Ballard v. Krause, 70--265

Decision Date20 May 1971
Docket NumberNo. 70--265,70--265
Citation248 So.2d 233
PartiesMichael D. BALLARD and Gail S. Ballard, his wife, Appellants, v. Robert W. KRAUSE, Appellee.
CourtFlorida District Court of Appeals

Jesse E. Graham of Mairs Graham Markel & Vaught, Winter Park, for appellants.

No appearance for appellee.

CROSS, Chief Judge.

Appellants-defendants, Michael D. Ballard and his wife Gail S. Ballard, appeal a final judgment entered pursuant to a jury verdict in favor of the appellee-plaintiff, Robert W. Krause, in a cause of action to foreclose a mechanic's lien. We reverse.

Plaintiff, Robert W. Krause, entered into a written contract on July 9, 1968, to construct a house for the defendants, Michael D. Ballard and his wife Gail S. Ballard. The total contract price was $34,071.50. It appears that during the course of construction difficulties developed between the parties involving primarily the qualify of the materials being used in the construction of the home and numerous changes from the original plans and specifications.

On December 16, 1968, prior to the house being completed, the plaintiff received a latter from an attorney representing the defendants terminating the contract. The letter stated the contract was terminated for neither completing on time nor constructing the house in accordance with the plans and specifications.

On January 16, 1969, the plaintiff pursuant of F.S. chapter 713, F.S.A., filed a claim of lien for $8,753.50. The lien not being satisfied, plaintiff commenced suit to foreclose the lien.

In due course, the defendants answered the complaint, generally denying the allegations and asserting as an affirmative defense that plaintiff failed to comply with and perform the conditions on the plaintiff's part to be performed under the terms and provisions of the contract. A counterclaim was also filed by the defendants against the plaintiff asserting, in essence, that the plaintiff failed to finish the dwelling in the time prescribed in the contract.

The cause thereafter came on for trial before a jury. The jury returned a verdict for the plaintiff and against the defendants on the plaintiff's complaint and assessed the plaintiff's damages at $10,000. The jury also returned a verdict for the plaintiff on defendants' counterclaim. Defendants then moved for judgment notwithstanding the verdict, or in the alternative, for a new trial. The trial court entered an order granting a new trial only as to damages unless the plaintiff remitted $2,000. Plaintiff consented to the remittitur, and final judgment was entered in favor of the plaintiff for $8,000 with interest, costs and attorney's fees. Hence this appeal from the final judgment by the defendants.

The basic thrust of the appeal is whether the evidence was sufficient to support the judgment for damages. Defendants' liability for breach of the contract is adequately supported by the record. An analysis of the issue for our determination necessarily involves the question 'What is a contractor's measure of damages when an owner wrongfully terminates a contract?

Generally, the measure of damages where the cause of action is on breach of contract is lost profit that would have been realized and costs reasonably incurred in good faith in partial performance of the contract. Poinsettia Dairy Products,...

To continue reading

Request your trial
36 cases
  • Johnson Enterprises of Jacksonville, Inc. v. FPL Group, Inc.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • December 18, 1998
    ...had the builder been permitted to complete the job, and subtracting that amount from the contract price. See Ballard v. Krause, 248 So.2d 233, 234 (Fla. 4th DCA 1971); see also Robert A. Huggins Gen. Contractor, Inc. v. Willoughby, 595 So.2d 1003, 1004 (Fla. 5th DCA 1992). The loss, however......
  • Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories Corp.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 27, 1987
    ...386 So.2d 1273, 1274 (Fla.App.1980); American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452 (Fla.App.1980); Ballard v. Krause, 248 So.2d 233 (Fla.App.1971). 11 In addition, Florida law expressly requires that a corporation, in proving the amount of lost profits, must deduct the expe......
  • U.S. Home Corp. v. Suncoast Utilities, Inc.
    • United States
    • Florida District Court of Appeals
    • June 29, 1984
    ...Sullivan v. McMillan, 26 Fla. 543, 598, 8 So. 450 (1890); Jackson v. Riley, 427 So.2d 255 (Fla. 5th DCA 1983); and Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). However, no evidence was introduced to support Tunstall's testimony in which he concluded that Suncoast would have realize......
  • Di Gennaro v. Rubbermaid, Inc.
    • United States
    • U.S. District Court — Southern District of Florida
    • August 12, 2002
    ...services, the Court would be unable to do so in the present case, because the value of those services are too speculative. See Ballard v. Krause, 248 So.2d at 235 ("Damages recoverable on either theory, breach contract or quantum meruit, must be proved with reasonable certainty and cannot b......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT