ROBERT BAKER, APPELLANT,
v.
BENNETT M. LIFTER, INC., A FLORIDA CORPORATION, APPELLEE
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Baker appeals a summary judgment dismissing his breach of contract claim for operating a cocktail lounge at the Marco Polo Hotel. The trial court ruled that the defendant properly terminated the agreement under a three-day notice provision, but the appellate court reversed, finding unresolved factual questions about whether proper notice was given and other material issues precluding summary judgment.
Summary judgment was inappropriate because the record demonstrates genuine issues of material fact regarding (1) whether three days' written notice was actually provided before termination, (2) whether the written notice requirement was waived, (3) whether the defendant breached by interfering with Baker's performance, and (4) whether Baker sustained damages from the alleged breach.
[1] A party's election to terminate a contract does not excuse the failure to provide the contractually required notice of termination.
[2] Summary judgment is inappropriate when a triable issue exists regarding whether a party provided the required written notice of termination.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“although the defendant may have "elected" or desired to terminate the agreement, there remains, at the least, a triable issue as to whether, prior to the alleged breach, it gave Baker the three day written notice required by the terms of the agreement itself”
Establishes the core holding that electing to terminate is insufficient without proof of compliance with the notice requirement
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBaker entered into an employment contract with Bennett M. Lifter, Inc. to operate the cocktail lounge at the Marco Polo Hotel. The contract contained …
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SCHWARTZ, Judge.
The plaintiff appeals from an adverse summary judgment in an action for breach of an “employment” contract under which the plaintiff was to operate the cocktail lounge at the Marco Polo Hotel, which is owned by the defendant-appellee. The basis of the ruling below was stated in the summary judgment as follows:
“. . . paragraph 13 of the agreement in question provides either party with the right to terminate the contract for any reason by giving the other party three (3) days written notice, and . there is no genuine issue of material fact that the Defendant, BENNETT M. LIFTER, INC., elected to terminate the contract in question, . . . ”
We reverse because the record demonstrates that although the defendant may have “elected” or desired to terminate the agreement, there remains, at the least, a triable issue as to whether, prior to the alleged breach, it gave Baker the three day written notice required by the terms of the agreement itself. See Bernecker v. Bernecker, 60 So. 2d 399 (Fla.1952); Cadillac LaSalle Co. of Palm Beach, Inc. v. Claude Nolan, Inc., 118 Fla. 250, 158 So. 883 (1935); cf. Saul J. Morgan Enterprises, Inc. v. 57th Avenue Development Corp., 305 So. 2d 18 (Fla. 3d DCA 1974), cert. denied, 314 So. 2d 586 (Fla.1975); 7 Fla.Jur. Contracts § 174 (1956).
Since the defendant likewise did not conclusively establish either (a) that the written notice requirement had been waived, Ramagli Realty Co. v. Speier, 110 So. 2d 71 (Fla. 3d DCA 1959), cf. Thompson v. Gross, 353 So. 2d 191 (Fla. 3d DCA 1977); (b) that it had not in fact breached the agreement by interfering with the plaintiff’s ability to perform, Gulf American Land Corp. v. Wain, 166 So. 2d 763 (Fla. 3d DCA 1964); or (c) that the plaintiff had sustained no damages as a result of the alleged breach, we conclude that summary judgment was inappropriately entered, Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Beckerman v. Greenbaum, 347 So. 2d 141, 142 (Fla. 2d DCA 1977); and the cause is therefore remanded for trial.
Reversed and remanded.
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- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Beckerman v. Greenbaum, 347 So. 2d 141 (Fla. 2d DCA 1977)
- condotte/de Moya Jv v. P & S Paving, 259 So. 3d 308 (Fla. 3d DCA 2018)
- Gulf Am. Land Corp. v. Wain, 166 So. 2d 763 (Fla. 3d DCA 1964)
- Saul J. Morgan Enters., Inc. v. 57TH Ave. Dev. Corp., 305 So. 2d 18 (Fla. 3d DCA 1974)
- Ramagli Realty Co. v. Speier, 110 So. 2d 71 (Fla. 3d DCA 1959)
- The Travelers Indem. Co. v. Alvarez, 314 So. 2d 586 (Fla. 1975)
- Thompson v. Gross, 353 So. 2d 191 (Fla. 3d DCA 1977)
- Cadillac LaSalle Co. of Palm Beach v. Claude Nolan, Inc., 118 Fla. 250 (Fla. 1935)