LOUIS APONTE AND ISABEL APONTE, APPELLANTS/CROSS-APPELLEES,
v.
EXOTIC POOLS, INC., APPELLEE/CROSS-APPELLANT
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The Apontes sued Exotic Pools for breach of contract after the pool deck constructed at their home failed to drain properly. The trial court awarded $9,000 in damages, but the appellate court reversed because this amount had no evidentiary support, as the evidence presented only two damage figures: $38,245 for complete deck replacement or $1,500 for a commercial trench drain.
The court reversed and remanded because the trial court's award of $9,000 had no reasonable basis in the evidence presented. The proper measure of damages is either the reasonable cost of correcting the defect (potentially $38,245 for deck replacement) or, if that would constitute economic waste, the difference in value between the contracted-for item and what was actually received (potentially $1,500 for the trench drain solution), but the trial court must decide which standard applies based on the evidence.
[1] The measure of damages for defective contract performance is the reasonable cost of making the work conform to the contract, unless conformity would involve unreasonable…
[2] An award of damages must be supported by a reasonable basis in the evidence.
Previewing 2 of 4 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“Where the performance of a contract is defective, the measure of damages is the reasonable cost of making the performed work conform to the contract.”
Establishes the primary rule for calculating damages in breach of contract cases involving defective performance.
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Join FLexlaw to unlock all legal intelligenceExotic Pools contracted to construct a pool, pool deck, and screened enclosure for $44,570, with the deck tied into an existing deck using simulated s…
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PER CURIAM.
Both parties appeal from the trial court’s award of damages to the Apontes for Exotic Pools’ breach of contract. We reverse because there is no reasonable basis in the evidence to support the trial court’s award of $9,000.00.
The Apontes contracted to pay Exotic Pools $44,570.00 for the construction of a pool, pool deck, and screened-in enclosure at the Apontes’ home. Exotic Pools was to tie the pool deck into an existing deck by covering the existing deck and the pool deck with a simulated stone covering to make the two decks appear uniform. The Apontes filed suit against Exotic Pools for breach of contract following completion of the construction because the deck did not drain properly. After a bench trial, the court concluded that Exotic Pools breached the contract; the parties do not contest this finding as to liability on appeal.
Exotic Pools presented an expert who testified that a commercial trench drain would cost $1,500.00 and would drain a substantial amount of water from the deck; however, he admitted that his solution was based on the assumption that water would flow towards the drain, and further admitted that pools of water would form on the deck if water got into the improperly-sloped area. The Apontes presented expert testimony that the deck had to be replaced at a cost of $38,-245.00 and that the commercial trench drain would not solve the drainage problem. The court awarded the Apontes $9,000.00.
Where the performance of a contract is defective, the measure of damages is the reasonable cost of making the performed work conform to the contract. Lockhart v. Worsham, 508 So. 2d 411 (Fla. 1st DCA 1987). This maxim is subject to the exception that, where construction in accordance with the contract would involve unreasonable economic waste, the measure of damages for defective construction is the difference between the value of the item contracted for and the value of the performance received. Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla.1982).
The evidence must support an award for damages. John Hancock Mutual Life Ins. Co. v. Mark-A, Inc., 324 So. 2d 674 (Fla. 2d DCA 1975). This is not a case where there is some reasonable basis in the evidence for the amount awarded, even though the damages could not be precisely and mathematically determined. E.g., Clear-water Assocs. v. Hicks Laundry Equip. Corp., 433 So. 2d 7 (Fla. 2d DCA 1983); Conner v. Atlas Aircraft Corp., 310 So. 2d 352 (Fla. 3d DCA 1975). Rather, the testimony here provided that the damages were either $38,245.00 or $1,500.00. The difference between the figures lies in the plaintiffs’ view that they are entitled to construction which conforms to the contract, and the defendant’s view that the plaintiffs’ method of cure would amount to economic waste. By its ruling, the trial court appears not to have decided that crucial question.
There is no reasonable basis in the evidence for the trial court’s award of $9,000.00. We therefore reverse for the trial court to make an award based on the evidence presented.
Reversed and remanded.
WARNER, KLEIN and SHAHOOD, JJ., concur.
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Michael David Ivey, Inc. v. Salazar, 903 So. 2d 329 (Fla. 5th DCA 2005)…Ivey’s contention that Albright used an improper measure of damages. Where the performance of a contract is defective, the measure of damages is the reasonable cost of making the performed work conform to the contract. Aponte v. Exotic Pools, Inc., 699 So. 2d 796 (Fla. 4th DCA 1997). Albright testified that it would cost approximately $50,000 to cure the defects in the Salazars’ home, and the trial court accordingly awarded $50,000. Next, Ivey argues that that he is entitled to costs pursuant to section 57.…
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Authorities Cited
- Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982)
- Conner v. Atlas Aircraft Corp., 310 So. 2d 352 (Fla. 3d DCA 1975)
- Clearwater Assocs. v. Hicks Laundry Equip. Corp., 433 So. 2d 7 (Fla. 2d DCA 1983)
- John Hancock Mut. Life Ins. Co. v. Mark-A, Inc., 324 So. 2d 674 (Fla. 2d DCA 1975)
- Lockhart v. Worsham, 508 So. 2d 411 (Fla. 1st DCA 1987)