Multiple writings between the parties could, in some circumstances, be construed together as constituting a single contract. “Under Florida law, when, as here, parties to a contract execute two or more documents at or near the same time and concern the same transaction or subject matter, the documents are generally construed together as a single contract.” Krol v. FCA US, LLC, 273 So. 3d 198 (Fla. 5th DCA 2019). The question could arise of whether separate signed documents between two parties should be considered a single contract or separate contracts. This involves issues relating to time proximity that the documents were executed and whether the subject matter of each document is the similar. The documents do not have to be “executed at the same time by the same parties for the same purpose; instruments entered into on different days but concerning the same subject matter may under some circumstances be regarded as one contract and interpreted together.” Cushman v. Smith, 528 So. 2d 962 (Fla. 5th DCA 1988).

It is a fact issue of how close in time the writings must be signed to constitute a single contract. Generally, when related writings are signed within a few days of each other, they are considered a single contract. One Florida court found that even writings prepared and signed months apart could be construed together. In Shelby Homes at Millstone, Inc., v. DaSilva, 983 So. 2d 786 (Fla. 4th DCA 2008), the parties had contracted for the construction of a particular model home. Nearly seven months later, the parties executed another contract that changed the model home to be constructed. A dispute arose between the parties about whether certain terms of the earlier contract were incorporated in the latter contract. The court held that that terms of the earlier contract were incorporated into the latter contract because the two written contracts concerned the same subject matter. This suggests that related written documents signed even several months apart could constitute a single contract.

In some circumstances, oral agreements regarding contract terms could also be incorporated into the contract when a written document lacks a merger clause. However, the contract must not be covered by the Statute of Frauds, and the oral provision cannot be an essential term of the contract. The Statute of Frauds requires that certain contracts must be memorialized in a signed writing. The types of contracts covered by the Statute of Frauds include, contracts for the sale of real estate, certain agreements to pay a debt, and agreements that cannot be performed within one year. Fla. Stat. § 725.01. A writing that is sufficient to satisfy the Statute of Frauds must include the essential terms of the contract. Cohoda v. Russell, 289 So. 2d 55 (Fla. 2d DCA 1974).

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

“Under the doctrine of impossibility of performance or frustration of purpose, a party is discharged from performing a contractual obligation which is impossible to perform and the party neither assumed the risk of impossibility nor could have acted to prevent the event rendering the performance impossible.” Marathon Sunsets, Inc. v. Coldiron, 189 So. 3d 235 (Fla. 3d DCA 2016). “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 known to the other party, have been frustrated because of the failure of consideration, or impossibility of performance by the other party.” State v. Dempsey, 916 So. 2d 856 (Fla. 2d DCA 2005). These defenses are not, however, available if knowledge regarding the impossibility of performance were available to the promisor or if the situation could have been reasonably foreseen before entering the contract. Shore Inv. Co. v. Hotel Trinidad, Inc., 29 So. 2d 696 (1947); Home Design Center–Joint Venture v. County Appliances of Naples, Inc., 563 So. 2d 767 (Fla. 3d DCA 1990).

Government action could form the basis of an impossibility of performance or frustration of purpose defense. For example, in Leon County v. Gluesenkamp, 873 So. 2d 460 (Fla. 1st DCA 2004), the court held that a party established a defense to a breach of contract claim when a court-ordered injunction (from another case) prevented the party from performing its part of a contract. Likewise, in Hilton Oil Transp. v. Oil Transp. Co., S.A., 659 So. 2d 1141 (Fla. 3d DCA 1995), the court implied that a seizure of a tug boat by the Honduras government could form the basis of an impossibility of performance defense because “[i]t is obvious that war time seizures are unforeseeable and the parties to the charter hires have absolutely no control over such seizures and are thus at the total mercy of the government.”

