Marshall Const., Ltd. v. Coastal Sheet Metal & Roofing, Inc.

• Decision Date: 06 November 1990
• Docket Number: No. 90-878,90-878
• Citation: 569 So.2d 845
• Parties: 15 Fla. L. Weekly D2704 MARSHALL CONSTRUCTION, LTD. and The Continental Insurance Company, Appellants, v. COASTAL SHEET METAL & ROOFING, INC., Appellee.
• Court: Florida District Court of Appeals

Page 845

569 So.2d 845

15 Fla. L. Weekly D2704

MARSHALL CONSTRUCTION, LTD. and The Continental Insurance Company, Appellants, v. COASTAL SHEET METAL & ROOFING, INC., Appellee.

No. 90-878.

District Court of Appeal of Florida,

First District.

Nov. 6, 1990.

J. Craig Knox of Fuller, Johnson & Farrell, Tallahassee, and Richard H. Powell, Fort Walton Beach, for appellants.

Bill R. Hutto of Hutto, Nabors, Bodiford & Warner, Panama City, for appellee.

WOLF, Judge.

The appellant, Marshall Construction Company, appeals the final judgment entered by the trial court following a non-jury trial in which Coastal Sheet Metal & Roofing, Inc. was awarded damages for breach of contract. Appellant raises three issues on appeal, two of which merit discussion: (1) Whether the trial court erred in awarding damages to Coastal; and (2) whether the trial court erred in finding that Marshall had breached the contract. We find no substantial competent evidence to support the conclusions that Marshall breached the contract, or that Coastal was entitled to the damages awarded. We, therefore reverse the judgment of the trial court.

On February 20, 1988, Marshall entered into a general contract with the State of Florida for the repair and replacement of the roofs of buildings 51, 52 and 53 at Florida State Hospital in Chattahoochee, Florida, for the sum of $239,095. The contract called for substantial completion within 120 days after the date of the notice to proceed and final completion within 30 days after the date of substantial completion. This contract required Marshall to pay liquidated damages in the event the contract was not completed within the time specifications. In March of 1988, Marshall and Coastal entered into an oral contract to replace the roofs of buildings 51, 52 and 53. Coastal was to perform the work. Marshall was to receive $7,265 for its bond premium and for its fee, and Coastal was to receive the balance of Marshall's contract with the state. The roofs were to be replaced according to the specifications of the architect. Notice to proceed was received by Coastal on March 28, 1988, and Coastal was given 120 days for substantial completion and an additional 30 days for final completion.

A problem developed with the roofing system installed in building 51 because water had penetrated the roof insulation. Both parties agreed that the new roof on the east wing of building 51 was defective and would have to be replaced. Coastal admitted that it could not afford to proceed with the work and could not repair the defective roof unless it was paid by Marshall for the work already completed. On June 15, 1988, Coastal stopped work on the project. Marshall requested several times that Coastal continue the work, and Coastal refused to work until it was paid. On June 24, 1988, Marshall ordered Coastal off the job, and hired someone else to complete the work.

Coastal filed a complaint against Marshall seeking damages for breach of an oral contract, alleging that Marshall wrongfully discharged Coastal from the contract prior to completion of construction. Coastal claimed that it was entitled to the performance bond issued to Marshall by the Continental Insurance Company on the roofing project. Marshall filed a counterclaim seeking damages for Coastal's breach of contract and negligent workmanship.

Under Florida law, the proper measure of damages in a breach of contract action by a subcontractor against the contractor, where the contract has not been fully performed, is either quantum meruit, or the subcontractor's lost profit in addition to an amount representing the reasonable cost of labor and materials incurred in good faith in the partial performance of the contract. Diversified Commercial Developers, Inc. v. Formrite, Inc., 450 So.2d 533 (Fla. 4th DCA 1984). The damages must be shown with a degree of certainty that satisfies the mind of a prudent impartial person and cannot be left to speculation and conjecture. Conner v. Atlas Aircraft Corp., 310 So.2d 352 (Fla. 3d DCA 1975), cert. denied 322 So.2d 913 (Fla.1975); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971).

In Sampley Enterprises, Inc. v. Laurilla, 404 So.2d 841 (Fla. 5th DCA 1981), the court held it was proper to award lost profits where testimony was presented showing not only the amount the party would have received had the contract been performed, but also the amounts of any expenses not yet incurred. The difference between these two amounts was the anticipated profit. In Sampley Enterprises, Inc., the testimony included sufficient evidence as to the cost of labor, services, materials, and items of overhead incurred prior to the breach. See also Adams v. Dreyfus Interstate Dev. Corp., 352 So.2d 76 (Fla. 4th DCA 1977). In Adams, the contractor testified as to the balance due on the contact price for work yet to be performed and the...