LOUIE'S OYSTER, INC., APPELLANT,
v.
VILLAGGIO DI LAS OLAS, INC., APPELLEE
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In this third appeal of a commercial lease dispute, the Fourth District Court of Appeal reversed summary judgment against the tenant Louie's Oyster, holding that the landlord's breach of the lease had already been established in prior litigation, and that material factual disputes regarding the amount of damages precluded summary judgment.
The trial court erred in striking the affidavits and damage summaries. The witness affidavits do not contradict their deposition testimony. When viewed in the light most favorable to the tenant, the evidence constitutes sufficient proof of damages as a matter of law. Because the landlord's breach was established in prior litigation, the exact dollar amount of damages constitutes a material factual dispute that precludes summary judgment.
[1] A tenant may seek damages by alternate theories of recovery so long as the judgment does not result in a double recovery for the same wrong.
[2] Lost profits are recoverable if established with reasonable certainty.
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“Viewed in the light most favorable to Louie's, the depositions and affidavits proffered by Louie's constituted sufficient evidence of damages to support its claim as a matter of law. If lost profits can be established with reasonable certainty, they are allowed.”
Establishes the evidentiary standard for damages on summary judgment and confirms that lost profits are recoverable if proven with reasonable certainty.
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Join FLexlaw to unlock all legal intelligenceVillaggio Di Las Olas, the landlord, denied Louie's Oyster access to certain portions of the leased premises. In prior proceedings (Louie I and Louie …
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BROWN, LUCY CHERNOW, Associate Judge.
For the third time, this commercial lease dispute finds its way to this Court. In Villaggio Di Las Olas, Inc. v. Louie’s Oyster, Inc., 842 So. 2d 127 (Fla. 4th DCA 2003) (“Louie I”), this Court affirmed a declaratory judgment in favor of the tenant, Louie’s Oyster, Inc. (“Louie’s”), finding that the landlord, Villaggio Di Las Olas, Inc. (“Villaggio”), had denied Louie’s access to certain portions of the leased premises.
In Villagio Di Las Olas, Inc. v. Louie’s Oyster, Inc., 856 So. 2d 1009 (Fla. 4th DCA 2003) (“Louie II”), this Court affirmed the trial court’s finding that no fraud had been committed by Louie’s in connection with the declaratory judgment affirmed in Louie I. Pursuant to section 86.061, Florida Statutes, Louie’s then sought damages to recover the money it lost as a result of the landlord’s denial of access to the full leasehold premises. Louie’s sought loss of use and loss of profits damages which it alleged were caused by Villaggio’s breach.
The parties proceeded with pretrial discovery. Villaggio then filed its Motion for Summary Judgment, and moved the Court to strike the affidavits filed by two of Louie’s witnesses, Karmin and Woltin, and to strike Louie’s damage calculation summaries. The trial judge granted the motions, struck the affidavits and summaries, and entered summary judgment in favor of Villaggio. Louie’s now appeals these orders.
We find that the trial court erred in striking the affidavits and damage summaries. Contrary to the trial court’s finding, the witness’ affidavits do not contradict the deposition testimony of the witnesses. Viewed in the light most favorable to Louie’s, the depositions and affidavits proffered by Louie’s constituted sufficient evidence of damages to support its claim as a matter of law. If lost profits can be established with reasonable certainty, they are allowed. Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., Inc., 415 So. 2d 865, 867 (Fla. 1st DCA 1982).
We reverse the summary judgment because there is a clear material issue of disputed fact. Villaggio’s breach of the lease was established by Louie I as the law of this case. Consequently, the exact dollar amount necessary to compensate Louie’s for any damages caused by the breach now constitutes a material factual dispute which precludes summary judgment.
Villaggio’s argument that its tenant should not be allowed to claim damages on two different theories lacks merit. We find the tenant is entitled to seek damages by alternate theories so long as the judgment does not result in a double recovery for the same wrong. Kelsey v. Pewthers, 685 So. 2d 953, 956 (Fla. 4th DCA 1997).
Reversed and remanded.
Reversed.
FARMER, C.J. and STEVENSON, J., concur.
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4 Corners Ins., Inc. v. SUN Publ'ns OF Fla., Inc., 5 So. 3d 780 (Fla. 2d DCA 2009)…4 Corners had not alleged a reasonable basis for these damages. Damages for lost profits are allowable for a breach of a lease agreement as long as they are established with reasonable certainty. Louie’s Oyster, Inc. v. Villaggio Di Las Olas, Inc., 902 So. 2d 901, 902 (Fla. 4th DCA 2005); see also U.S. Home Corp. v. Suncoast Utils., Inc., 454 So. 2d 601, 605 (Fla. 2d DCA 1984) (“Damages for lost profits must be reasonably certain and established by competent proof.”). However, a trial judge is not precluded…
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Diblasio v. Progressive Express Ins. (15th Cir. Ct. App. Div. 2004)…7. Rodriguez made clear that even when a claim reaches "overdue" status, the defense still remains. Therefore, Dr. Zeide's affidavit and Peer Review are not statutorily time-barred. Conflict In Louie's Oyster, Inc. v. Villaggio Di Las Olas, Inc., 902 So. 2d 901 (Fla. 4Ih DCA 2005), the trial court was found to be in error when it struck two witness affidavits. The Appellate Court held that the affidavits did not contradict the deposition testimony of the I witnesses, but rather, when viewed in the light mo…
Authorities Cited
- Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., Inc., 415 So. 2d 865 (Fla. 1st DCA 1982)
- Florraine W. Kelsey v. Pewthers, 685 So. 2d 953 (Fla. 4th DCA 1996)