              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT


JAMES JAY FORBES and FAY ANNETTE )
FORBES,                          )
                                 )
              Appellants,        )
                                 )
v.                               )                    Case No. 2D17-353
                                 )
                                 )
PRIME GENERAL CONTRACTORS,       )
INC., a Florida corporation,     )
                                 )
              Appellee.          )
                                 )

Opinion filed September 7, 2018.

Appeal from the Circuit Court for Lee
County; Alane C. Laboda, Judge.

P. Brandon Perkins and E. Carson Lange
of Rogers Towers P.A., Fort Lauderdale,
for Appellants.

No appearance for Appellee.



SALARIO, Judge.

             This is an appeal from a final judgment on a claim for breach of contract.

James and Fay Forbes sued Prime General Contractors, Inc. for breach after Prime

walked off a home construction job. The Forbeses sought damages that included

payments they made to Prime under the contract, payments they made for updated
architectural plans, certain other expenses, and a loss of equity in their home. After a

bench trial, the trial court found that Prime had materially breached its contract with the

Forbeses but declined to award these three items of damage. We reverse the damage

award in the final judgment and remand with instructions to award the Forbeses such

damages as will restore them to the position they enjoyed right before they inked their

contract with Prime. We affirm the judgment in all other respects.

              The Forbeses and Prime signed a written contract under which Prime

agreed to renovate the Forbeses' home in accord with plans drawn up by an architect.

In exchange, the Forbeses agreed to pay Prime a total of $276,000 in five separate

draws. Under the draw schedule, the Forbeses were to pay (a) 25% of the contract

price upon signing, (b) 25% upon completion of demolition, (c) 25% upon completion of

the "dry-in" stage of construction,1 (d) 15% after roofing and siding installation, and (e)

the remaining 10% upon completion of the job. The contract provided that "any

alteration or deviation from this agreement must be made in writing and signed by the

Parties." Prime began the job as agreed, and the Forbeses paid the first two contract

draws—totaling $138,000. They also paid an additional $6000 for updated architectural

plans.

              Under the contract, the Forbeses should not have had to pay anything

more until the dry-in phase of the project was done. Unfortunately, things hit a snag

before then. Prime said that the cost of the materials it needed to do the job had gone




              1The   contract defines the "dry-in" stage as "demo, framing rough-in
electric, plumbing and mechanical, roof sheeting and felt and exterior windows and
doors if available."



                                            -2-
up. It told the Forbeses that the work would now cost at least $550,000—almost twice

the original contract price—and demanded that the Forbeses immediately pay the third

draw plus an additional $31,450 for work Prime had already done and for which the

Forbeses had already paid. Prime presented the Forbeses with a written change order

making these adjustments. The Forbeses refused to sign it and told Prime that they

were prepared to move forward at the contract price. Prime refused and walked off the

job, leaving the Forbeses' home unfinished and uninhabitable.

              Because they could not live in their home, the Forbeses began renting a

house nearby so that they had somewhere to stay. In the meantime, they looked for

another contractor to finish the work on their home—ultimately talking with five potential

candidates to perform the service—but none was willing to handle the job. After five

months of living in a rental with no luck getting the work on their house finished, the

Forbeses bought a new house and moved into it. They were unable, however, to pay a

mortgage on their new house and another mortgage on the home that Prime left

uninhabitable. So they let the uninhabitable home go into foreclosure. At the time they

contracted with Prime, the Forbeses had about $45,000 in equity in the house. That

equity was lost in the foreclosure.

              The Forbeses sued Prime for breach of contract, and the case went to a

bench trial at which the evidence was consistent with the facts related above. The

Forbeses argued that Prime materially breached the contract by demanding payments

to which it was not entitled under the contract and thereafter walking off the job. Prime

contended, among other things, that the Forbeses also failed to perform under the

contract, to which the Forbeses answered that they were entitled to suspend

performance due to Prime's material breach. The Forbeses requested the following

                                            -3-
items of damages: $138,000 in payments made pursuant to their contract with Prime,

$6000 for updated architectural plans, $45,000 of lost equity in their home, $5600 in

rent, and various other expenses incurred in reliance on their contract with Prime. It is

clear from the damages the Forbeses requested that they were asking to be put in the

position they would have occupied had they not contracted with Prime in the first place.

Prime asserted and litigated at trial an affirmative defense that the Forbeses failed to

mitigate their damages.

