When two parties enter into a contract, and one of the parties fails to fulfill its obligations under the terms of the contract, a breach of the contract occurs. This means that a breach has occurred when one party has failed to honor the terms of the agreement.

To determine whether a breach of contract occurred, the first question is whether the parties have entered into a valid contract. While contracts are typically in writing and signed by both parties, oral contracts can be enforceable in Florida in certain instances.

It is important to hire a lawyer to first determine whether the parties have entered into a valid and enforceable contract. An experienced contract attorney can also help determine whether a breach has occurred, whether there are any available defenses to the breach, and whether any damages have occurred from a result of the breach.

If you believe you have a breach of contract claim – or if you are being sued for breach of contract – then you should contact a Florida breach of contract lawyer to review your case.

What Is a Breach of Contract?

In Florida, a “breach of contract” occurs when a party fails to perform or violates the terms in a contract.

Typical examples of a breach of contract include failure to deliver goods on time, failing to provide services, or failing to remit payment on time.

Parties to a contract can include both individuals or businesses.

Breach of Contract Elements

It is important to initially determine whether a valid agreement exists under Florida law.

Under Florida law, the elements of a breach of contract claim are (1) a valid contract, (2) a material breach of that contract, and (3) damages. A material breach occurs only when an injured party has sustained a substantial injury due to the breach. The injured party may only recover if the damages are a proximate result of the material breach.

In order to bring a breach of contract claim, it is important to attach a copy of the written contract or otherwise incorporate the terms of the contract in the complaint. The Florida Rules of Civil Procedure provide that all contracts upon which action may be brought or defenses made shall be incorporated in or attached to the pleadings. A complaint based upon a written instrument thus does not state a cause of action until the contract or an adequate portion is attached to or incorporated in the complaint. When a party fails to attach or incorporate the documents upon which the claim rests, the pleading is deficient and subject to dismissal. This means that a copy of the contract should be attached or incorporated into your complaint.

Further, in breach of contract actions, it is necessary that the plaintiff allege the elements of the contract with enough precision that the person against whom the plaintiff can properly defend himself.

Is the Contract Valid?

The easiest way to prove a valid contract exists is if the parties have entered into a written document.

Generally, contracts can be either oral or written. However, there are certain contracts which do need to be in writing in order for the contract to be enforceable by Florida courts. For example, Florida’s “statute of frauds” requires certain contracts be in writing by the party sought to be charged in order for a plaintiff to bring a valid claim. A contract for the sale of land is an example of a contract which falls within Florida’s statute of frauds.

An experienced contact attorney can determine whether you have entered into a valid contract. Even if you do not have a valid contract, there are other possible causes of action which may be available to you.

What Breach of Contract Remedies Are Available in Florida?

Rescission

Plaintiffs can use rescission to effectively “undo” a contract that has been breached.

Under Florida law, equity will not usually order rescission unless the condition of the parties may be restored as it existed prior to the execution of the contract. Further, a court may not exercise its equity powers when there is an adequate remedy at law.

Damages

There are various types of damages which may be available. For instance, compensatory damages can be sought by the party who has been harmed due to the breach of contract. General damages cover what the plaintiff actually lost. Special damages cover indirect losses caused by the breach of contract. Liquidated damages may also be available in certain instances.

What Breach of Contract Defenses Are Available in Florida?

If you have been sued for breach of contract, there are certain defenses which may be available to you.

Certain defenses which may be available to you include, but are not limited to:

• The plaintiff failed to perform its obligations first and therefore committed the first breach of the contract, which discharges the defendant from any obligations under the agreement.
• The terms of the contract are impossible to perform, and the lawsuit thus fails due to impossibility of performance.
• The contract fails due to a frustration of purpose.
• The plaintiff has failed to satisfy conditions precedent by failing to establish it performed under the terms of the contracts.
• The plaintiff failed to provide the requisite default notice set forth in the agreement.
• The plaintiff is limited to the terms of the contract it executed and cannot bring claims for alleged breaches outside the written terms of the contract.
• The plaintiff has failed to show it performed under the terms of the contracts,
• The plaintiff breached the implied covenant of good faith, commercial reasonableness, and fair dealing.
• There is a lack of consideration.

