VICTORIANA BUILDING, LLC, A FLORIDA LIMITED LIABILITY COMPANY, APPELLANT/CROSS-APPELLEE,
v.
FT. LAUDERDALE SURGICAL CENTER, LLC, A FLORIDA LIMITED LIABILITY COMPANY, SOUTHERN MEDICAL, LLC, A KANSAS LIMITED LIABILITY COMPANY, RISK AND CAPITAL LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP, CHRISTOPHER BROOKS, AN INDIVIDUAL, DARLA HOLDINGS, LLC, A FLORIDA LIMITED LIABILITY COMPANY, ERIC CHENVEN, AN INDIVIDUAL, CARYN CHENVEN, AN INDIVIDUAL, NEIL WEISMAN, AN INDIVIDUAL, KAROLYN WEISMAN, AN INDIVIDUAL, SHERIDAN HEALTH CORP, INC., A FLORIDA CORPORATION, AND SABINE HESSE, AN INDIVIDUAL, JOINTLY AND SEVERALLY, APPELLEES/CROSS-APPELLANT

Fla. 4th DCA | 2015-05-20
No. 4D12-2979
STEVENSON and CONNER, JJ„ concur.
166 So. 3d 861 Florida District Court of Appeal, Fourth District (2015)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this landlord-tenant dispute, a Florida appellate court affirmed the trial court's finding that the landlord breached the lease by failing to provide code-compliant fire egress, excusing the tenant from performance obligations. The court affirmed the denial of lost business value damages as speculative but reversed the denial of out-of-pocket expenses, remanding for an award of $975,985.


Holding

The court held that the landlord breached the lease by failing to provide code-compliant fire egress, excusing the tenant from further performance obligations. Lost business value damages were properly denied as speculative and insufficiently proven. However, the tenant was entitled to recover out-of-pocket expenses of $975,985 that were actually and necessarily incurred to prepare the premises for the specified use and were reasonably contemplated by the parties.


Headnotes

[1] A landlord's failure to provide code-compliant means of fire egress constitutes a material breach of a commercial lease, excusing the tenant from further performance.

[2] A tenant's proof of lost business value must not be speculative and may require the use of the "before and after" theory or the "yardstick" test.

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Key Quotes

“If one party to an agreement has breached the agreement, the other party's failure to continue with the agreement is not considered a default of the contract.”

Establishes that the tenant's non-performance was excused by the landlord's prior breach of the lease

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Facts & Procedural History

Victoriana Building, LLC (landlord) leased premises to Ft. Lauderdale Surgical Center, LLC (tenant) for a specified business use. The landlord failed …

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Opinion of the Court
GERBER, J.

GERBER, J.

In this landlord-tenant dispute, the landlord appeals from the circuit court’s final judgment in the tenant’s and guarantors’ favor on the parties’ competing claims over a leasehold relationship. The tenant cross-appeals on the ground that, although the court found for the tenant on the liability issues, the court did not award damages to the tenant for alleged lost business value or out-of-pocket expenses. We affirm the circuit court’s well-reasoned findings of fact and conclusions of law in the tenant’s and guarantors’ favor on the liability issues. We also affirm the court’s denial of the tenant’s lost business value claim. However, we reverse the denial of the tenant’s out-of-pocket expenses claim and remand for the court to award that claim.

On the liability issues, the court properly determined that the landlord first breached the lease by failing to provide code-compliant means of fire egress, and that the tenant therefore was excused from any further obligation to perform under the lease. See Del Risco v. Indus. Affiliates, Ltd., 556 So.2d 1148, 1149 (Fla. 3d DCA 1990) (owner and lessor of commercial premises had a non-delegable duty to comply with applicable fire safety regulations for the premises); Ryan v. Landsource Holding Co., 127 So.3d 764, 767 (Fla. 2d DCA 2013) (“If one party to an agreement has breached the agreement, the other party’s failure to continue with the agreement is not considered a default of the contract.”) (citation and internal quotation marks omitted).

On the tenant’s lost business value claim, the court properly determined that the tenant’s proof was speculative and therefore insufficient. “Lost profits are *863typically proven by one of two methods: (1) the before and after theory; or (2) the yardstick test.” Devon Med., Inc. v. Ryvmed Med., Inc., 60 So.3d 1125, 1128 (Fla. 4th DCA 2011) (citation omitted). “The yardstick test is generally used when a business has not been established long enough to compile an earnings record that would sufficiently demonstrate lost profits and compares the profits of businesses that are closely comparable to the plaintiffs.” Id. at 1129 (citation and quotation marks omitted). Here, the tenant’s expert consultant, in analyzing the viability of the tenant’s proposed facility, did not evaluate any comparable facility’s profitability as a “yardstick,” and the tenant’s expert CPA acknowledged that his report, which was based on the consultant’s report and forecast, was only “as good or as bad as [the consultant’s] forecast.” Thus, the tenant’s proof was insufficient. See Fid. Warranty Svcs., Inc. v. Firstate Ins. Holdings, Inc., 74 So.3d 506, 514-15 (Fla. 4th DCA 2011) (“It is as inappropriate to use purely speculative forecasts of future revenue to determine the market value of a business as it is to use such speculative forecasts in determining lost future profits.”) (citation and internal quotation marks omitted).

On the tenant’s out-of-pocket expenses claim, the court did not address this claim in its findings of fact and conclusions of law. The lease specified that the tenant was to prepare the premises for a specified use, and the tenant presented competent, substantial evidence that it incurred actual and necessary expenses which the parties contemplated for the establishment of such use. Thus, the court, having properly found that the landlord breached the lease first, should have awarded the tenant its out-of-pocket expenses. Cf. Young v. Cobbs, 110 So.2d 651, 652-53 (Fla.1959) (where the lease specified that the premises should be used as a certain business, the lessee’s actual and necessary expenses incurred in preparing the premises for such use were such as should reasonably have been contemplated by the parties, and upon the wrongful eviction of the lessee, the lessee was entitled to recover the actual expenditures which were necessary to prepare the premises for such use).

Here, the tenant’s out-of-pocket expenses, as proven at trial and which flowed from the landlord’s breach of the lease, totaled $975,985. Thus, we remand for the circuit court to amend the final judgment to award that amount to the tenant.

Affirmed in part, reversed in part, and remanded for amendment of final judgment.

STEVENSON and CONNER, JJ„ concur.


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