At times the law can be quite cruel. A recent appellate case from Florida’s Fourth District Court of Appeal, Vuletic Group LLC d/b/a Concept Construction v. Malkin, Case No. 4D2024-1589 (Fla. 4th DCA July 16, 2025), reminds us all of this salient fact.
In Vuletic Group, the parties contracted with one another in 2018 for a house remodeling project. Around November 2019, the homeowners terminated the contract and stopped paying the contractor. As a result, the contractor sued the homeowners for nonpayment. The homeowners then made a counterclaim against the contractor for breach of contract and construction defects. In the counterclaim the homeowners alleged that the contractor breached its contract by failing to supervise, coordinate, schedule, and/or manage a significant number of subcontractors and vendors working on the renovation project which ultimately led to multiple construction defects and deficiencies.
In January 2023 a bench trial (a non-jury trial) was held during which the homeowners presented expert testimony regarding the anticipated costs to repair and remedy all the issues allegedly caused by the contractor’s breach of contract, amounting to $414,372 in damages. Ultimately, the trial court ruled in favor of the homeowners and awarded them damages in the amount of $499,250, which also included pre-judgment interest. After the trial court’s ruling, the contractor appealed the case to the Fourth District Court of Appeal.
The contractor argued to the Court that the trial court had incorrectly awarded damages to the homeowners because the damages should have been calculated using cost figures as of the date of the breach, not cost figures as of a date after the date of the alleged breach. More particularly, the homeowners’ expert testified at trial that the cost to remedy all the issues would be $414,372 using cost figures as of September 2, 2022—a date nearly three years after the date of the breach of contract. As you will read, this turned out to be a fatal flaw in homeowners’ case against the contractor. The Court’s role was to determine whether or not the trial court applied the correct measure of damages to the homeowners’ breach of contract claim.
Early in the Court’s opinion, the Court points out that “[d]amages for a breach of contract should be measured as of the date of the breach;” “[f]luctuations in value after the breach do not affect the nonbreaching party’s recovery [of damages];” and “[d]amages are not supported by competent, substantial evidence when damages are assessed for a time other than that of the time of breach.”
The Court went on to cite a Florida Supreme Court case which directly speaks to the issue and provided that damages for a breach of contract case are measured as of the date of the breach in Grossman Holdings Ltd. V. Hourihan, 414 So.2d 1037 (Fla. 1982).
The Court went on, citing yet another case where a trial court found that damages for replacing a defective roof were based on the cost of damages calculated five years after the occurrence of the breach of contract. On appeal in that case, the Second District Court of Appeal reversed the trial court’s ruling because the cost of damages should have been determined as of the date of the breach in Peach State Roofing, Inc. v. 2224 South Trail Corp., 3 So.3d 442 (Fla. 2d DCA 2009). Clearly then there is a substantial caselaw on this particular subject that makes it patently clear that the construction damages proven at trial must be based upon the actual date of the breach of the contract.
In accordance with the aforementioned, the Court pointed out that the homeowners presented no evidence to establish the amount of damages as of the date of the contract breach itself but rather presented evidence of damages which were nearly three years after the date of the alleged contract breach. Because the damages must be measured as of the date of the breach, the damage award from the trial court was not supported by competent, substantial evidence and was therefore fully reversed. It gets worse…much, much worse.
Rather than remanding the case for further proceedings and allowing the homeowners to establish the damages as of the time of the breach, the Court held that the homeowners were not entitled to remedy their own failure to present competent, substantial evidence of damages as of the date of the breach of contract to support their claim. Thus, the homeowners were not entitled to “a second bite of the apple” to prove their damages since they already had the opportunity to prove their case and failed. Therefore, since the homeowners were required to prove their damages as of the date of the breach and did not do so, they failed to meet their burden of proof. Therefore, the Court reversed the trial court’s judgment and instructed the trial court to enter judgment in favor of the contractor. Now, here comes the really bad part.
While not addressed in Vuletic Group, the effect of the Court’s ruling will also allow the contractor to seek its prevailing party attorney’s fees and costs against the homeowners at both the trial court and appellate court levels. So at the end of the day, not only did the homeowners lose their damage claim, which really should have gone their way had they proven their damages as of the date of the breach rather than a later date, but also the homeowners will likely be faced with having to pay prevailing party fee awards in favor of the contractor that allegedly caused the homeowners’ damages in the first place. Talk about a double whammy, wow!
Choosing the right attorney is no small undertaking. It is so very important that the attorney has a thorough understanding of the body of law at issue. When you hire board-certified attorneys, the Florida Bar is affirming the attorney’s expertise in a particular field. Is your association using a law firm with board-certified attorneys?
