law are obligations imposed by law on grounds of justice and equity and do not rest upon assent of contracting parties).

§3:20.1.4     Elements of Cause of Action – 4th DCA

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. Common examples of contracts implied in fact are where a person performs services at another’s request or where services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances fairly raising the presumption that the parties understood and intended that compensation was to be paid. In these circumstances, the law implies the promise to pay a reasonable amount for the services.

SOURCE

Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997).

SEE ALSO

  1. GEM Broadcasting v. Minker, 763 So.2d 1149, 1150 (Fla. 4th DCA 2000) (the enforceability of a contract implied in fact is based on an implied promise, not on whether the defendant has received something of value).

  2. CDS & Assoc. of Palm Beaches, Inc. v. 1711 Donna Rd. Assoc., 743 So.2d 1223 (Fla. 4th DCA 1999) (a contract implied in fact is an enforceable contract that is inferred in whole or part from the parties’ conduct, not solely from their words).

  3. Policastro v. Myers, 420 So.2d 324, 326 (Fla. 4th DCA 1982) (contracts implied in fact rest upon the assent of the parties).

§3:20.1.5     Elements of Cause of Action – 5th DCA

[No citation for this edition]

§3:20.2     Statute of Limitations

Four Years. Fla.Stat. § 95.11(3)(k).

§3:20.3     References

  1. Restatement (Second) of Contracts § 4, cmt. a (1982).

  2. 1 Arthur Linton Corbin, Corbin on Contracts, §§ 1.18-1.20 (Joseph M. Perillo ed. 1993).

  3. 3 Corbin on Contracts § 562 (1960).

  4. 17 Am.Jur.2d “Contracts” § 3 (1964).

§3:20.4     Defenses

  1. Burden: It is our view that a greater burden should be placed upon a plaintiff who relies upon an implied contract than one who uses reasonable care and foresight in protecting himself by means of an express contract. To hold otherwise would be to encourage loose dealings and place a premium upon carelessness. Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1949)

  2. Lack of Assent: While contracts implied in fact, such as an action in quantum meruit, require the assent of the parties, contracts implied in law do not require such assent. Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA 1991).

  3. Familial Relationship: When a person provides services to another without a written agreement regarding compensation, a promise to pay for those services will generally be implied. However, this general rule is not applicable if the services are rendered by and for members of the same family or relatives who live together. In such cases, no presumption arises that one is to be paid for the services rendered. In the absence of an express contract or promise to pay, no right of action accrues for the services, especially where the relationship evinces the mutuality or reciprocity of services, benefits and duties, which characterize normal family life. McLane v. Musick, 792 So.2d 702, 705 (Fla. 5th DCA 2001).

  4. Failure to Comply With Statutory Requirements: This consumer protection statute [Fla. Stat. § 559.905] must necessarily be construed to be a limitation on the common law principle of quantum meruit because the recognition of a quasi-contractual obligation by the law in this situation would necessarily circumvent the very dictates of the statute by enabling a motor vehicle repair shop to ignore the statutory requirements of providing a written estimate or obtaining a written waiver. Osteen v. Morris, 481 So.2d 1287, 1290 (Fla. 5th DCA 1986).

§3:20.5     Related Matters

1.      Contract Implied in Fact and Contract Implied in Law: A contract implied in fact is an enforceable contract that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in law is an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. In short, a contract implied in law does not require an agreement, however, a contract implied in fact does. A quasi-contract is a contract implied in law since it does not require an agreement. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, 743 So.2d 1223, 1224 (Fla. 4th DCA 1999).

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated that contracts implied in fact rest upon the assent of the parties.

A contract implied in law, or quasi-contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.

To describe the cause of action encompassed by a contract implied in law, Florida courts have synonymously used a number of different terms—“quasi-contract,” “unjust enrichment,” “restitution,” “constructive contract,” and “quantum meruit.” This profusion of terminology has its roots in legal history. Concerned about the confusion between contracts implied in law and fact, two legal scholars sought to extirpate the term “contract implied in law” from legal usage and to substitute for it the term “quasi-contract.” As Corbin explains, although the term “quasi-contract” took hold, the older term successfully resisted extirpation to the further confusion of law students and lawyers.

The term “quantum meruit” derives from common law forms of pleading. The action of assumpsit was available for the recovery of damages for the breach or non-performance of a simple contract or upon a contract implied by law from the acts or conduct of the parties. There were two divisions of assumpsit, general, upon the common counts, and special. In general assumpsit, on the common counts, only an implied contract could be the basis of the action. The common counts were abbreviated and stereotyped statements that the defendant was indebted to the plaintiff for a variety of commonly recurring reasons, such as goods sold and delivered or work and labor done. The count asking judgment for work done was quantum meruit; for goods sold the count was quantum valebant. The common counts were used to enforce contracts implied both in law and in fact. Because so many quasi-contract actions were brought in the common counts, and because courts and lawyers were not careful to draw the distinction, the term “quantum meruit” is often used synonymously with the term “quasi-contract.”

In Florida, all implied contract actions were part of the action of assumpsit, which was an action at law under the common law. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383 (Fla. 4th DCA 1997).

§3:30     BREACH OF IMPLIED-IN-LAW CONTRACT

§3:30.1     Elements of Cause of Action – FloridaSupreme Court

Contracts implied in law, commonly called “quasi-contracts,” are obligations imposed by law on grounds of justice and equity, and do not rest upon the assent of the contracting parties.

SOURCE

Tipper v. Great Lakes Chemical Co., 281 So.2d 10, 13 (Fla.1973).

§3:30.1.1     Elements of Cause of Action – 1st DCA

A contract implied in law (or quasi-contract), unlike a true contract based upon the express or apparent intention of the parties, is not based on a promissory agreement or the apparent intention of the parties to undertake the performance in question. Quasi-contracts or contracts implied in law are obligations imposed by law to prevent unjust enrichment. The essential elements for an action under this theory are a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof. Quasi-contracts, therefore, are obligations created by the law for reasons of justice, not by the express or apparent intent of the parties. Thus, it may be said that obligations of this type should not properly be considered contracts at all, but a form of the remedy of restitution.

SOURCE

Rabon v. Innof Lake City, Inc., 693 So.2d 1126, 1131-32 (Fla. 1st DCA 1997)

§3:30.1.2     Elements of Cause of Action – 2nd DCA

Contracts implied in law are obligations imposed by law to prevent unjust enrichment. The essential elements for an action under this theory are a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof. While contracts implied in fact, such as an action in quantum meruit, require the assent of the parties, contracts implied in law do not require such assent.

SOURCE

Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA 1991).

SEE ALSO

  1. Craig W. Sharp, P.A. v. Adalia Bayfront Condo., Ltd., 547 So.2d 674 (Fla. 2d DCA 1989).

  2. Henry M. Butler, Inc. v. Trizec Properties, Inc., 524 So.2d 710, 711-12 (Fla. 2d DCA 1988).

§3:30.1.3     Elements of Cause of Action – 3rd DCA

Unlike express contracts or contracts implied in fact, quasi-contracts do not rest upon the assent of the contracting parties. Quasi-contracts are based primarily upon a benefit flowing to the person sought to be charged. The person unjustly enriched is required to compensate the person furnishing the benefit. Thus, the preliminary question in determining whether the law should imply a contract in this case turns upon whether the mother has been unjustly enriched, and that determination turns upon whether the mother has an obligation or legal duty that has been satisfied by the efforts of another.

SOURCE

Variety Children’s Hospital, Inc. v. Vigliotti, 385 So.2d 1052, 1053 (Fla. 3d DCA 1980).

SEE ALSO

  1. Aldebot v. Story, 534 So.2d 1216, 1217 (Fla. 3d DCA 1988) (As opposed to express contracts and contracts implied in fact, where assent of parties is required, contracts implied in law are obligations imposed by law on grounds of justice and equity and do not rest upon assent of contracting parties).

§3:30.1.4     Elements of Cause of Action – 4th DCA

The elements of a cause of action for a quasi-contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it. Because the basis for recovery does not turn on the finding of an enforceable agreement, there may be recovery under a contract implied in law even where the parties had no dealings at all with each other. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.

SOURCE

Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997).

SEE ALSO

  1. GEM Broadcasting v. Minker, 763 So.2d 1149, 1150-51 (Fla. 4th DCA 2000) (a necessary element of a cause of action for a contract implied in law is that the plaintiff has conferred a benefit on the defendant — it is not based upon the finding of an agreement between the parties).

  2. CDS & Assoc. of Palm Beaches, Inc. v.1711 Donna Rd. Assoc., 743 So.2d 1223 (Fla. 4th DCA 1999).

  3. Nursing Care Services, Inc. v. Dobos, 380 So.2d 516 (Fla. 4th DCA 1980).

  4. Hillman Const. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994).

§3:30.1.5     Elements of Cause of Action – 5th DCA

A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. The elements of a cause of action for a quasi-contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred; and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

SOURCE

American Safety Ins. Service, Inc. v. Griggs, 959 So.2d 322, 331 (Fla.5th DCA 2007)

§3:30.2     Statute of Limitations

Four Years. Fla. Stat. §95.11(3)(k); Swafford v. Schweitzer, 906 So.2d 1194, 1195 (Fla. 4th DCA 2005).

§3:30.3     References

  1. Restatement (Second) of Contracts § 4, cmt. b (1982).

  2. 11Fla. Jur. 2d Contracts §282 (2003).

  3. 66 Am. Jur. 2d Restitution and Implied Contracts §§8, 9, 12 (2001).

  4. 7 C.J.S. Assumpsit, Action on §§1–3 (2004).

  5. Restatement of the Law of Restitution §1 (1937).

  6. George B. Klippert, Unjust Enrichment (1983). ISBN 0-409-84293-1 (discussing Canadian law).

  7. H. Hugh McConnell, Distinguishing Quantum Merit and Unjust Enrichment in the Construction Setting, 71Fla. Bar J. 88 (March 1997).

  8. David M. Holliday, Annotation, Equipment Leasing Expenses as Element of Construction Contractor’s Damages, 52 A.L.R.4th 712 (1987).

  9. J. R. Kemper, Annotation, Building and Construction Contracts: Right of Subcontractor Who Has Dealt Only With Primary Contractor to Recover Against Property Owner in Quasi-Contract, 62 A.L.R.3d 288 (1975).

§3:30.4     Defenses

  1. Burden: Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1949) (“It is our view that a greater burden should be placed upon a plaintiff who relies upon an implied contract than one who uses reasonable care and foresight in protecting himself by means of an express contract. To hold otherwise would be to encourage loose dealings and place a premium upon carelessness.”).

