Antun Investments Corp. v. Ergas

• Decision Date: 19 September 1989
• Docket Number: Nos. 87-906,87-1813 and 87-2497,s. 87-906
• Citation: 549 So.2d 706
• Parties: ANTUN INVESTMENTS CORPORATION, Appellant, v. Martin ERGAS, et al., Appellees.
• Court: Florida District Court of Appeals

Page 706

549 So.2d 706

ANTUN INVESTMENTS CORPORATION, Appellant, v. Martin ERGAS, et al., Appellees.

Nos. 87-906, 87-1813 and 87-2497.

District Court of Appeal of Florida Third District.

Sept. 19, 1989.

Gary S. Phillips, North Miami Beach, for appellant.

Cooper, Wolfe & Bolotin and Sharon Wolfe, Giller & Kasdin, Miami, for appellees.

Before SCHWARTZ, C.J., and BASKIN, J., and JOSEPH A. COWART, Jr., Associate Judge.

BASKIN, Judge.

Antun Investments Corporation [Antun] appeals an adverse final judgment entered in an action to abate a nuisance and to recover damages. After considering the merits of the parties' contentions, we affirm in part and reverse in part.

I

Appellees Martin Ergas, and other owners of the Royal Palm Hotel, ¹ [Ergas] instituted an action in which they alleged that Antun, owner of the adjacent Poinciana Hotel, created and maintained a nuisance that caused them to lose business and incur expenses to abate the nuisance. Seeking injunctive relief and damages, they asserted that the Poinciana Hotel was vacant, infested with mice, a repository for trash, and inhabited by vagrants. At the conclusion of a non-jury trial, the court granted the requested relief. The trial court awarded Ergas $156,868 for profits lost during the existence of the nuisance; ² $37,436 for out-of-pocket expenditures to rectify problems caused by the nuisance; $345,000 to enable the Royal Palm Hotel to regain its reputation in the industry; and $18,000 for the prospective loss of business during the Passover holiday. Antun's appeal ensued.

II

A.

Antun presents several grounds in support of its request for reversal. First, Antun contends that the trial court abused its discretion in admitting the reports of expert witnesses into evidence when the reports were not furnished to Antun's counsel in accordance with the time schedule set forth in the court's discovery order. Antun filed a motion in limine and objected only to the reports which set forth the experts' findings, but not to the testimony of the experts. Noting that Antun had not deposed either expert witness, the court refused to exclude the reports. ³

In Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981), the supreme court held that a trial court's discretion in determining whether an unlisted witness may testify "should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party." That principle has been applied to determine the admissibility of an unlisted document. SNW Corp. v. Abraham, 491 So.2d 1223, 1225 (Fla. 4th DCA 1986). Here, Ergas provided Antun with copies of the reports two days before the trial commenced. The trial was conducted on Thursday and Friday, April 2 and 3; the court then recessed the trial until the following Friday, April 10, 1987. ⁴ Although sufficient time remained for Antun to take appropriate action, Antun neither deposed the expert witnesses nor requested a continuance in order to review the reports. Thus, any prejudice to Antun accruing from the admission of the reports was attributable to its failure to act. Financiera Asociada, S.A. v. E.F. Hutton & Co., Inc., 530 So.2d 497 (Fla. 3d DCA 1988). We therefore hold that the trial court did not abuse its discretion in admitting the reports into evidence. ⁵

B.

Antun also challenges the damage awards. We address each award in turn.

1-OUT OF POCKET COSTS

We find competent evidence to support the award of out-of-pocket costs incurred in restoring the property, ⁶ and therefore affirm the $37,436 portion of the judgment attributed to this element.

2-LOST BUSINESS PROFITS

Antun argues that Ergas failed to prove that the condition of the Poinciana Hotel was the proximate cause of Ergas' loss of profits. Antun contends that in the absence of such proof, damages are speculative. Although an improperly maintained vacant building may constitute a nuisance warranting recovery of damages, e.g., Puritan Holding Co., Inc. v. Holloschitz, 372 N.Y.S.2d 500, 82 Misc.2d 905 (1975), to recover lost prospective business profits Ergas was compelled to prove that "1) the defendant's action caused the damage and 2) there is some standard by which the amount of damages can be adequately determined." ⁷ W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So.2d 1348, 1351 (Fla.1989); see Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936); see also Conner v. Atlas Aircraft Corp., 310 So.2d 352 (Fla. 3d DCA), cert. denied, 322 So.2d 913 (Fla.1975). We have examined the record to determine whether it contains adequate proof.

