National Educ. Centers, Inc. v. Kirkland, s. 92-1622

• Decision Date: 07 July 1993
• Docket Number: Nos. 92-1622,92-2130,92-2232 and 92-2961,s. 92-1622
• Citation: 635 So.2d 33
• Parties: 90 Ed. Law Rep. 1305, 18 Fla. L. Weekly D1565 NATIONAL EDUCATION CENTERS, INC., a California corporation, d/b/a Bauder Fashion College, Appellant/Cross-Appellee, v. Ira KIRKLAND, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 33

635 So.2d 33

90 Ed. Law Rep. 1305, 18 Fla. L. Weekly D1565

NATIONAL EDUCATION CENTERS, INC., a California corporation d/b/a Bauder Fashion College, Appellant/Cross-Appellee, v. Ira KIRKLAND, Appellee/Cross-Appellant.

Nos. 92-1622, 92-2130, 92-2232 and 92-2961.

District Court of Appeal of Florida Fourth District.

July 7, 1993.

On Motion for Rehearing Feb. 2, 1994.

Clarification, Rehearing, Rehearing En Banc and

Certification Denied May 6, 1994.

Consolidated appeals and cross-appeal from the Circuit Court for Broward County; Geoffrey D. Cohen, Judge.

Ben J. Weaver, Weaver, Kuvin, Weaver, & Lipton, P.A., Fort Lauderdale, for appellant, cross-appellee.

Jerome L. Hall, Jerome L. Hall, P.A., Fort Lauderdale, and Edwin P. Krieger of Quinton, Lummus, Dunwody & Jensen, P.A., Miami for appellee, cross-appellant.

PER CURIAM.

This is an appeal and cross-appeal from a final judgment entered on a jury verdict in appellee's favor on his claim for breach of contract. We find no reversible error on either party's claims, except as to appellant's claim that the trial court erred in failing to limit appellee's damages to the payments due under the contract as of the date of the verdict, plus interest thereon. We agree that absent an acceleration clause or other appropriate means, the appellee did not demonstrate his present entitlement to those future payments. Of course, should appellant fail to make the remaining payments, appellee will have the right to sue for those payments and will be entitled to the res judicata effect of the present judgment in any subsequent action.

Accordingly, we reverse and remand with directions that the trial court enter an amended judgment for payments due as of the date of the verdict plus interest thereon.

ANSTEAD and WARNER, JJ., and MAGER, GERALD, Senior Judge, concur.

ON MOTION FOR REHEARING

MAGER, GERALD, Senior Judge.

In our initial opinion we affirmed the final jury verdict and judgment in favor of appellee on its breach of contract claim; however, we determined the trial court erred in failing to limit appellee's damages to the payments due under the contract as of the date of the verdict, plus interest.

The evidence at trial established appellant permanently stopped making installment payments on an energy system. The jury found appellant breached his contract with appellee and awarded appellee its full contract damages which included both past and future payments. On appeal, we determined appellee was precluded from recovering future payments under the contract but recognized that in the event appellant failed to make them, appellee would be entitled to the res judicata effect of the present judgment in any subsequent action. On rehearing, we now conclude Florida law mandates we affirm the jury's award in its entirety.

A non-breaching party is entitled to recover the benefit of its bargain under a contract. Under the facts of this case, such benefit would include all damages, past and future. The applicable principle of law governing the measure of appellee's recovery appears in 17 Fla.Jur.2d, Damages Sec. 16 (1980):

Whether, in an action on a contract, the plaintiff can recover damages for nonperformance of the whole contract, and thus recover damages not sustained at the time the action is brought, depends, as a general rule, on whether there has been such a breach of the contract as the plaintiff is authorized to consider as entirely putting an end to the contract. If the damages constitute a new cause of action, a new action may, and...