ABE SCHONFELD, APPELLANT,
v.
ALBERT ALBERT & SONS, LTD., A FOREIGN CORPORATION, APPELLEE

Fla. 3d DCA | 1983-02-22
No. 82-1034
Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
427 So. 2d 1035 Florida District Court of Appeal, Third District (1983) Caution
Cited by 5 cases

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Synopsis

Schonfeld appeals a jury verdict awarding the plaintiff Albert Alpert & Sons $476,097 in damages for fraud and breach of contract related to an option to purchase a building that was condemned. The court reversed the $440,000 lost profits award, holding it was based on speculative testimony about HUD approval rather than reasonable certainty.


Holding

The court held that Alpert & Sons failed to prove lost profits with reasonable certainty and reversed the $440,000 award. The opinion affirmed all other portions of the judgment. The court determined that the principal's opinion about HUD approval amounted to mere speculation and conjecture, particularly given that roughly half of the company's prior HUD applications in other locations had been denied and the company had never applied at the Jacksonville office where this application was filed.


Headnotes

[1] Lost profits must be proven with reasonable certainty and competent proof.

[2] Testimony regarding lost profits based on speculative or conjectural opinions is insufficient to support an award.

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Key Quotes

“Damages for an anticipated loss of profits must be shown to a reasonable certainty by competent proof.”

Establishes the legal standard that lost profits damages require proof to reasonable certainty, not speculation

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Facts & Procedural History

Albert Alpert & Sons paid Schonfeld for an option to purchase a distressed building intended for rehabilitation under a HUD-subsidized program. Before…

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Opinion of the Court
NESBITT, Judge.

NESBITT, Judge.

Abe Schonfeld appeals a final judgment entered after jury verdict awarding $476,-097 to Albert Alpert & Sons, the plaintiff below. We reverse the portion of the award designated as lost profits upon a holding that it was supported only by speculative and conjectural testimony.

Albert Alpert & Sons is in the business of rehabilitating real property and improvements pursuant to a program subsidized by the federal Department of Housing and Urban Development (HUD). The Alpert company paid Schonfeld for an option to purchase a distressed building. The building became the subject of a rehabilitation plan and application submitted to HUD for acceptance into its program. Before the option could be exercised, the building was demolished by the City of Miami in accordance with a ruling of the Unsafe Structures Board. Alpert & Sons sued Schonfeld for his fraud in concealing the pendency of condemnation proceedings and for his breach of the option contract in allowing the subject matter of the option to be destroyed.

At trial, Alpert & Sons attempted to demonstrate its lost profits through the testimony of one of its principals. Over objection, Stewart Alpert testified that, in his opinion, HUD would have accepted the company’s proposal. He based this opinion on his company’s track record, his knowledge of applicable HUD guidelines, the sal-ability of the project, and the approval of Dade County and the City of Miami. Stewart Alpert was also permitted to testify as to a method of calculating the profit that would have been realized assuming HUD approval. Additionally, an expert testified that, based on a mortgage figure provided by Alpert, the profit on the proposal would be in the neighborhood of $440,000. This is precisely the amount the jury awarded as lost profits.

Alpert & Sons does not dispute that, absent HUD approval, the lost profits configurations of these two witnesses are meaningless. It contends, however, that Stewart Alpert’s opinion asserting the imminence of such approval was grounded in reasonable certainty. We disagree. Although Alpert & Sons had performed several rehabilitations through the HUD program, it had never applied at the Jacksonville office, where the subject application was filed. More importantly, about half of its applications in the other geographic locations had been denied. Even ignoring his obvious interest in the outcome of the suit, Stewart Alpert was not in a position to predict how HUD officials would exercise their discretion with regard to his company’s latest application. His attempt to do so amounted to mere conjecture, for which there is no place in our courts. See Drackett Products Co. v. Blue, 152 So. 2d 463 (Fla.1963). Damages for an anticipated loss of profits must be shown to a reasonable certainty by competent proof. Florida Outdoor, Inc. v. Stewart, 318 So. 2d 414, 415 (Fla. 2d DCA 1975), cert, denied, 333 So. 2d 465 (Fla.1976). Albert Alpert & Sons failed in this respect and was not entitled to lost profits damages.

The judgment appealed from is reversed with directions to delete the $440,000 award for lost profits. In all other respects, the judgment is affirmed.

Affirmed in part; reversed in part, with directions.


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Citator

Cited By

  • Sostchin v. Doll Enters., Inc., 847 So. 2d 1123 (Fla. 3d DCA 2003)
    …Lost profits must be established with a reasonable degree of certainty and must be a natural consequence of the wrong. Brevard County Fair Ass’n, Inc. v. Cocoa Expo, Inc., 832 So. 2d 147 (Fla. 5th DCA 2002); Schonfeld v. Albert Alpert & Sons, Ltd., 427 So. 2d 1035 (Fla. 3d DCA 1983); Beverage Canners v. Cott Corp., 372 So. 2d 954 (Fla. 3d DCA 1979). Such an award cannot be based upon speculation or conjecture. Stensby v. Effjohn Oy Ab, 806 So. 2d 542 (Fla. 3d DCA 2001); Shadow Lakes, Inc. v. Cudlipp Const. an…
  • Doran Jason Co. v. Braddon, 497 So. 2d 286 (Fla. 3d DCA 1986)
    …n Jason. This reasoning was the only foundation on which the jury could have based its assessment of damages. It is clear that the basis for the jury’s award of the maximum figure-was fatally speculative. See Schonfeld v. Albert Alpert & Sons, Ltd., 427 So. 2d 1035 (Fla. 3d DCA 1983) (award of lost profits to prospective purchaser of property was improper where it was supported only by speculative testimony regarding anticipated amounts that would have been realized if the Department of Housing and Urban Devel…

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