  2. Express Contract: An action for unjust enrichment fails upon a showing that an express contract exists. Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998), rev. denied, 737 So.2d 550 (Fla. 1999).

  3. Payment Made: Unjust enrichment cannot exist where payment has been made for the benefit conferred. N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672, 675 (Fla. 3d DCA 2000).

  4. Received in Good Faith: The law seems to be settled that money paid under a mistake of facts cannot be reclaimed where the plaintiff has derived a substantial benefit from the payment, nor where the defendant received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience. Pensacola & A. R. Co. v. Braxton, 16 So. 317, 321 (Fla. 1894).

§3:30.5     Related Matters

1.      Contract Implied in Fact and Contract Implied in Law: A contract implied in fact is an enforceable contract that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in law is an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. In short, a contract implied in law does not require an agreement, however, a contract implied in fact does. A quasi-contract is a contract implied in law since it does not require an agreement. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, 743 So.2d 1223, 1224 (Fla. 4th DCA 1999).

A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated that contracts implied in fact rest upon the assent of the parties.

A contract implied in law, or quasi-contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.

To describe the cause of action encompassed by a contract implied in law, Florida courts have synonymously used a number of different terms—“quasi-contract,” “unjust enrichment,” “restitution,” “constructive contract,” and “quantum meruit.” This profusion of terminology has its roots in legal history. Concerned about the confusion between contracts implied in law and fact, two legal scholars sought to extirpate the term “contract implied in law” from legal usage and to substitute for it the term “quasi-contract.” As Corbin explains, although the term “quasi-contract” took hold, the older term successfully resisted extirpation to the further confusion of law students and lawyers.

The term “quantum meruit” derives from common law forms of pleading. The action of assumpsit was available for the recovery of damages for the breach or non-performance of a simple contract or upon a contract implied by law from the acts or conduct of the parties. There were two divisions of general assumpsit upon the common counts, and special. In general assumpsit, on the common counts, only an implied contract could be the basis of the action. The common counts were abbreviated and stereotyped statements that the defendant was indebted to the plaintiff for a variety of commonly recurring reasons, such as goods sold and delivered or work and labor done. The count asking judgment for work done was quantum meruit; for goods sold the count was quantum valebant. The common counts were used to enforce contracts implied both in law and in fact. Because so many quasi-contract actions were brought in the common counts, and because courts and lawyers were not careful to draw the distinction, the term “quantum meruit” is often used synonymously with the term “quasi-contract.”

In Florida, all implied contract actions were part of the action of assumpsit, which was an action at law under the common law. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383 (Fla. 4th DCA 1997).

2.      Second Real Estate Broker: The elements of a cause of action against a second real estate broker to recover the commission from the sale of property on the theory of unjust enrichment require the first real estate broker to show either the existence of an implied contract to pay him for his services in finding and negotiating with the ultimate purchasers or that he was the procuring factor in the sale. Framer Realty, Inc. v. Ross, 768 So.2d 5 (Fla. 3d DCA 2000), rev. denied, 789 So.2d 348 (Fla. 2001).

§3:40     BREACH OF THIRD PARTY BENEFICIARY CONTRACT

§3:40.1     Elements of Cause of Action – FloridaSupreme Court

Essential to the right of a third party beneficiary of a contract to maintain an action for its breach is the clear intent and purpose of the contract to directly and substantially benefit the third party.

SOURCE

Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259, 262 (Fla. 1971).

SEE ALSO

  1. Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969).

  2. Auto Mutual Indemnity, Co. v. Shaw, 184 So. 852, 856 (Fla. 1938).

  3. Marianna Lime Products Co. v. McKay, 147 So. 264 (Fla. 1933).

  4. East Coast Stores, Inc. v. Cuthbert, 133 So. 863 (Fla. 1931).

  5. Woodbury v. Tampa Waterworks Co., 49 So. 556 (Fla. 1909).

  6. Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994).

§3:40.1.1     Elements of Cause of Action – 1st DCA

To prevail under a third-party beneficiary theory, Clark must prove that the provisions of the reinsurance treaties “clearly show an intention primarily and directly to benefit” Clark. Additionally, it must be shown that both parties to the reinsurance treaties intended that Clark be directly benefited therefrom—it is not sufficient to show that only one party, in this case Eastern, unilaterally intended that result.

SOURCE

Clark and Co., Inc. v. Dept. of Insurance, 436 So.2d 1013, 1016 (Fla. 1st DCA 1983).

SEE ALSO

  1. McKinney-Green, Inc. v.Davis, 606 So.2d 393, 396 (Fla. 1st DCA 1992).

  2. Crabtree v. Aetna Casualty and Surety Co., 438 So.2d 102, 105 (Fla. 1st DCA 1983) (“If a contract shows its clear intent and purpose to be a direct and substantial benefit to third parties, such third parties may maintain an action for its breach, and where a contact creates a right or imposes a duty in favor of a third person, the law presumes that the parties intended to confer a benefit upon him and furnish him a remedy.”).

  3. Health Application Systems, Inc. v. Hartford Life & Accident Insurance Co., 381 So.2d 294, 298 (Fla. 1st DCA 1980).

§3:40.1.2     Elements of Cause of Action – 2nd DCA

A party is an intended beneficiary only if the parties clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party or a class of persons to which that party claims to belong. To find the requisite intent, it must be shown that both contracting parties intended to benefit the third party; it is insufficient to show that only one party unilaterally intended to benefit the third party.

SOURCE

Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 400 (Fla.2d DCA 2000).

SEE ALSO

  1. Deanna Const. Co., Inc. v. Sarasota Entertainment Corp., 563 So.2d 150, 151 (Fla. 2d DCA 1990).

  2. Sachse v. Tampa Music, Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972), reversed and remanded following remand, 289 So.2d 785 (Fla. 2d DCA 1974) (citing Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3d DCA 1969)).

  3. Highland Insurance Co. v.Walker Memorial Sanitarium and Benevolent Assoc., 225 So.2d 572, 574 (Fla. 2d DCA 1969), cert. denied, 232 So.2d 181 (Fla. 1969).

§3:40.1.3     Elements of Cause of Action – 3rd DCA

A cause of action for breach of contract brought by a third party beneficiary must include the following allegations:

  1. the existence of a contract;

  2. the clear or manifest intent of the contracting parties that the contract primarily and directly benefit the third party;

  3. breach of the contract by a contracting party; and

  4. damages to the third party resulting from the breach.

SOURCE

Networkip, LLC v. Spread Enters., Inc., 922 So. 2d 355, 358 (Fla.3rd DCA 2006).

SEE ALSO

  1. Biscayne Inv. Group, Ltd. v. Guarantee Management Services, Inc., 903 So. 2d 251 (Fla. 3d DCA 2005).

  2. Technicable Video Systems, Inc. v. Americable of Greater Miami, Ltd., 479 So.2d 810, 811 (Fla. 3d DCA 1985).

  3. Hialeah Hospital, Inc. v. Raventos, 425 So.2d 1205, 1206 (Fla. 3d DCA 1983).

  4. Security Mutual Casualty Co. v. Pacura, 402 So.2d 1266, 1267 (Fla. 3d DCA 1981).

  5. Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla. 3d DCA 1969).

§3:40.1.4     Elements of Cause of Action – 4th DCA

Thus, in order to plead a cause of action for breach of a third party beneficiary contract, the following elements must be set forth:

  1. a contract between A and B;

  2. an intent, either expressed by the parties, or in the provisions of the contract, that the contract primarily and directly benefit C, the third party (or a class of persons to which that party belongs);

  3. breach of that contract by either A or B (or both); and

  4. damages to C resulting from the breach.

SOURCE

Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994).

SEE ALSO

  1. Morgan Stanley DW Inc. v. Halliday, 873 So.2d 400, 403 (Fla. 4th DCA 2004).

  2. Decarlo v.Griffin, 827 So.2d 348, 351 (Fla. 4th DCA 2002).

  3. Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. 4th DCA 2002).

  4. Hollywood Lakes Country Club, Inc. v. Community Association Services, Inc., 770 So.2d 716, 719 (Fla. 4th DCA 2000).

  5. Horizon Images, Inc. v. Delta Color Graphics, Inc., 639 So.2d 186 (Fla. 4th DCA 1994), appeal after remand, 693 So.2d 988 (Fla. 4th DCA 1997).

  6. Cigna Fire Underwriters Ins. Co., Inc. v. Leonard, 645 So.2d 28, 30 (Fla. 4th DCA 1994).

  7. Jacobson v. Heritage Quality Const. Co., Inc.,604 So.2d 17, 18 (Fla. 4th DCA 1992), cause dismissed, 613 So.2d 5 (Fla. 1993).

  8. Aetna Casualty & Surety, Co. v. Jelac Corp., 505 So.2d 37, 38 (Fla. 4th DCA 1987).

  9. Weimar v. Yacht Club Point Estates, Inc., 223 So.2d 100, 102 (Fla. 4th DCA 1969).

§3:40.1.5     Elements of Cause of Action – 5th DCA

A person who is not a party to a contract may not sue for breach of that contract where that person receives only an incidental or consequential benefit from the contract. The exception to this rule is where the entity that is not a party to the contract is an intended third party beneficiary of the contract. A third party may sue under a contract as an intended third party beneficiary only if the parties express, or the contract clearly expresses, the intention to primarily and directly benefit the third party. The right of an intended, third party beneficiary to sue under a contract is recognized only if the parties clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party.

SOURCE

Taylor Woodrow Homes Florida, Inc. v. 4/46-A Corp., 850 So.2d 536, 543 (Fla. 5th DCA 2003), rev. denied, 860 So.2d 977 (Fla. 2003).

SEE ALSO

  1. Qubty v. Nagda, 817 So.2d 952, 957 (Fla. 5th DCA 2002).

  2. Hirshenson v. Spaccio, 800 So.2d 670, 673 (Fla. 5th DCA 2001).

  3. Jim Macon Bldg. Contractors, Inc. v.LakeCounty, 763 So.2d 1223, 1226 (Fla. 5th DCA 2000).

§3:40.2     Statute of Limitations

Five Years. Fla.Stat. §95.11(2)(b).

§3:40.3     References

  1. 11Fla. Jur. 2d Contracts §§197–205 (2003).

  2. 17A Am. Jur. 2d Contracts §§425–453 (2004).

