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Ocean Communs., Inc. v. Bubeck - 956 So. 2d 1222 (Fla. Dist. Ct. App. 2007)


Restitution is available as a type of recovery when there has been a breach of an express contract. Indeed, proof of breach of contract is a necessary element of restitution. A party to a contract who justifiably refuses to perform because his duties have been discharged by the other party's breach may seek restitution for any benefit he has conferred by part performance in excess of loss caused by his breach. On a breach by non-performance that gives rise to a claim for damages for total breach or on a repudiation, the injured party is entitled to restitution for any benefit that he has conferred on the other party by way of part performance or reliance. 


On October 26, 1997, plaintiff corporations Ocean Communications, Inc. and Olympusat, Inc., entered into an agreement with defendant Robert Bubeck. Under the terms of the agreement, Bubeck was to work as an agent for plaintiffs to find "remnant time" on TV networks to sell to infomercial and shopping networks or other programming channels. Bubeck was to receive 25 percent commission on net profits on those deals. In 2000, the parties entered into a second agreement, whereby Bubeck would work as an independent contractor for plaintiffs to coordinate advertising sales for the company and develop an infomercial network. Thereafter, plaintiffs filed a complaint against defendants for injunctive relief for breach of non-competition agreements, money damages for breach of contract, and unjust enrichment. Under the unjust enrichment claim, plaintiffs asserted that Bubeck and his company, defendant Market Link of South Florida, Inc.,violated the parties' two contracts by pursuing personal business that was contrary to the corporations' interests and were unjustly enriched by plaintiffs' payments to them in the sum of $ 387,805 under the agreements. The trial court held that Bubeck had breached the contracts for a certain time period but that the corporations were not entitled to restitution because such was an equitable remedy that could not be awarded when an express contract existed. The corporations sought review.


In an action for breach of contract, where the parties had an express contract, was the equitable remedy of restitution available?




The Court of Appeal held that restitution was available as a remedy in cases where the breach concerned an express contract. Further, plaintiff-appellant corporations had amended their request for restitution such that it applied to the breach of contract claim, rather than the unjust enrichment claim. However, defendants-appellees were entitled to an offset for the value of the services that were rendered to the corporations. Thus, the Court reversed the trial court's judgment and remanded the case to the trial court with instructions that the trial court hold an evidentiary hearing to determine the value of the appellees' services, which could be used to offset the corporations' restitutionary recovery. The Court noted that whether restitution is an equitable remedy not awardable for breach of an express contract is a question of law which we review de novo.

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