Global Contact Lens, Inc. v. Knight

• Decision Date: 09 November 1971
• Docket Number: No. 71--273,71--273
• Citation: 254 So.2d 807
• Parties: GLOBAL CONTACT LENS, INC., a Florida corporation, Appellant, v. Karl KNIGHT, Appellee.
• Court: Florida District Court of Appeals

Page 807

254 So.2d 807

GLOBAL CONTACT LENS, INC., a Florida corporation, Appellant, v. Karl KNIGHT, Appellee.

No. 71--273.

District Court of Appeal of Florida, Third District.

Nov. 9, 1971.

Rehearing Denied Dec. 14, 1971.

Robert M. Brake, Coral Gables, for appellant.

Paul, Landy, Beiley & Bartel, Miami, for appellee.

Before SWANN, C.J., and PEARSON and HENDRY, JJ.

PER CURIAM.

Appellant Global Contact Lens, Inc., the tenant, and its surety on the injunction bond sued upon, seek review of an adverse final judgment containing extensive findings of fact and awarding damages for the wrongful issuance of a temporary injunction, based upon the bond posted by Global. Appellee Knight, the landlord, sought and obtained recovery on the injunction bond.

When the landlord, Knight, began an eviction suit in the Civil Court of Record, the tenant, Global, sought an injunction in the Circuit Court to restrain the prosecution of the landlord's suit. The temporary injunction was upheld, Knight v. Global Contact Lens, Inc., Fla.App.1969, 220 So.2d 693. After a hearing on the merits, final judgment was entered for the landlord, and the injunction was dissolved; the judgment was affirmed. Global Contact Lens, Inc. v. Knight, Fla.App.1970, 231 So.2d 9.

Appellant has presented several points for reversal, and some we have found to be meritorious, and therefore reverse in part and affirm in part. We reverse those portions of the judgment concerning the measure of damages as to lost profits and the award of attorney's fees as an element of damages.

To begin with, the injunction was wrongfully issued. Such conclusion is dictated by the doctrine of the law of the case. See Furlong v. Leybourne, Fla.1965, 171 So.2d 1, reversing Fla.App.1964, 161 So.2d 221.

A brief statement as to the damages recoverable on an injunction bond for wrongful issuance of an injunction is as follows:

'The damages recoverable in an action on an injunction bond include all actual damages sustained by reason of the wrongful issuance of the injunction, that is, such damages as are the direct, natural, and proximate result of the injunction. In such actions the general rules governing the measurement of damages ordinarily apply. (Citations omitted.)'

Hyler v. Wheeler, 240 S.Ct. 386, 126 S.E.2d 173, 175, 95 A.L.R.2d 118 (1962). Since the decision in Wittich v. O'Neal, 1886, 22 Fla. 592, § 60.07, Fla.Stat.1969, F.S.A. has been enacted, which authorizes the court to assess damages to which a defendant may be entitled under any injunction bond, eliminating the necessity for a separate action at law on the bond if no party has requested a jury trial on damages.

With respect to the matter of damages for the landlord, other than attorney's fees, the trial court found uncontradicted evidence that the tenant, with actual notice of an impending sale of the entire premises by the landlord, but subject to the landlord's being able to deliver the tenant's portion of the premises, knowingly defeated the impending sale by the tenant insisting upon retention of the temporary injunction. The court considered the prospective buyer as ready, willing and able to close, and also evaluated the sales contract. The trial court found the lost profit on the sale to be approximately $37,000.00. Based upon the record, it appears that the trial court computed the damages as follows: Price under the contract of sale (about $186,000.00), less the 'book value' of the property (about $149,000.00). The book value was based upon original cost, less depreciation allowed by the United States Internal Revenue Service; that is, the depreciated income tax cost basis. An appraiser testified that the fair market value was approximately $195,000.00 at the time the injunction was dissolved. The tenant would assert that he allowed the landlord to avoid an unprofitable contract; and upon that basis and the landlord's asserted failure to mitigate, the tenant would have this court conclude that the landlord is not entitled to damages. We however, reject such conclusion. The short answer is that a wrongdoer ought not to be allowed to take advantage of his own wrong in respect to nonperformance and thereby relieve himself of liability.

The following statement by the Illinois Appellate Court, in Kolin v. Leitch, 351 Ill.App. 66, 113 N.E.2d 806, 809 (1953), succinctly describes the error of using book value:

'Damages recoverable for wrongful suing out of a writ of injunction must be such as naturally and proximately result therefrom, and remote speculative damages cannot be taken into consideration. Leavitt v. Lusch, 192 Ill.App. 504. The measure of damages is the difference between the fair cash reasonable market value of the items in controversy on the day the injunction was issued and such value on the day it was dissolved. (Citation omitted.)

'It may well be, as plaintiffs argue, that the (school's) furniture and automobile were worth as much or more on the day the injunction was dissolved as on the day the injunction was issued. Defendants proved the book value of these items based on its accounting methods but failed to offer any proof tending to show the fair cash reasonable market values. We are therefore impelled to hold that the trial court erred in allowing the school damages for depreciation on its furniture and automobile.'

The Supreme Court of Minnesota, in a 1969 case, is apparently in accord. Josephson v. Fremont Industries, Inc., 282 Minn. 51, 163 N.W.2d 297, 301:

'* * * the trial court instructed the jury that this item (loss on the sale of office and chemical manufacturing equipment) was to be measured by the difference in the equipment's fair market value at the time the wrongful restraint was imposed ...