Sea Ledge Properties, Inc. v. Dodge

• Decision Date: 31 July 1973
• Docket Number: No. 72--119,72--119
• Parties: SEA LEDGE PROPERTIES, INC., et al., Appellants, v. Richard W. DODGE et al., Appellees.
• Court: Florida District Court of Appeals

Page 55

283 So.2d 55

SEA LEDGE PROPERTIES, INC., et al., Appellants, v. Richard W. DODGE et al., Appellees.

No. 72--119.

District Court of Appeal of Florida, Fourth District.

July 31, 1973.

Rehearing Denied Oct. 9, 1973.

John R. Young, Of Hamilton, James, Merkle & Young, West Palm Beach, for appellants.

John S. Neely, Jr., of Fleming, O'Bryan & Fleming, Fort Lauderdale, and William M. Hoeveler, of Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, for appellees.

DOWNEY, JAMES C., Associate Judge.

This case had its genesis in a construction contract between the plaintiff, Sea Ledge Properties, Inc., and defendant, Richard W. Dodge. The case was tried by a jury and from an adverse result, plaintiffs appeal.

Plaintiff, Sea Ledge Properties, Inc., owner of a parcel of property in Deerfield Beach, entered into a contract with defendant, Richard W. Dodge, for the construction of a high rise condominium apartment building on said property. Dodge, an architect, agreed therein to obtain a construction loan for the project, to secure a contractor who would construct the project on a 'lock and key' basis for not exceeding $2,200,000, with a completion date of nine months from date of contract, to complete and obtain all construction documents, and to personally supervise the construction. Dodge, having failed to obtain a contractor who could meet the contract terms, proceeded with the construction of the foundation. When it became apparent that Dodge was not able to obtain a contractor tractor as required by the contract, plaintiffs employed a contractor on a cost plus basis and completed the project at a total cost of approximately $3,200,000.

Plaintiffs then sued defendant in five counts, alleging wrongful imposition of a lien by defendant, negligence, breach of contract by failure to have the project built for $2,200,000, and by failure to properly supervise the construction. Defendants answered the material allegations of the complaint, and affirmatively pled waiver and other defenses not necessary to be enumerated. Defendant, Dodge, further counterclaimed for enforcement of certain liens which he had filed against the plaintiff's property.

We have considered all of the points raised by plaintiffs in their brief, and with one exception find them to be without merit. In their fifth point appellants assign as error the failure of the court to adequately and correctly charge the jury on the proper measure of damages for the breach of contract alleged herein. One of the main thrusts of plaintiffs' complaint is defendant's alleged breach of contract for failure to procure a contractor to construct the improvement for $2,200,000. Though this issue was submitted to the jury for their consideration, and plaintiffs specifically requested an instruction defining the measure of damages the jury should use, the court completely failed to instruct the jury in this regard.

It is of course axiomatic that each party is entitled to have the jury instructed upon his theory of the case. Luster v. Moore, Fla.1955, 78 So.2d 87; Holdsworth v. Crews, Fla.App.1961, 129 So.2d 153. But in this case it became doubly important for the jury to be properly instructed on damages in view of the defendants' closing argument. In arguing damages, counsel for defendants went to great lengths to suggest to the jury that plaintiffs should not recover because for aught anyone knew, they made a substantial profit on the building when the individual apartments were sold; that the building was worth $3,200,000 because that is what it cost; that it would...