The new law banning Tik Tok might allow application of the impossibility of performance or frustration defense. The defense could be viable if Tik Tok is not permitted to operate in the U.S. and the prohibition against Tik Tok made performance under the relevant contract impossible. However, feasibility of the defense will largely depend on whether the Tik Tok ban was foreseeable. One could argue the circumstance was foreseeable for any contract entered after Congress approved the Tik Tok ban. One could also argue a Tik Tok ban was foreseeable before the ban was passed when Congress began publicly debating the ban. This could prevent application of the impossibility of performance or frustration defense for contracts entered as late as 2020 because this is when the U.S. President announced an intent to ban Tik Tok. See https://www.bloomberg.com/news/articles/2020-07-31/trump-to-order-china-s-bytedance-to-sell-tiktok-u-s-operations. It will be interesting to see whether the Supreme Court upholds the Tik Tok ban and how broad courts apply the an impossibility of performance or frustration of purpose defense.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

            Florida Statute § 541.335 governs restrictive covenants in Florida and provides presumptions regarding the length of time that constitute a reasonable duration. The reasonableness of a duration depends on the purpose of the particular restrictive covenant. According to the statute, restrictive covenants involving a former employee, agent, or independent contractor that are not based on the protection of trade secrets and do not involve the sale of a business are presumed reasonable if the restriction is six months or less. Restrictions of more than two years are presumed unreasonable for that same class of persons. The time period begins when the employment relationship or independent contractor relationship terminates.

            The statute permits longer restrictive covenant durations under certain circumstances. One such circumstance involves the seller of a business. A “court shall presume reasonable in time any restraint three years or less in duration and shall presume unreasonable in time any restraint more than seven years in duration.” Fla. Stat.§ 542.335. Another example is a distributors relationship and franchisor relationship. One year or less is presumed reasonable for restrictive covenants involving these relationships, but more than three years is presumed unreasonable. Finally, restrictive covenants intended to protective trade secrets have the longest permissible duration. Courts will presume a restrictive covenant period of five years or less to be reasonable and more than ten years to be unreasonable.

            What if a business wants a restrictive covenant longer than the durations set out in the statute? Courts in Florida normally enforce only the duration established by the statute. However, the durations identified in the restrictive covenant statue are rebuttable presumptions.  Consequently, a plaintiff seeking to enforce a restrictive covenant for more than the maximum duration considered reasonable under the statute, could supply a court with evidence demonstrating special circumstances warrant a longer enforcement duration. However, it is generally difficult to establish the necessity of a longer duration. Flickenger v. R.J. Fitzgerald & Co., Inc., 732 So. 2d 33 (Fla. 2d DCA 1999) (rejecting three-year employee non-compete period as exceeding the two-year duration permitted by statute and stating employer did not present evidence supporting the need for the longer period).

            In rare cases, the statutory durational presumptions can be exceeded. In Avalon Legal Information Services, Inc. v. Keating, 110 So. 3d 75 (Fla. 5th DCA 2013), the court found that a non-compete agreement between an independent contractor and a business with a three-year non-compete period was reasonable. Although the three-year period exceeded the two-year presumption, the business had client contracts expiring more than two years after the standard two non-compete period would expire. Therefore, the court found enforcement of a three-year non-compete ban was reasonable under the circumstances because the independent contractor would not be able to compete with the business until the year after the business’ client contracts expired.

            In sum, Florida Statute § 542.335 establishes rebuttable presumptions regarding the durations of restrictive covenants. But in certain limited circumstances, the durations can be longer than what the statute presume valid.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The trade secret privilege was designed to prevent a party from obtaining valuable information that could be used to advantage itself or disadvantage the disclosing party. Freedom Newspapers, Inc. v. Egly, 507 So. 2d 1180 (Fla. 2d DCA 1987) (“The purpose underlying the trade secrets privilege established by section 90.506 is to prohibit a party to a suit from obtaining valuable information that could be used to its own advantage….”). To assert the privilege, the party resisting disclosure must prove the information qualifies as a trade secret and that harm will result if the information is disclosed. Am. Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206 (Fla. 4th DCA 2000). The court usually inspects the information in a private in-camera setting to ensure trade secret information is not unnecessarily divulged. GCTC Holdings, LLC v. Tag QSR, LLC, 346 So. 3d 700 (Fla. 2d DCA 2022). If the resisting party satisfies his initial burden, the requesting party must show reasonable need for the information. Id. The court weighs the requesting party’s need against the resisting party’s interest in maintaining the information’s confidentiality. Lewis Tree Serv., Inc. v. Asplundh Tree Expert, LLC, 311 So. 3d 206 (Fla. 2d DCA 2020). The court will also determine whether safeguards can be implemented to prevent the requesting party from disclosing or using the information. GCTC Holdings, LLC, 346 So. 3d 700. Safeguards usually come in the form of a confidentiality order. Id.

