GREATER CORAL SPRINGS REALTY, INC., A FLORIDA CORPORATION, APPELLANT,
v.
CENTURY 21 REAL ESTATE OF SOUTHERN FLORIDA, INC., A FLORIDA CORPORATION, APPELLEE
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Greater Coral Springs Realty sought damages for breach of contract and fraud after Century 21 failed to grant it a second franchise in Coral Springs despite assurances from a Century 21 employee. The trial court found no breach of contract but awarded nominal and punitive damages for fraud, denying the claim for lost profits. The appellate court affirmed, holding that lost profits cannot be recovered in a tort action when no enforceable contract exists.
The trial court did not err in denying lost profits damages. Because no enforceable contract was found to exist, appellant was limited to tort remedies for fraud, which seek to restore the victim to the position he would have occupied had the wrong not been committed, not to award the benefit of the bargain. Therefore, lost profits—equivalent to contract performance—were not warranted under these facts.
[1] A party may not recover contract damages, such as lost profits, in a tort action.
[2] In tort actions, the measure of damages seeks to restore the victim to the position they would have been in had the wrong not been committed.
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Join FLexlaw to unlock all legal intelligence“In tort actions, the measure of damages seeks to restore the victim to the position he would be in had the wrong not been committed. In actions for breach of contract, the aim is not the mere restoration to a former position as in tort, but is the awarding of a sum which is equivalent to the performance of the bargain.”
Establishes the fundamental distinction between tort and contract damages, explaining why lost profits cannot be recovered in a fraud tort action when no contract exists.
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Join FLexlaw to unlock all legal intelligenceGreater Coral Springs Realty, holder of a Century 21 franchise, discussed acquiring a second franchise in Coral Springs with Century 21 employee Sam B…
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HENDRY, Judge.
This appeal is from a final judgment which awarded appellant, Greater Coral Springs Realty, Inc., nominal and punitive damages, and denied its claim for lost profits.
Appellant, holder of .a Century 21 franchise, discussed the possibility of acquiring a second franchise in the Coral Springs area with a Century 21 employee, Sam Bruneo. Mr. Bruneo gave assurances that the next available franchise would be granted to appellant along with an exclusive in the Coral Springs area. Based upon this representation, appellant’s vice president made a deposit of two thousand dollars to reserve the franchise. Subsequently, Century 21 refunded appellant’s money and granted franchises in Coral Springs to other brokers.
Appellant filed a complaint seeking specific performance, injunctive relief and damages for breach of contract, and damages for fraud and deceit. Century 21 entered general denials and asserted the statute of frauds as a defense to the contract action. After a non-jury trial, the court found no evidence to support appellant’s claim for breach of contract, and dismissed all counts of the complaint except count IV, predicated on fraud and deceit. The final judgment awarded appellant one thousand dollars nominal damages, and fourteen thousand dollars punitive damages on the fraud claim.
The sole issue raised by this appeal1 is whether the trial court erred in failing to award appellant compensatory damages in the form of lost profits on the fraud claim. Under the circumstances of this case, we find no error in the measure of damages and affirm the judgment below.
The court’s finding that insufficient evidence was introduced to sustain the contract claim has not been challenged on appeal. Failure to establish the contract limited appellant to tort remedies for the fraud and precluded recovery of the “benefit of the bargain”:
In tort actions, the measure of damages seeks to restore the victim to the position he would be in had the wrong not been committed. In actions for breach of contract, the aim is not the mere restoration to a former position as in tort, but is the awarding of a sum which is equivalent to the performance of the bargain; the attempt is to place the plaintiff in the position he would be in if the contract had been fulfilled. McCormick, Damages, § 317, pp. 560-561 (1935).
Ashland Oil, Inc. v. Pickard, 269 So. 2d 714, 723 (Fla. 3d DCA 1972). A party may not recover contract damages in a tort action. Thus, an award of lost profits, the equivalent of the performance of the bargain, was clearly not warranted under the facts of this case since the parties never reached an agreement. Based, however, on the wrongful conduct of Century 21’s employee in accepting a deposit from appellant and then selling the next available franchise to another broker, the court properly awarded nominal and punitive damages. Lassitter v. International Union of Operating Engineers, 349 So. 2d 622 (Fla.1976); Food Fair, Inc. v. Anderson, 382 So. 2d 150 (Fla. 5th DCA 1980); American Motorcycle Institute, Inc. v. Mitchell, 380 So. 2d 452 (Fla. 5th DCA 1980). Accordingly, the judgment below is Affirmed.
. Appellee Century 21 has not cross-appealed from the damage award.
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AFM Corp. v. S. Bell Tel. & Tel. Co., 515 So. 2d 180 (Fla. 1987)…for economic losses against various service entities based on an underlying contract. See Sprayberry v. Sheffield Auto and Truck Service, Inc., 422 So. 2d 1073 (Fla. 1st DCA 1982); Greater Coral Springs Realty, Inc. v. Century 21 Real Estate, Inc., 412 So. 2d 940 (Fla. 3d DCA 1982). In First American Title Insurance Co. v. First Title Service Co., 457 So. 2d 467 (Fla.1984), we addressed a claim against an abstract company for the alleged negligent preparation of an abstract. Although the plaintiff did not c…
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Nordyne, Inc. v. Fla. Mobile Home Supply, Inc., 625 So. 2d 1283 (Fla. 1st DCA 1993)…e in a fraud case. E.g., Sprayberry v. Sheffield Auto and Truck Service, Inc., 422 So. 2d 1073 (Fla. 1st DCA 1982), review dismissed, 427 So. 2d 738 (Fla. 1983); Greater Coral Springs Realty, Inc. v. Century 21 Real Estate of Southern Florida, Inc., 412 So. 2d 940 (Fla. 3d DCA 1982); Ashland Oil, Inc. v. Pickard, 269 So. 2d 714 (Fla. 3d DCA 1972), cert. denied, 285 So. 2d 18 (Fla.1973). However, we believe that upon a closer reading, it becomes apparent that the intent of such decisions was to limit the holdi…
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R & B Holding Co., Inc. v. Christopher Advertising Grp., Inc., 994 So. 2d 329 (Fla. 3d DCA 2008)…nts legally insufficient proof of damages, an “award of nominal damages is proper.” Beverage Canners, Inc. v. Cott Corp., 372 So. 2d 954, 956 (Fla. 3d DCA 1979); see also Greater Coral Springs Realty, Inc. v. Century 21 Real Estate of S. Fla., Inc., 412 So. 2d 940, 941 (Fla. 3d DCA 1982); 9 Fla. Jur. 2d Damages §§ 5-6 (2004). In this case a conversion of the Unreturned Items was established. The Agency is entitled to an award of nominal damages, but not a new trial on damages. III. In the motion for reheari…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lassitter v. Int'l Union OF Operating Eng'rs, 349 So. 2d 622 (Fla. 1976)
- Ashland OIL, Inc. v. Rod Pickard, 269 So. 2d 714 (Fla. 3d DCA 1972)
- Food Fair, Inc. v. Anderson, 382 So. 2d 150 (Fla. 5th DCA 1980)
- Am. Motorcycle Inst., Inc. v. Mitchell, 380 So. 2d 452 (Fla. 5th DCA 1980)