HANK WILLIAMS, JR., ETC., APPELLANT,
v.
ROBERT HARDY, ETC., APPELLEE
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Hank Williams, Jr. breached a contract to perform at an outdoor concert, and the trial court awarded the promoter $98,606 in damages. The appellate court affirmed the judgment, rejecting Williams's arguments that an arbitration clause should have been enforced and that damages were speculative.
The court affirmed the judgment, holding that Williams waived his Federal Arbitration Act argument by raising it for the first time on appeal, the fictitious name statute defense was properly denied as untimely, and the damages award was supported by sufficient evidence and expert testimony establishing that the damages were not speculative.
[1] A contractual provision for arbitration in a foreign jurisdiction, governed by foreign law, is not subject to Florida's arbitration statute.
[2] Arguments based on the Federal Arbitration Act, raised for the first time on appeal, are waived.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“appellant having presented his case to a jury could, upon losing, obtain a reversal on appeal and again present it to an arbitrator”
Establishes the court's rationale for rejecting arguments raised for the first time on appeal—to prevent gamesmanship by parties who lose before a jury and then seek arbitration.
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Join FLexlaw to unlock all legal intelligenceHank Williams, Jr. entered into a contract with concert promoter Robert Hardy to perform at an outdoor concert. The contract contained an arbitration …
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COWART, Judge.
We affirm a final judgment based on a jury verdict awarding $98,606 in damages in favor of appellee, a concert promoter, against appellant, Hank Williams, Jr., who breached a contract to perform at an outdoor concert.
The contract in question contained a provision for arbitration in New York according to New York law. Generally, arbitration provisions are validated by section 682.02, Florida Statutes, but this statute does not apply “to such agreement or provision to arbitrate in which it is stipulated that this law shall not apply or to any arbitration or award thereunder.” See Damora v. Stresscon International, Inc., 324 So. 2d 80 (Fla.1975); Donmoor, Inc. v. Sturtevant, 449 So. 2d 869 (Fla. 5th DCA 1984); Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 405 So. 2d 790 (Fla. 4th DCA 1981); Knight v. H.S. Equities, Inc., 280 So. 2d 456 (Fla. 4th DCA 1973).
Appellant’s argument that the Federal Arbitration Act, 9 U.S.C. §§ 1-14 (1976), applies and pre-empts state law, made for the first time before this court on appeal, comes too late as that legal issue was not presented to the trial court and must now be considered to have been waived; otherwise appellant having presented his case to a jury could, upon losing,, obtain a reversal on appeal and again present it to an arbitrator. Likewise, appellant’s assertion on the day before trial that appellee had failed to comply with the fictitious name statute, section 865.09, Florida Statutes, came too late and was properly denied, see Jackson v. Jones, 423 So. 2d 972 (Fla. 4th DCA 1982), review denied, 436 So. 2d 99 (Fla.1983), and Cor-Gal Builders Inc. v. Southard, 136 So. 2d 244 (Fla. 3d DCA 1962).
The evidence as to damages in this case is sufficient as against the argument that damages were purely speculative. The promoter sold 5,928 “advance tickets” at $8.50 each ($50,388) and incurred promotional expenses of $31,356.69. An expert witness with special knowledge of the business of producing and promoting outdoor country music festivals, testified that under the circumstances of this case it would be a conservative estimate, and reasonable to expect, that gate ticket sales would be double the number of advance ticket sales. This testimony supported the jury’s verdict. As to speculative damages generally, see Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936).
AFFIRMED.
DAUKSCH and SHARP, JJ„ concur.
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Pilot Catastrophe Servs., Inc. v. Fouche, 145 So. 3d 151 (Fla. 5th DCA 2014)…a threshold procedural matter, the Federal Arbitration Act (FAA)5 applies to agreements evidencing a transaction involving interstate commerce. See Acton CATV, Inc. v. Wildwood Partners, Ltd., 508 So. 2d 1274 (Fla. 5th DCA 1987); Williams v. Hardy, 468 So. 2d 429 (Fla. 5th DCA 1985); Donmoor, Inc. v. Sturtevant, 449 So. 2d 869, 870 (Fla. 5th DCA 1984). A contract between a Florida resident and a foreign corporation is an agreement evidencing a transaction involving interstate commerce. See Gilman & Ciocia, I…
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Carnival Cruise Lines, Inc. v. Chery, 567 So. 2d 40 (Fla. 3d DCA 1990)…. 1048, 109 S.Ct. 1304, 103 L.Ed.2d 574 (1989); Royal Netherlands, S.S. v. Quinto de Garcia, 489 So. 2d 128 (Fla. 3d DCA), rev. denied, 496 So. 2d 143 (Fla.1986), cert. denied, 479 U.S. 1090, 107 S.Ct. 1299, 94 L.Ed.2d 155 (1987); Williams v. Hardy, 468 So. 2d 429 (Fla. 5th DCA 1985).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Twyman v. Gus Roell, 123 Fla. 2 (Fla. 1936)
- Damora v. Stresscon Int'l, Inc., 324 So. 2d 80 (Fla. 1975)
- Valencia Drumgo v. Fla. Dep't OF Commerce, 280 So. 2d 456 (Fla. 1st DCA 1973)
- Ivey v. State, 405 So. 2d 790 (Fla. 4th DCA 1981)
- State v. Augusto Salazar, 405 So. 2d 790 (Fla. 4th DCA 1981)
- Cor-Gal Builders, Inc. v. Scotty Southard, 136 So. 2d 244 (Fla. 3d DCA 1962)
- Donmoor, Inc. v. Sturtevant, 449 So. 2d 869 (Fla. 5th DCA 1984)
- Jackson v. Jones, 423 So. 2d 972 (Fla. 4th DCA 1982)