Boca Developers Inc v. Fine Decorators Inc
| Decision Date | 15 September 2010 |
| Docket Number | CASE NO. 4D02-4869 |
| Citation | 862 So.2d 803,28 Fla. L. Weekly D 2740 |
| Parties | BOCA DEVELOPERS, INC., BOCA GOLF VIEW DEVELOPERS, INC., BOCA GOLF VIEW, LTD., and BOCA MARINA, LTD., Appellants, v. FINE DECORATORS, INC., Appellee. |
| Court | Florida District Court of Appeals |
John H. Pelzer and Kimberly S. Rogers of Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale, for appellants.
Lee Milich of Lee Milich, P.A., Ft. Lauderdale, for appellee.
Fine Decorators contracted to furnish several new model apartments built by the appellant developers, some of which were on a consignment basis. In this lawsuit Fine claimed that the developers breached the contract and obtained a jury verdict awarding lost profits. We reverse for a new trial because the trial court failed to define "consignment" to the jury and also because the award of lost profits failed to consider overhead.
The contract included two units in Townsend Place and two units in Mizner Grand. It provided that Fine would "provide on consignment all loose furnishing" in Townsend Place, and would "supply one unit on consignment" in Mizner Grand. The developers agreed to purchase the furnishings in the other Mizner unit.
The first Townsend unit was sold with all of the furnishings; however, the second Townsend unit was more difficult to sell and ultimately was sold without all of the furnishings. At that point Fine and the developers were having disagreements, and no furniture was placed in the Mizner units.
Fine brought this lawsuit for breach of contract seeking lost profits on the Townsend unit which was sold unfurnished as well as the two Mizner units which were never furnished and the jury awarded damages for all three units.
The developers presented testimony that consignment meant that Fine would be paid only for that furniture which was sold along with the apartments. Fine, on the other hand, testified that the developers were obligated to purchase the furniture no matter how the apartments were sold. The developers argue that the court should have defined consignment in the jury instructions.
The instruction proposed by the developers was essentially the same as the definition of consignment in Edwards v. Baldwin Piano Co., 79 Fla. 143, 83 So. 915, 918 (Fla. 1920):
The term has a well-defined legal meaning and signifies * * * to deposit with another to be sold, disposed of or called for * * * to send goods to an agent * * * to be sold, to send or transfer goods to a merchant or factor for sale, * * * the term implies an agency and applied in a commercial sense means that the property is committed or intrusted to the consignee for care or sale, and does not by any express or fair implication mean a sale by one or purchase by another.
We conclude that the trial court erred in not defining consignment in the jury instructions, because this omission left the jury with the erroneous impression that consignment, which is not ambiguous, could mean something other than its definition under Edwards. We therefore reverse and remand for a new trial with a proper jury instruction.
The developers also argue that the trial court erred in allowing Fine to calculate its lost profits without allocating fixed overhead costs to these model apartments. Fine presented testimony that, when it calculates profits on model apartments, it does not include ordinary overhead such as salaries of employees, rent and insurance. Rather, Fine apportions all of this overhead to other decorating jobs for which Fine charges more than it does when furnishing models. Fine admits that these models were decorated by its employees, and that fixed costs such as rent and insurance related to those employees. Fine's explanation is that, because it does a largevolume of business, it reaches a point where taking on additional projects does not increase its fixed costs. It had reached that point when it worked on these models.
Assuming that what Fine says is true, it does not follow...
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