CRAIN AUTOMOTIVE GROUP, INC., D/B/A AUTOMOTIVE NEWS, APPELLANT,
v.
J & M GRAPHICS, INC., APPELLEE
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Crain Automotive Group appealed a judgment awarding lost profits damages to J & M Graphics for a one-week delay in publishing an advertisement. The court reversed the damages award, holding that lost profits were not reasonably foreseeable and were too speculative to award because Crain was unaware of the client's critical reliance on the publication date.
The court reversed the lost profits award, holding that: (1) lost profits were not reasonably foreseeable because Crain was unaware of Bottierri's mailing to dealers; and (2) the alleged losses were too speculative and conjectural to support an award, as they rested on the defendant's hopes and the agency's guesses rather than reasonably certain calculations.
[1] Lost profits are recoverable only if the defendant's negligence was the proximate cause of the loss and the loss was within the reasonable contemplation of the parties.
[2] Damages for lost profits must be proven with reasonable certainty and cannot be remote, contingent, or conjectural.
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Join FLexlaw to unlock all legal intelligence“Because Crain was not aware of Bottierri's mailing, it cannot be said that lost profits to J & M could reasonably have been contemplated to be the proximate result of moving the ad.”
Establishes that foreseeability of damages requires the breaching party's awareness of the plaintiff's reliance on performance.
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Join FLexlaw to unlock all legal intelligenceJ & M Graphics, an advertising agency, placed an ad for client Joseph Bottierri in Crain's publication. Bottierri had mailed brochures to dealers stat…
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BASKIN, Judge.
We reverse the final judgment awarding damages for lost profits to J & M Graphics, an advertising agency. The award was based upon Crain’s publishing an ad placed by J & M’s recently retained client, Joseph Bottierri, one week later than the anticipated date. Bottierri relied on the publication date and mailed brochures to dealers informing them that the ads for his product would appear on the scheduled date. Crain was not informed of the mailing. As a result of the ad’s omission, Bottierri terminated his contract with J & M. When Crain sued J & M for the unpaid sums owed for the ads, J & M counterclaimed to recover lost profits. At the conclusion of a non-jury trial, the court awarded J & M damages of $32,500 on the counterclaim and ruled in favor of Crain on the question of unpaid bills.
In order to recover damages, J & M must prove: (1) that Crain was negligent in delaying the ad; (2) that it actually sustained a loss as a proximate result of that negligence; (3) that the loss was or should have been within the reasonable contemplation of the parties; (4) that the loss alleged is not remote, contingent, or conjectural, and that damages are reasonably certain. Florida East Coast Ry. v. Peters, 77 Fla. 411, 426, 83 So. 559, 563-64 (1919).
Because Crain was not aware of Bottierri’s mailing, it cannot be said that lost profits to J & M could reasonably have been contemplated to be the proximate result of moving the ad. See Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936); MacDonald v. Penn Mutual Life Insurance Co., 276 So. 2d 232 (Fla. 2d DCA 1973); First National Insurance Agency v. Leesburg Transfer & Storage, Inc., 139 So. 2d 476 (Fla. 2d DCA 1962).
Furthermore, the alleged losses are not capable of reasonably certain ascertainment. The rule is that lost profits must be shown with a reasonable degree of certainty. Beverage Canners, Inc. v. Cott Corp., 372 So. 2d 954 (Fla. 3d DCA 1979); Belcher v. Import Cars, Ltd., 246 So. 2d 584 (Fla. 3d DCA), cert. denied, 252 So. 2d 801 (Fla.1971); Florida Outdoor, Inc. v. Stewart, 318 So. 2d 414 (Fla. 2d DCA 1975), cert. denied, 333 So. 2d 465 (Fla.1976). The evidence here consisted of testimony by Bottieri that he hoped for sales of one million dollars of his new product during the first year and that he expected to spend 15% of first year sales on advertising, he also testified that he expected to continue using J & M as long as he was satisfied with its performance. John Maechtle of J & M testified that, based upon Ms experience in the industry and applying his standard markups, he anticipated a profit of $32,500 the first year. Maechtle did not explain what calculations and deductions went into his estimate. It is evident that no allowance was made for salaries or overhead in Maechtle’s calculations. Bottierri’s hopes and expectations and Maechtle’s guesses are too speculative a foundation to support an award of lost profits. See Eshkenazi v. Las Fabricas, Inc., 360 So. 2d 430 (Fla. 3d DCA), cert. denied, 366 So. 2d 882 (Fla.1978); Kennedy & Ely Insurance, Inc. v. American Employers’ Insurance Co., 179 So. 2d 248 (Fla. 3d DCA 1965). The speculative nature of the damages sought precludes a new trial.