              About a month after the bench trial wrapped, the trial court entered a final

judgment. It found that Prime had materially breached the contract as the Forbeses

argued. However, it awarded the Forbeses as damages only the $5600 in rent they

paid while searching for a new contractor. The trial court explained that "[t]he purpose

of contract damages is to put the injured party in as good a position as that in which full

performance would have put him" and concluded that the Forbeses

              failed to offer persuasive or credible evidence at trial of the
              difference between the market value of the home had it been
              completed, less such part of the contract price that has not
              been paid, and the value of the construction that has been
              furnished by [Prime] thus far.

The court also found, without elaboration, that the Forbeses "made a financial decision

not to engage in reasonable mitigation efforts" with respect to their damages.

              This is the Forbeses' timely appeal of the final judgment. They argue two

points: (1) by looking to place them in the position they would have occupied had Prime

fully performed instead of the position they would have occupied had they never

contracted with Prime, the trial court used an incorrect method of calculating damages;

and (2) the trial court's finding that the Forbeses failed to mitigate their damages is

unsupported by the evidence. We review the first point de novo, see Tubby's Customs,

                                            -4-
Inc. v. Euler, 225 So. 3d 405, 407 (Fla. 2d DCA 2017), and the second for competent

substantial evidence, cf. RNK Family Ltd. P'ship v. Alexander-Mitchell Assocs., 890 So.

2d 297, 299 (Fla. 2d DCA 2004). See also Craigside, LLC v. GDC View, LLC, 74 So.

3d 1087, 1089 (Fla. 1st DCA 2011) ("While the parties are entitled to de novo review of

the trial court's rulings with respect to the legal effect of the contract, we are bound by

the trial court's findings of fact in a case, like the present one, where competent,

substantial evidence supports the findings."). Both points have merit.

              Method of calculating damages. In calculating damages, the trial court

erred by failing to honor the Forbeses' choice to deem the contract totally breached and

recover those damages that would restore them to the position they occupied

immediately before contracting with Prime. When one party to a contract commits a

material breach, the nonbreaching party has the option to treat the breach "as a breach

of the entire contract—in other words, an entire or total breach."2 Hyman v. Cohen, 73

So. 2d 393, 397 (Fla. 1954) (quoting 12 Am. Jur. Contracts § 389); see also 24 Richard

A. Lord, Williston on Contracts § 64:27 (4th ed. 2018). From the perspective of the

nonbreaching party, there are two main consequences of that decision: (1) the

nonbreaching party may suspend his or her own performance of the contract, see

Rector v. Larson's Marine, Inc., 479 So. 2d 783, 785 (Fla. 2d DCA 1985), and (2) the

nonbreaching party can elect one of two damage remedies in a suit for breach, see City

of Miami Beach v. Carner, 579 So. 2d 248, 251 (Fla. 3d DCA 1991).

              When a party seeks damages for a total breach, "[h]e may treat the

contract as void and seek the damages that will restore him to the position he was in


              2No one in this appeal has challenged the trial court's finding that Prime
materially breached its contract with the Forbeses.

                                            -5-
immediately prior to entering the contract." Rector, 479 So. 2d at 785; see also McCray

v. Murray, 423 So. 2d 559, 561 (Fla. 1st DCA 1982). Or, in the alternative, he may

instead "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.' " Tubby's Customs, 225 So. 3d at 407 (quoting Citizen's

Prop. Ins. Corp. v. Amat, 198 So. 3d 730, 734 (Fla. 2d DCA 2016)). In the case of a

breached construction contract like Prime's contract with the Forbeses, the benefit-of-

the-bargain remedy is "either the reasonable cost of completion, or the difference

between the value the construction would have had if completed and the value of the

construction that has been thus far performed." Rector, 479 So. 2d at 785 (citing

Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982) (adopting section

346(1)(a) of the Restatement (First) of Contracts (Am. Law Inst. 1932), to cases

involving breach of a construction contract)).

              Here, the final judgment on its face shows that the trial court believed that

the Forbeses were entitled only to the benefit-of-the-bargain remedy. As reflected in the

language from its final judgment quoted above, the trial court concluded that the

Forbeses were entitled to be put in the position they would have occupied had Prime

fully performed and that they had failed to present evidence to establish the key factors

that go into that remedy in a construction contract case.

