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No More Second Bites at the Apple for Plaintiffs on Damages

Published: February 5th, 2019

By: Amy L. Judkins

Plaintiffs sometimes are so focused on proving liability that they don’t pay enough attention to proving the scope of actual or economic damages. While most Florida district courts generally have taken the stance that a plaintiff only gets an opportunity at the first trial to prove measurable damages, the Third District in South Florida was stuck with two decisions from 1974 where it granted plaintiffs a second trial to prove damages, creating confusion not only in South Florida but across the state.

But that confusion is now over, thanks to a September 2018 Third District Court of Appeal decision in Levy v. Ben-Shmuel that puts an end to appeals courts granting second chances to prove damages. “No more second bites at the apple,” is the way Dean Mead attorney Amy Judkins summarizes the decision of the en banc court.

The decision grows out of a handshake deal by two former friends. Eliahu Ben-Shmuel agreed to allow David Levy to move temporarily into a furnished home he owned in Golden Beach, Florida. There was no written agreement, and the two men agreed that Levy would maintain and make improvements to the house in lieu of rent, which normally was $27,000 per month. The deal ended badly when Levy didn’t live up to his obligation to maintain the property and make improvements, and didn’t pay rent. When Levy moved out, Ben-Shmuel sued him, alleging unjust enrichment and conversion of personal property allegedly removed from the house.

At a bench trial, the court found in favor of Ben-Shmuel on both claims and awarded $90,000 for unjust enrichment and $15,000 for the conversion claim.

Line of decisions created confusion

On appeal, the Third District Court of Appeal upheld the unjust enrichment ruling but reversed the conversion ruling, holding that the trial court should have dismissed the conversion claim because Ben-Shmuel did not prove damages at trial. Ben-Shmuel conceded in his appeals briefs that he didn’t meet the burden of proof for his conversion claims but asked for a second trial to prove damages, citing the 1974 Third District precedents.

The en banc panel – the full court must make rulings that recede from precedent – noted that the two cases Levy relied on were “devoid” of any analysis or rationale. The current Third District relied heavily on several Fourth District decisions that drew a line against new trials for damages, which other district courts in the state have followed. “We believe that the rationale of our sister court [the Fourth District] on this issue is sound,” the Third District panel wrote.

The court summarized its new position clearly: If a “party failed to meet its burden of establishing the correct measure of damages at trial, that party is not entitled on remand to a new trial on damages,” the appeals court said, adding that judicial error remains a basis for granting a new trial.

Takeaway: Can you prove measurable damages?

“You would be surprised how often this issue of damages comes up,” said Judkins. “In many cases, parties spend more time trying to prove other elements of a case and don’t sufficiently address damages.”

The takeaway for clients, Judkins advises, is to be sure you can establish measurable damages before proceeding with litigation. “Clients and their lawyer should be on the same page when a claim is brought for damages. There should be a clear understanding of the damages that may be recovered and what evidence must be presented to prove those damages. Knowing what type of proof is needed can help to avoid the problem encountered by Ben-Shmuel.”