ROBERT A. HUGGINS GENERAL CONTRACTOR, INC., APPELLANT,
v.
N.B. WILLOUGHBY, APPELLEE
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A subcontractor sued a general contractor for breach of a construction contract, seeking payment for work performed plus lost profits. The trial court allowed the jury to award damages including lost profits based on a bare-bones percentage estimate, but the appellate court reversed, holding that lost profits cannot be calculated without proper evidence of completion costs.
Lost profits cannot be established by a bare-bones percentage estimate. Instead, lost profits must be proven by subtracting total costs and expenses necessary to complete the contract from the remaining contract price. The trial court erred in denying the motion for directed verdict on the lost profits claim.
[1] Lost profits on a construction contract cannot be established by a simple percentage estimate of the remaining balance due on the uncompleted contract.
[2] To recover lost profits for breach of a construction contract, the non-breaching party must present evidence of the contract price minus the total costs and expenses nece…
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Join FLexlaw to unlock all legal intelligence“Damages or lost profits ensuing from breach of a construction contract such as the instant one cannot be established simply by a 'bare bones' percentage estimate of the balance due on the uncompleted contract.”
Establishes the core holding that percentage estimates alone are insufficient to prove lost profits.
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Join FLexlaw to unlock all legal intelligenceHuggins, a general contractor, engaged Willoughby, a subcontractor, under a written contract for construction work totaling $751,304.00. The contract …
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COBB, Judge.
Huggins, a general contractor, was sued by a subcontractor, Willoughby, for breach of a construction contract. Willoughby contended Huggins failed to pay for work performed, and that he prevented Wil-loughby from completing performance. The written contract between the parties was a simple one in the form of a purchase order delivered from Huggins to Willough-by. It listed nine “work” items (i.e., excavate lake, strip and haul, dig retention, paving, develop Thorpe Road, develop Taft Vineland, final grade, storm drainage pipe, and install inlets) and a price for each, totaling $751,304.00 (although not totaled on the order form).
For work performed Willoughby submitted three invoices in the respective amounts of $70,945.00, $970.00, and $22,-543.00, a total of $94,458.00. At trial Wil-loughby testified that the latter sum represented the reasonable value of labor, services and materials furnished up to the point he left the job. He also claimed lost profit of twenty percent of the balance of the purchase order ($131,369.20), plus prejudgment interest ($24,559.08), for a total of $250,386.28. Huggins’s motion for directed verdict on the lost profit claim was denied by the trial judge, and the jury then found that Huggins had breached the contract and that Willoughby was entitled to $259,000.00 in damages, some $8,600.00 more than Willoughby had claimed was due in his testimony.
Willoughby’s trial testimony was insufficient to establish a basis for the jury to assess lost profits, and Huggins’ motion for a directed verdict in respect thereto should have been granted by the trial judge. This was not a “cost-plus” contract where one party is entitled to a designated percentage for profit over and above his costs. Damages or lost profits ensuing from breach of a construction contract such as the instant one cannot be established simply by a “bare bones” percentage estimate of the balance due on the uncompleted contract. See Marshall Const., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So. 2d 845 (Fla. 1st DCA 1990); Brooks v. Holsombach, 525 So. 2d 910 (Fla. 4th DCA 1988); Douglass Fertilizers & Chemical, Inc. v. McClung Landscaping, Inc., 459 So. 2d 335 (Fla. 5th DCA 1984); U.S. Home Corp. v. Suncoast Utilities, Inc., 454 So. 2d 601 (Fla. 2d DCA 1984); First Atlantic Bldg. Corp. v. Neubauer Const. Co., 352 So. 2d 103 (Fla. 4th DCA 1977).
Lost profit may be established by subtracting from the contract price the total costs and expenses of labor, services and materials necessary for the non-breaching party to complete the contract. Sampley Enterprises, Inc. v. Laurilla, 404 So. 2d 841, 842 (Fla. 5th DCA 1981). That evidence was not presented in the instant case by Willoughby, and that omission is fatal to his claim for lost profits. For all that is shown by the trial record in this case, it is entirely possible that the costs of completing the work prescribed by the contract would have exceeded the balance due, thereby negating any anticipated profit.
Accordingly, we reverse and remand for entry of judgment for the appellee, Wil-loughby, in the amount of $94,458.00 plus interest of $24,559.08, together with the attorney fees award made pursuant to sec-' tion 713.29, Florida Statutes (1989), and costs.
REVERSED AND REMANDED.
GOSHORN, C.J., and RICHARDSON, E. J., Associate Judge, concur.
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Indian River Colony Club, Inc. v. Schopke Constr. & Eng'g, Inc., 619 So. 2d 6 (Fla. 5th DCA 1993)…hus, the trial court clearly erred in awarding substantial damages to Schopke when Schopke failed to produce any evidence of its total costs and expenses necessary to perform the contract. See also Robert A. Huggins General Contractor v. Willoughby, 595 So. 2d 1003 (Fla. 5th DCA), rev. denied, 602 So. 2d 943 (Fla.1992); Sampley Enterprises v. Laurilla, 404 So. 2d 841 (Fla. 5th DCA 1981). As a result of this court’s prior opinion remanding for a new trial on damages, we note that Schopke has had two opportunit…
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The Travelers Ins. Co. v. D.J. Wells, Jr., 633 So. 2d 457 (Fla. 5th DCA 1993)…ce Co., 760 F. 2d 1520 (11th Cir.1985). But see Wharfside Two Limited v. W.W. Gay Mechanical Contractor, Inc., 523 So. 2d 193 (Fla. 1st DCA 1988), approved, 545 So. 2d 1348 (Fla.1989). . See Robert A. Huggins General Contractor, Inc. v. Willoughby, 595 So. 2d 1003 (Fla. 5th DCA), rev. denied, 602 So. 2d 943 (Fla.1992); American Motorcycle Institute, Inc. v. Mitchell, 380 So. 2d 452 (Fla. 5th DCA 1980), overruled on other grounds, Ault v. Lohr, 538 So. 2d 454 (Fla.1989); Don Burton, Inc. v. Aetna Life & Casual…
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Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232 (11th Cir. 2009)…a cost plus percentage markup on the costs, for the contract.” A cost-plus contract is one “where one party is entitled to a designated percentage for profit over and above his costs.” Robert A. Huggins Gen. Contractor, Inc. v. N.B. Willoughby, 595 So. 2d 1003, 1004 (Fla.Dist.Ct.App.1992). In a cost-plus contract, typically, the percentage of profit is calculated based on the actual costs of completing the task. See J.S.L. Constr. Co. v. Levy, 994 So. 2d 394, 401 (Fla.Dist.Ct.App.2008); Sharrard v.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Douglass Fertilizers & Chem., Inc. v. McCLUNG Landscaping, Inc., 459 So. 2d 335 (Fla. 5th DCA 1984)
- U.S. Home Corp. v. Suncoast Utils., Inc., 454 So. 2d 601 (Fla. 2d DCA 1984)
- First Atl. Bldg. Corp. v. Neubauer Constr. Co., 352 So. 2d 103 (Fla. 4th DCA 1977)
- Sampley Enters., Inc. v. Laurilla, 404 So. 2d 841 (Fla. 5th DCA 1981)
- 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)