Affirmed as to paragraphs one and two of the final judgment; reversed as to the remainder.
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R.A. Jones & Sons, Inc. v. Holman, 470 So. 2d 60 (Fla. 3d DCA 1985)…definite amounts of profits. Compare Sampley Enterprises, Inc. v. Laurilla, 404 So. 2d 841 (Fla. 5th DCA 1981), and Shidiam Corp. v. M & D Research Corp, 374 So. 2d 553 (Fla. 4th DCA 1979), with Crain Automotive Group, Inc. v. J & M Graphics, Inc., 427 So. 2d 300, 301 (Fla. 3d DCA 1983), and Myrick v. Miller, 256 So. 2d 255 (Fla. 3d DCA 1971). In National Papaya Co. v. Domain Industries, Inc., 592 F. 2d 813 (5th Cir.1979), the deficient performance of defendant’s machinery caused major production problems fo…
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Frenz Enters., Inc. v. Port Everglades, 746 So. 2d 498 (Fla. 4th DCA 1999)…ch, that the loss was or should have been within the reasonable contemplation of the parties, and that the loss alleged was not remote, contingent, or conjectural and the damages were reasonably certain. See Crain Automotive Group v. J & M Graphics, 427 So. 2d 300, 301 (Fla. 3d DCA 1983) (reciting the elements of a claim for damages for lost profits as a result of the late placement of an advertisement). Here, the evidence did not establish that Frenz’s drop in revenues from $6,000,000 to zero was proximatel…
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Forest's Mens Shop and Ladies Den of Stuart v. Schmidt, 536 So. 2d 334 (Fla. 4th DCA 1988)…evidence was simply too speculative a foundation upon which to base an award of lost future profits. See New Amsterdam Casualty Co. v. Utility Battery Mfg. Co., 122 Fla. 718, 166 So. 856 (1935); Crain Automotive Group, Inc. v. J & M Graphics, Inc., 427 So. 2d 300 (Fla. 3d DCA 1983). “While a trial judge is vested with reasonable discretion in awarding damages, there must be a reasonable basis in the evidence for the amount awarded.” E.F.K. Collins Corp., 464 So. 2d at 215. Here, the parties agree that there…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Poinsettia Dairy Prods., Inc. v. The Wessel Co., 123 Fla. 120 (Fla. 1936)
- First Nat'l Ins. Agency, Inc. v. Leesburg Transfer & Storage, Inc., 139 So. 2d 476 (Fla. 2d DCA 1962)
- Fla. E. Coast Ry. Co. v. Peters, 77 Fla. 411 (Fla. 1919)
- MacDONALD v. The Penn Mut. Life Ins. Co., 276 So. 2d 232 (Fla. 2d DCA 1973)
- Fla. Outdoor, Inc. v. Stewart, 318 So. 2d 414 (Fla. 2d DCA 1975)
- Proffitt v. Proffitt, 372 So. 2d 954 (Fla. 1st DCA 1979)
- Kennedy & ELY Ins., Inc. v. Am. Emp'rs' Ins. Co., 179 So. 2d 248 (Fla. 3d DCA 1965)
- Belcher v. Imp. Cars, Ltd., Inc., 246 So. 2d 584 (Fla. 3d DCA 1971)
- Imp. Cars, Ltd., Inc. v. Belcher, 252 So. 2d 801 (Fla. 1971)
- Sellers v. State, 252 So. 2d 801 (Fla. 1971)