  3. 17A C.J.S. Contracts §§612–632 (1999).

  4. Annotation, What Constitutes Reservation of Right to Terminate, Rescind, or Modify Contract, as against Third-Party Beneficiary, 44 A.L.R.2d 1270 (1955).

  5. Restatement (Second) of Contracts §302 (1979).

§3:40.4     Defenses

  1. Only one contracting party intended to benefit the third party: It is insufficient to show that only one party unilaterally intended to benefit the third party. Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994) (citing to Clark and Co. v. Department of Insurance, 436 So.2d 1013, 1016 (Fla. 1st DCA 1983)). See also Health Application Systems, Inc. v. Hartford Life and Accident Insurance Co., 381 So.2d 294, 298 (Fla. 1st DCA 1980).

  2. Test: In such cases the test is, not that the promisee is liable to the third person, or that there is some privity between them, or that some consideration moved from the third person, but that the parties to the contract intended that a third person should be benefited by the contract. It is the undertaking on the part of the promisor, as a consideration to the promisee, to benefit the third person, that gives rise to a cause of action by the beneficiary against the promisor, resting upon the contract itself. Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. 4th DCA 2002).

§3:50     ESTOPPEL, PROMISSORY

§3:50.1     Elements of Cause of Action – FloridaSupreme Court

The basic elements of promissory estoppel are set forth in Restatement (Second) of Contracts §90 (1979), which states:

(1)  A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

The character of the reliance protected is explained as follows:

The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice.Satisfaction of the latter requirement may depend on the reasonableness of the promisee’s reliance, on its definite and substantial character in relation to the remedy sought, on the formality with which the promise is made, on the extent to which the evidentiary, cautionary, deterrent and channeling functions of form are met by the commercial setting or otherwise, and on the extent to which such other policies as the enforcement of bargains and the prevention of unjust enrichment are relevant.

Id.(emphasis added).

SOURCE

W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla.1989).

SEE ALSO

  1. Crown Life Insurance Company v. McBride, 517 So.2d 660, 662 (Fla. 1987).

  2. Mount SinaiHospital of Greater Miami, Inc. v.Jordan, 290 So.2d 484, 486 (Fla. 1974).

  3. Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d 777, 779 (Fla. 1966).

  4. South Inv. Corp. v. Norton, 57 So.2d 1, 3 (Fla. 1952).

  5. Hygema v. Markley, 187 So. 373, 380 (Fla. 1939).

§3:50.1.1     Elements of Cause of Action – 1st DCA

To state a cause of action for promissory estoppel, a plaintiff must allege facts that, if taken as true, would show

  1. that the plaintiff detrimentally relied on a promise made by the defendant,

  2. that the defendant reasonably should have expected the promise to induce reliance in the form of action or forbearance on the part of the plaintiff or a third person, and

  3. that injustice can be avoided only by enforcement of the promise against the defendant.

SOURCE

W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297, 302 (Fla. 1st DCA 1999).

SEE ALSO

  1. Atlantic Masonry v. Miller Construction, 558 So.2d 433, 434 (Fla. 1st DCA 1990).

  2. Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800 (Fla. 1st DCA 1991).

  3. American States Insurance Company v. McGuire, 510 So.2d 1227, 1229 (Fla. 1st DCA 1987), rev. denied, 518 So.2d 1273 (Fla. 1987).

  4. Dorsey v. Bacon, 436 So.2d 1017, 1021 (Fla. 1st DCA 1983).

  5. Baxter’s Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461, 466 (Fla. 1st DCA 1981), reversed on other grounds, 421 So.2d 505 (Fla. 1982).

§3:50.1.2     Elements of Cause of Action – 2nd DCA

To state a cause of action for promissory estoppel, a plaintiff must establish the following three elements: (1) a representation as to a material fact that is contrary to a later-asserted position; (2) a reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.

SOURCE

FCCI Ins. Co. v. Cayce’s Excavation, Inc., 901 So.2d 248, 251 (Fla.2d DCA 2005).

SEE ALSO

  1. City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510 (Fla. 2d DCA 1990), rev. denied, 577 So.2d 1330 (Fla. 1991) (“Our supreme court discussed at length the elements of promissory estoppel and the circumstances under which that doctrine should be applied in W.R. Grace and Co. v. Geodata Services, 547 So.2d 919 (Fla. 1989).”).

  2. Geodata Services, Inc. v. W. R. Grace and Company, 526 So.2d 922 (Fla. 2d DCA 1988), reversed, 547 So.2d 919 (Fla. 1989).

  3. In re Estate of Ingram v. Ingram, 302 So.2d 204 (Fla. 2d DCA 1974).

  4. Southeastern Sales and Service Co. v. T. T. Waston, Inc., 172 So.2d 239 (Fla. 2d DCA 1965).

§3:50.1.3     Elements of Cause of Action – 3rd DCA

To state a cause of action for promissory estoppel, the plaintiff is required to allege three elements:

  1. a representation as to a material fact that is contrary to a later-asserted position;

  2. a reasonable reliance on that representation; and

  3. a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.

SOURCE

Romo v. Amedex Ins. Co., 930 So. 2d 643, 650 (Fla. 3rd DCA 2006).

SEE ALSO

  1. Friends of Lubavitch/Landow Yeshivah v. Northern Trust Bank ofFlorida, 685 So. 2d 951, 952 (Fla. 3d DCA 1996) (“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”).

  2. Coral Way Properties, Ltd. v. Roses, 565 So.2d 372, 374 (Fla. 3d DCA 1990).

  3. Jordan v. Mount Sinai Hospital of Greater Miami, Inc., 276 So.2d 102 (Fla. 3d DCA 1973), affirmed, 290 So.2d 484, 486 (Fla. 1974).

  4. Elgin National Industries, Inc. v. Howard Industries, Inc., 264 So.2d 440 (Fla. 3d DCA 1972).

  5. Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 173 So.2d 492 (Fla. 3d DCA 1965), affirmed, 190 So.2d 777 (Fla. 1966).

§3:50.1.4     Elements of Cause of Action – 4th DCA

The basic elements of promissory estoppel are set forth in Restatement (Second) of Contracts §90 (1979), which states:

(1)  A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

The character of the reliance protected is explained as follows:

The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice. Satisfaction of the latter requirement may depend on the reasonableness of the promisee’s reliance, on its definite and substantial character in relation to the remedy sought, on the formality with which the promise is made, on the extent to which the evidentiary, cautionary, deterrent and channeling functions of form are met by the commercial setting or otherwise, and on the extent to which such other policies as the enforcement of bargains and the prevention of unjust enrichment are relevant.

SOURCE

Advanced Marketing Systems Corp. v. ZK Yacht Sales, 830 So.2d 924, 927 (Fla.4th DCA 2002).

SEE ALSO

  1. Leonardi v. City of Hollywood, 715 So.2d 1007, 1008 (Fla. 4th DCA 1998) (The quote in Leonardi has omitted the following sentence included in W.R. Grace and Co. v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989): “The remedy granted for breach may be limited as justice requires.”).

  2. Waterfront Properties, Inc. v. Coast to Coast Real Estate, Inc., 679 So.2d 48, 49 (Fla. 4th DCA 1996).

  3. Revlon Group Incorporated v. LJS Realty, Inc., 579 So.2d 365, 367 (Fla. 4th DCA 1991) (“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. . . . The promisor is affected only by reliance which he does or should foresee, and enforcement must be necessary to avoid injustice.”).

  4. Perry Publications, Inc. v. Bankers Life and Casualty Company, 246 So.2d 604, 605 (Fla. 4th DCA 1971).

§3:50.1.5     Elements of Cause of Action – 5th DCA

[No citation for this edition.]

SEE ALSO

  1. Homrich v. American Chambers Life Insurance Company, 594 So.2d 348 (Fla. 5th DCA 1992).

  2. Ubersee Handels Gesellschaft, Inc. v. Semenjuk, 540 So.2d 136, 138 (Fla. 5th DCA 1989).

§3:50.2     Statute of Limitations

Four Years. Fla.Stat. §95.11(3)(p).

§3:50.3     References

  1. 22Fla. Jur. 2d Estoppel and Waiver §§46–49 (2005).

  2. 28 Am. Jur. 2d Estoppel and Waiver §§55–59 (2000).

  3. 31 C.J.S. Estoppel and Waiver §§92, 93 (1996).

  4. Restatement (Second) of Contracts §90 (1979).

  5. Annotation, Promissory Estoppel of Lending Institution Based on Promise to Lend Money, 18 A.L.R.5th 307 (1994).

  6. Annotation, Promissory Estoppel as Basis For Avoidance of UCC Statute of Frauds (UCC §2-201), 29 A.L.R.4th 1006 (1984).

  7. Annotation, Promissory Estoppel as Basis for Avoidance of Statute of Frauds, 56 A.L.R.3d 1037 (1974).

  8. Annotation, Promissory Estoppel, 48 A.L.R.2d 1069 (1956).

  9. Eric M. Holmes, The Four Phases of Promissory Estoppel, 20SeattleU. L. Rev. 45 (1996).

  10. Michael I. Swygert & Donald W. Smucker, Promissory Estoppel inFlorida: Growing Recognition of Promissory Obligation, 16 Stetson L. Rev. 1 (1986).

  11. Jay M. Feinman, Promissory Estoppel and Judicial Methods, 97 Harv. L. Rev. 678 (1984).

  12. Michael B. Metzger & Michael J. Phillips, The Emergence of Promissory Estoppel as an Independent Theory of Recovery, 35Rutgers L. Rev. 472 (1983).

  13. Michael B. Metzger & Michael J. Phillips, Promissory Estoppel and Section 2-201 of the Uniform Commercial Code, 26 Vill. L. Rev. 63 (1980).

§3:50.4     Defenses

  1. Definite Promise: The promise must be definite as to terms and time. W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989).

  2. Evidence Required: For promissory estoppel to be applied, the evidence must be clear and convincing. W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 925 (Fla. 1989).

  3. Express Contract: An action for promissory estoppel fails upon a showing that an express contract exists. Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998), rev. denied, 737 So.2d 550 (Fla. 1999).

  4. Illegal Result: Estoppel cannot be applied against a governmental entity to accomplish an illegal result. Branca v. City of Miramar, 634 So.2d 604 (Fla. 1994); Morgran Co., Inc. v. Orange County, 818 So.2d 640, 644 (Fla. 5th DCA 2002), rev. denied, 839 So.2d 699 (Fla. 2003).

