Juvenile Diabetes Research Foundation v. Rievman

• Decision Date: 03 April 1979
• Docket Number: No. 77-2436,77-2436
• Citation: 370 So.2d 33
• Parties: JUVENILE DIABETES RESEARCH FOUNDATION, Appellant, v. Dr. Steven RIEVMAN, Vivi DeArmas, and Marietta Tye, Appellees.
• Court: Florida District Court of Appeals

Page 33

370 So.2d 33

JUVENILE DIABETES RESEARCH FOUNDATION, Appellant, v. Dr. Steven RIEVMAN, Vivi DeArmas, and Marietta Tye, Appellees.

No. 77-2436.

District Court of Appeal of Florida, Third District.

April 3, 1979.

Rehearing Denied May 16, 1979.

Martin D. Kahn, North Miami, Susan Goldman, Miami, for appellant.

Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Rash & Katzen, South Miami, for appellees.

Before PEARSON, HUBBART and SCHWARTZ, JJ.

HUBBART, Judge.

The central issue raised by this appeal is whether in an action for breach of an employment contract (brought by an employee for an alleged wrongful discharge prior to completion of the contract) the defendant employer (if he chooses to raise the issue) must plead as an affirmative defense under Fla.R.Civ.P. 1.110(d) and prove at trial as a set-off on damages what the plaintiff employee actually earned, or could have earned through the use of due diligence at other employment of like nature, to mitigate the employee's damages for the remainder of the term of employment under the contract. Based on the authority and reasoning which follow, we hold that the defendant employer has the burden: (1) to plead the above as an affirmative defense in the nature of a set-off on damages, and (2) to prove at trial such defense by the greater weight of the evidence. Accordingly, we reject the defendant employer's contentions on this appeal, including others unrelated to this issue, and affirm.

A

The facts of this case are as follows. Sometime in February 1975, one of the plaintiffs herein Dr. Steven Rievman sent a letter to the defendant Robert Kronowitt as executive director of the defendant Juvenile Diabetes Research Foundation suggesting the development of an educational or counseling facility for diabetics in Broward County, Florida. The plaintiff Rievman thereafter met with the defendant Kronowitt on several occasions in which plans were formulated for a Diabetes Life Center. The defendant Foundation agreed to establish such a center and to hire the plaintiff Dr. Rievman as Director and the plaintiffs Vivi DeArmas and Marietta Tye as employees at the center. Salary terms and conditions of employment as to each plaintiff were also agreed upon. Thereafter, some six months went by during which the defendant Foundation experienced delays in obtaining the necessary funding to open the diabetes center. The starting date on the opening of the center and the plaintiffs' consequent employment were set back on several occasions.

Finally, on February 15, 1976, the defendant Kronowitt notified the plaintiff Rievman by telephone that the center would open and the plaintiffs could begin work the next day. There was testimony that during this telephone conversation other employment terms were agreed upon which among others was a condition that the plaintiffs' employment at the center be for one year. The next day The Diabetes Life Center opened as planned and the plaintiffs commenced work. The plaintiffs worked at the center and received payment from the defendant Foundation for their work as agreed upon through May 1976 when the center was closed and the plaintiffs discharged. Under the balance of the unexpired employment contract subsequent to such discharge, each of the plaintiffs were entitled to an ascertained amount of money in salary; no unpaid balance was due on any of the plaintiffs' salary, however, for services rendered prior to the discharge.

There is evidence that the following month in June the plaintiffs formed a corporation called The Diabetes Life Center, Inc. which did work similar to that of the defunct center and for which donations were obtained. It is not clear, however whether the plaintiffs were employed by the new corporation, and, if so, at what salary or for what length of time.

On September 28, 1976, the plaintiffs filed an action in the Circuit Court for the Eleventh Judicial Circuit of Florida for breach of contract against the defendant Foundation, which was later amended to include the defendant Kronowitt. The defendants filed an answer denying the claim and asserting as their sole affirmative defense the statute of frauds; mitigation of damages was never pled by the defendants as an affirmative defense. The defendant Foundation filed a motion for summary judgment on the ground that the oral contract herein was unenforceable under the statute of frauds, which motion was denied.

The cause came on for a non-jury trial in which the facts as previously detailed were established. The defendants moved for an involuntary dismissal at the close of all the evidence and urged that the plaintiffs had failed to establish that they had properly mitigated their damages as required by law. The trial court impliedly denied the motion by entering a final judgment in favor of the plaintiffs and against the defendant Foundation in the amount of the salaries the plaintiffs would have earned on the unexpired term of their employment contract; the claim against the defendant Kronowitt was dismissed. A petition for rehearing was subsequently denied; the defendant Foundation appeals.

B

The law is clear that the purpose of an award of damages in a breach of contract action is to place the injured party in the same financial position as he would have occupied if the contract has been fully performed. Hodges v. A. P. Fries & Co., 34 Fla. 63, 69, 15 So. 682, 684 (1894); Popwell v. Abel, 226 So.2d 418, 422 (Fla.4th DCA 1969); First National Insurance Agency, Inc. v. Leesburg Transfer & Storage, Inc., 139 So.2d 476, 482 (Fla.2d DCA 1962). It is, therefore, the established law of this state that in an action for breach of an employment contract (brought by an employee for an alleged wrongful discharge prior to completion of the contract) the prima facie measure of damages is the contract price of salary or wages for the unexpired term of the contract together with any unpaid balance due under the contract for services rendered before the wrongful discharge. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928); 2 Fla.Jur.2d "Agency and Employment" § 134, p. 315 (1977). The plaintiff employee has the burden of proof at trial in such action to establish his damages as thus measured by the greater weight of the evidence. McCormick on Damages § 159 (1935).

These prima facie damages, however, are subject to reduction upon proof of an amount which the employee actually earned, or could have earned through the use of due diligence in other employment of like nature, for the remainder of his term of employment under the contract. Southern Keswick, Inc. v. Whetherholt, 293 So.2d 109 (Fla.2d DCA 1974). In this connection, it is often said that the plaintiff employee has a duty to mitigate his damages by reasonably seeking other employment of like nature subsequent to the breach...