Edward L. Nezelek, Inc. v. Southern Bell Tel. and Tel. Co., 78-2561
| Decision Date | 28 May 1980 |
| Docket Number | No. 78-2561,78-2561 |
| Citation | 383 So.2d 979 |
| Parties | EDWARD L. NEZELEK, INC., Appellant, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Wayne A. Cypen of Cypen & Nevins, Miami Beach, for appellant.
Eugene L. Heinrich and G. Ware Cornell, Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Lauderdale, for appellee.
A contractor here appeals a directed verdict by a trial court because it failed to adequately establish its lost profits under a construction contract which its customer allegedly breached. We reverse.
The contractor found out it was successful on a bid of $989,760. for a building when Southern Bell wrote the following letter:
November 20, 1974
E. L. Nezelek, Inc.
P.O. Box 23490
Fort Lauderdale, Florida
Gentlemen:
We are pleased to inform you that your bid for the new Boca Raton Sandalfoot ESS building is low and has been accepted. Alternate Number One is also accepted.
Three sets of signed and sealed plans and specifications and septic tank approval are being forwarded to you by Baker and Associates for your use in obtaining the required building permits.
Please do not proceed with any work at the site until a contract has been properly executed and you have received official notice to proceed from this office.
Yours truly,
The contractor responded to this letter immediately by forwarding a standard form building contract duly signed by it. This contract was neither signed nor returned by Southern Bell.
Thereafter on January Third, some 45 days after the letter accepting the bid, the contractor wrote a letter claiming that the concluding paragraph of the letter set forth above constituted an illegal stop order and that Southern Bell had "wrongfully failed to give . . . notice to proceed."
We commence by disagreeing with the trial judge who ruled that the loss of prospective profits testimony did not meet the reasonable certainty test enunciated in Adams v. Dreyfus, 352 So.2d 76 (Fla. 4th DCA 1977). 1 At trial, the contractor introduced its bid sheet containing forty-one line items showing a cost including variable overhead of $914,180. From this, a profit of $75,580 was calculated (71/2%). The chief estimator for the contractor testified as to how he had prepared the bid sheet and how he had calculated the variable overhead costs for the job, without objection as to his calculations. Moreover, other evidence introduced set forth a summary of profits made from nine other contract jobs with Southern Bell including a profit in excess of 10% for a very similar building.
Southern Bell argues that these introduced pieces of evidence did not tend to prove or disprove lost...
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