In commercial litigation virtually all disputes center around the breach of a written contract. It has long been assumed by many practitioners, myself included, that the breach must be of a material nature. In other words, one cannot be sued for breaching a non-material term of the contract (of course, this begs the question as to material vs. non-material).

As pointed out by John Crabtee in his article “The Material Difference in Florida Contract Law,” (see Florida Bar Journal, Vol. 90, No. 3, March 2016) the reason so many of us focus on the materiality aspect of the breach as an essential element can be “blamed” on the decision in Abbott Labs v. GE Capital, 765 So.2d 737 (Fla. 5th DCA 2000). In that case the court required materiality. Where that element came from is a mystery. Judge James Cohn of the Southern District of Florida, apparently disconcerted about this new element, conducted an exhaustive examination of both the 5th District’s decision as well as the cases upon which that court relied upon when requiring materiality. Judge Cohn concluded that the new element was the result of “spontaneous generation”. See Hostway Services v. HWAY FTL Acquisition Corp., 2010 WL3604671 at *9 (S.D. Fla. 2010); but see the experiments of Louis Pastuer in the mid-nineteenth century that largely dispelled the notion of spontaneous generation (OK, Judge Cohn’s comment was clever and not meant to based in science).

The Third and Fourth Florida Districts Courts of Appeal followed the Fifth’s lead, and like a virus materiality began replicating. A cure seemed imminent in the form of the Florida Supreme Court’s ruling in Health v. Westside EKG Associates, 944 So.2d 188 (Fla. 2006), which named all the elements of a breach of contract and left out “materiality”. (This sort of reminds me of the scene in an “Officer and a Gentlemen” – Louis Gossett, Jr. could line up Private “Valid Contract,” Private “Breach,” Private “Damages,” and Private “Materiality,” and then say, “All those who are elements of a breach of contract action, step forward. You stay still Private Materiality.”

At any rate, the cure did not stick because in Havens v. Coast Florida, P.A., 117 So.3d 1179 (Fla. 2d DCA 2013), materiality reared its ugly head. And that makes the Second, Third, and Fourth DCA’s lone wolves (excuse the oxymoron) among all the States across America. You read that correctly – as pointed out by Mr. Crabtree the other 49 states don’t require materiality. And although you would think Florida’s Supreme Court’s decision in 2006 would mean that we re-joined our our brothers, Florida’s Standard Jury Instructions still references the element of materiality.

What does all this mean? Well, I’d say if you intend to breach just a little (much like getting a little pregnant), do it in the Second, Third, and Fourth DCAs, but nowhere else.