42
Fla. L. Weekly D1883aTop of Form

Contracts
— Damages — Award exceeding amount requested and proved at trial and outside
the scope of contract at issue

TUBBY’S CUSTOMS, INC., a Florida
corporation; and LENWARD MARTIN, Appellants, v. CHARLES EULER, Appellee. 2nd
District. Case No. 2D16-3878. Opinion filed August 30, 2017. Appeal from the
Circuit Court for Pinellas County; Jack Day, Judge. Counsel: Lee M. Pearlman of
Pearlman & Clark, P.A., St. Petersburg, for Appellants. Donald C. Anderson,
Jr., of The Law Offices of Donald C. Anderson, St. Petersburg, for Appellee.

(LaROSE, Chief Judge.) Tubby’s
Customs, Inc., (“Tubby’s”) and its owner, Lenward Martin, appeal a final
judgment for breach of contract entered in favor of Charles Euler.1 We reverse, in part, because the
awarded damages exceed those requested and proved at trial. We affirm the final
judgment in all other respects without further discussion.

Factual
Background

Mr. Euler contracted with Tubby’s to
restore his 1956 Ford coupe to “run & drive” condition for $15,000. Mr.
Euler’s friend, Repo Robbie, delivered the car to Tubby’s garage. Mr. Euler
subsequently made three payments of $5000 each to Tubby’s. Later, when
indisposed by health issues, Mr. Euler gave Repo Robbie an additional $3500 to
pay Tubby’s to finish the work. Unfortunately, after Mr. Euler paid Tubby’s
$18,500 over the course of more than two years, Tubby’s never completed the
restoration. Mr. Euler had his car towed back to his house.

Mr. Euler sued Tubby’s. He alleged
that Tubby’s breached the restoration contract by failing to complete the work
in a reasonable time after Mr. Euler “paid a total of $18,500 to Tubby’s as and
for a final price.” At trial, Mr. Euler testified that he budgeted $15,000 to
get the car running and driving, $3500 for the interior, and $1500 for tires
and wheels. Mr. Euler conceded that he never intended that Tubby’s would do the
interior. The “budget” he testified about was his personal budget, not part of
his contract with Tubby’s. Mr. Euler testified that when Tubby’s was unable to
get the car running and driving for $15,000, he paid Tubby’s an additional
$3500 to “get it running.”

Mr. Euler sought damages for the reasonable
cost of completion ($8829.30), a rebate of the difference between the amount
paid and the reasonable value of the repairs ($9250), and a towing fee ($44).
Without objection, Mr. Euler submitted an estimate from Mahoney Auto Repair
into evidence, reflecting that the car required $8829.30 in additional
mechanical repairs. Mr. Euler’s expert testified that Tubby’s had completed
only 50% of the work for which Mr. Euler had paid.

The trial court entered a final
judgment finding that Tubby’s breached the contract. It awarded Mr. Euler
$12,329.30 in damages, plus costs of $2899.65, for a total of $15,228.95. The
trial court did not elaborate on its damage calculation. Seemingly, the award
is a combination of $8829.30 for the reasonable cost of completion and an
additional $3500.

Analysis

Tubby’s argues that the awarded
damages exceeded the “cap” on damages, and erroneously combined inconsistent
theories of recovery. Mr. Euler counters that the trial court properly awarded
damages based on a benefit-of-the-bargain theory. He argues that the judgment
consisted of the $8829.30 required to complete the mechanical repairs and the
$3500 to complete the car’s interior, which he maintains was necessary to make
the car drivable.

We review “[a] trial court’s determination
as to the method of calculating damages . . . de novo.” HCA Health
Servs. of Fla., Inc. v. CyberKnife Ctr. of Treasure Coast, LLC, 204 So. 3d
469, 471 (Fla. 4th DCA 2016) (citing Katz Deli of Aventura, Inc. v.
Waterways Plaza, LLC, 183 So. 3d 374, 380 (Fla. 3d DCA 2013)). “[T]here
must be some reasonable basis in the evidence to support the amount [of
damages] awarded. Furthermore, it is incumbent upon the party seeking damages
to present evidence to justify an award of damages in a definite amount.” Camper
Corral, Inc. v. Perantoni, 801 So. 2d 990, 991 (Fla. 2d DCA 2001)
(alterations in original) (quoting Smith v. Austin Dev. Co., 538 So. 2d
128, 129 (Fla. 2d DCA 1989)).

When there is a total breach of
contract, the nonbreaching party may affirm the contract, “insist upon the
benefit of his bargain, and seek the damages that would place him in the
position he would have been in had the contract been completely performed.” Citizens
Prop. Ins. Corp. v. Amat, 198 So. 3d 730, 734 (Fla. 2d DCA 2016) (quoting Rector
v. Larson’s Marine, Inc., 479 So. 2d 783, 784 (Fla. 2d DCA 1985)). Under
this benefit-of-the-bargain theory, “the proper measure of damages would be
either the reasonable cost of completion, or the difference between the value
the [repair] would have had if completed and the value of the [repair] that has
been thus far performed.” Rector, 479 So. 2d at 785.

Mr. Euler properly pleaded these
alternative measures of damages. The final judgment suggests that the trial
court chose to award the reasonable cost of completion. See Liddle v.
A.F. Dozer, Inc., 777 So. 2d 421, 422 (Fla. 4th DCA 2000) (providing that
the trial court can make “[a]n election between mutually exclusive remedies . .
. at any time prior to the entry of judgment”).

But Mr. Euler’s evidence established
that the reasonable cost of completion was only $8829.30. Mr. Euler never
requested $12,329.30 as the reasonable cost of completion, nor did he request
$3500 to complete the car’s interior. Further, Mr. Euler testified that his
contract with Tubby’s did not require Tubby’s to complete the car’s interior.
Consequently, Mr. Euler’s damages should have been limited to $8829.30 plus
costs. See Taylor v. Lee, 884 So. 2d 222, 224 (Fla. 2d DCA 2004)
(holding that the trial court erred in awarding an amount of damages that
included costs and expenses outside the scope of the breached contract).

Because the damage award exceeded
the amount Mr. Euler requested and proved at trial, we reverse the portion of
the final judgment awarding Mr. Euler $12,329.30 and remand for the trial court
to enter a judgment consistent with this opinion.

Affirmed, in part, reversed, in
part, and remanded with directions. (CRENSHAW and ROTHSTEIN-YOUAKIM, JJ.,
Concur.)

__________________

1The trial court entered the final
judgment only against Tubby’s.

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