A homeowner filed suit against the contractor that constructed its home and was awarded damages by a trial court of $425,000. That judgment was reversed on appeal with the court holding that no testimony was presented by homeowner’s expert as to the amount of the damages of date of the breach but the expert only presented evidence of what the homeowner’s damages were as of the trail date which occurred about 6 years after the breach of contract. Under the applicable state law, damages for breach of a construction contract based on defective work are calculated as of the date of the breach of contract. Because the homeowner failed here to establish the proper measure of damages, the court not only reversed the trial court judgment, but it also remanded the case with instructions to enter final judgment in favor of the contractor. Bandklayder Development, LLC v. Josheph Sabga, 406 So. 3d 265 (Florida, 2025).
The expert report was dated January 2022 and stated that the homeowner suffered damages of $322,000 as of that date, but he further testified that as of the trial date, the cost to complete the unfinished construction work had increased by 35% to become almost $436,000 due to an increase in construction costs. He did not, however, testify to the amount of damages as of the date of the breach that occurred several years earlier.
As a general rule in construction defect cases, “the measure of damages is the reasonable cost of making the performed workconform to the contract.” [citation omitted]. “The purpose of compensation is to restore the injured party to the condition which he would have been in had the contract been performed.” [citation omitted].The court stated that: “It is well-established in Florida that damages for breach of a construction contract based on defective work arecalculated as of the date of the breach.” The court further stated: “It is well-established in Florida that damages for breachof a construction contract based on defective work are calculated as of the date of the breach.” Thus, the homeowner was required to prove the damages as of the date of the breach and because that was not done, the appellate court held that it owner could recover no damages whatsoever.
Comment: We have read several court decisions recently where a plaintiff proved it was damaged but failed to satisfy the court as to the dollar amount to which it was entitled. The courts have held the plaintiff’s failure to prove damages means their suits must be dismissed and they cannot come back and try to prove the damages with different evidence or testimony.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 27, No. 8 (December 2025).
Copyright 2025, ConstructionRisk, LLC
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