Sampley Enterprises, Inc. v. Laurilla, 80-181
| Citation | 404 So.2d 841 |
| Decision Date | 14 October 1981 |
| Docket Number | No. 80-181,80-181 |
| Parties | SAMPLEY ENTERPRISES, INC., Appellant/Cross Appellee, v. Everett LAURILLA, a/k/a Everett W. Laurilla, and his wife, Margaret W.Laurilla, Appellees/Cross Appellants. |
| Court | Florida District Court of Appeals |
Roger A. Kelly of Fishback, Davis, Dominick & Bennett, Orlando, for appellant/cross appellee.
Jack A. Nants, Orlando, for appellees/cross appellants.
Appellant, as plaintiff, filed suit against appellee for breach of a construction contract. Appellant, as general contractor and the appellees, as owners, entered into a written agreement whereby appellant agreed to build a bowling center for the appellees at a total contract price of $292,815. The trial court, after a non-jury trial, found that appellees had breached the contract, and awarded damages to appellant for an amount equal to its "out-of-pocket" expenses. Appellant's motion for rehearing, alleging that it was entitled to lost profits, not only its out-of-pocket expenses, was denied and this appeal followed. Appellees' cross appeal the determination they, rather than appellants, breached the contract.
Who breached the contract here is a factual determination. On disputed facts, the trial court found that it was appellees who had breached the contract, not the appellant, and we will not disturb that finding on appeal where there is competent substantial evidence to support the trial court's conclusion. Raulerson v. Metzger, 375 So.2d 576 (Fla. 5th DCA 1979). The finding that appellees breached the contract is affirmed.
The rule of law regarding damages to be awarded for anticipatory breach of contract was stated long ago in Sullivan v. McMillan, 26 Fla. 543, 8 So. 450 (1890), viz:
Where the time for the performance of an executory contract has arrived, or where the contract is being performed, and one of the parties notifies the other unequivocally that he will not perform or further perform his part, or will not accept performance by the other, the latter may treat the contract as put to an end or entirely broken by the former, and, if ready and willing to perform his part, sue him at once for an entire breach of contract, and can recover as damages the same profits that he would have earned had he entirely performed the contract.
See also Mori v. Matsushita Electric Corporation, 380 So.2d 461 (Fla. 3d DCA 1980).
Thus, the measure of damages is the amount which the innocent party would have received if the contract had been performed, less any deductions for expenses not yet incurred. Put another way, the non-breaching party is entitled to recover the contract price less the cost to such party of performing the contract. Loss of profits is a proper measure for damages resulting from anticipatory breach of a contract. Mori. Prospective profits must be proven with reasonable certainty. Adams v. Dreyfus Interstate Development Corp., 352 So.2d 76 (Fla. 4th DCA 1977).
While an award of lost profits must be supported by evidence and cannot be based on mere speculation or conjecture, American Motorcycle Institute v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980), it is equally...
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...party to lose profits, the defendant can be required to compensate the plaintiff for the lost profits. Sampley Enterprises, Inc. v. Laurilla, 404 So.2d 841 (Fla.Dist.Ct.App.1981). Consequently, if BKC had demonstrated that Mason's refusal to cease operation after the terminations, as requir......
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