NICO INDUSTRIES, INC. AND GENERAL INSURANCE COMPANY OF AMERICA, APPELLANTS,
v.
STEEL FORM CONTRACTORS, INC., APPELLEE
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A general contractor and bonding company appealed a damages judgment entered in favor of a subcontractor for breach of a partially performed construction contract. The appellate court reversed, holding that the subcontractor failed to present competent evidence of damages using the proper legal standards.
The court held that the subcontractor failed to present competent evidence of damages. Percentage of completion is not competent evidence to prove damages for breach of a partially performed construction contract. The engineer's opinion regarding market value of only a portion of the work, without deduction for proper back charges, was insufficient. Therefore, judgment should be entered for the defendants.
[1] The measure of damages for breach of a partially performed construction contract is either quantum meruit or the contractor's lost profit together with the reasonable cos…
[2] Percentage of completion is not competent evidence to prove damages for breach of a partially performed construction contract.
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Join FLexlaw to unlock all legal intelligence“either quantum meruit or the contractor's lost profit together with the reasonable cost of labor and materials incurred in good faith in the course of partial performance of the contract”
Establishes the proper legal standard for measuring damages in partially performed construction contracts
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Join FLexlaw to unlock all legal intelligenceThe subcontractor performed work on a construction project under contract with the general contractor. The general contractor breached the contract, l…
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KLEIN, Judge.
Appellants, a general contractor and its bonding company, appeal a final judgment for damages entered in favor of a subcontractor for work performed on a construction project. They argue that the sub did not present the kind of evidence necessary to recover damages for breach of a partially performed construction contract. We agree and reverse.1
The sub acknowledges that the measure of damages for breach of a partially performed construction contract is, “either quantum me-ruit or the contractor’s lost profit together with the reasonable cost of labor and materials incurred in good faith in the course of partial performance of the contract.” Brooks v. Holsombach, 525 So. 2d 910, 911 (Fla. 4th DCA1988). See also, Marshall Construction, Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So. 2d 845 (Fla. 1st DCA1990).
The sub presented the testimony of two of its officers; however, their testimony was based on the percentage of work completed. Percentage of completion is not competent evidence to prove damages for breach of a partially performed construction contract. First Atlantic Building Corp. v. Neubauer Construction Co., 352 So. 2d 103 (Fla. 4th DCA1977). The sub also relies on an exhibit which is a payment application form prepared by the contractor in order to re- eeive payment from the owner. This exhibit suffers from the same deficiency as the testimony of the officers because it is also based on percentage of completion.
The sub also argues that a deposition of an engineer supplies the proof; however, the engineer gave his opinion in response to being asked the “market value of that product.” Moreover, his opinion only related to a portion of the work performed and did not include a deduction for items which he admitted were proper back charges. Nor did the court utilize the opinion of the expert in calculating the sub’s recovery. As the sub recognizes, the court arrived at the amount due the sub by subtracting the cost to complete incomplete work from the contract price.
We therefore conclude that, there having been no proof of either quantum meruit or the reasonable cost of labor and materials plus lost profit, judgment should be entered for defendants.
Reversed.
ANSTEAD and HERSEY, JJ., concur. . We consolidate the appeals from the orders awarding attorney's fees and costs and reverse those also.
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Teca, Inc. v. Wm-Tab, Inc., 726 So. 2d 828 (Fla. 4th DCA 1999)…, J., dissenting. I have no disagreement with the en banc majority’s determination to recede from Strickland v. Muir, 198 So. 2d 49 (Fla. 4th DCA 1967) in favor of our more recent opinion in Nico Industries, Inc. v. Steel Form Contractors, Inc., 625 So. 2d 1252 (Fla. 4th DCA 1993). I dissent because I believe it is improper to do so in this case. I believe a reversal is unwarranted because this case was not pled, proven, or decided on a fraudulent misrepresentation theory. Appellee’s cause of action (and a…1 / 2
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Levitt-Ansca Towne Park P'ship v. Smith & Co., Inc., 873 So. 2d 392 (Fla. 4th DCA 2004)…the reasonable cost of labor and materials incurred in good faith in the course of partial performance of the contract.” Teca, Inc. v. WM-TAB, Inc., 726 So. 2d 828, 830 (Fla. 4th DCA 1999) (quoting Nico Indus., Inc. v. Steel Form Contractors, Inc., 625 So. 2d 1252, 1252 (Fla. 4th DCA 1993). See also Frenz Enters., Inc. v. Port Everglades, 746 So. 2d 498 (Fla. 4th DCA 1999) (discussing burden of proof for lost profits). See also Sampley Enters., Inc. v. Laurilla, 404 So. 2d 841 (Fla. 5th DCA 1981)) (reversing…1 / 2
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Levy v. Eliahu Ben-Shmuel, 255 So. 3d 493 (Fla. 3d DCA 2018)…he Fourth District then addressed the appropriate remedy on remand. In doing so, it recognized the conflict between its earlier decisions in Strickland v. Muir, 198 So. 2d 49 (Fla. 4th DCA 1967) and Nico Indus., Inc. v. Steel Form Contractors, Inc., 625 So. 2d 1252 (Fla. 4th DCA 1993). In Strickland, the Fourth District, upon determining that plaintiff had failed to prove its damages at trial, reversed and remanded for a new trial. Twenty-five years later, in Nico, the Fourth District held that a plaintiff's…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- First Atl. Bldg. Corp. v. Neubauer Constr. Co., 352 So. 2d 103 (Fla. 4th DCA 1977)
- Marshall Constr., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So. 2d 845 (Fla. 1st DCA 1990)
- Irwin Stanley Brooks v. Dick Holsombach, 525 So. 2d 910 (Fla. 4th DCA 1988)