              But the reason the Forbeses did not produce that evidence was because

they did not seek benefit-of-the-bargain damages. They sought to be put in the position

they would have occupied had they never contracted with Prime. It was clear at trial

that the Forbeses regarded the breach as total; indeed, they were explicit that they were

entitled to suspend their own performance under the contract. And the damages they

                                            -6-
asked the court to award—return of payments made under the contract and the equity

in their home at the time of contracting—were of a type that regarded the contract as

void and attempted to restore the Forbeses to their precontractual situation. Those

damages were inconsistent with an affirmance of the contract and request for damages

approximating full performance. Cf. Sec. & Inv. Corp. of the Palm Beaches v. Droege,

529 So. 2d 799, 802 (Fla. 4th DCA 1988) ("If the two remedies are inconsistent or

mutually exclusive, . . . then the mere choice of one remedy and . . . pursuit of one

remedy to judgment . . . operates as an election."); McCray, 423 So. 2d at 561 (holding

that a trial court did not err in failing to instruct a jury on benefit-of-the-bargain damages

where the evidence supported damages to restore plaintiff to his original condition). In

the final analysis, then, the remedy the Forbeses chose and pursued was not the

remedy the trial court either considered or awarded.

              Mitigation of damages. We agree with the Forbeses that the trial court's

finding that they failed to mitigate damages was mistaken. The concept of mitigation is

often used, as it appears to have been in this case, to refer to the doctrine of avoidable

consequences. In contract cases, there is really no "duty to mitigate" because the

claimant "is not compelled to undertake any ameliorative efforts"; rather, he is merely

prevented from recovering damages he "could have reasonably avoided." Sys.

Components Corp. v. Fla. Dep't of Transp., 14 So. 3d 967, 982 (Fla. 2009) (quoting The

Florida Bar, Florida Civil Practice Damages § 2.43, at 2–30 (6th ed. 2005)); see also

Penton Bus. Media Holdings, LLC v. Orange County, 236 So. 3d 495, 496 (Fla. 5th

DCA 2018). The word "reasonably" is important. See Fla. Std. Jury Instr. (Contract &

Bus.) 504.9 (requiring a jury to consider which damages could have been avoided

through the plaintiff's reasonable efforts). The doctrine of avoidable consequences

                                             -7-
does not allow a trial court to reduce damages "based on what 'could have been

avoided' through Herculean efforts." Sys. Components, 14 So. 3d at 982. It applies

only where a claimant fails to undertake measures to avoid damages that are available

to him without undue effort or expense. Id.

             Here, there is no competent substantial evidence that the Forbeses could

have taken any measure without undue effort or expense to avoid the damages they

sought. When Prime walked off the job, the Forbeses were left with an uninhabitable

home that no other contractor would finish. At that point, the money they paid for

Prime's work and updated plans was sunk; to avoid that loss they would have had to

have been able to finish the home, and there was no evidence that they could have

done that with another contractor at the price at which Prime was contractually required

to do it.

             With respect to the lost equity, the Forbeses spent five months living in a

rental property as they searched for someone to finish the renovations. After that

proved futile, they used their remaining resources to buy a new home rather than

continue to make rent payments indefinitely. On the evidence here, had the Forbeses

not bought the new house and instead continued paying rent without end, they still

would have found themselves unable to continue paying the mortgage on the home that

Prime left uninhabitable. This record establishes no course of action available to the

Forbeses without undue effort or expense to avoid their damages. Thus, there was no

competent substantial evidence to support a damage reduction based on the doctrine of

avoidable consequences here. See, e.g., Graybar Elec. Co. v. Stratton of Fla., Inc., 509

So. 2d 1133, 1134 (Fla. 2d DCA 1987) (reversing a final judgment in which the trial




                                          -8-
court erroneously applied the doctrine of avoidable consequences despite "insufficient

evidence to support the application of that doctrine").

              In sum, the trial court's use of the wrong method for calculating damages

together with its erroneous application of the doctrine of avoidable consequences

denied the Forbeses the full amount of damages to which they were entitled. We

reverse the damages award and remand this case to the trial court for entry of an

amended final judgment awarding those damages it finds, after hearing any arguments

the parties decide to make, are necessary to place the Forbeses in the position they

occupied immediately before they contracted with Prime. In all other respects, the final

judgment is affirmed.

              Affirmed in part; reversed in part; remanded with instructions.


NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                           -9-
