Happy family

Find a legal form in minutes

Browse US Legal Forms’ largest database of 85k state and industry-specific legal forms.

Law in support of trial brief

Author: LegalEase Solutions


  1. Law in support of the answers
  • Written agreement

Florida courts have held that “[s]ettlement agreements are interpreted and governed by contract law.” Cheverie v. Geisser, 783 So. 2d 1115, 1118 (Fla. 4th DCA 2001) (citing Robbie v. City of Miami, 469 So.2d 1384 (Fla.1985)). Further, “[p]roperty settlement agreements are no different from other agreements in their legal aspects and are therefore binding when shown to be fair and regular.” Fowler v. Fowler, 112 So. 2d 411, 414 (Fla. 1st DCA 1959).

Therefore, “‘when the terms of a voluntary contract are clear and unambiguous, as here, the contracting parties are bound by those terms, and a court is powerless to rewrite the contract to make it more reasonable or advantageous for one of the contracting parties.’” Jenkins v. Eckerd Corp., 913 So. 2d 43, 52 (Fla. 1st DCA 2005) (quoting Emergency Associates of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2d DCA 1995)).

The district court of appeal has held that even if “the document signed by the parties is not an artful one, its uncertainty as to small or nonessential items does not preclude the court from finding an agreement settling property rights enforceable [if] the evidence establishes that there has been a meeting of the minds as to essential elements.” Wyrick v. Wyrick, 722 So. 2d 914, 916 (Fla. 2d DCA 1998) (citing Williams v. Ingram, 605 So.2d 890 (Fla. 1st DCA 1992).

  • Promissory estoppel 

The Florida Supreme Court held that “the doctrine applies when there is (1) a promise which the promisor should reasonably expect to induce action or forbearance, (2) action or forbearance in reliance on the promise, and (3) injustice resulting if the promise is not enforced.” DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So. 3d 85, 96 (Fla. 2013).

For a cause of action under 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.’” Romo v. Amedex Ins. Co., 930 So. 2d 643, 650 (Fla. 3d DCA 2006) (quoting FCCI Ins. Co. v. Cayce’s Excavation, Inc., 901 So.2d 248, 251 (Fla. 2d DCA 2005)).

  • Equitable estoppel

Florida Supreme Court has held that “equitable estoppel is a deeply rooted, centuries old tenet of the common law.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1077 (Fla. 2001).

“Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position.” Florida Dept. of Health & Rehabilitative Services v. S.A.P, 835 So. 2d 1091, 1096 (Fla. 2002)

The doctrine is applied “‘in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury.’” Florida Dept. of Health & Rehabilitative Services at 1097 (quoting State ex rel. Watson v. Gray, 48 So.2d 84, 87–88 (Fla.1950)).

“The doctrine bars the wrongdoer from asserting [shortcoming on the other party] and profiting from his or her own misconduct. Equitable estoppel thus functions as a shield, not a sword, and operates against the wrongdoer, not the victim.” Major League Baseball, supra, 790 So. 2d at 1077.

  • Constructive trust or equitable lien

The four elements required to impose a constructive trust are “(1) a promise, express or implied; (2) a transfer of property and reliance thereon; (3) a confidential relationship; and (4) unjust enrichment.” Castetter v. Henderson, 113 So. 3d 153, 155 (Fla. 5th DCA 2013) (citing Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1024 (Fla. 4th DCA 1996); Heina v. LaChucua Paso Fino Horse Farm, Inc., 752 So.2d 630, 637 n. 4 (Fla. 5th DCA 1999)).

“As a matter of law, a constructive trust may be imposed to do equity between unmarried cohabitants.” Evans v. Wall, 542 So. 2d 1055, 1056 (Fla. 3d DCA 1989) (citing Botsikas v. Yarmark, 172 So.2d 277 (Fla. 3d DCA), cert. dismissed, 179 So.2d 211 (Fla.1965).

In a case “involving an unmarried cohabiting couple, the supreme court, applying broad equitable principles, held: ‘An equitable lien … may be declared by a court of equity out of general consideration of right and justice as applied to relations of the parties and circumstances of their dealings in the particular case.’” Evans at 1057 (Fla. 3d DCA 1989) (quoting Johnson v. Craig, 158 Fla. 254, 258, 28 So.2d 696, 699 (1947).

