Shadow Lakes, Inc. v. Cudlipp Const. and Development Co., Inc.
| Decision Date | 02 June 1995 |
| Docket Number | No. 93-02843,93-02843 |
| Citation | 658 So.2d 116 |
| Parties | 20 Fla. L. Weekly D1320 SHADOW LAKES, INC., and Zaragosa Properties, Inc., Appellants, v. CUDLIPP CONSTRUCTION AND DEVELOPMENT COMPANY, INC., Michael P. Cudlipp and Angela S. Cudlipp, Appellees. |
| Court | Florida District Court of Appeals |
Roberta A. Colton and Marie Tomassi of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., Tampa, for appellants.
Jeremy E. Gluckman of Gluckman, Newman & LeVine, P.A., Tampa, for appellees.
Shadow Lakes, Inc. and Zaragosa Properties, Inc. (appellants) appeal a final judgment for damages and specific performance. We reverse and remand for a new trial on damages because the jury's award of $3,670,000 in lost profits is against the manifest weight of the evidence. The trial court abused its discretion by denying a new trial on damages. We affirm the final judgment with respect to the issue of specific performance.
Shadow Lakes and Cudlipp Construction and Development Company, Inc. (Cudlipp) entered into a written agreement for the construction of a residential development. The contract called for the construction of approximately 375 homes over an unspecified period of time. The agreement contemplated that Cudlipp would construct the homes and Shadow Lakes would sell the homes. It further provided either party could terminate the agreement if prices could not be mutually agreed upon, except the termination would not apply to the first fourteen homes. The contract provided that Cudlipp would be paid a fixed price for each type of home built, which would include the actual cost of construction and a fee for Cudlipp's services. Cudlipp failed to produce completed homes for sale, allegedly due to a failure in funding.
Cudlipp and its principles, Michael and Angela Cudlipp, the appellees, filed a multi-count complaint against the appellants for, inter alia, breach of contract. The jury awarded Cudlipp Construction $144,000 in damages through the date of termination of the contract and $3,670,000 in damages for future lost profits.
In a case where damages are sought under a contract which has not been fully performed, the recovery may be either in quantum meruit, the reasonable value of the labor performed and market value of materials, or in contract based on lost profits plus the reasonable cost of labor and material expended in partial performance. Robinson v. Albanese, 636 So.2d 831 (Fla. 5th DCA 1994); Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845 (Fla. 1st DCA 1990). When the measure of damages is lost profits, the loss must be proven with a reasonable degree of certainty before it is recoverable. Wash-Bowl, Inc. v. Wroton, 432 So.2d 766 (Fla. 2d DCA 1983); Douglass Fertilizers & Chemical, Inc. v. McClung...
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