The passage of time has become a silent adversary in construction litigation. What begins as a man ageable defect claim can quickly become a major financial liability by the time a case reaches trial. For the defense, this creates a major disadvantage, as costs at the time of an alleged breach may bear little resemblance to costs at the time of trial.
However, a powerful trend arising from a longstanding rule affixing the measure of damages to the date of breach is helping to combat nuclear verdicts within construction-defect cases in Florida.
Establishment of the “Date of Breach” Trend
In 1982, the Florida Supreme Court in Grossman Holdings Ltd. v. Hourihan established the bright-line rule that “[d]amages 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 nonbreaching party’s recovery.” The case involved a construction contract and adopted the Restatement’s construction-contract damages framework. For defective or unfinished construction, the reasonable cost of construction/completion applies if it is possible and does not involve unreasonable economic waste; otherwise, the alternative is the difference in value.
In recent years, several Florida cases have reaffirmed the damages rule from Grossman, in particular construction-defect cases.
Recent “Date of Breach” Applications in Construction Claims
Bandklayder Dev., LLC v. Sabga (2025)
In Bandklayder Dev., LLC v. Sabga, the homeowner plaintiffs filed a construction-defect lawsuit against the defendant developer. At trial, the plaintiffs’ expert provided testimony regarding the cost of repair as of the date of his expert report published in 2022 and as of the date of trial, May 2023. The trial court ruled in favor of the plaintiffs at trial and awarded damages based on the plaintiffs’ 2023 cost of repair.
The developer appealed to the Third District Court of Appeal (DCA), which reversed the lower court’s judgment. The Third DCA ruled that the plaintiffs’ failure to provide evidence showing the measure of damages at the time of breach—which would have been either at the time the plaintiffs accepted the property from the developer in June 2017 or, at the latest, when plaintiffs served their Chapter 558 notice of construction defects on the developer in April 2018—resulted in the plaintiffs’ failure to prove the proper measure of damages.
The Third DCA explained that damages must be based on evidence that establishes damages at the applicable time. Since the plaintiffs’ expert only presented testimony of the measure of damages as of 2022 and 2023, the correct measure of damages would have been based on speculation or guesswork. Further, since the plaintiffs failed to meet their burden of establishing the correct measure of damages at trial, and the failure was not the result of a judicial error, the plaintiffs were not entitled to a new trial on dam ages. The Third DCA reversed and remanded the lower court’s final judgment with instructions to enter final judgment in favor of the developer.
Vuletic Group LLC v. Malkin (2025)
The Fourth DCA in Vuletic Group LLC v. Malkin reached the same conclusion. In 2018, the defendant Vuletic Group LLC contracted with the homeowners to complete a home remodel. The homeowners terminated Vuletic in November 2019, and in January 2020, Vuletic sued the homeowners for nonpayment. In turn, the homeowners countersued Vuletic for breach of contract and construction defects. At a bench trial beginning in January 2023, the homeowners presented expert testimony regarding the cost to repair the home using pricing as of September 2022. The trial court ruled in favor of the homeowners and awarded damages based on their September 2022 cost figures. Vuletic appealed to the Fourth DCA, which reversed the trial court’s final judgment and remanded with instructions to enter judgment in favor of Vuletic. The Fourth DCA, relying on Grossman and Bandklayder, determined that the homeowners failed to prove the proper amount of damages at trial because they failed to present evidence of the measure of damages as of the date of breach, which would have been at the latest in November 2019, when the homeowners terminated Vu letic and Vuletic ceased work.
Eloquence on the Bay Condominium Ass’n, Inc. v. CDC Builders, Inc. (2025)
In Eloquence on the Bay Condominium ss’n, Inc. v. CDC Builders, Inc., a con dominium association filed suit against the defendant general contractor for construction defects, asserting claims including breach of statutory warranty, negligence, and violations of the Florida Building Code. During an eight-day jury trial, the parties initially operated under the assumption that damages would be measured by “reasonable cost of necessary repairs” without specifying a timeframe or date on which the amount of damages should be measured. However, on the sixth day of trial, the defendant proposed a new jury instruction based on the Grossman rule, requiring that damages be measured as of the time of breach.
Plaintiff argued that the new instruction was improper because its claims did not include a breach-of-contract claim. The defendant argued that the relevant date of breach was 2015, when the condominium building was turned over to the plaintiff. The plaintiff acquiesced to the new instruction and at the end of trial, the jury rendered a verdict for the defendant and the trial court entered final judgment in the defendant’s favor.
On appeal, the Third DCA affirmed final judgment in favor of the defendant. Citing Bandklayder, the court concluded that the plaintiff was not entitled to a new trial based on its failure to establish damages as of the relevant date because the failure was not attributable to judicial error. Furthermore, the court concluded that failure to establish 2015 damages did not warrant reversal on the Florida Building Code claim. As to the statutory warranty and negligence claims, the issue was harmless because the jury had already found against the plaintiff on those claims.
A critical result of these cases is the procedural finality of the claims. Damages are an essential element of many construction defect actions; therefore, a claimant who fails to prove the correct measure of damages may be denied a new trial on damages. This principle was central to the Bandklayder and Vuletic decisions, both of which held that permitting a new trial to prove damages would improperly grant the plaintiffs a “second bite at the apple.”
Plaintiff’s Renewed Efforts to Establish Damages
To insulate themselves against final judgments in favor of defendants, plaintiffs are now preparing multiple costs of repair using various dates, such as the date of turnover and date of Chapter 558 notice, in an effort to cover all bases. For the defense, this creates an opportunity to:
- Establish a definitive date of breach by using discovery to lock plaintiffs into a fixed timeline.
- Restrict damages by challenging evidence that relies on post-breach costs rather than establishing the applicable measure of damages as of the date of breach.
- Preserve the finality of the judgment by arguing that a plaintiff who fails to meet its burden of proving the proper measure of damages, absent judicial error, is not entitled to a new trial.
About the authors
Meliz Martin, Esq., is a partner at Lydecker LLP. mmartin@lydecker.com
Estefania Negrette is a senior associate at Peckar & Abramson, P.C. enegrette@pecklaw.com