Ronlee, Inc. v. Arvida Corp.

• Decision Date: 12 November 1987
• Docket Number: 87-0278,Nos. 4-86-2015,s. 4-86-2015
• Citation: 12 Fla. L. Weekly 2612,515 So.2d 372
• Parties: 12 Fla. L. Weekly 2612 RONLEE, INC., Appellant, v. ARVIDA CORPORATION, Appellee. RONLEE, INC., Appellant, v. ARVIDA CORPORATION and Badgett Resources, Appellees.
• Court: Florida District Court of Appeals

Page 372

515 So.2d 372

12 Fla. L. Weekly 2612

RONLEE, INC., Appellant, v. ARVIDA CORPORATION, Appellee.

RONLEE, INC., Appellant, v. ARVIDA CORPORATION and Badgett Resources, Appellees.

Nos. 4-86-2015, 87-0278.

District Court of Appeal of Florida,

Fourth District.

Nov. 12, 1987.

David H. Charlip, of Barranco, Kellough, Kircher & Charlip, P.A., Miami, for appellant.

Robert E. Ferris, Jr., of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauderdale, for appellee Arvida Corp.

GLICKSTEIN, Judge.

This is an appeal from a final judgment on Arvida's counterclaim and granting Arvida its attorney's fee against the plaintiff/counterdefendant. We affirm.

We are grateful for the findings of fact and conclusions of law herein. Although we do not repeat them all, paragraph three recites:

3. As to the Counterclaim for damages filed by ARVIDA against RONLEE for failing to perform its Contract by not excavating to a depth of 40 feet and for reimbursement to ARVIDA for the fill left at the bottom of the lake, I find in favor of ARVIDA and against RONLEE. Both RONLEE and ARVIDA hired engineering firms to sound the depth of the lake after excavation ceased in order to reconcile the royalty which was owed to ARVIDA. In both cases, the engineering firms stated that had RONLEE excavated to a minimum water depth of 40 feet that [sic] approximately 1,773,700 cubic yards of fill would have been removed. Both engineering firms reflect that approximately 310,000 cubic yards of fill was not excavated from this lake. RONLEE disagrees with the survey results stating that these results do not reflect the lower limits of excavation which it has consistently claimed were to a minimum of 40 feet of water depth. Jose Fernandez, a former Vice President, stated in his testimony that RONLEE excavated to a minimum water depth of 40 feet and in fact, he stated that in Exhibit 19, a letter he sent to Walter Collins, the Vice President of Arvida. Assuming the testimony of RONLEE to be correct, then, if it had excavated to a minimum water depth of 40 feet it would have paid a royalty of .50 a cubic yard based upon 1,773,700 cubic yards having been excavated from this lake; however, it paid royalties on only approximately 1,463,700 cubic yards of fill leaving approximately 310,000 cubic yards of fill unpaid for.

The court awarded the amount of royalties that Arvida would have received if the excavation had been to the proper depth.

There is a presumption of the correctness of the trial court's findings of fact and conclusions of law. E.g., Taylor Creek Village Association v. Houghton, 349 So.2d 1219 (Fla. 3d DCA 1977). It is appellant's duty to show reversible error clearly on the record, and if appellant fails to meet this burden the conclusion must be that there is no error. E.g., Strate v. Strate, 328 So.2d 29 (Fla. 3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976). We do not think appellant here has met its burden. On the contrary, the court's conclusion that Ronlee failed to carry out its obligation under the contract is supported by competent substantial evidence.

As for Arvida's damages, appellee calls attention to the principle of Florida law received from the vaunted opinion in Hadley v. Baxendale, 9 Exch. 341 (156 Eng.Rep. 145) (1854), setting the measure of consequential damages as the actual loss resulting naturally from the breach of contract, or the damages within the contemplation of the parties at the time the contract was made. See also, Life Investors Insurance Co. of America v. Johnson, 422 So.2d 32 (Fla. 4th DCA 1982). Arvida also cites foreign case law which applies the measure of damages used here. Ronlee is correct in saying those cases involve lack of due diligence in working a mine, where the lease or other contract required it. Nevertheless, it appears to us that it was a reasonable expectation of Arvida that it would realize royalties on the entire volume of material that the contract required to be excavated. The expert witnesses for both parties agreed it is uneconomic to go back in with a dragline now and recover the material left at lake bottom. We think the royalty that would have been received on that material is a fair measure of damages. As appellee says, this represents the position in which...