Breach of Contract

Contract Basics

There are two basic types of contracts: written and verbal (oral). They both have the same requirements in order to be enforceable agreements. They both require an (1) offer, (2) acceptance of that offer and (3) consideration. Consideration is something that is given in exchange for something else or the other party’s agreement to do or not do something.

Most contractual disputes arise because of poorly written contracts or contracts that do not discuss the party’s rights when something happens that may not have been expected. It is always advisable to hire an attorney before entering into any contract, especially if a non-lawyer drafted the contract.

Winning Back Your Attorney’s Fees and Court Costs

Florida courts follow what is known as the American Rule when it comes to recovering attorney’s fees in your case. The American Rule states that attorney’s fees are recoverable by the prevailing party against the losing party if the contract provides for such recovery or if there is a Florida Statute that awards a prevailing party their attorney’s fees.

The ability to recover attorney’s fees is an important issue that needs to be addressed with your attorney in an evaluation on whether it makes economic sense to bring your breach of contract case.

Court costs are recoverable by the prevailing party as a matter of Florida law. Only certain costs are recoverable though, these costs are known as “taxable costs”. It is important to discuss with your attorney which costs are recoverable if you are successful with your case. It is also important to discuss what costs may be taxed against you if you lose your case or are the defendant in a case who ends up losing.

Statute of Limitations

Florida Law requires litigants to file their lawsuit within certain time periods. These time periods are known as the statute of limitations. In Florida a litigant has five (5) years to file a lawsuit for breach of a written contract following a breach and only four (4) years to file a lawsuit for breach of an oral contract. Failure to file your lawsuit within these time periods may permanently bar you from ever bringing your case so it is important to keep these time periods in mind when deciding on when to hire an attorney.

Proposals for Settlement

Florida law provides an alternative method for litigants to recover their attorney’s fees when their contract does not specifically allow for it. This process is called a “Proposal for Settlement” or an “Offer of Judgment” and is governed by Florida Statute Chapter 768.69 and Florida Rule of Civil Procedure 1.442.

Proposals for settlement allow a litigant to recover their attorney’s fees under certain circumstances beginning the day of the service of the proposal if one of the following conditions is met:

  • If the Plaintiff makes the Proposal to the Defendant and the Plaintiff recovers 25% or more than the Proposal after trial or;
  • If the Defendant makes the Proposal to the Plaintiff and the Plaintiff recovers 25% less than the Proposal after trial.

For instance, if you are the Plaintiff and send a Proposal for settlement to the Defendant for $100,000, you would need to recover $125,000 after trial in order to recover your attorney’s fees.

Proposals for Settlement are a great way to add pressure to the opposing party and help steer the case toward an earlier resolution. It is important to note however that the proposal for settlement must be carefully drafted because the Courts strictly construe the language in the proposals against the party sending them.