Our review of the evidence discloses that Ergas proved that the nuisance maintained at the Poinciana Hotel caused the losses at the Royal Palm Hotel: witnesses testified that the Royal Palm Hotel guests refused to tolerate mice infestation, vagrants in the pool area, and security problems; guests checked out of the Royal Palm Hotel after observing conditions at the Poinciana Hotel; travel agents and tour operators refused to place customers at the Royal Palm Hotel after hearing of complaints; and witnesses confirmed that the source of these problems was the Poinciana Hotel. Expert testimony demonstrated that proper security at the Poinciana Hotel would have reduced crime and that pest control would have decreased the number of rodents at the Poinciana Hotel.

Antun asserts, however, that other factors were responsible for Ergas' loss of business: declining tourism in the area; the presence of other vacant buildings; and the decreasing number of elderly clients. It introduced evidence that many hotels on Miami Beach suffered break-ins, that the Royal Palm Hotel did not close its garbage container, and that the Royal Palm Hotel cooking utensils were washed outside the building. Antonio Jaar, president of Antun, testified that many hotels on Miami Beach were closed, that the economic situation was quite bad, that Lincoln Road, a nearby shopping area, was deserted. The parties' experts also indicated that the property values in the area have increased as a result of speculation and "a degree of real growth," that tourism business "was up," and that the South Beach area had been improving. Accordingly, Antun argues, it should not be deemed responsible for losses to Ergas.

Although Antun submitted some evidence in support of its contention, we find no basis for relieving Antun of liability. The question of causation is an issue of fact to be determined by the trier of fact. Metropolitan Dade County v. St. Claire, 445 So.2d 614 (Fla. 3d DCA 1984); Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983). Although the evidence concerning causation is conflicting, there is record evidence which tends to prove that Antun caused Ergas' damages. See Atlantic Peninsular Holding Co. v. Oenbrink, 133 Fla. 325, 182 So. 812 (Fla.1938); Helman v. Seaboard Coast Line R.R., 349 So.2d 1187 (Fla.1977). The evidence was sufficient to be submitted to the trier of fact. Additionally, "the fact that other sources besides the nuisance created by the defendant may have contributed to the injury complained of does not relieve [defendant] from liability or defeat plaintiff's right to enjoin [defendant] from maintaining such nuisance." 38 Fla.Jur.2d Nuisances § 14 at 414 (1982). For example, in W.W. Gay, 545 So.2d at 1348, the owner of a new hotel filed an action against the company that constructed the hotel's water system. The hotel owner attempted to prove that defendant installed a defective water system which created an odor problem, causing a reduction in occupancy at the hotel. The court held that "[t]here was competent and substantial evidence that the odor was a cause of reduced occupancy." W.W. Gay, 545 So.2d at 1351 (emphasis supplied). ⁸ Thus, Ergas' claim for damages was not foreclosed where Ergas demonstrated that the nuisance was a cause of its damages.

Because competent substantial evidence supports the lost profits award, affirmance is mandated. Ren-Del Enter., Inc. v. Florida Keys First State Bank, 539 So.2d 541, 542 (Fla. 3d DCA 1989) ("A finding of the trial court on disputed facts in a nonjury trial will not be disturbed by a reviewing court where the finding is supported by competent substantial evidence.").

3-PROSPECTIVE EXPENSES & 4-ANTICIPATED HOLIDAY LOSSES

We find no basis, however, for the award of projected advertising expenses totaling $345,000 to enable the Royal Palm Hotel to regain its repuation in the industry, and for $18,000 representing anticipated lost profits from the Passover holiday. Recovery of past and future damages is appropriate where a nuisance is permanent, Maloney v. Heftler Realty Co., 316 So.2d 594 (Fla. 2d DCA 1975); 38 Fla.Jur.2d, Nuisances, § 50 (1982); the assessment of damages for future harm is inappropriate where the nuisance is merely temporary. A & P Food Stores, Inc. v. Kornstein, 121 So.2d 701, 704 (Fla. 3d DCA 1960); see Ford v. Dania Lumber & Supply, Co., 150 Fla. 435, 7 So.2d 594 (1942), "Future harm ... is nullified by the abatement of the nuisance through the injunctive processes of the court." Kornstein, 121 So.2d at 704. Because the court found that the nuisance was remediable and issued a permanent injunction abating the nuisance, Ergas is not entitled to damages for future harm. ⁹

III

In summary, we affirm the award of $37,436 for out-of-pocket expenses incurred in mitigating problems caused by the nuisance, and the award of $156,868 for lost profits. We reverse the awards of $345,000 for prospective costs and $18,000 for the Passover holiday.

Affirmed in part; reversed in part.

SCHWARTZ, C.J., and COWART, Associate Judge, concur.

SCHWARTZ, Chief Judge (specially concurring in part).

While I completely agree with the remainder of Judge Baskin's opinion, I concur with affirmance of the award for past lost profits only because of the supreme court decision in W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So.2d 1348 (Fla.1989)...