Asserting a trade secret privilege is more difficult when the lawsuit pertains to the defendant’s trade secret misappropriation. Pursuing a trade secret misappropriation claim generally waives the right to claim a trade secret privilege because an ultimate issue in the case is whether the information qualifies as a trade secret. Del Monte Fresh Produce Co. v. Dole Food Co. Inc., 148 F. Supp. 2d 1322 (S.D. Fla. 2001) (“By bringing a claim under the Uniform Trade Secrets Act, and thereby placing the trade secrets at issue, Del Monte essentially has waived its right to assert the trade secret privilege.”). “In order to ascertain whether trade secrets exist, the information at issue must be disclosed.” Lovell Farms, Inc. v. Levy, 641 So. 2d 103 (Fla. 3d DCA 1994). However, the disclosure requirement does not necessarily mean a trade secret plaintiff has no protection. Courts can still require information to be exchanged under a confidentiality order or limit disclosure to only the information that is relevant to the dispute. See Ecometry Corp. v. Profit Ctr. Software, Inc., 2007 WL 9706934, at *5 (S.D. Fla. Mar. 15, 2007) (To “the extent that Interrogatory number 9 calls for the divulgence of trade secrets or confidential information, this Court ORDERS that PCS maintain the confidential nature of such information.”); Owners Ins. Co. v. Armour, 303 So. 3d 263 (Fla. 2d DCA 2020) (“Even though the disclosure of various types of information can result in irreparable harm, including material protected by privilege, trade secrets, or work product, the baseline test for discovery is always relevance to the disputed issues of the underlying action.”).

Peter Mavrick is a Fort Lauderdale business litigation lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

There are two types of jurisdiction that Florida has over out of state defendants: specific or general. “As the first step in a two-step process, it must initially be determined if sufficient facts exist to confer either specific jurisdiction or general jurisdiction pursuant to Florida’s long-arm statute.” Caiazzo 73 So. 3d at 250. A showing of either type of jurisdiction will establish the minimum contacts needed for the out of state defendant to be haled into a Florida court. After an assessment of minimum contacts, the court then does an assessment of due process. See Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310 (1945).

Fla. Stat. 48.193(1) provides specific jurisdiction over defendants where the cause of action arises out of their isolated conduct within Florida. 48.193(1) Fla. Stat. provides a non-exhaustive list of activities that can subject a defendant to specific jurisdiction, some activities that are pertinent to business defendants include, but are not limited to:

1. Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
2. Committing a tortious act within this state.
3. Owning, using, possessing, or holding a mortgage or other lien on any real property within this state.
4. Contracting to insure a person, property, or risk located within this state at the time of contracting.
5. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

Id. Additionally, § 48.193 (2) provides the basis for establishing general jurisdiction: “A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state whether or not the claim arises from that activity.” Id.

Because no case in Florida addressed minimum contacts in relation to e-commerce, the Fourth DCA found it necessary to give the Florida courts guidance in Caiazzo. See 73 So. 3d at 248.In deciding Caiazzo, the Fourth DCA determined that it would “continue to apply a traditional minimum contacts analysis in personal jurisdiction questions, whether or not the internet is involved.” The Fourth DCA found the rubric announced in the seminal case that concerned the internet and minimum contacts, Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), to be useful as part of an assessment of jurisdiction. However, it found the distinction between active and passive websites to be talismanic jurisdictional terms that do not provide a conclusive answer to the question of whether Florida has jurisdiction over a person. Thus, the Fourth DCA decided not to adopt Zippo.

Therefore, non-resident online merchants that do not want to be haled into Florida courts should consider incorporating a forum selection clause into its terms and conditions of purchases. As the internet plays an increasing role in commerce, businesses should track the legal developments in this field. For discussion regarding a 2017 Fourth DCA decision that examines how to incorporate terms and conditions in online sales, see Incorporating Terms and Conditions into Online Sale Agreements.

The Mavrick Law Firm has successfully defended businesses against fraud claims and in non-competition covenant litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.

