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Case Law Alerts

Florida Courts Reaffirm Damages Must Be Calculated as of Date of Breach in Construction Defect Cases

Bandklayder Dev., LLC v. Saba, 406 So.3d 265 (Fla. 3d DCA 2025) and Vuletic Group, LLC v. Malkin, 4th DCA, No. 4D2024-1589 2025 WL 1944045, July 16, 2025

October 1, 2025

by Lindsay G. McCormick

It has been well-settled in Florida that the proper measure of damages for a breach of contract claim is calculated as of the date of the breach. In terms of a construction defect claim, it is the date the construction defect occurred. Yet, we routinely see plaintiffs including significant markups for recent market trends. There are two recent Florida cases reiterating this standard and the consequences of failing to present proper evidence in compliance with this standard.

In Bandklayder Dev., LLC v. Saba, the plaintiff claimed construction defects within a newly constructed single-family home. At trial, the plaintiff presented damages calculations from their expert as of the date of their expert’s 2022 report. The expert presented testimony that damages totaled $323,000 as of the date of his report, and that construction costs had increased by 35% as of the May 2023 trial. The plaintiff was awarded $425,000; however, this was reversed on appeal. The Florida Third District Court of Appeals highlighted that the proper measure of damages was the date of the breach, which was 2018, and that “fluctuations in value after the breach do not affect the non-breaching party’s recovery.” Because the plaintiff had failed to present damages as of the date of the claimed breach and because that failure was of their own doing, not of judicial error, the entire verdict was reversed, and the case was remanded with directions to enter judgment for the defendant.

Similarly, in Vuletic Group, LLC v. Malkin, a contractor performed work at the homeowners’ property in 2018, which lead to claims of construction defects. At a 2023 bench trial, the homeowners presented evidence of damages from pricing in September 2022. Based thereon, they were awarded almost $500,000. However, again, on appeal this award was reversed. The Appellate Court cited the Florida Supreme Court in holding that: “Damages for a breach of contract should be measured as of the date of the breach. Fluctuations in value after the breach do not affect the non-breaching party’s recovery.” Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037, 1040 (Fla. 1982). Yet again, the homeowners failed to present any evidence of the damages as of the date of the claimed breach of contract and, instead, relied on damages calculated years after the breach. Therefore, the homeowners did not meet their burden of proof for their claim, and the case was remanded for entry of judgment in favor of the contractor. 
 

Case Law Alerts, 4th Quarter, October 2025 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2025 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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Since the complaint did not allege fraud or manifest mistake with sufficient particularity, something more than a mere error of judgment, the complaint was insufficient to state a claim.  The complaint in this case did not challenge the appraisal award. It pled that additional damages were discovered that were not apparent when the appraisal was done. It did not specify “who discovered the damages, how they were discovered, where they were found, why they were previously hidden, or why they rise to the level of a manifest mistake that the “appraiser would have corrected...had it been called to his attention”. Id at ¶22 citing Lakewood Mfg. Co. v. Home Ins. Co. of New York, 422 F.2d 796, 798 (6th Cir. 1970). Cases deciding the effect of appraisal awards are unusual. The Ohio Supreme Court’s decision in One Church relies primarily on 19th century case law for its conclusion. 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