  5. Limited Application: The doctrine, however, only applies where to refuse to enforce a promise, even though not supported by consideration, “would be virtually to sanction the perpetration of fraud or would result in other injustice.” Crown Life Insurance Company v. McBride, 517 So.2d 660, 662 (Fla. 1987). In any event, the doctrine of promissory estoppel should not be applied if injustice can otherwise be avoided. Brine v. Fertitta, 537 So.2d 113, 115 (Fla. 2d DCA 1988).

  6. Lost Profits / Bidding Statute: We consider that it would be unjust to allow a recovery for loss of profits based on the theory of promissory estoppel due to a violation of a public bidding statute. Baxter’s Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461, 468 (Fla. 1st DCA 1981), reversed on other grounds, 421 So.2d 505 (Fla. 1982).

  7. Oral Employment Contracts: Promissory estoppel is not controlling on oral employment contracts. Keller v. Penovich, 262 So.2d 243, 244 (Fla. 4th DCA 1972).

  8. Sovereign, The: The law of this state recognizes that the theory of promissory estoppel applies to the sovereign only under exceptional circumstances. State ofFlorida, Department of Health and Rehabilitative Services v. Law Offices of Donald W. Belveal, 663 So.2d 650, 652 (Fla. 2d DCA 1995). Courts usually shrink from finding an estoppel against a governmental entity where the actions of the official are unauthorized or unlawful.MartinCounty v. Indiantown Enterprises, Inc., 658 So.2d 1144, 1146 (Fla. 4th DCA 1995).

  9. Statute of Frauds: “The question that emerges for resolution by us is whether or not we will adopt by judicial action the doctrine of promissory estoppel as a sort of counter action to the legislatively created Statute of Frauds. This we decline to do.” W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989); Tanenbaum v. Biscayne Osteopathic Hospital, Inc., 190 So.2d 777, 779 (Fla. 1966); Coral Way Properties, Ltd. v. Roses, 565 So.2d 372, 374 (Fla. 3d DCA 1990).

  10. Truthful Statements: Ordinarily, a truthful statement as to the present intention of a party with regard to his future act is not the foundation upon which an estoppel may be built. W. R. Grace and Company v. Geodata Services, Inc., 547 So.2d 919, 924 (Fla. 1989).

§3:50.5     Related Matters

  1. Insurance Coverage: The form of equitable estoppel known as promissory estoppel may be utilized to create insurance coverage where to refuse to do so would sanction fraud or other injustice. Crown Life Insurance Company v. McBride, 517 So.2d 660, 662 (Fla. 1987); Doe v. Allstate Insurance Company, 653 So.2d 371 (Fla. 1995); Tradewinds Construction v. Newsbaum, 606 So.2d 708, 709 (Fla. 1st DCA 1992), rev. denied, 618 So.2d 210 (Fla. 1993); Emanuel v. United States Fidelity and Guaranty Company, 583 So.2d 1092, 1093 (Fla. 3d DCA 1991); State Farm Mutual Automobile Insurance Company v. Hinestrosa, 614 So.2d 633, 636 (Fla. 4th DCA 1993).

  2. Pledge, Breach of: Therefore, in order for a pledge to survive the death of the donor and be considered a valid claim against the estate, two elements must coincidentally exist. First, the document stating the conditions of the pledge must recite with particularity the specific purpose for which the funds are to be used. . . . Secondly, the donee must affirmatively show actual reliance of a substantial character in furtherance of the specified purpose set forth in the pledge instrument before the claim may be honored by the estate.Mount SinaiHospital of Greater Miami, Inc. v.Jordan, 290 So.2d 484, 486 (Fla. 1974). The view most commonly held is that such a subscription is an offer to contract which becomes binding as soon as the work towards which the subscription was promised has been done or begun, or liability incurred in regard to such work on the faith of the subscription. Using that reasoning then it becomes simple to understand that once the element of promissory estoppel is found, a cause of action for the breach of a pledge accrues where the pledge was agreed to be performed. Friends of Lubavitch/Landow Yeshivah v. Northern Trust Bank ofFlorida, 685 So.2d 951, 952 (Fla. 3d DCA 1996).

  3. Second Bite at the Apple: Promissory estoppel is not a doctrine designed to give a party to a negotiated commercial bargain a second bite at the apple in the event it fails to prove breach of contract. Gen. Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d 1038, 1042 (6th Cir. 1990), (quoting Walker v. KFC Corp., 728 F.2d 1215, 1220 (9th Cir. 1984)). Advanced Marketing Systems Corp. v. ZK Yacht Sales, 830 So.2d 924, 928 (Fla. 4th DCA 2002).

  4. Third Parties: Promissory estoppel may be asserted by third parties. Atlantic Masonry v. Miller Construction, 558 So.2d 433, 434 (Fla. 1st DCA 1990).

§3:60     RESCISSION

§3:60.1     Elements of Cause of Action – FloridaSupreme Court

[No citation for this edition.]

§3:60.1.1     Elements of Cause of Action – 1st DCA

[No citation for this edition.]

§3:60.1.2     Elements of Cause of Action – 2nd DCA

The fundamental requirements necessary to state a cause of action for rescission or cancellation of a contract are:

  1. The character or relationship of the parties;

  2. The making of the contract;

  3. The existence of fraud, mutual mistake, false representations, impossibility of performance, or other ground for rescission or cancellation;

  4. That the party seeking rescission has rescinded the contract and notified the other party to the contract of such rescission;

  5. If the moving party has received benefits from the contract, he should further allege an offer to restore these benefits to the party furnishing them, if restoration is possible;

  6. Lastly, that the moving party has no adequate remedy at law.

SOURCE

Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So.2d 614, 617 (Fla. 2d DCA 1965), cert. denied, 180 So.2d 656 (Fla.1965).

§3:60.1.3     Elements of Cause of Action – 3rd DCA

[No citation for this edition.]

§3:60.1.4     Elements of Cause of Action – 4th DCA

The second district has identified those factors that must appear in a complaint to state a cause of action for rescission of a contract:

  1. The character or relationship of the parties;

  2. The making of the contract;

  3. The existence of fraud, mutual mistake, false representations, impossibility of performance, or other ground for rescission or cancellation;

  4. That the party seeking rescission has rescinded the contract and notified the other party to the contract of such rescission;

  5. If the moving party has received benefits from the contract, he should further allege an offer to restore these benefits to the party furnishing them, if restoration is possible;

  6. Lastly, that the moving party has no adequate remedy at law.

SOURCE

Billian v. Mobile Corporation, 710 So.2d 984, 991 (Fla. 4th DCA 1998), rev. denied, 725 So.2d 1109 (Fla.1998).

§3:60.1.5     Elements of Cause of Action – 5th DCA

[No citation for this edition.]

§3:60.2     Statute of Limitations

Four Years. Fla.Stat. §95.11(3)(l).

§3:60.3     References

  1. 9Fla. Jur. 2d Cancellation, Rescission, and Reformation of Instruments §§1–51 (2004).

  2. 11Fla. Jur. 2d Contracts §288 (2003).

  3. 13 Am. Jur. 2d Cancellation of Instruments §§50–53 (2000).

  4. 12A C.J.S. Cancellation of Instruments; Rescission §§19–70, 122–143 (2004).

§3:60.4     Defenses

  1. Adequate Remedy At Law: Rescission should not be granted if damages for breach of contract or warranty are available. Central Florida Antenna Service, Inc. v. Crabtree, 503 So.2d 1351, 1353 (Fla. 5th DCA 1987). See also Collier v. Boney, 525 So.2d 971, 972 (Fla. 1st DCA 1988).

  2. Harsh Remedy: Rescission and cancellation are harsh remedies and therefore not favored by the court. Rood Company v. Board of Public Instruction ofDadeCounty, 102 So.2d 139, 142 (Fla. 1958).

  3. Indispensable Party: In an action for rescission of a transaction, the parties to the transaction are indispensable. Allman v. Wolfe, 592 So.2d 1261, 1263 (Fla. 2d DCA 1992).

  4. Modification of Contract: An action to cancel or rescind an agreement based on fraudulent inducement cannot be maintained where the agreement has been modified by the parties after the original fraud has been discovered. Sunrise Farms, Inc. v. Wright, 376 So.2d 457, 458 (Fla. 1st DCA 1979).

  5. Waiver: See Rood Company v. Board of Public Instruction ofDadeCounty, 102 So.2d 139, 142 (Fla. 1958).

§3:60.5     Related Matters

  1. Consideration Inadequate: Inadequacy of consideration when coupled with other inequitable circumstances may afford a basis for rescission. Harrell v. Branson, 344 So.2d 604, 606 (Fla. 1st DCA 1977), cert. denied, 353 So.2d 675 (Fla. 1977).

  2. Election of Remedies: Florida law provides for an election of remedies in fraudulent inducement cases: rescission, whereby the party repudiates the transaction, or damages, whereby the party ratifies the contract. Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So.2d 306, 313 (Fla. 2000).

  3. Equitable Lien: As part of the relief granted in rescission, a court may impose an equitable lien. Billian v. Mobile Corporation, 710 So.2d 984, 991 (Fla. 4th DCA 1998), rev. denied, 725 So.2d 1109 (Fla. 1998).

  4. Jury Trial Improper: It is error to submit equitable issues to a jury. Chabad House-Lubavitch of Palm Beach County, Inc. v. Banks, 602 So.2d 670, 672 (Fla. 4th DCA 1992).

  5. Promise to Perform Act in the Future: See Steak House, Inc. v. Barnett, 65 So.2d 736, 738 (Fla. 1953).

  6. Status Quo: In granting rescission, the court should attempt to restore the parties to the status quo. Where restoration to the status quo is impossible, however, a court may still grant rescission, provided the equities between the parties can be balanced. Braman Dodge, Inc. v. Smith, 515 So.2d 1053, 1054 (Fla. 3d DCA 1987).

  7. Stranger Bringing Action: A stranger may bring an action for rescission of a contract if his legal or equitable rights are affected thereby. ADCA Corp. v. Blumberg, 403 So.2d 547 (Fla. 2d DCA 1981).

§3:70     SPECIFIC PERFORMANCE

§3:70.1     Fla.R.Civ.P. Form 1.941

COMPLAINT

Plaintiff, A.B., sues defendant, C.D., and alleges:

  1. This is an action for specific performance of a contract to convey real property in____________ County,Florida.

  2. On _____(date)_____, plaintiff and defendant entered into a written contract, a copy being attached.

  3. Plaintiff tendered the purchase price to defendant and requested a conveyance of the real property described in the contract.