In McCants, the appellate court examined the validity of an arbitration clause that was purportedly incorporated into an online purchase agreement. The court began its assessment by noting that there are generally two types of agreements online purchase agreements: “browsewrap” agreements and “clickwrap” agreements. See id. at 762. Clickwrap agreements are generally enforceable because they require buyers to click a box to acknowledge that they read the seller’s terms and conditions. See id. Whereas, “browsewrap” agreements simply provide a link to the terms and conditions and does not require the buyer to click an acknowledgement of the seller’s terms and conditions during the checkout process. See id. “Browsewrap” agreements have been enforced when the purchaser has actual knowledge of the terms and conditions or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice. Id. (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1176 (9th Cir. 2014).

“Uniformly, courts have declined to enforce “browsewrap” agreements when the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them. Id. at 765. In McCants, an online retailer argued that an arbitration clause was incorporated into the purchase agreement because a browsewrap agreement that contained the terms and conditions of the sale was displayed during the transaction. See id. However, in this case, the browsewrap agreement was found not to be “conspicuous enough to put a reasonably prudent person on inquiry notice.” Id. The court reminded potential litigants that to incorporate a collateral document into an agreement, Florida contract law mandates that the agreement must: “(i) specifically provide that the collateral document is being incorporated; and (ii) sufficiently describe the collateral document being incorporated.” Id.

“While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.” Id. (citing Register.com, Inc. v. Verio, Inc., 356 F.3d 393(2d Cir. 2004)). In reaching its conclusion that the browsewrap was not sufficiently incorporated, the court examined the webpage and relied on an affidavit of the buyer. See id. The hyperlink to the browsewrap agreement was found to be at the very bottom of the seller’s webpage throughout the purchase process. See id. Additionally, the buyer filed an “affidavit asserting that he did not have actual knowledge of the terms and conditions of the sale” See id. The court found the browsewrap agreement to be insufficiently incorporated because the seller’s website allowed purchasers “to select a product and proceed to check-out without seeing the hyperlink to the “terms and conditions” because the hyperlink was buried at bottom of the page. See id. at 765.

Therefore, sellers who engage in online commerce should use clickwrap agreements to ensure that their terms and conditions are incorporated into the sale agreement. However, if sellers opt for browsewrap agreements the link to the agreement should be highly visible throughout the sale process. Moreover, a seller’s webpage should explicitly advise the buyer that their purchase is subject to the terms and conditions of the sale and put the buyer on inquiry notice. See id. at 765–66.

The Mavrick Law Firm has successfully defended businesses against fraud claims and in non-competition covenant litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort

In Florida, admission of public records is governed by Florida Statutes § 90.803(8), which references two types of public records. The first type includes records setting forth the “activities of the office,” while the second type includes records setting forth matters observed pursuant to a duty imposed by law as to matters which there was a duty to report.

Regarding the first type of public records, the Supreme Court of Florida in Yisreal v. State of Florida, 993 So.3d 952 (Fla. 2008), explained that the purpose of the “activities of the office” exception is to allow public records prepared for purposes independent of specific litigation and does not need to be based on personal knowledge. Yisreal held that the letter at issue was not an “activities of the office” based public record because the letter was drafted as a gratuitous hearsay letter for the purpose of litigation, rather than a document creating and maintaining Crime and Time Reports, which was the relevant activity of the office.

To become admissible under the second type of public record exception, i.e., matters observed pursuant to a duty imposed by law as to matters which there was a duty to report, the following three elements must be shown: (1) the source of the information must have personal knowledge of the information recorded, as the phrase “matters observed” implies, (2) the source must have had a legal duty to both observe and report the information, and (3) the record in question must be one that the public agency or office is required by law to prepare. Yisreal held that the second type of public record exception was not met because the individual that created the letter did not allege she had personal knowledge, and the Department of Corrections did not have a legal duty to create a litigation-specific letter.

Compared to business records, public records are far easier to admit into evidence because there is no requirement of personal knowledge. Unlike the business record, this can be accomplished with very minimal planning in advance of trial.

The Mavrick Law Firm represents businesses in commercial litigation, labor/employment law, and real property litigation. This article is not a substitute for legal advice tailored to a particular situation. The Mavrick Law Firm can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.