First Atlantic Bldg. Corp. v. Neubauer Const. Co.
| Decision Date | 01 November 1977 |
| Docket Number | No. 76-741,76-741 |
| Citation | 352 So.2d 103 |
| Parties | FIRST ATLANTIC BUILDING CORPORATION, Appellant, v. NEUBAUER CONSTRUCTION COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Fred N. Kellner of Mershon, Sawyer, Johnson, Dunwody & Cole, Miami, for appellant.
Larry R. Leiby of Kavanaugh & Leiby, and Preddy, Haddad, Jutner, Hardy & Josephs, Miami, for appellee.
First Atlantic Building Corporation appeals from a judgment entered in favor of Neubauer Construction Company for $37,774.00. Neubauer has cross-appealed, contending the amount awarded was insufficient, and that it was additionally entitled to foreclosure of a mechanic's lien it had filed against First Atlantic's property.
As a result of a contract between First Atlantic and Neubauer for $120,959.00, Neubauer commenced construction on seven buildings on First Atlantic's property. During the course of construction First Atlantic became dissatisfied with Neubauer and terminated the contract and put Neubauer off the construction site. In due course Neubauer filed a mechanic's lien and sought to foreclose it, claiming First Atlantic was indebted to Neubauer in the sum of $37,615.00. The trial court found that:
1) First Atlantic revoked the contract without fault on Neubauer's part.
2) The contract price was $120,959.00. It would have cost Neubauer $60,100.00 to complete his contract and First Atlantic had already paid Neubauer $23,085.00. Thus Neubauer was entitled to recover $37,774.00 from First Atlantic.
3) Neubauer was not entitled to a mechanic's lien due to a waiver of lien clause in the contract between the parties.
4) Neubauer was not entitled to recover for material it left on the job site which material First Atlantic kept.
We conclude that the record supports the judgment as to the finding that First Atlantic breached the contract and that Neubauer is entitled to recover damages. However, the record does not support the amount of damages awarded to Neubauer nor the refusal to foreclose its mechanic's lien.
Neubauer attempted to prove its damages for breach of the contract by having its president give testimony estimating the percentage of completion of each of the buildings involved in the contract. The president testified he then added those sums together and subtracted that sum from the contract price, less the amount First Atlantic had already paid, to arrive at the sum Neubauer claimed was due it. However such testimony is not competent evidence to prove damages for breach of a construction contract. Proper proof to support a claim for damages by a contractor against an owner for breach of contract is the contractor's lost profit together with the reasonable cost of labor and materials incurred in good faith in partial performance of the contract. Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306; 104 A.L.R. 216 (1936); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971); 94 Fla.Jur., Damages, § 83. Thus on the evidence presented the circuit court erred in finding that Neubauer was entitled to recover $37,615.00. We express no opinion as to what amount Neubauer may be able to prove it is entitled to on retrial.
Turning now to the cross appeal, Neubauer contends it was entitled to between $9,000.00 and $10,000.00 for certain material which it had purchased and left on the job. This contention is not supported by adequate pleadings, but there was evidence adduced that the value of this material was between $9,000.00 and $10,000.00. Since the question of damages must be tried again, the trial court can entertain amendments to the pleadings and retry this issue also.
Next, the trial court held in its final judgment that Neubauer was not entitled to a lien "due to the waiver of lien clause in the contract". The controversial provision in question is:
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