Hire a Breach of Contract Lawyer in Florida

If you believe you may have a breach of contract claim – or if you need to defend yourself against a breach of contract claim – it is important to contact an attorney. Contact our experienced Florida Breach of Contract lawyers today.

Our team at Battaglia, Ross, Dicus & McQuaid, P.A. have extensive experience that can help you in every step of the legal process from breach of contract remedies to defending you in court.

Contact us today to schedule a free consultation.

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Employers

Not all employers are deemed to be “covered enterprise / employers” pursuant to the Fair Labor Standards Act.

Factors as to whether an employee is considered a covered enterprise include if the covered enterprise (1) has an annual gross volume of sales made or business done is not less than $500,000, (2) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the premises; a school for mentally or physically disabled or gifted children; a preschool, an elementary or secondary school, or an institution of higher education (whether operated for profit or not for profit); or (3) is an activity of a public agency.

Further, employees working for entities which are not deemed covered enterprises under the Fair Labor Standards Act may still be subjected to the FLSA provisions if they are engaged in interstate commerce, in the production of goods for interstate commerce, or closely related to any process or occupation which is essential to the production of goods for interstate commerce. Indeed, an employee is covered under the Fair Labor Standards Act in certain instances if the workers are engaged in interstate commerce, are producing goods for interstate commerce, or otherwise participating in the handling, selling, or working on goods or materials which have been moved in or produced for interstate commerce.

Common Categories of the Fair Labor Standards Act

The commonly-known main categories of the Fair Labor Standards Act are the following.

1.) Hours Worked

Pursuant to the Fair Labor Standards Act “hours worked” generally includes all of the time which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.

2.) Minimum Wage

The federal minimum wage is $7.25. Employees covered by the Fair Labor Standards Act are entitled to the aforementioned minimum wage.

It is important to note that an employer cannot make deductions from wages to the extent that the deductions reduce the employee’s wages below the minimum rate required by the Fair Labor Standards Act. (Examples of such deductions include uniforms or tools).

The Fair Labor Standards Act also sets forth certain requirements for tipped employees. Tipped employees are defined as employees who are engaged in occupations wherein the employee customarily and regularly receives more than thirty dollars ($30) in tips. The employer can consider tips as part of the wages. However, an employer must pay the tipped employee at least $2.13 an hour in wages. Furthermore, for an employee to use the tip credit provisions under the FLSA, the employer must place the employee on advance notice of certain criteria and be able to establish certain requirements

3.) Overtime

Employees covered by the Fair Labor Standards Act are entitled to overtime. Overtime pay is pay at a rate not less than one and one-half times the regular rate of the employee’s pay. Overtime pay is required to be paid by the employer after the employee works after forty (40) hours of work in one work week.

Certain employees are exempt from the hourly wage requirements of the Fair Labor Standards Act. It is thus important to know if you are an employee who is covered by the mandatory overtime provisions of the Fair Labor Standards Act.

It is important to note that an employer cannot make deductions from wages to the extent that the deductions reduce the employee’s wages below the overtime due pursuant to the Fair Labor Standards Act.

4.) Recordkeeping

Employers must maintain appropriate recordkeeping. This means that employers must keep employee time and pay records. These records are to include wages, hours, and other requirements as specified by the Department of Labor regulations. With respect to an employee who is subject to the minimum wage provisions – or the minimum wage and overtime pay provisions – it is imperative to note that the following records must be kept: (1) the employee’s personal information, including the employee’s name, home address, occupation, sex, and birth date if the employee is under 18 years of age or younger; (2) the hour and day when workweek begins; (3) the total hours worked each workday and each workweek; (4) the total daily or weekly straight-time earnings; (5) the regular hourly pay rate for any week when overtime is worked; (6) the total overtime pay for the workweek; (7) any deductions from or additions to wages; (8) the total wages paid each pay period; and (9) the date of payment and pay period covered.