  1. Law in support of counterclaims
  • Count I – Breach of contract (damages, interest, court costs and attorney fees)

“Damages recoverable by a party injured by a breach of contract are those that naturally flow from the breach and can reasonably be said to have been contemplated by the parties at the time the contract was entered into.” Mnemonics, Inc. v. Max Davis Associates, Inc., 808 So. 2d 1278, 1280 (Fla. 5th DCA 2002) (citing Scott v. Rolling Hills Place, Inc., 688 So.2d 937 (Fla. 5th DCA 1996).

“Damages are foreseeable if they are the ‘proximate and usual consequence’ of the breaching party’s act.” Capitol Envtl. Services, Inc. v. Earth Tech, Inc., 25 So. 3d 593, 596 (Fla. 1st DCA 2009) (quoting Florida E. Coast Ry. Co. v. Beaver St. Fisheries, Inc., 537 So. 2d 1065, 1068 (Fla. 1st DCA 1989).

The district court of appeals has held that:

The measure of such damages [caused by the breach of express contractual provision] is the loss naturally and proximately resulting from the breach, or such as may reasonably be supposed to have been within the contemplation of both parties at the time they made the contract as the probable and natural result of the breach of it.

Tuttle/White Constructors, Inc. v. Montgomery Elevator Co., 385 So. 2d 98, 100 (Fla. 5th DCA 1980).

“‘[T]he general rule is that attorney’s fees incurred while prosecuting or defending a claim are not recoverable in the absence of a statute or contractual agreement authorizing their recovery.’”  Price v. Tyler, 890 So. 2d 246, 251 (Fla. 2004) (quoting Bidon v. Dep’t of Prof’l Regulation, Florida Real Estate Com’n, 596 So. 2d 450, 452 (Fla. 1992).

“Contractual provisions concerning attorney’s fees are to be strictly construed.” Williams v. Williams, 892 So. 2d 1154, 1155 (Fla. 3d DCA 2005) (citing Wendel v. Wendel, 852 So.2d 277 (Fla. 2d DCA 2003); Pici v. First Union National Bank of Florida, 705 So.2d 50 (Fla. 2d DCA 1997).

“‘Courts have no discretion to decline to enforce this kind of [written contracts] contractual attorney’s fees provision.’” Animal Wrappers & Doggie Wrappers, Inc. v. Courtyard Distribution Ctr., Inc., 73 So. 3d 354, 355 (Fla. 4th DCA 2011) (quoting Point E. Four Condo. Corp. v. Zevuloni & Assocs., Inc., 50 So.3d 687, 687 (Fla. 4th DCA 2010); Rose v. Rose, 615 So.2d 203, 204 (Fla. 4th DCA 1993)).

“Provisions in ordinary contracts awarding attorney’s fees and costs to the prevailing party are generally enforced.” Port-A-Weld, Inc. v. Padula & Wadsworth Const., Inc., 984 So. 2d 564, 568 (Fla. 4th DCA 2008) (quoting Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla.2005)).

“The purpose of the award of prejudgment interest is to make the plaintiff whole from the date of the loss once the jury determines the defendant’s liability for damages and their amount.” Capitol Envtl. Services, supra, 25 So. 3d at 597 (Fla. 1st DCA 2009).

“Prejudgment interest is an element of damages for a breach of contract.” Pelaez v. Persons, 664 So. 2d 1022, 1023 (Fla. 2d DCA 1995). Where “attorney’s fees and costs are awarded as an element of damages, prejudgment interest is to be awarded.” Capitol Envtl. Services, supra, 25 So. 3d at 597 (citing Butler v. Yusem, 3 So.3d 1185, 1186–87 (Fla.2009)).

  • Count –II Breach of implied in law contract

“Florida courts have also recognized that ‘[e]very contract includes not only its written provisions, but also the terms and matters which, though not actually expressed, are implied by law, and these are as binding as the terms which are actually written or spoken.’” McCoy v. Durden, 155 So. 3d 399, 403-04 (Fla. 1st DCA 2014) (quoting First Nationwide Bank v. Florida Software Servs., Inc., 770 F.Supp. 1537, 1542 (M.D.Fla.1991).

