Oelrich Construction, Inc. v. PRC Precast, LLC, No. 22-10305 (11th Cir. 2023)

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USCA11 Case: 22-10305 Document: 57-1 Date Filed: 07/13/2023 Page: 1 of 6 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-10305 ____________________ OELRICH CONSTRUCTION, INC., versus Plainti -Counter DefendantAppellee, PRC PRECAST, LLC, Defendant-Counter ClaimantAppellant. ____________________ Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 1:20-cv-00169-RH-GRJ USCA11 Case: 22-10305 2 Document: 57-1 Date Filed: 07/13/2023 Opinion of the Court Page: 2 of 6 22-10305 ____________________ Before WILSON, NEWSOM, and LAGOA, Circuit Judge. PER CURIAM: In this breach of contract action under Florida law, PRC Precast, LLC (PRC) appeals the district court’s nal judgment, after a bench trial, nding that Oelrich Construction, Inc. (Oelrich) properly terminated the parties’ contract. PRC further appeals the district court’s calculation of damages. After careful review, and with the bene t of oral argument, we nd no reversible error. I. Oelrich was a subcontractor in a federal boiler-plant project in Gainesville, Florida. Oelrich was hired by the general contractor to construct the shell of the plant. Oelrich subcontracted with PRC to manufacture and install precast concrete slabs for the shell. A dispute arose from PRC’s failure to timely manufacture the slabs. The parties kept extending the deadlines in the contract and, eventually, PRC expressed uncertainty about complying with the deadlines. After several delays, back-and-forth, and extended deadlines, Oelrich terminated the contract and hired a substitute to complete the job. Oelrich sent PRC an email asking for noti cation if the understanding was incorrect, and PRC failed to respond. In an appeal from a bench trial, we review conclusions of law de novo. PlayNation Play Sys., Inc. v. Velex Corp., 924 F.3d 1159, 1165 (11th Cir. 2019). We review factual ndings under a clear error standard of review. Id. “A factual nding is clearly erroneous ‘when USCA11 Case: 22-10305 22-10305 Document: 57-1 Date Filed: 07/13/2023 Opinion of the Court Page: 3 of 6 3 although there is evidence to support it, the reviewing court on the entire evidence is left with the de nite and rm conviction that a mistake has been committed.’” Morrissette-Brown v. Mobile In rmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007) (quoting Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005)). II. PRC rst argues that Oelrich breached the contract rst by failing to satisfy three invoices for PRC’s materials, excusing PRC’s further performance. But the district court determined that PRC waived Oelrich’s breach by thereafter accepting delayed payments, failing to inform Oelrich that it was suspending work because of the breach, and continuing to participate in arranging new installation dates. These ndings are supported by the record. PRC has not shown clear error in the district court’s factual ndings that support the determinations that PRC’s failure to perform was not excused by Oelrich’s prior breach and that PRC breached the contract by non-performance. PRC also argues that Oelrich failed to give twenty-four hours’ prior notice of termination or a formal opportunity to cure, as provided in the parties’ contract. But the district court determined that it was too late to cure performance and, given the circumstances at the time, PRC would have been unable to complete performance. Consequently, notice for an opportunity to cure was USCA11 Case: 22-10305 4 Document: 57-1 Date Filed: 07/13/2023 Opinion of the Court Page: 4 of 6 22-10305 not material as it would have been futile. 1 Upon consideration of the record, we cannot say that this determination is based on clearly erroneous ndings. III. In a separate order, PRC was ordered to pay $200,188.76 in damages. The court found that Oelrich was entitled to (1) 100% of the replacement contractor’s setup price: $106,749.00; (2) 47% of the new contractor’s manufacture price: $23,519.00; (3) the amount by which the replacement contractor’s installation price exceeded PRC’s: $21,083.00; (4) the damages caused by having to hire the new contractor as a replacement: $151,351.00; (5) and delay damages: $78,235.76. After applying o sets of $10,365.00 for improperly withheld retainage and $19,033.00 for the cost of disposing of materials already made by PRC, the district court arrived at the $200,188.76 total. PRC argues on appeal that the district court mis-calculated damages for essentially the following three reasons: (1) damages were not proven by a reasonable certainty; (2) the damages should have been limited to the di erence in price between PRC’s contract and the replacement contractor’s price, and (3) Oelrich did not prove “delay” damages with substantial evidence. “[T]he law does not require that a party to a contract take action that would clearly be futile.” Waksman Enters., Inc. v. Or. Props., Inc., 862 So. 2d 35, 43 (Fla. Dist. Ct. App. 2003). 1 USCA11 Case: 22-10305 Document: 57-1 22-10305 Date Filed: 07/13/2023 Opinion of the Court Page: 5 of 6 5 We nd no reversible error in the district court’s calculation of damages. All that is required is that “the evidence a ords a suf cient basis for estimating an amount in money with reasonable certainty.” United Steel & Strip Corp. v. Monex Corp., 310 So. 2d 339, 342 (Fla. Dist. Ct. App. 1975). “Where damages cannot be precisely determined, the trial judge is vested with reasonable discretion in making the award of damages.” Clearwater Assocs. v. Hicks Laundry Equip. Corp., 433 So. 2d 7, 8 (Fla. Dist. Ct. App 1983). The district court’s ndings upon which it based its damages calculation are not clearly erroneous, and the court calculated damages within the bounds of its discretion. IV. We thus a rm the judgments of the district court. AFFIRMED. USCA11 Case: 22-10305 22-10305 Document: 57-1 Date Filed: 07/13/2023 NEWSOM, J., dissenting in part Page: 6 of 6 1 NEWSOM, Circuit Judge, concurring in part and dissenting in part: With one quibble, I concur in the Court’s opinion. Here’s the quibble: I think the district court awarded Oelrich too much in manufacturing damages. It gave Oelrich $23,519, relieving the company of all but $4,516.39 of the cost of the manufacturing work left incomplete by PRC’s breach.1 Had PRC not breached, though, Oelrich would have paid it $20,415.39 to nish that work. The district court’s award thus left Oelrich paying less for manufacturing than it would have paid had PRC performed. As I understand things, that’s not lawful. A party who has su ered a breach of contract “is not entitled to be placed, because of that breach, in a position better than that which he would have occupied had the contract been performed.” School Bd. v. Pierce Goodwin Alexander & Linville, 137 So. 3d 1059, 1070 (Fla. 4th Dist. Ct. App. 2014) (quoting Lindon v. Dalton Hotel Corp., 49 So. 3d 299, 305 (Fla. 5th Dist. Ct. App. 2010)). The district court’s award impermissibly put Oelrich in a position better than it would have been in had PRC performed. I would reverse to the extent that it did so. $4,516.39 is what Oelrich paid PRC for manufacturing work that PRC never finished. Through October 2019, PRC billed $27,538 in manufacturing costs. See Doc. 55-2 at 4; Doc. 96 at 11. PRC effectively paid those bills—because the district court offset Oelrich’s damages award by the unpaid portion. See Doc. 98 at 7. The 53% of the manufacturing that PRC completed cost $23,021.61— 53% of the total manufacturing cost, $43,437. See Doc. 98 at 2–3, 4. The difference between these figures, therefore—$4,516.39—is all that Oelrich actually paid toward the uncompleted portion. 1

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