Further, employees must display an official poster which outlines the requirements of the Fair Labor Standards Act.

5.) Child Labor

The Fair Labor Standards Act also contains specific to child labor. This section provides certain requirements for employees under the age of eighteen (18).

The Fair Labor Standards Act child labor provisions include restrictions on the hours of work that a minor under the age of sixteen (16) can work. The Fair Labor Standards Act also lists certain hazardous occupations which are prohibited for minors to perform. This list of prohibited occupations declared to be too dangerous include both farm and non farm jobs.

Exempt Employees

It is important to know that certain employees are exempt from the minimum wage provisions of the Fair Labor Standards Act and/or the minimum wage and overtime requirements of the Fair Labor Standards Act.

Employment Law Attorneys at Battaglia, Ross, Dicus & McQuaid, P.A.

If you feel that your employer has violated the Fair Labor Standards Act – or if you are an employer and an employee is alleging a violation of the Fair Labor Standards Act – contact the employment law attorneys at Battaglia, Ross, Dicus & McQuaid, P.A. today. Our experienced employment lawyers can speak with you regarding your situation.

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Prerequisites to Class Representation

Claims and Defenses Maintainable

1. the prosecution of separate claims or defenses by or against individual members of the class would create a risk of either: (a) inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (b) adjudications concerning individual members of the class which would, as a practical matter, be dispositive of the interests of other members of the class who are not parties to the adjudications, or substantially impair or impede the ability of other members of the class who are not parties to the adjudications to protect their interests; or
2. the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate; or
3. the claim or defense is not maintainable under either of the two prongs referenced above, but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances, including (a) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (b) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (c) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (d) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.

Pleading Requirements

Determination of Class Representation; Notice; Judgment; Claim or Defense Maintained Partly on Behalf of a Class

Contact the Attorneys at Battaglia, Ross, Dicus & McQuaid, P.A.

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Florida Statute 48.031

Florida Statute 48.031 sets forth service of process generally.

An Individual Can Also Be Served by What Is Known as Substituted Service of Process

Florida Statute 48.081

Florida Statutes 48.081 sets forth the procedure on how to effectuate proper service of process on corporations.

1. On the president or vice president, or other head of the corporation
2. In the absence of any person described above, on the cashier, treasurer, secretary, or general manager;
3. In the absence of any person described in the two above paragraphs, on any director; or
4. In the absence of any person described in the three above paragraphs, on any officer or business agent residing in the state.

Florida Statute 48.161 and Florida Statute 48.181

Ensure Compliance with Service of Process

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State Level: The Florida Commission on Human Relations

Local Level: The Pinellas County Office of Human Rights

Know Your Rights

Employment Law Attorneys at Battaglia, Ross, Dicus & McQuaid, P.A.

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Paycheck Protection Program (PPP)

Who is eligible?

1. Less than 500 employees
2. The uncertainty of the current economic conditions make the loan necessary to support the ongoing operations of the business
3. The funds will be used to retain workers, maintain payroll, make mortgage payments, lease payments, or utility payments.
4. The business has not already received a loan under the PPP program.

How Do I Determine the Number of Employees?

How Do I Calculate the Amount of the Loan?

• 2019 Total Payroll = $320,000.00 ((4 x $50,000) + $120,000)
• Less amount over $100k to any one individual: ($20,000)
• 2019 Total Payroll for PPP = $300,000
• Average Monthly Payroll = $25,000
• Maximum Loan Amount (Avg. Monthly Payroll x 2.5) = $62,500.00

Do I Have to Repay This Loan?

1. Payroll Costs
2. Interest on Mortgage Payments
3. Rent
4. Utilities

Other requirements for forgiveness:

What Is Included in Payroll Costs?

