prICeofpreCISIon : ImportanCeofdamageCaLCuLatIonS
Construction law Section Chairs : KimberlyKelley – PaskertDiversThompson & AlexSarsfield – PaskertDiversThompson
appellatecourtreverses finaljudgementdueto failuretoestablish damagesasofthe dateofthebreach .
To succeed on a breach of contract claim , a party must establish : ( 1 ) existence of a contract , ( 2 ) material breach of the contract , and ( 3 ) damages resulting from the breach . 1 While establishing and calculating damages seems routine , an overlooked aspect of proving damages is the date on which they should be calculated .
The general rule in claims involving construction defects is that damages should be “ the reasonable cost of making the performed work conform to the contract .” 2 Although it may seem logical to calculate damages based on when the repairs are performed , Florida law mandates that damages be calculated as of the date of the breach . 3 Therefore , a plaintiff must establish what it would have cost to remedy the defect immediately upon the contractor ’ s breach . Florida ’ s Third district Court of Appeal recently reinforced this fundamental principle by reversing a final judgment entered in favor of a purchaser against a residential developer due to the failure to establish damages as of the date of the breach . 4
In Sabga , Joseph and dunia Sabga purchased a residential property from builder Bandklayder development , LLC . 5 After closing ,
numerous defects remained and , despite attempts to negotiate , the purchasers filed suit , bringing claims for ( 1 ) breach of contract , ( 2 ) violation of the Florida Building Code , and ( 3 ) breach of implied warranty of fitness . 6 during trial , the purchasers ’ expert testified to their damages , calculating the cost of repair as of the date of his report and the date of trial . 7 Crucially , the expert failed to testify to the amount of damages suffered as of the date of the breach . 8
While the trial court entered final judgment in favor of the purchasers , on appeal , the developer argued the purchasers ’ expert failed to properly establish damages . 9 The appellate court agreed and reversed the final judgment , finding that because the purchasers failed to establish damages at the time of breach , the court must enter judgment in favor of the developer . 10 The court also rejected the purchasers ’ request to remand for further proceedings to allow them to recalculate damages . 11
The court acknowledged this result may appear “ harsh ,” but emphasized it was “ solely attributable to the Sabgas ’ failure to prove that which the law clearly requires .” 12 This decision underscores the importance of proving damages as of the date of
the breach and demonstrates that once the opportunity to properly prove damages is missed , a plaintiff is unlikely to be provided a “ second bite at the apple .” 13
1
Ford Motor Credit Co ., LLC v . Parks , 338 So . 3d 1070 , 1072 ( Fla . 1st dCA 2022 ).
2
Aponte v . Exotic Pools , Inc ., 699 So . 2d 796 , 797 ( Fla . 4th dCA 1997 ).
3
Nat ’ l Commc ’ n Indus ., Inc . v . Tarlini , 367 So . 2d 670 ( Fla . 1st dCA 1979 ). 4
Bandklayder Dev ., LLC v . Sabga , 2025 WL 15275 ( Fla . 3d dCA 2025 ).
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Authors : Sierra Van Allen & Brian Allen – Carlton Fields , P . A .
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