NORTH DADE COMMUNITY DEVELOPMENT CORP., APPELLANT,
v.
DINNER'S PLACE, INC., APPELLEE
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A lessor appealed a judgment awarding its lessee damages for conversion and breach of contract. The court affirmed the $6,000 conversion award but reversed the $27,800 lost profits award, finding the lessee failed to provide competent evidence of losses based on a mere one-page business prospectus.
The court affirmed the $6,000 conversion award but reversed the $27,800 lost profits award. While Florida law does not require an established business track record to recover lost profits, the lessee failed to provide competent evidence satisfying the required 'yardstick' standard, as the one-page prospectus was insufficient speculation unsupported by credible proof.
[1] Lost profits are recoverable if there is a "yardstick" by which prospective profits can be measured and proven with competent evidence.
[2] An award of lost profits cannot be based on mere speculation or conjecture.
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Join FLexlaw to unlock all legal intelligence“if there is a "yardstick" by which prospective profits can be measured, they will be allowed if proven”
Establishes the standard for recovery of lost profits in Florida, which does not require an established business but does require a measurable benchmark.
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Join FLexlaw to unlock all legal intelligenceNorth Dade Community Development Corporation leased property to Dinner's Place, Inc. A dispute arose regarding conversion and breach of contract. The …
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PER CURIAM.
North Dade Community Development Corporation, a lessor, appeals a final judgment ordering that it pay damages to Dinner’s Place, Inc., its lessee, for conversion and breach of contract. We affirm as to the $6,000 awarded on the conversion claim, however we reverse as to the $27,800 awarded on the claim of lost profits on the breach of contract claim.
To support its assertion of error as to the award of lost profits, appellant relies on Forest’s Mens Shop v. Schmidt, 536 So. 2d 334, 336 (Fla. 4th DCA 1988), wherein the Fourth District observed that in order to recover lost profits, there must be an ongoing business with an established sales record and proven ability to realize profits at an established rate. However, in W.W. Gay Mechanical Contractor, Inc. v. Wharfside Two, Ltd., 545 So. 2d 1348, 1351 (Fla.1989), the Supreme Court considered such a limitation to recovery and rejected it, explaining:
The two seminal Florida cases on recovery of prospective profits are Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936), and New Amsterdam Casualty Co. v. Utility Battery Manufacturing Co., 122 Fla. 718, 166 So. 856 (1935). In New Amsterdam this Court held that prospective business profits are generally too speculative and dependent on changing circumstances to be recovered. New Amsterdam provided an exception allowing the plaintiff to show the amount of his loss by competent proof.
However, this exception only applied to the interruption of an established business. Twyman, on the other hand, did not limit recovery to established businesses. There, the Court stated that, if there is a “yardstick” by which prospective profits can be measured, they will be allowed if proven. 123 Fla. at 6, 166 So. at 217.... We follow the holding in Twyman.
Thus, we do not agree with lessor that a “track record” was imperative to recovery of lost profits. We do, however, find that the only evidence supporting the award of future profits in the instant case, the business prospectus created by the lessee, fell woefully short of the reasonable “yardstick” required under Wharfside. Here, the one page of projected earnings in the prospectus was little more than an unsupported wish list of what the lessee hoped would occur in the coming years.
Therefore, lessee simply failed to provide competent evidence sufficient to satisfy the mind of a prudent, impartial person as to the amount of profits lost as a result of the lessor’s breach. See Sharick v. S.E. Univ. of Health Sci., Inc., 780 So. 2d 136 (Fla. 3d DCA 2000); R.A. Jones & Sons, Inc. v. Holman, 470 So. 2d 60 (Fla. 3d DCA 1985). An award of lost profits cannot be based on mere speculation or conjecture. See Sampley Enterprises, Inc. v. Laurilla, 404 So. 2d 841 (Fla. 5th DCA 1981); Moñ v. Matsushita Electric Corp. of America, 380 So. 2d 461 (Fla. 3d DCA 1980).
Accordingly, we reverse the award of lost profits, the balance of the order is affirmed.
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Sostchin v. Doll Enters., Inc., 847 So. 2d 1123 (Fla. 3d DCA 2003)…ver for lost profits, King Shoes must “provide competent evidence sufficient to satisfy the mind of a prudent impartial person as to the amount of profits lost as a result” of the fire. North Dade Community Development Corp. v. Dinner’s Place, Inc., 827 So. 2d 352 (Fla. 3d DCA 2002). Any “yardstick” used to show the amount of profits must be reasonable, and the loss of the profits as a result of the fire must be reasonably certain. Halliburton Co. v. Eastern Cement Corp., 672 So. 2d 844 (Fla. 4th DCA 1996). L…
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Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So. 2d 43 (Fla. 3d DCA 2006)…5 (Fla. 2d DCA 2004)(concluding that a plaintiffs proof of claimed business damages were inadequate to support the jury’s business damage award because it was “far too speculative and uncertain”); North Dade Cmty. Dev. Corp. v. Dinner’s Place, Inc., 827 So. 2d 352, 353 (Fla. 3d DCA 2002)(reversing an award of future profits when the only evidence supporting the award was a page of projected earnings in a business prospectus that was “little more than an unsupported wish list of what the lessee hoped would occ…
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Fla. Sunrise, Ltd. v. Tri-M Invs. OF S. Fla., Inc., 942 So. 2d 421 (Fla. 4th DCA 2006)…l fortune hanging from a thin thread of ‘what-ifs’ — buoyed by the buyer’s after-the-fact testimonial conviction that success and profits would surely have been there for the taking.” Id. In North Dade Community Development Coyp. v. Dinner’s Place, 827 So. 2d 352, 353 (Fla. 3d DCA 2002), the court found lost profits too speculative when “the one page of projected earnings in the prospectus was little more than an unsupported wish list of what the lessee hoped would occur in the coming years.” The court found…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Twyman v. Gus Roell, 123 Fla. 2 (Fla. 1936)
- New Amsterdam Cas. Co. & C. E. Yocam v. Util. Battery Mfg. Co., 122 Fla. 718 (Fla. 1935)
- W.W. GAY Mech. Contractor, Inc. v. Wharfside TWO, Ltd., 545 So. 2d 1348 (Fla. 1989)
- R.A. Jones & Sons, Inc. v. Holman, 470 So. 2d 60 (Fla. 3d DCA 1985)
- Lippman v. Longergan, 380 So. 2d 461 (Fla. 1st DCA 1980)
- Sampley Enters., Inc. v. Laurilla, 404 So. 2d 841 (Fla. 5th DCA 1981)
- Forest's Mens Shop and Ladies Den of Stuart v. Schmidt, 536 So. 2d 334 (Fla. 4th DCA 1988)
- Sharick v. Se. Univ. OF THE Health Scis., Inc., 780 So. 2d 136 (Fla. 3d DCA 2000)
- Knowles v. State, 780 So. 2d 136 (Fla. 4th DCA 2000)