• salary, wage, commission, or similar compensation
• payment of cash tip or the equivalent
• payment for vacation, parental, family, medical or sick leave
• severance pay
• payment for group healthcare benefits including insurance premiums
• payment for retirement benefits
• payment of state or local tax assessed on the compensation of employees (unemployment tax)

• compensation in excess of $100,000
• payroll taxes (employer portion)
• compensation to an employee whose principal residence is outside of the United States

What Happens If the Loan Is Not Forgiven?

1. The loan is non-recourse with no personal guarantees.
2. No collateral is required
3. The business does not need to certify that it cannot obtain credit elsewhere.
4. The maximum amount a business can borrow is the lesser of A) $10,000,000 or B) 2.5x the average monthly payroll (as outlined above).

Economic Injury Disaster Loan (“Eidl”)

• There are no personal guarantees for loans less than $200,000.
• The maximum EIDL loan is $2,000,000
• The application may be approved solely on the basis of the credit score of the applicant and no submission of tax returns is required.

1. Paid sick leave for employees unable to work due to COVID-19
2. Maintaining payroll during business interruptions or substantial slowdowns
3. Meeting increased costs to obtain materials unavailable from the applicants original source due to interrupted supply chains
4. Making rent or mortgage payments
5. Repaying obligations that cannot be met due to revenue losses.

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Use of Technology

1. All rules of procedure, court orders, and opinions applicable to court proceedings that limit or prohibit the use of communication equipment for conducting proceedings by remote electronic means shall remain suspended
2. Notaries and other persons qualified to administer an oath in the State of Florida may swear a witness remotely by audio-video communication technology from a location within the State of Florida, provided they can positively identify the witness. For purposes of this section regarding the administration of oaths, the term “positively identify” means that the notary or other qualified person can both see and hear the witness or new attorney via audio-video communications equipment for purposes of readily identifying the witness or new attorney.

Jury Proceedings and Jury Trial

1. All grand jury proceedings, jury selection proceedings, and criminal and civil jury trials shall remain suspended through July 2, 2020.

Essential and Critical Trial Court Proceedings

1. All circuit and county courts shall continue to perform essential court proceedings, including but not limited to: first appearance; criminal arraignments as necessary; hearings on motions to set or modify monetary bail for individuals who are in custody; juvenile dependency shelter hearings; juvenile delinquency detention hearings; hearings on petitions for injunctions relating to safety of an individual; hearings on petitions for risk protection orders; hearings on petitions for the appointment of an emergency temporary guardian; hearings to determine whether an individual should be involuntarily committed under the Baker Act or the Marchman Act; and hearings on petitions for extraordinary writs as necessary to protect constitutional rights.
2. In addition to essential proceedings, all circuit and county courts shall perform, as necessary and applicable, critical proceedings related to the state of emergency or the public health emergency, including but not limited to proceedings related to: violation of quarantine or isolation; violation of orders to limit travel; violation of orders to close public or private buildings; and enforcement of curfew orders
3. In conducting essential proceedings and proceedings critical to the state of emergency or the public health emergency, circuit and county courts shall employ all methods feasible to minimize risk of COVID-19 exposure to individuals involved in the proceedings or the general public.
4. No proceedings or other court events other than essential proceedings and proceedings critical to the state of emergency or the public health emergency shall be conducted through in-person hearings.

Non-Essential and Non-Critical Trial Court Proceedings

1. Each chief judge shall continue to review cases and court events and the communications technology resources available. The Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 has determined that the following proceedings are amenable to being conducted remotely: (1) alternative dispute resolution proceedings; (2) status, case management, and pretrial conferences in all case types; (3) non-evidentiary and evidentiary motion hearings in all case types; (4) arraignments and pleas in absentia in county court misdemeanor cases; (5) hearings in juvenile delinquency cases; (7) hearings in noncriminal traffic infraction cases; (7) problem-solving court staffings, hearings, and wellness checks; and (8) non-jury trials in all case types, except for criminal, juvenile delinquency, and termination of parental rights petitions in dependency cases unless the parties in an excepted case agree to the remote conduct of a non-jury trial. Thus, it is hereby ordered that each of the above-listed proceedings shall be conducted using telephonic or other electronic means available in the subject jurisdiction unless a judge determines to the contrary.