“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.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So. 2d 383, 386 (Fla. 4th DCA 1997), as modified on clarification (June 4, 1997) (Internal citations omitted).

In Commerce P’ship 8098 Ltd. P’ship, supra, 695 So. 2d at 386, a contract implied in law is set out as:

[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 essential elements for a breach of implied law contract “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.” Rabon v. Inn of Lake City, Inc., 693 So. 2d 1126, 1131 (Fla. 1st DCA 1997) (quoting Rite-Way Painting & Plastering, Inc. v. Tetor, 582 So.2d 15, 17 (Fla. 2d DCA 1991). See also, Fla. Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241–42 n. 4 (Fla.2004) ; Kopel v. Kopel, 117 So. 3d 1147, 1152 (Fla. 3d DCA 2013), reh’g denied (May 8, 2013), review granted, 145 So. 3d 825 (Fla. 2014).

“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.” Gem Broad., Inc. v. Minker, 763 So. 2d 1149, 1151 (Fla. 4th DCA 2000).

“‘The most significant requirement for a recovery on quasi contract is that the enrichment to the defendant be unjust.’” 14th & Heinberg, LLC v. Terhaar & Cronley Gen. Contractors, Inc., 43 So. 3d 877, 881 (Fla. 1st DCA 2010) (quoting Commerce, supra, 695 So.2d at 388).

“‘[T]he doctrine [of unjust enrichment] is a recognition that a person is accountable to another on the ground that if the former were not required to do so, he would unjustly benefit, or the other would unjustly suffer loss.’” Montage Group, Ltd. v. Athle-Tech Computer Sys., Inc., 889 So. 2d 180, 196 (Fla. 2d DCA 2004) (quoting Circle Finance Co. v. Peacock, 399 So.2d 81, 84 (Fla. 1st DCA 1981)).

  • Count III – Breach of contract

The law relating to contract damages can be summarized as:

Contract damages are ordinarily based on the injured party’s expectation interest and are intended to give him the benefit of his bargain by awarding him a sum of money that will … put him in as good a position as he would have been in had the contract been performed.


Lindon v. Dalton Hotel Corp., 49 So. 3d 299, 305-06 (Fla. 5th DCA 2010) (quoting Restatement (Second) of Contracts § 347 cmt. A (1981)).

“The purpose of compensation for a breach of contract is to place the injured party in the position he or she would have been in had the breach not occurred.” Sharick v. Se. Univ. of Health Sciences, Inc., 780 So. 2d 136, 139 (Fla. 3d DCA 2000).

“It is well-settled that the injured party in a breach of contract action is entitled to recover monetary damages that will put it in the same position it would have been had the other party not breached the contract.” Capitol Envtl. Services, supra, 25 So. 3d at 596 (Fla. 1st DCA 2009).

“Compensatory damages are designed to make the injured party whole to the extent that it is possible to measure such injury in monetary terms.” MCI Worldcom Network Services, Inc. v. Mastec, Inc., 995 So. 2d 221, 223 (Fla. 2008) (citing Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981)).

“It is not necessary that the parties have contemplated the exact injury which occurred as long as the actual consequences ‘could have been reasonably expected to flow from the breach.’” Capitol Envtl. Services, Inc., supra, 25 So. 3d at 596 (quoting Mnemonics, Inc., supra, 808 So.2d at 1281).

“Under Florida law, a non-breaching party ‘shall have fair and just compensation commensurate with the loss sustained in consequence of the [breaching party’s] act which gives rise to the action.’” Shandong Airlines Co., Ltd. v. CAPT, LLC, 650 F. Supp. 2d 1202, 1207 (M.D. Fla. 2009) (quoting Hanna v. Martin, 49 So.2d 585, 587 (Fla.1951).

The district court of appeal has held that “‘[u]ncertainty as to the amount of damages or difficulty in proving the exact amount will not prevent recovery where it is clear that substantial damages were suffered and there is a reasonable basis in the evidence for the amount awarded.’” Centex-Rooney Const. Co., Inc. v. Martin County, 706 So. 2d 20, 28 (Fla. 4th DCA 1997) (quoting Adams v. Dreyfus Interstate Dev. Corp., 352 So.2d 76, 78 (Fla. 4th DCA 1977)).