Florida Min. & Materials Corp. v. Standard Gypsum Corp., 88-02948

• Decision Date: 23 August 1989
• Docket Number: No. 88-02948,88-02948
• Citation: 14 Fla. L. Weekly 2003,550 So.2d 47
• Court: Florida District Court of Appeals
• Parties: 14 Fla. L. Weekly 2003, 9 UCC Rep.Serv.2d 1245 FLORIDA MINING & MATERIALS CORP., a Florida corporation, Appellant, v. STANDARD GYPSUM CORP., a Florida corporation, Appellee.

Page 47

550 So.2d 47

14 Fla. L. Weekly 2003, 9 UCC Rep.Serv.2d 1245

FLORIDA MINING & MATERIALS CORP., a Florida corporation, Appellant, v.STANDARD GYPSUM CORP., a Florida corporation, Appellee.

No. 88-02948.

District Court of Appeal of Florida Second District.

Aug. 23, 1989.

J. Rex Farrior, Jr., Raymond T. Elligett, Jr. and Neal A. Sivyer of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, and Ralph J. Savarese, Mark D. Wegener and Michael J. Hurley of Howrey & Simon, Washington D.C., for appellant.

Julian Clarkson of Holland & Knight, Tallahassee, and C. Steven Yerrid of Stagg, Hardy & Yerrid, P.A., Tampa, for appellee.

CAMPBELL, Chief Judge.

Appellant, Florida Mining & Materials Corporation, appeals a final judgment awarding appellee, Standard Gypsum Corporation, damages in the amount of $3,120,566.The award of damages to appellee was a consequence of the jury's special verdict findings that appellant had breached its contract with appellee.The contract between the parties called for appellee to sell to appellant all of appellant's gypsum requirements.Appellee filed its action below alleging that appellant breached the contract by purchasing gypsum from third parties.

Appellant defended and counterclaimed against appellee seeking rescission and damages on the grounds of fraud, breach of contract on the part of appellee, breach of warranty and on other theories.The jury in its special verdicts found for appellee and against appellant in regard to the breach of contract claims.We find no reversible error in regard to those findings.We do, however, find error in regard to the measure of damages the jury was permitted to consider.Appellant argues and we agree that it was error to permit the jury to consider and award appellee as seller under the contract consequential damages for loss of its business that appellee asserts flowed from appellant's breach of the contract of sale.We reverse the award of damages to appellee and remand for a new trial on that issue alone.

The Uniform Commercial Code(U.C.C.) governs the sale of goods in Florida.Ch. 672, Fla.Stat.(1987).While an aggrieved buyer may recover consequential damages for a seller's breach of contract (sections 672.713-672.715), an aggrieved seller is limited to recovering lost profits and incidental damages as its remedy for a breach of contract.§ 672.708,Fla.Stat.(1987);Vagabond Container, Inc. v. City of Miami Beach, 356 So.2d 1266(Fla. 3d DCA), cert. denied, 364 So.2d 882(Fla.1978).

Appellee argues that the U.C.C. as codified in Florida in chapter 672 does not preclude the parties to a contract of sale from expressly agreeing to damages exceeding or differing from those expressed or prohibited in the U.C.C. Appellee relies upon paragraph 8 of an addendum to the parties' contract to provide that exception to the limitation on the seller's right to recover consequential damages as expressed in the U.C.C.

That paragraph provides as follows:

a.[I]t is necessary for the Seller to incur costly inventory expenses well in advance of delivery to and payment by Buyer for the Gypsum.A default by the Buyer will cause the Seller to suffer substantial and irreversible financial damages....

b. In the event of Buyer's default hereunder, the rights of Seller hereunder may be enforceable in a court of equity by a decree of specific performance or injunctive relief as the case may be.Such remedy shall, however, be cumulative and not exclusive, and shall be in addition to any other remedy Seller may have including an award of appropriate damages in the event the actions of Buyer so warrant.

(Emphasis supplied.)

We cannot agree with appellee and the trial judge that the emphasized...