  4. Defendant refused to accept the tender or to make the conveyance.

  5. Plaintiff offers to pay the purchase price.

WHEREFORE plaintiff demands judgment that defendant be required to perform the contract for damages.

NOTE: A copy of the sales contract must be attached.

Committee Notes: 1980 Amendment. Paragraph 3 is divided into 2 paragraphs to properly accord with rule 1.110(f).

See Amendments to the FloridaRules of Civil Procedure, 773 So.2d 1098 (Fla. 2000).

Author’s Note: The “WHEREFORE” clause may need the word “and” between the words “contract” and “for.” Also, the word “sued” has been changed to “sues.”

§3:70.2     Statute of Limitations

One Year. Fla. Stat. §95.11(5)(a).

§3:70.3     Defenses

  1. Ambiguity: Specific performance may be denied when a contract is unenforceable because, based on an ambiguity in the contract, the parties never reached a meeting of the minds regarding an essential term of the agreement. King v. Bray, 867 So.2d 1224, 1226 (Fla. 5th DCA 2004).

  2. Compliance with Contractual Obligations: Specific performance was properly denied where the buyer had not complied with its contractual obligations. JNC Enterprises, Ltd. v. ICP 1, Inc., 777 So.2d 1182, 1185 (Fla. 5th DCA 2001), rev. denied, 792 So.2d 1214 (Fla. 2001).

  3. Contract Terms: The complaint was insufficient in that it did not have attached a copy of the entire contract sued upon nor did it set forth the terms of the contract adequately. Pletts v. Pletts, 258 So.2d 297 (Fla. 3d DCA 1972).

  4. Equitable Remedy: A decree of specific performance is an equitable remedy “not granted as a matter of right or grace but as a matter of sound judicial discretion” governed by legal and equitable principles. Humphrys v. Jarrell, 104 So.2d 404, 410 (Fla. 2d DCA 1958). Specific performance shall 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. Mrahunec v. Fausti, 121 A.2d 878, 880 (1956). Castigliano v. O’Connor, 911 So.2d 145 (Fla. 3d DCA 2005). See also L’Engle v. Overstreet, 55 So. 381, 384 (Fla. 1911).

  5. Unable to Comply: A court of equity will not demand that a contract be specifically enforced against a party who, due to future circumstances, is unable to comply with the agreement.Camp v. Parks, 314 So.2d 611, 615 (Fla. 4th DCA 1975).

§3:70.4     Related Matters

  1. Purpose: The purpose of specific performance is to compel a party to do what it agreed to do pursuant to a contract. Anthony James Development, Inc. v. Balboa Street Beach Club, Inc., 875 So.2d 696, 698 (Fla. 4th DCA 2004).

§3:80     TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP

§3:80.1     Elements of Cause of Action – FloridaSupreme Court

If one maliciously interferes with a contract between two persons, and induces one of them to breach the contract to the injury of the other, the injured party may maintain an action against the wrongdoer, and where the act was intentional, malice will be inferred. To do intentionally that which is calculated in the ordinary course of events to damage, and which in fact does damage, another person in his property or trade, is malicious in the law, and is actionable if it is done without just cause or excuse.

SOURCE

Dade Enterprises, Inc. v. Wometco Theatres, Inc., 160 So. 209, 210 (Fla.1935).

SEE ALSO

  1. Bankers Multiple Line Insurance Co. v. Farish, 464 So.2d 530, 532 (Fla. 1985) (“In order to prevail in his suit Farish had to prove, among other things, that Bankers intentionally and unjustifiedly interfered with the Farish-Smith contract.”).

§3:80.1.1     Elements of Cause of Action – 1st DCA

The elements of a cause of action for tortious interference with a contractual relationship are:

  1. The existence of a contract,

  2. The defendant’s knowledge of the contract,

  3. The defendant’s intentional procurement of the contract’s breach,

  4. Absence of any justification or privilege, [and]

  5. Damages resulting from the breach.

SOURCE

McKinney-Green, Inc. v. Davis, 606 So.2d 393, 397 (Fla. 1st DCA 1992).

SEE ALSO

  1. Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 899 So.2d 1222, 1228 (Fla. 1st DCA 2005).

  2. McCurdy v. Collis, 508 So.2d 380 (Fla. 1st DCA 1987), rev. denied, 518 So.2d 1274 (Fla. 1987).

  3. Smith v. Ocean State Bank, 335 So.2d 641, 643 (Fla. 1st DCA 1976).

§3:80.1.2     Elements of Cause of Action – 2nd DCA

To be actionable, tortious interference requires:

  1. the existence of an advantageous business relationship under which the plaintiff has legal rights;

  2. an intentional and unjustified interference with that relationship by the defendant; and

  3. damage to the plaintiff as a result of the breach of the business relationship.

SOURCE

Amedas, Inc. v. Brown, 505 So.2d 1091, 1093 (Fla. 2d DCA 1987), rev. denied, 639 So.2d 975 (Fla.1994).

§3:80.1.3     Elements of Cause of Action – 3rd DCA

To establish the tort of interference with a contractual or business relationship, it is well-settled in Floridathat one must allege and prove:

  1. the existence of a business relationship under which the plaintiff has legal rights,

  2. an intentional and unjustified interference with that relationship by the defendant, and

  3. damage to the plaintiff as a result of the breach of the business relationship.

SOURCE

Ethyl Corporation v. Balter, 386 So.2d 1220, 1223 (Fla. 3d DCA 1980), petition for rev. denied, 392 So.2d 1371 (Fla.1981), cert. denied, 101 S.Ct. 3099 (1981).

SEE ALSO

  1. Peninsula Federal Savings and Loan Association v. DKH Properties, Ltd., 616 So.2d 1070, 1073 (Fla. 3d DCA 1993),rev. denied, 626 So.2d 204 (Fla. 1993).

§3:80.1.4     Elements of Cause of Action – 4th DCA

The elements of tortious interference with a contract or business relationship are:

  1. the existence of a business relationship between the plaintiff and a third person, not necessarily evidenced by an enforceable contract, under which the plaintiff has legal rights;

  2. the defendant’s knowledge of the relationship;

  3. an intentional and unjustified interference with the relationship by the defendant which induces or otherwise causes the third person not to perform; and

  4. damage to the plaintiff resulting from the third person’s failure to perform.

SOURCE

Seminole Tribe of Florida v. Times Pub. Co., Inc., 780 So.2d 310, 315 (Fla.4th DCA 2001).

SEE ALSO

  1. Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 385 (Fla. 4th DCA 1999).

  2. Wackenhut Corporation v. Maimone, 389 So.2d 656, 657 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d 383 (Fla. 1981).

§3:80.1.5     Elements of Cause of Action – 5th DCA

The elements of a cause of action for tortious interference with a contractual relationship are:

  1. The existence of a contract,

  2. The defendant’s knowledge of the contract,

  3. The defendant’s intentional procurement of the contract’s breach,

  4. Absence of any justification or privilege, [and]

  5. Damages resulting from the breach.

SOURCE

Florida Telephone Corporation v. Essig, 468 So.2d 543, 544 (Fla. 5th DCA 1985).

SEE ALSO

  1. Farah v.Canada, 740 So.2d 560, 561 (Fla. 5th DCA 1999), rev. denied, 744 So.2d 452 (Fla. 1999).

  2. Sullivan v. Economic Research Properties, 455 So.2d 630, 631 (Fla. 5th DCA 1984).

  3. Heavener, Ogier Services, Inc. v R. W. Florida Region, Inc., 418 So.2d 1074, 1076 (Fla. 5th DCA 1982).

  4. McDonald v. McGowan, 402 So.2d 1197, 1201 (Fla. 5th DCA 1981), petition for rev. dismissed, 411 So.2d 380 (Fla. 1981).

§3:80.2     Statute of Limitations

Four Years. Fla.Stat. §95.11(3)(p).

§3:80.3     References

  1. 32Fla. Jur. 2d Interference §§1–4, 11–13 (2003).

  2. 45 Am. Jur. 2d Interference §§3–35 (1999).

  3. 86 C.J.S. Torts §§59–65, 98 (1997).

  4. Restatement (Second) of Torts §§762–774A (1979).

§3:80.4     Defenses

  1. Absolute Immunity: In balancing policy considerations, we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as tortious interference with a business relationship so long as the act has some relation to the proceeding. Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So.2d 606, 608 (Fla. 1994).

  2. Act Legal in Itself: Where one does an act which is legal in itself, and violates no right of another person, it is true that the fact that the act is done from malice, or other bad motive toward another, does not give the latter a right of action against the former. Ethyl Corporation v. Balter, 386 So.2d 1220, 1225 (Fla. 3d DCA 1980), petition for rev. denied, 392 So.2d 1371 (Fla. 1981), cert. denied, 101 S.Ct. 3099 (1981).

  3. Contract Required: An essential element for the establishment of a tortious interference with a contractual relationship is the existence of a contract. McKinney-Green, Inc. v.Davis, 606 So.2d 393, 397 (Fla. 1st DCA 1992).

  4. Contract Terminable At Will: The general rule is that an action for tortious interference will not lie where a party tortiously interferes with a contract terminable at will. This is so because when a contract is terminable at will there is only an expectancy that the relationship will continue. In such a situation, a competitor has a privilege of interference in order to acquire the business for himself. Greenberg v.Mount SinaiMedicalCenter of Greater Miami, Inc., 629 So.2d 252, 255 (Fla. 3d DCA 1993). See also Perez v. Rivero, 534 So.2d 914, 916 (Fla. 3d DCA 1988); Wackenhut Corp. v. Maimone, 389 So.2d 656, 658 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d 383 (Fla. 1981). However, even if the contract is terminable at will, the interferer’s actions are tortious and actionable if the motive is purely malicious and not coupled with any legitimate competitive economic interest. Heavener, Ogier Services, Inc. v. R. W. Florida Region, Inc., 418 So.2d 1074, 1076 (Fla. 5th DCA 1982).

  5. First Amendment: Although the trial court had subject matter jurisdiction over the rabbi’s breach of contract claim, the court lacked jurisdiction over his complaint for defamation and tortious interference because resolving these disputes would require the court to become excessively entangled with religious beliefs. Goodman v. Temple Shir Ami, Inc., 712 So.2d 775 (Fla. 3d DCA 1998), appeal dismissed, 737 So.2d 1077 (Fla. 1999), cert. denied, 120 S.Ct. 789 (2000).