Suspension of Time Periods in Certain Rules of Criminal Procedure

1. Speedy Trial. All time periods involving the speedy trial procedure in criminal and juvenile court proceedings shall remain suspended through the close of business on Monday, July 6, 2020. The suspension of time limits under the speedy trial procedure restores additional days equal to the number stated in the previous orders and this order.
2. Persons Arrested for First Degree Murder. With regard to persons arrested for first degree murder, all time periods under Florida Rules of Criminal Procedure 3.133(b) and 3.134 shall remain suspended through July 2, 2020. The suspension of the time limits of Florida Rules of Criminal Procedure 3.133(b) and 3.134 restores additional days equal to the number stated in the previous order and this order.
3. Incompetence to Proceed. Where exigencies make it impossible to meet the 20-day time period in Florida Rule of Criminal Procedure 3.210(b), chief judges of the circuit courts remain authorized to direct judges to hold competency hearings as soon as feasible after the date of filing a motion to determine competency. Chief judges also remain authorized to allow experts and attorneys to conduct and attend competency evaluations by remote means, if feasible.

Speedy Trial Procedure in Noncriminal Traffic Infraction Court Proceedings

1. All time periods involving the speedy trial procedure in noncriminal traffic infraction court proceedings remain suspended. The suspension of time limits under the speedy trial procedure restores additional days equal to the number stated in the previous order and this order.

Writs of Possession

1. The requirement in Florida Rule of Civil Procedure 1.580(a) for the clerk to issue a writ of possession “forthwith” remains suspended.

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Executive Order 2020-112: Phase One

1. Bars, pubs and nightclubs that derive more than fifty percent of gross revenue from the sale of alcoholic beverages shall continue to suspend the sale of alcoholic beverages for on-premises consumption.
2. Restaurants and food establishments licensed may allow on-premises consumption of food and beverage, so long as they adopt appropriate social distancing measures and limit their indoor occupancy to no more than 25 percent of their building occupancy. The Executive Order further provides that outdoor seating is permissible with appropriate social distancing. Appropriate social distancing requires maintaining a minimum of six feet between parties, only seating parties of ten or fewer people and keeping bar counters closed to seating.
3. Gyms and fitness centers shall remain closed.
4. The prohibition on vacation rentals still remains in effect.

Executive Order 20-112 also sets forth the following procedures applicable to other business services affected by previous Executive Orders:

1. In-store retail sales establishments may open storefronts if they operate at no more than twenty five percent of their building occupancy and abide by the safety guidelines issued by the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA).
2. Museums and libraries may open at no more than twenty-five percent of their building occupancy provided that local public museums and local public libraries may operate only if permitted by local government, and any components of museums or libraries that have interactive functions or exhibits, including child play areas, remain closed.

1. The facility has the capacity to immediately convert additional facility-identified surgical and intensive care beds for treatment of COVID-19 patients in a surge capacity situation;
2. The facility has adequate personal protective equipment to complete all medical procedures and respond to COVID-19 treatment needs, without the facility seeking any additional federal or state assistance regarding personal protective equipment supplies;
3. The facility has not sought any additional federal, state, or local government assistance regarding personal protective equipment supplies since resuming elective procedures; and
4. The facility has not refused to provide support to and proactively engage with skilled nursing facilities, assisted living facilities and other long-term care residential provider.

Pinellas County Announcements

1. Concerts;
2. Music halls;
3. Bars;
4. Pubs;
5. Nightclubs;
6. Gyms;
7. Dance studios;
8. Yoga studios;
9. Amusement parks;
10. Waterparks;
11. Vacation rentals; and
12. personal services such as haircuts (which would include barbershops, hair spas, and hair salons);
13. personal services such as nail salons.

