Born v. Goldstein, 83-332

• Decision Date: 19 April 1984
• Docket Number: No. 83-332,83-332
• Citation: 450 So.2d 262
• Parties: Edwin BORN, etc., Appellant/Cross-Appellee, v. Herbert B. GOLDSTEIN, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 262

450 So.2d 262

Edwin BORN, etc., Appellant/Cross-Appellee, v. Herbert B. GOLDSTEIN, Appellee/Cross-Appellant.

No. 83-332.

District Court of Appeal of Florida,

Fifth District.

April 19, 1984.

Rehearing Denied May 24, 1984.

Sam E. Murrell & Sons, Orlando, for appellant/cross-appellee.

Robert G. Petree, Orlando, for appellee/cross-appellant.

FRANK D. UPCHURCH, Jr., Judge.

Appellant, Edwin Born, appeals from an amended final judgment which granted appellee Herbert Goldstein's motion for remittitur and reduced a jury verdict in Born's favor from $40,000 to $9,000. Goldstein has cross-appealed challenging the trial court's denial of his motion for a directed verdict.

Born sued Goldstein for breach of contract arising out of a business relationship. Born had a burglar alarm installation business and he and Goldstein agreed to open a retail business to sell burglar alarm systems. Born was to manage the new enterprise and was permitted to operate his separate installation business in the back of the retail store. After two and one-half months of operation, Goldstein locked Born out of the store and took over exclusive control of the business, in the process preventing Born from gaining access to his installation business.

The first point on appeal is whether the trial court erred in ordering remittitur and reducing Born's damage award to $9,000 where it failed to explain the reasons for the reduction or give Born the option of a new trial.

In considering the propriety of remittitur here, we note that a trial court may not reduce a jury verdict by ordering a remittitur without permitting the plaintiff to have the option of a new trial. Lewis v. Evans, 406 So.2d 489 (Fla. 2d DCA 1981); Dura Corp. v. Wallace, 297 So.2d 619 (Fla. 3d DCA 1974). Here the trial court ordered a remittitur without accompanying its order with an alternative grant of a new trial. The proper remedy on appeal when confronted with such an order is to vacate the remittitur and let the original judgment stand, assuming that it is legally sound. Lewis v. Evans, 406 So.2d at 491; Dura Corp. v. Wallace, 297 So.2d at 622. Goldstein argues, by way of cross appeal, that the jury's award is not legally sound, because Born failed to adequately prove his damages at trial.

In a breach of contract action, the innocent party is entitled to recover any gains prevented and losses sustained, including the loss of prospective profits. Adams v. Dreyfus Interstate Devel. Corp., 352 So.2d 76 (Fla. 4th DCA 1977). Prospective profits must be proven with reasonable certainty. Adams. However, as noted in Sampley Enterprises, Inc. v. Laurilla, 404 So.2d 841 (Fla. 5th DCA 1981), it is sufficient if there is a reasonable basis in the evidence for computation of damages, although the result may be only approximate.

Proof of lost profits is generally derived from proof of income and expenses for a reasonable period of time prior to the breach. American Motorcycle Institute v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980). Where the...