  6. Interference: In order to maintain an action for tortious interference with contractual rights, a plaintiff must prove that a third party interfered with a contract by influencing, inducing or coercing one of the parties to breach the contract, thereby causing injury to the other party. The defendant may not be held liable where it is found that the breach by the party to the contract rather than the persuasion by the defendant was the proximate cause of the plaintiff’s damage. Farah v. Canada, 740 So.2d 560, 561 (Fla. 5th DCA 1999), rev. denied, 744 So.2d 452 (Fla. 1999).

  7. Knowledge of the Contract: The intent element of the cause of action encompasses the requirement that the defendant know about the contract he is interfering with. Heavener, Ogier Services, Inc. v. R. W. Florida Region, Inc., 418 So.2d 1074, 1076 (Fla. 5th DCA 1982).

  8. Negligent Interference: There is no such thing as a cause of action for interference which is only negligently or consequently effected. Peninsula Federal Savings and Loan Association v. DKH Properties, Ltd., 616 So.2d 1070, 1073 (Fla. 3d DCA 1993), rev. denied, 626 So.2d 204 (Fla. 1993). See also Ethyl Corporation v. Balter, 386 So.2d 1220, 1224 (Fla. 3d DCA 1980), petition for rev. denied, 392 So.2d 1371 (Fla. 1981), cert. denied, 101 S.Ct. 3099 (1981).

  9. Own Business Interest: Absent proof of a duty owed by defendant to plaintiff, defendant was entitled to conduct its business and legal affairs in the manner it determined to be in its own best interests without regard to the effects on plaintiff.Paparone v. Bankers Life & Casualty Company, 496 So.2d 865, 868 (Fla. 2d DCA 1986); Bruce v. American Development Corp., 408 So.2d 857, 858 (Fla. 3d DCA 1982). UnderFlorida law, a party is privileged to act, and his actions are non-actionable, if the actions are taken to safeguard or promote the party’s own financial interests. Horizons Rehabilitation, Inc. v. Health Care And Retirement Corp., 810 So.2d 958, 964 (Fla. 5th DCA 2002), rev. denied, 832 So.2d 104 (Fla. 2002). See also Perez v. Rivero, 534 So.2d 914, 916 (Fla. 3d DCA 1988); Knight Enterprises, Inc. v. Green, 509 So.2d 398 (Fla. 4th DCA 1987); Genet Co. v. Annheuser-Busch, Inc., 498 So.2d 683, 684 (Fla. 3d DCA 1986).

  10. Party to the Contract: A cause of action for interference does not exist against one who is himself a party to the contract allegedly interfered with. Ethyl Corporation v. Balter, 386 So.2d 1220, 1224 (Fla. 3d DCA 1980), petition for rev. denied, 392 So.2d 1371 (Fla. 1981), cert. denied, 101 S.Ct. 3099 (1981). The rule generally applied to interconnected contracts, is that a party may not be charged with interference with its own contract. Peninsula Federal Savings and Loan Association v. DKH Properties, Ltd., 616 So.2d 1070, 1073 (Fla. 3d DCA 1993), rev. denied, 626 So.2d 204 (Fla. 1993).

  11. Tortious Interference with Advantageous Business Relationship: See the defenses under Tortious Interference with Advantageous Business Relationship.

  12. Voidable Contracts: It usually is held that contracts which are voidable by reason of the statute of frauds, formal defects, lack of consideration, lack of mutuality, or even uncertainty of terms, or harsh and unconscionable provisions, or conditions precedent to the existence of the obligation, can still afford a basis for a tort action when the defendant interferes with their performance. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668, 672 (Fla. 1979).

§3:80.5     Related Matters

  1. Factors to Consider: The factors to consider in evaluating the propriety of interference with contractual relations are stated in Restatement (Second) of Torts §767 (1977), as:

       In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:

  1. the nature of the actor’s conduct,

  2. the actor’s motive,

  3. the interests of the other with which the actor’s conduct interferes,

  4. the interests sought to be advanced by the actor,

  5. the social interests in protecting the freedom of action of the actor and the contractual interests of the other,

  6. the proximity or remoteness of the actor’s conduct to the interference and

  7. the relations between the parties.

       See McCurdy v. Collis, 508 So.2d 380, 383 (Fla. 1st DCA 1987), rev. denied, 518 So.2d 1274 (Fla.1987). See also Seminole Tribe of Florida v. Times Pub. Co., Inc., 780 So.2d 310, 315 (Fla.4th DCA 2001).

  1. Freedom from Unreasonable Interference: This cause of action recognizes that economic relations are entitled to freedom from unreasonable interference. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668, 672 (Fla. 1979).

  2. Historical Background: This remedy made its first appearance in modern times in Lumley v. Gye, 2 El. & Bl. 216, 118 Eng.Rep. 749 (1853). Wackenhut Corporation v. Maimone, 389 So.2d 656, 657 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d 382, 383 (Fla. 1981).

  3. Single Contractual Provision: The tort of interference with a contractual relationship can include attempts to alter or change only a single contractual provision, whether the attempt is to extinguish the provision entirely or instead simply to alter it, so long as the effect is to interfere with benefits otherwise due the plaintiff. See Ingalsbe v. Stewart Agency, Inc., 869 So.2d 30, 33 (Fla. 4th DCA 2004), rev. dismissed, 889 So.2d 779 (Fla. 2004); Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 899 So.2d 1222, 1228 (Fla. 1st DCA 2005).

  4. Temporary Injunction: Temporary injunctions have been recognized as a viable form of relief in a suit for tortious interference with a contract. Heavener, Ogier Services, Inc. v. R. W. Florida Region, Inc., 418 So.2d 1074, 1075 (Fla. 5th DCA 1982).

§3:90     UNJUST ENRICHMENT

§3:90.1     Elements of Cause of Action – FloridaSupreme Court

The elements of an unjust enrichment claim are a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.

SOURCE

Florida Power Corp. v. City of Winter Park, 887 So.2d 1237, 1242 (Fla. 2004).

SEE ALSO

  1. Yeats v. Moody, 175 So. 719 (Fla. 1937).

§3:90.1.1     Elements of Cause of Action – 1st DCA

The elements of a cause of action for unjust enrichment are:

  1. plaintiff has conferred a benefit on the defendant, who has knowledge thereof;

  2. defendant voluntarily accepts and retains the benefit conferred; and

  3. the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.

SOURCE

Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 899 So.2d 1222, 1227 (Fla. 1st DCA 2005).

SEE ALSO

  1. Cole Taylor Bank v. Shannon, 772 So.2d 546, 551 (Fla. 1st DCA 2000).

  2. W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So.2d 297, 303 (Fla. 1st DCA 1999).

  3. Rabon v.Inn of Lake City, Inc., 693 So.2d. 1126, 1131 (Fla. 1st DCA 1997).

  4. Turner v. Fitzsimmons, 673 So.2d 532, 536 (Fla. 1st DCA 1996).

  5. Circle Finance Co. v. Peacock, 399 So. 2d 81, 84 (Fla. 1st DCA 1981), petition for rev. denied, 411 So.2d 380 (Fla. 1981).

  6. Interior Design Concepts, Inc. v. Curtin, 473 So.2d 1374, 1376 (Fla. 1st DCA 1985).

§3:90.1.2     Elements of Cause of Action – 2nd DCA

The essential elements of a claim for unjust enrichment are:

  1. a benefit conferred upon a defendant by the plaintiff;

  2. the defendant’s appreciation of the benefit; and

  3. the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.

SOURCE

Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla.2d DCA 2006).

SEE ALSO

  1. Rite-Way Painting & Plastering, Inc. v. Tetor,582 So. 2d 15, 17 (Fla. 2d DCA 1991), rev. dismissed, 587 So.2d 1329 (Fla. 1991).

  2. Swindell v. Crowson, 712 So.2d 1162, 1163 (Fla. 2d DCA 1998).

  3. Ruck Brothers Brick, Inc. v. Kellogg & Kimsey, Inc., 668 So.2d 205, 207 (Fla. 2d DCA 1995), rev. denied, 676 So.2d 1368 (Fla. 1996).

  4. Gomes v. Stevens, 548 So.2d 1163, 1164 (Fla. 2d DCA 1989).

  5. Craig W. Sharp, P.A. v. Adalia Bayfront Condominium, Ltd., 547 So.2d 674, 677 (Fla. 2d DCA 1989).

  6. CoffeePotPlaza Partnership v. Arrow Air Conditioning and Refrigeration, Inc., 412 So.2d 883 (Fla. 2d DCA 1982).

§3:90.1.3     Elements of Cause of Action – 3rd DCA

The elements of a cause of action for unjust enrichment are:

  1. plaintiff conferred a benefit on the defendant, who has knowledge of that benefit;

  2. the defendant accepts and retains the conferred benefit; and

  3. under the circumstances it would be inequitable for the defendant to retain the benefit without paying for it.

SOURCE

N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672, 675 (Fla.3d DCA 2000).

SEE ALSO

  1. Peoples National Bank of Commerce v. First Union National Bank of Florida, N.A., 667 So.2d 876, 879 (Fla. 3d DCA 1996) (citing to Hillman Construction Corporation v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994)).

  2. Challenge Air Transport, Inc., v. TransportesAereos Nacionales,S.A.,520 So.2d 323, 324 (Fla. 3d DCA 1988).

  3. Edd Helms Electrical Contracting, Inc. v. Barnett Bank ofSouth Fla., N.A., 531 So.2d 238, 239 (Fla. 3d DCA 1988).

§3:90.1.4     Elements of Cause of Action – 4th DCA

To state a claim for unjust enrichment, a plaintiff must plead the following elements:

  1. the plaintiff has conferred a benefit on the defendant;

  2. the defendant has knowledge of the benefit;

  3. the defendant has accepted or retained the benefit conferred; and

  4. the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

SOURCE

Della Ratta v. Della Ratta, 927 So. 2d 1055, 1059 (Fla.4th DCA 2006).

SEE ALSO

  1. Swafford v. Schweitzer, 906 So. 2d 1194, 1195 (Fla. 4th DCA 2005).

  2. ohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 992 (Fla. 4th DCA 2003).

  3. Magwood v. Tate, 835 So.2d 1241, 1243 (Fla. 4th DCA 2003).

  4. Hull & Company, Inc. v. Thomas, 834 So.2d 904, 907 (Fla. 4th DCA 2003).

  5. Greenfield v. Manor Care, Inc., 705 So.2d 926, 930 (Fla. 4th DCA 1997), appeal dismissed, 717 So.2d 534 (Fla. 1998).

  6. Alevizos v. John D. and Catherine T. MacArthur Foundation, 764 So.2d 8, 13 (Fla. 4th DCA 1999).

  7. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383, 386 (Fla. 4th DCA 1997).

