Do I Have Standing In Florida State Court? Not So Fast

• Jurisdiction: Ohio,United States,Florida
• Law Firm: McGlinchey Stafford
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Author: Mr Joseph A. Apatov, James W. Sandy and Alyssa Weiss
• Published date: 24 January 2023

Ohio

Liquidated Damages

Pacetti's Apothecary v. Rebound Bracing & Pain Sol. Inc., 2d Dist. Greene, No. 2023-Ohio-93.

In this appeal, the Second Appellate District affirmed the trial court's decision finding that a late fee provision in a contract was a penalty and not an enforceable liquidated damages clause.

The Bullet Point: While parties are free to enter into contracts that contain damages provisions, for public policy reasons, sometimes such provisions are not enforceable. "One such circumstance is when stipulated damages constitute a penalty. Because the sole purpose of contract damages is to compensate the nonbreaching party for losses suffered as a result of a breach, [p]unitive damages are not recoverable for a breach of contract unless the conduct constituting the breach is also a tort for which punitive damages are recoverable." To determine whether a stipulated damages provision is for liquidated damages or punitive in nature, courts apply the following test: "[w]here the parties have agreed on the amount of damages, ascertained by estimation and adjustment, and have expressed this agreement in clear and unambiguous terms, the amount so fixed should be treated as liquidated damages and not as a penalty, if the damages would be (1) uncertain as to amount and difficult of proof, and if (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to justify the conclusion that it does not express the true intention of the parties, and if (3) the contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof."

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Specific Performance

Jomar Group LTD v. Brown, 5th Dist. Holmes, No. 2023-Ohio-98.

Here, the Fifth Appellate District affirmed the trial court's decision finding an enforceable contract existed between the parties and ordering specific performance of the same.

The Bullet Point: To be entitled to specific performance, a party must establish the following: "[t]he contract must be concluded, certain, unambiguous, mutual, and based upon a valuable consideration; it must be perfectly fair in all its parts; it must be free from any misrepresentation or misapprehension, fraud or mistake, imposition or surprise; it cannot be an unconscionable or hard bargain; its performance must not be oppressive upon the defendant; and, finally, it must be capable of specific execution through a decree of the court."

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