On May 1, 2020, Pinellas County also announced the following:

1. Restaurants and food establishments may reopen dining areas with a maximum patron occupancy of twenty-five percent of the building capacity. Outdoor seating is allowed without capacity percentage limitations. Bar counter seating must remain closed.
2. Many other nonessential retail businesses that have been closed to foot traffic may resume at limited capacity using social distancing principles.
3. In-store activities can resume to a maximum of twenty-five percent patron occupancy of the building capacity.
4. Pet grooming and car washes are specifically among the businesses that may operate starting Monday, May 4, 2020.
5. The County’s guidance strongly encourages residents to wear masks at indoor businesses like grocery and retail stores.
6. Museums and libraries may reopen to a patron occupancy of twenty-five percent of the stated building capacity, but interactive functions and exhibits and child play areas must stay closed. Cities may decide to keep museums and libraries closed.
7. Curbside pickup and delivery by businesses is allowed.

Ensure Compliance

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Executive Order 20-87

Executive Order 20-91

Battaglia, Ross, Dicus, & McQuaid, P.A. is Here for You

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What Constitutes an Essential Service, Essential Activity, or Essential Business?

On March 17, 2020

On March 20, 2020

On March 20, 2020

On March 20, 2020

On March 26, 2020

On April 1, 2020

On April 2, 2020

• Acupuncture (unless service is under the care of a medical provider);
• Antique stores;
• Auction houses;
• Automotive tint, wash, detail, and accessory businesses;
• Beauty supply stores;
• Bookstores;
• Clothing and shoe retail, rental, or consignment;
• Craft, art, and hobby supply stores;
• Day/beauty spas, hair or nail salons, and barber shops;
• Décor and lighting sales businesses;
• Entertainment establishments;
• Florist businesses;
• Fitness, dance, pilates, and yoga studios and gyms;
• Jewelry stores and jewelry repair businesses;
• Massage (unless service is under the care of a medical provider);
• Music and instrument stores; music lesson providers;
• Museums;
• Optical retail stores (non-prescription);
• Painting, craft, or art studios;
• Pet grooming businesses (including mobile and those co-located with pet retail stores);
• Pet sales and adoptions (excluding on premises animal care);
• Smoke, tobacco, CBD, or vape stores;
• Spa sales businesses;
• Sporting goods sales and repair businesses;
• Stereo installation and sales businesses;
• Tattoo and piercing services;
• Toy retail stores, game, or amusement rental businesses; and
• Vitamin stores (unless service is under the care of a medical provider).

• Banks and financial institutions;
• Community based organizations providing meals and social services;
• Critical trades (plumbers, electricians, exterminators, security personnel, etc.); fire and water damage restoration, appliance repair personnel, exterminators, and other service providers (such as landscape and pool maintenance service providers) who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures;
• First responders, police and fire, jails and prisons;
• Food and beverage (grocery stores, food banks, alcohol sales, restaurants: delivery, take-out or curbside delivery);
• Funeral services;
• Garbage and sanitation workers;
• Gas stations;
• Government operations;
• Hardware, garden and supply stores;
• Hospitals, clinics and other healthcare operations;
• Hotel and lodging;
• Human service operations;
• Laundromats;
• Post offices and shipping services;
• Transportation: including airports and public transportation such as PSTA; and
• Utilities, public works and essential infrastructure.

• Attending religious services conducted in churches, synagogues, or houses of worship;
• Caring for or otherwise assisting a loved one or a friend;
• Participating in recreational activities (consistent with social distancing guidelines) such as walking, biking, hiking, fishing, golfing (golf courses may remain open) hunting, or swimming
• Recreational boating (boat ramps, marinas, and bait/tackle shops may remain open); and
• Taking care of pets.

Is the Safer-at-Home Guidance All-Inclusive?

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