  8. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, 743 So.2d 1223, 1224 (Fla. 4th DCA 1999).

  9. Hillman Construction Corporation v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994) (citing to Henry M. Butler Inc. v. Trizec Properties Inc., 524 So.2d 710 (Fla. 2d DCA 1988)).

  10. Moore Handley, Inc. v. Major Realty Corp., 340 So.2d 1238, 1239 (Fla. 4th DCA 1976) (“There can be no strict rule as to what constitutes unjust enrichment, nor can an exhaustive list be given of elements which must be alleged in a pleading in order to state a cause of action for restitution. Everything depends on the circumstances of the individual case and whether or not the pleader has alleged facts which show that an injustice would occur if money were not refunded.”).

§3:90.1.5     Elements of Cause of Action – 5th DCA

To state a claim under the theory of unjust enrichment, it must be shown that:

  1. the plaintiff conferred a benefit on the defendant, who has knowledge of the benefit;

  2. the defendant accepts and retains the conferred benefit; and

  3. under the circumstances it would be inequitable for the defendant to retain the benefit without paying for it.

Duncan v. Kasim, Inc., 810 So.2d 968 (Fla. 5th DCA 2002).

The phrase, “unjust enrichment” is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under circumstances that give rise to a legal or equitable obligation to account therefor. Lowry v. Lowry, 463 So.2d 540, 541 (Fla. 2d DCA 1985) (quoting 66 Am. Jur. 2d, Restitution and Implied Contracts §3 (1973)). It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly. Id.(quoting 66 Am. Jur. 2d, Restitution and Implied Contracts §3 (1973)).

SOURCE

Timberland Consolidated Partnership v. Andrews Land and Timber, Inc., 818 So.2d 609, 611 (Fla. 5th DCA 2002).

SEE ALSO

1.   Duncan v. Kasim, Inc. 810 So.2d 968, 971 (Fla. 5th DCA 2002), rev. denied, 832 So.2d 104 (Fla. 2002).

§3:90.2     Statute of Limitations

Four Years. Fla. Stat. §95.11(3)(k); Swafford v. Schweitzer, 906 So.2d 1194, 1195 (Fla. 4th DCA 2005).

§3:90.3     References

  1. 11Fla. Jur. 2d Contracts §282 (2003).

  2. 66 Am. Jur. 2d Restitution and Implied Contracts§§8, 9, 12 (2001).

  3. 7 C.J.S. Assumpsit, Action on §§1–3 (2004).

  4. Restatement of the Law of Restitution §1 (1937).

  5. George B. Klippert, Unjust Enrichment (1983). ISBN 0-409-84293-1 (discussing Canadian law).

  6. H. Hugh McConnell, Distinguishing Quantum Merit and Unjust Enrichment in the Construction Setting, 71Fla. Bar J. 88 (March 1997).

  7. David M. Holliday, Annotation, Equipment Leasing Expenses as Element of Construction Contractor’s Damages, 52 A.L.R.4th 712 (1987).

  8. J. R. Kemper, Annotation, Building and Construction Contracts: Right of Subcontractor who has dealt only with Primary Contractor to Recover against Property Owner in Quasi Contract, 62 A.L.R.3d 288 (1975).

§3:90.4     Defenses

  1. Burden: Bromer v. Florida Power & Light Co., 45 So.2d 658, 660 (Fla. 1949) (“It is our view that a greater burden should be placed upon a plaintiff who relies upon an implied contract than one who uses reasonable care and foresight in protecting himself by means of an express contract. To hold otherwise would be to encourage loose dealings and place a premium upon carelessness.”).

  2. Express Contract: An action for unjust enrichment fails upon a showing that an express contract exists. Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th DCA 1998), rev. denied, 737 So.2d 550 (Fla. 1999).

  3. Payment Made: Unjust enrichment cannot exist where payment has been made for the benefit conferred. N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672, 675 (Fla. 3d DCA 2000).

  4. Received in Good Faith: The law seems to be settled that money paid under a mistake of facts cannot be reclaimed where the plaintiff has derived a substantial benefit from the payment, nor where the defendant received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience. Pensacola & A. R. Co. v. Braxton, 16 So. 317, 321 (Fla. 1894).

§3:90.5     Related Matters

  1. Contract Implied in Fact and Contract Implied in Law: A contract implied in fact is an enforceable contract that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in law is an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. In short, a contract implied in law does not require an agreement, however, a contract implied in fact does. A quasi contract is a contract implied in law since it does not require an agreement. CDS and Associates of the Palm Beaches, Inc. v. 1711 Donna Road Associates, 743 So.2d 1223, 1224 (Fla. 4th DCA 1999).
    A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement. It is to this process of defining an enforceable agreement thatFlorida courts have referred when they have indicated that contracts implied in fact rest upon the assent of the parties.
    A contract implied in law, or quasi contract, is not based upon the finding, by a process of implication from the facts, of an agreement between the parties. A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. This is unlike a contract implied in fact which must arise from the interaction of the parties or their agents.
    To describe the cause of action encompassed by a contract implied in law,Florida courts have synonymously used a number of different terms—“quasi contract,” “unjust enrichment,” “restitution,” “constructive contract,” and “quantum meruit.” This profusion of terminology has its roots in legal history. Concerned about the confusion between contracts implied in law and fact, two legal scholars sought to extirpate the term “contract implied in law” from legal usage and to substitute for it the term “quasi contract.” As Corbin explains, although the term “quasi contract” took hold, the older term successfully resisted extirpation to the further confusion of law students and lawyers.
    The term “quantum meruit” derives from common law forms of pleading. The action of assumpsit was available for the recovery of damages for the breach or non-performance of a simple contract or upon a contract implied by law from the acts or conduct of the parties. There were two divisions of assumpsit, general, upon the common counts, and special. In general assumpsit, on the common counts, only an implied contract could be the basis of the action. The common counts were abbreviated and stereotyped statements that the defendant was indebted to the plaintiff for a variety of commonly recurring reasons, such as goods sold and delivered or work and labor done. The count asking judgment for work done was quantum meruit; for goods sold the count was quantum valebant. The common counts were used to enforce contracts implied both in law and in fact. Because so many quasi contract actions were brought in the common counts, and because courts and lawyers were not careful to draw the distinction, the term “quantum meruit” is often used synonymously with the term “quasi contract.”
    InFlorida, all implied contract actions were part of the action of assumpsit, which was an action at law under the common law. Commerce Partnership 8098 Limited Partnership v. Equity Contracting Company, Inc., 695 So.2d 383 (Fla. 4th DCA 1997).

  2. Second Real Estate Broker: The elements of a cause of action against a second real estate broker to recover the commission from the sale of property on the theory of unjust enrichment require the first real estate broker to show either the existence of an implied contract to pay him for his services in finding and negotiating with the ultimate purchasers or that he was the procuring factor in the sale. Framer Realty, Inc. v. Ross, 768 So.2d 5 (Fla. 3d DCA 2000), rev. denied, 789 So.2d 348 (Fla. 2001).

§3:90.6     Sample Cause of Action

COUNT FOR UNJUST ENRICHMENT

[INSERT PARAGRAPH NUMBER – #]. Plaintiff realleges and incorporates the allegations set forth in paragraphs __-__ above as if set forth herein in full.

#   Plaintiff has conferred a benefit on the defendant, who has knowledge thereof.

#   Defendant voluntarily accepted and retained the benefit conferred.

#   The circumstances render Defendant’s retention of the benefit inequitable unless the Defendant pays to Plaintiff the value of the benefit.

#   Defendant has been unjustly enriched at the expense of Plaintiff

#   Plaintiff is entitled to damages as a result of Defendant’s unjust enrichment, including the disgorgement of all monies unlawfully accepted by Defendant from Plaintiff.

WHEREFORE, Plaintiff demands monetary damages against Defendant for unjust enrichment and such other relief this Court deems just and proper.

WHEREFORE, Plaintiff demands monetary damages against Defendant for slander of title and such other relief this Court deems just and proper.

§3:100   USURIOUS TRANSACTION

§3:100.1   Elements of Cause of Action – FloridaSupreme Court

The Four requisites of a usurious transaction are:

  1. there must be a loan express or implied;

  2. an understanding between the parties that the money lent shall be returned;

  3. that for such a loan a greater rate of interest than is allowed by law shall be paid or agreed to be paid, as the case may be; and

  4. there must exist a Corrupt intent to take more than the legal rate for the use of the money loaned.

SOURCE

Dixon v. Sharp, 276 So.2d 817, 819 (Fla. 1973).

SEE ALSO

1.   Clark v. Grey, 132 So. 832 (Fla.1931).

§3:100.1.1   Elements of Cause of Action – 1st DCA

The four elements of a usurious transaction are:

  1. an express or implied loan;

  2. an understanding between the parties that the money loaned shall be returned;

  3. an agreement that a greater rate of interest than is allowed by law shall be paid or agreed to be paid; and

  4. the existence of a corrupt intent to take more than the legal rate for the use of the money loaned.

SOURCE

Rollins v. Odom, 519 So.2d 652 (Fla. 1st DCA 1988), rev. denied, 529 So.2d 695 (Fla. 1988).

§3:100.1.2   Elements of Cause of Action – 2nd DCA

The four requirements necessary to establish a usurious transaction are:

  1. A loan, either express or implied;

  2. An understanding between the lender and the borrower that the money must be repaid;

  3. For such loan a greater rate of interest than is allowed by law shall be paid or agreed to be paid; and

  4. There must be a corrupt intent on the part of the lender to take more than the legal rate of interest for the use of the money loaned.

SOURCE

Rebman v. Flagship First Nat’l Bank, 472 So.2d 1360, 1362 (Fla. 2d DCA 1985).

SEE ALSO

  1. Florida Trading and Inv. Co., Inc. v. River Const. Services, Inc., 537 So.2d 600, 603 (Fla. 2d DCA 1988), rev. denied, 544 So.2d 200 (Fla. 1989).

