Douglass Fertilizers & Chemical, Inc. v. McClung Landscaping, Inc.

• Decision Date: 18 October 1984
• Docket Number: No. 83-1145,83-1145
• Citation: 459 So.2d 335
• Parties: DOUGLASS FERTILIZERS & CHEMICAL, INC., et al., Appellants, v. McCLUNG LANDSCAPING, INC., etc., Appellee.
• Court: Florida District Court of Appeals

Page 335

459 So.2d 335

DOUGLASS FERTILIZERS & CHEMICAL, INC., et al., Appellants, v. McCLUNG LANDSCAPING, INC., etc., Appellee.

No. 83-1145.

District Court of Appeal of Florida Fifth District.

Oct. 18, 1984.

Rehearing Denied Nov. 28, 1984.

Marcia K. Lippincott of Marcia K. Lippincott, P.A., Dale O. Morgan, Dean, Ringers, Morgan & Lawton, P.A., Orlando, for appellants.

Abbott M. Herring of Abbott M. Herring, P.A., Sanford, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

McClung sued Douglass and its insurer, Florida Farm Bureau, for damages to its sod field following treatment by Douglass with fertilizer and herbicide. The jury awarded McClung damages in the amount of $260,348.88 which included $53,848.88, the cost of replacing sod at its numerous projects in Central Florida. As to that portion of the judgment, we find no error and affirm.

The question which concerns us is whether McClung was entitled to the remaining $206,500.00 as damages for lost profits. This award derived from the fact that Cardinal Industries ceased doing business with McClung after the delivery of bad sod to their job sites. ¹ Douglass maintained below that the claim for lost profits was too remote and speculative and that the evidence presented was insufficient to establish the claim.

This case went to the jury on breach of contract and negligence theories. It is well established that in both contract and tort actions, lost profits are recoverable only if their loss is proved with a reasonable degree of certainty. 17 Fla.Jur.2d Damages § 76. See Lucas Truck Service Co. v. Hargrove, 443 So.2d 260 (Fla. 1st DCA 1983). In addition, in contract actions, lost profits are allowed only if the loss was caused by the defendant's wrongful act and the profits were reasonably within the contemplation of the defaulting party at the time the contract was entered into. Lucas Truck Service, 443 So.2d at 263. In tort cases, the rule, while stated differently, is basically the same, that the plaintiff may recover all damages which are a natural, proximate, probable or direct consequence of the act, but do not include remote consequences. Taylor Imported Motors, Inc. v. Smiley, 143 So.2d 66 (Fla. 2d DCA 1962).

For instance, in Taylor Imported Motors, the plaintiff sought to recover damages for loss of profits caused by the loss of sale of his automobile where the defendant negligently damaged the vehicle. The appellate court held that while the plaintiff could recover for actual damages to the car, his claim for loss of profits was too remote. The court, while recognizing that certain prior cases were based on a contractual relationship between the plaintiff and defendant, nevertheless referred to them as providing guidance in determining what is remote:

In the case of Brock v. Gale, 1874, 14 Fla. 523, Defendant's loss of Plaintiff's dental tools justified recovery of their market value, but not loss of the dentist's profit or income from not being able to practice his profession until the tools were replaced, the latter being too remote.

In the case of Bayshore Development Co. v. Bonfoey, 1918, 75 Fla. 455, 78 So. 507, L.R.A. 1918D, 889, the difference between the value of a building as designed and constructed...