EDWARD L. NEZELEK, INC., APPELLANT,
v.
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, APPELLEE
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A contractor appeals a directed verdict denying its claim for lost profits from a construction contract that a telephone company allegedly breached by failing to issue a notice to proceed. The court reverses, finding sufficient evidence of lost profits and contract formation to present jury questions.
The court held that the contractor's evidence was sufficient to meet the reasonable certainty test for lost profits damages and should have been submitted to the jury. The court also held that sufficient evidence existed regarding contract formation to preclude a directed verdict, as Southern Bell's acceptance letter and other documents forwarding construction-related materials raised factual questions for the jury.
[1] Lost profits from a construction contract may be established with reasonable certainty through evidence of bid sheets, cost calculations, and testimony from estimators, e…
[2] A jury question exists regarding contract formation when a party accepts a bid via letter and forwards plans and specifications, despite the absence of a formally signed…
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Join FLexlaw to unlock all legal intelligence“we believe the evidence was sufficient to go to the jury under Adams v. Dreyfus, supra, especially when one considers that the chief estimator also testified that his line items were actual quotations from qualified subcontractors upon which he could normally rely.”
Establishes that detailed bid evidence based on actual subcontractor quotations satisfies the reasonable certainty test for lost profits damages
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Join FLexlaw to unlock all legal intelligenceNezelek submitted a bid of $989,760 for a building project. Southern Bell accepted the bid in a November 1974 letter but instructed the contractor not…
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LETTS, Chief Judge.
A contractor here appeals a directed-verdict by a trial court because it failed to adequately establish its lost profits under a construction contract which its customer allegedly breached. We reverse.
The contractor found out it was successful on a bid of $989,760. for a building when Southern Bell wrote the following letter:
November 20, 1974-
E. L. Nezelek, Inc. P.O. Box 23490
Fort Lauderdale, Florida
Gentlemen:
We are pleased to inform you that your bid for the new Boca Raton — Sandalfoot ESS building is low and has been accepted. Alternate Number One is also accepted.
Three sets of signed and sealed'plans and specifications and septic tank, approval are being forwarded to you by Baker and Associates for your use in obtaining the required building permits.
Please do not proceed with any work at the site until a contract has been properly executed and you have received official notice to proceed from this office.
Yours truly,
The contractor responded to this letter immediately by forwarding a standard form building contract duly signed by it. This contract was neither signed nor returned by Southern Bell.
Thereafter on January Third, some 45 days after the letter accepting the bid, the contractor wrote a letter claiming that the concluding paragraph of the letter set forth above constituted an illegal stop order and that Southern Bell had “wrongfully failed to give . . . notice to proceed.”
We commence by disagreeing with the trial judge who ruled that the loss of prospective profits testimony did not meet the reasonable certainty test enunciated in Adams v. Dreyfus, 352 So. 2d 76 (Fla. 4th DCA 1977).1 At trial, the contractor introduced its bid sheet containing forty-one line items showing a cost including variable overhead of $914,180. From this, a profit of $75,580 was calculated (V/2%). The chief estimator for the contractor testified as to how he had prepared the bid sheet and how he had calculated the variable overhead costs for the job, without objection as to his calculations. Moreover, other evidence introduced set forth a summary of profits made from nine other contract jobs with Southern Bell including a profit in excess of 10% for a very similar building.
Southern Bell argues that these introduced pieces of evidence did not tend to prove or disprove lost profits, but were simply estimates based on bid prices from subcontractors. However, we believe the evidence was sufficient to go to the jury under Adams v. Dreyfus, supra, especially when one considers that the chief estimator also testified that his line items were actual quotations from qualified subcontractors upon which he could normally rely.
The Telephone Company also argues that the calculated profit is fatally defective because it excludes the fixed overhead costs of the contractor’s home office. There is a dearth of Florida law on this subject but we are of the opinion that we need not examine this issue because in the case at bar the lack of inclusion of any such fixed overhead was not objected to at trial.
We turn next to the question of whether a contract ever came into existence in the light of the failure of the Telephone Company to execute a copy. As to this question, we are of the opinion that there was sufficient evidence in the record to make this a jury question. Quite apart from the letter accepting the bid,2 several other documents pertaining to the construction were forwarded to the contractor by Southern Bell or its agents and in sum we believe them sufficient to raise issues of fact which would preclude a directed verdict on this issue.
REVERSED AND REMANDED IN ACCORDANCE HEREWITH.
HERSEY and GLICKSTEIN, JJ., concur. . See also Mori v. Matsushita Electric Corp. of America, 380 So. 2d 461 (Fla.3d DCA 1980).
. We note that the letter merely postpones work at the site rather than suggesting the acceptance is dependent upon an independent contract being signed. See 11 Fla.Jur.2d, Contracts § 78.
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U.S. Home Corp. v. Suncoast Utils., Inc., 454 So. 2d 601 (Fla. 2d DCA 1984)…allard, 248 So. 2d at 235. And, although Tunstall, in his testimony, assumed that Suncoast’s profits were calculated from certain company records, these records were not introduced. See Edward L. Nezelek, Inc. v. Southern Bell Telephone & Telegraph, 383 So. 2d 979 (Fla. 4th DCA 1980). We recognize that a trial judge is vested with reasonable discretion in awarding damages where they cannot be precisely determined. Clearwater Associates v. Hicks Laundry Equipment Corp., 433 So. 2d 7 (Fla. 2d DCA 1983); John H…
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Marshall Constr., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So. 2d 845 (Fla. 1st DCA 1990)…obligation to pay Coastal until the roof was repaired. We therefore reverse and remand for a new trial on damages and liability. WIGGINTON and MINER, JJ., concur. . The case of Edward L. Nezelek, Inc. v. Southern Bell Telephone and Telegraph Co., 383 So. 2d 979 (Fla. 4th DCA 1980), relied upon by appellee for the proposition that bid estimates are sufficient to demonstrate lost profits, is inapplicable to the facts of this case. In Nezelek, the bid [*848] preparation papers were entered into evidence, and…
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Club Eden ROC, Inc. v. Tripmasters, Inc., 471 So. 2d 1322 (Fla. 3d DCA 1985)…82. Implicit in the damage award to Tripmasters is a finding that the parties entered into a five-year Passover lease agreement. No version of the evidence supports that finding. Edward L. Nezelek, Inc. v. Southern Bell Telephone and Telegraph Co., 383 So. 2d 979 (Fla. 4th DCA 1980), relied on by Tripmasters, is not supportive of its argument. A letter memorandum relied upon by the contractor in Nezelek was an unequivocal acceptance of a bid, contemplating the execution of a formal contract at some later dat…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lippman v. Longergan, 380 So. 2d 461 (Fla. 1st DCA 1980)
- Edward L. Nezelek, Inc. v. G. E. Drywall, Inc., 352 So. 2d 76 (Fla. 4th DCA 1977)
- Adams v. Dreyfus Interstate Dev. Corp., 352 So. 2d 76 (Fla. 4th DCA 1977)