  2. River Hills, Inc. v. Edwards, 190 So.2d 415, 423 (Fla. 2d DCA 1966).

  3. Diversified Enterprises, Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962).

  4. Stewart v. Nangle, 103 So.2d 649 (Fla. 2d DCA 1958).

§3:100.1.3   Elements of Cause of Action – 3rd DCA

In order to establish a usurious transaction, certain elements must first be present. Firstly, there must be a loan, either expressed or implied, and an understanding between the parties that the money lent shall be returned. Secondly, it must appear that a greater rate of interest than is allowed by law has been or is about to be paid, or was agreed to be paid. Thirdly, there must exist an intent to willfully and knowingly take more than the legal rate of interest for the use of the money loaned.

SOURCE

Bermil Corp. v. Sawyer, 353 So.2d 579, 583 (Fla. 3d DCA 1977).

SEE ALSO

  1. Antonelli v. Neumann, 537 So.2d 1027, 1028 (Fla. 3d DCA 1988).

  2. Gergora v. Goldstein Professional Association Defined Benefits Pension Plan and Trust, 500 So.2d 695, 697 (Fla. 3d DCA 1987).

§3:100.1.4   Elements of Cause of Action – 4th DCA

The four requisites of a usurious transaction are:

  1. a loan, express or implied;

  2. an understanding between the parties that the money lent shall be returned;

  3. payment or agreement to pay a greater rate of interest than is allowed by law; and

  4. a corrupt intent to take more than the legal rate for the use of the money loaned.

SOURCE

Valliappan v. Cruz, 917 So. 2d 257, 260 (Fla. 4th DCA 2005).

SEE ALSO

  1. Kraft v. Mason, 668 So. 2d 679, 683 (Fla. 4th DCA 1996), rev. dismissed, 679 So.2d 773 (Fla. 1996).

  2. Jersey Palm-Gross, Inc. v. Paper, 639 So.2d 664, 666 (Fla. 4th DCA 1994), approved, 658 So.2d 531 (Fla. 1995).

  3. Sharp v.Dixon, 252 So.2d 805 (Fla. 4th DCA 1971).

§3:100.1.5   Elements of Cause of Action – 5th DCA

There are four essential elements of a usurious transaction:

  1. an express or implied loan;

  2. a repayment requirement;

  3. an agreement to pay interest in excess of the legal rate; and

  4. a corrupt intent to take more than the legal rate for the money loaned.

SOURCE

Oregrund Ltd. Partnership v. Sheive, 873 So.2d 451, 456 (Fla.5th DCA 2004).

SEE ALSO

1.   Party Yards, Inc. v. Templeton, 751 So.2d 121, 123 (Fla. 5th DCA 2000).

§3:100.2   Statute of Limitations

Four Years. Fla.Stat. §§95.11 (3)(f); 687.147.

§3:100.3   References

  1. 32Fla. Jur. 2d Interest and Usury §§47–79 (2003).

  2. 45 Am. Jur. 2d Interest and Usury §§84–381 (1999).

  3. 42 C.J.S. Interest and Usury; Consumer Credit §§143–164, 184–253 (2005).

  4. Florida Statutes §687.03 (2005) (Unlawful rates of interest defined; proviso).

  5. Florida Statutes §687.071 (2005) (Criminal usury, loan sharking; shylocking).

  6. Chapter 687, Florida Statutes (2005) (Interest and usury; lending practices).

§3:100.4   Defenses

  1. Burden of Proof: The burden to establish these elements of usury is on the borrower. Rebman v. Flagship First Nat’l Bank ofHighlandsCounty, 472 So.2d 1360, 1362 (Fla. 2d DCA 1985).

  2. Defenses, Generally: Neither ignorance of the law of usury, nor the fact that the suggestion of the usurious rate emanated from the borrower, nor that it was the opinion of counsel that the loan was not violative of the statute, nor the fact that a plan or scheme to circumvent usury was embraced by both parties, where the amount of interest is in fact usurious and known to the lender to be, will absolve him from the penalties involved because of usury. See Lee Construction Corp. v. Newman, 143 So.2d 222 (Fla. 3d DCA 1962), cert. denied, 148 So.2d 280 (Fla. 1962); Ross v. Whitman, 181 So.2d 701 (Fla. 3d DCA (1966), cert. denied, 194 So.2d 624 (Fla. 1966); Carr v. Cole, 161 So. 392 (Fla. 1935); Beach v. Kirk, 189 So. 263 (Fla. 1938); Hormuth v. Dickson, 156 So. 127 (Fla. 1934); River Hills, Inc. v. Edwards, 190 So.2d 415, 424 (Fla. 2d DCA 1966).

  3. Speculative Risk: Excluded from the usury statutes are transactions in which a portion of the investment is at speculative risk. Hurley v. Slingerland, 461 So.2d 282, 283 (Fla. 4th DCA 1985); Diversified Enterprises, Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962). This principle has been statutorily validated when the venture exceeds $500,000. See Bailey v. Harrington, 462 So.2d 861 (Fla. 3d DCA 1985), pet. rev. denied, 472 So.2d 1180 (Fla. 1985), pet. rev. denied, 472 So.2d 1181 (Fla. 1985); Oregrund Ltd. Partnership v. Sheive, 873 So.2d 451, 456 (Fla. 5th DCA 2004).

  4. Usury Savings Clause: A usury savings clause cannot, by itself, absolutely insulate a lender from a finding of usury. Rather, we approve and adopt the Fourth District’s holding, that a usury savings clause is one factor to be considered in the overall determination of whether the lender intended to exact a usurious interest rate. Such a standard strikes a balance between the legislative policy of protecting borrowers from overreaching creditors and the need to preserve otherwise good faith, albeit complex, transactions which may inadvertently exact an unlawful interest rate. . . . [W]e also believe that savings clauses serve a legitimate function in commercial loan transactions and should be enforced in appropriate circumstances. For instance, we agree with Judge Pariente’s illustration, in the majority opinion below, of the proper utilization of a savings clause: Where the actual interest charged is close to the legal rate, or where the transaction is not clearly usurious at the outset but only becomes usurious upon the happening of a future contingency, the clause may be determinative on the issue of intent. Jersey Palm-Gross, Inc. v. Paper, 658 So.2d 531, 535 (Fla. 1995).

§3:100.5   Related Matters

  1. Common Law: The defense of usury was unknown at the common law. Yaffee v. International Co., 80 So.2d 910, 912 (Fla. 1955).

  2. Substance over Form: It is the substance of a transaction, rather than its form, that must be scrutinized in ascertaining whether a transaction, not appearing in the form of a loan, is in fact a usurious loan. Growth Leasing, Ltd. v. Gulfview Advertiser, Inc., 448 So.2d 1224 (Fla. 2d DCA 1984); Florida Trading and Inv. Co., Inc. v. River Const. Services, Inc., 537 So.2d 600, 602 (Fla. 2d DCA 1988), rev. denied, 544 So.2d 200 (Fla. 1989).

  3. Usurious Nature of Transaction: The burden of proving usury is on the party who alleges it. See Phillips v. Lindsay, 136 So. 666 (Fla. 1931); Tucker v. Fouts, 76 So. 130 (Fla. 1917); Swanson v. Gulf West Intern. Corp., 429 So.2d 817 (Fla. 2d DCA 1983). The Legislature enacted usury laws to remedy an existing evil, and it has wide discretion in dealing with usury. Cesary v. Second National Bank ofNorth Miami, 369 So.2d 917 (Fla. 1979). The determination of the maximum amount of interest which may be charged for the use of money loaned is within the police power of the state. Cesary v. Second National Bank ofNorth Miami, 369 So.2d 917 (Fla. 1979). Excluded from the usury statutes are transactions in which a portion of the investment is at speculative risk. Hurley v. Slingerland, 461 So.2d 282, 283 (Fla. 4th DCA 1985); Diversified Enterprises, Inc. v. West, 141 So.2d 27 (Fla. 2d DCA 1962). This principle has been statutorily validated when the venture exceeds $500,000. See Bailey v. Harrington, 462 So.2d 861 (Fla. 3d DCA 1985). Courts look to the substance of the transaction to determine whether a transaction is usurious. Party Yards; Kay v. Amendola, 129 So.2d 170 (Fla. 2d DCA 1961). That is, a finding of usury depends on the intent and understanding of the parties. Indian Lake Estates, Inc. v. Special Investments, Inc., 154 So.2d 883 (Fla. 2d DCA 1963). A key issue is the liability of the borrower under the contract’s terms, or what may be demanded of a borrower, rather than what is demanded of him. First Mortgage. A transaction that is either entirely or partially in the form of a sale, may be usurious when the intent is to make a loan of money for a greater profit than allowed by statute. See, e.g., Griffin v. Kelly, 92 So.2d 515 (Fla. 1957). The usurious nature of a transaction is established at the inception of the transaction. See Home Credit Co. v. Brown, 148 So.2d 257 (Fla. 1963); Shorr v. Skafte, 90 So.2d 604 (Fla. 1956); Carter v. Leon Loan & Finance Co., 146 So. 664 (Fla. 1933); Maxwell v. Jacksonville Loan & Improvement Co., 34 So. 255 (Fla. 1903); First Mortgage; Kay v. Amendola, 129 So.2d 170 (Fla. 2d DCA 1961); Coral Gables First National Bank v. Constructors of Florida, Inc., 119 So.2d 741 (Fla. 3d DCA 1960). The exception to this rule is where an old contract is abandoned and a new one, which has been entered into free from the vice of the old, occurs.Oregrund Ltd. Partnership v. Sheive, 873 So.2d 451, 455 (Fla. 5th DCA 2004).

  4. Usury as a Defense: When usury is raised as a defense, the borrower must affirmatively plead and establish the four elements of a usurious transaction by clear and satisfactory evidence. Dixon v. Sharp, 276 So.2d at 820; Sumner v. Investment Mortgage Company of Florida, 332 So.2d 103, 105 (Fla. 1st DCA 1976), cert. denied, 344 So.2d 327 (Fla. 1977); Gergora v. Goldstein Professional Assoc., 500 So.2d at 697; Rebman v. St. Petersburg Bank, 472 So.2d at 1362. In other words, that the lender willfully and with corrupt intent charged or accepted more than the prohibited interest must be specifically and affirmatively pleaded and established by clear and satisfactory evidence. River Hills, Inc. v. Edwards, 190 So.2d 415, 424 (Fla. 2d DCA 1966).See also American National Growers Corporation v. Harris, 120 So.2d 212, 213 (Fla. 2d DCA 1960); Rollins v. Odom, 519 So.2d 652, 657 (Fla. 1st DCA 1988), rev. denied, 529 So.2d 695 (Fla. 1988).