In Bandklayder Development, LLC v. Sabga, Plaintiffs Joseph and Dunia Sabga (“Plaintiffs”) brought an action alleging breach of contract, violation of the Florida Building Code, and breach of implied warranty of fitness against residential developer, Bandklayder Development, LLC (“Defendant”). Bandklayder Dev., LLC v. Sabga, No. 3D23-1906, 2025 WL 15275, at *1 (Fla. 3d DCA Jan. 2, 2025). Defendant sold the property “as is” to Plaintiffs while the property was under construction. Id. Pursuant to the purchase and sale agreement, Defendant provided a one-year warranty and agreed to finalize any punch-list items they were notified of during the property walkthrough. Id.
After closing, several alleged defects remained at the property following failed repair attempts. Plaintiffs furnished Defendant with a Chapter 558 notice and filed suit. Id. During a nonjury trial, Plaintiffs’ expert testified that as of the date of his report Plaintiffs had suffered $323,000.00 in damage. He also testified that amount had increased 35%, or to $435,000.00, as of the date of trial due to increased construction costs. Id. After a verdict in favor of Plaintiffs in the amount of $435,000.00, Defendant appealed.
Generally, in Florida “the measure of damages is the reasonable cost of making the performed work conform to the contract” as the intent is to “…restore the injured party to the condition…[they] would have been in had the contract been performed.” Id. at 2. For alleged defective or unfinished construction, the injured party can get either: “(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste: or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff. Id.
Because Plaintiffs only presented the cost at the time of trial, the Third District Court of Appeals held Plaintiff failed to establish the proper measure of damages at trial – i.e., the cost to complete at the time of the alleged breach. The Court reversed and remanded for an entry of judgment in favor of Defendant.
The measure of damages that a plaintiff argues is often much higher by the time a typical construction defect matter winds its way through the court system as labor and material costs continue to increase with inflation. With this decision, at least the 3rd DCA have given contractors within the 3rd DCA a powerful defense against those higher damages often claimed by plaintiffs in construction defect cases, since damages should now be measured at the time of the breach.