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[DO NOT PUBLISH]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.,
Plaintiff-Counter Defendant-
Appellee,
versus
PRC PRECAST, LLC,
Defendant-Counter Claimant-
Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:20-cv-00169-RH-GRJ
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2 Opinion of the Court 22-10305
____________________
Before WILSON, NEWSOM, and LAGOA, Circuit Judge.
PER CURIAM:
In this breach of contract action under Florida law, PRC Pre-
cast, LLC (PRC) appeals the district court’s final judgment, after a
bench trial, finding 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 benefit of oral argument, we find 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, even-
tually, PRC expressed uncertainty about complying with the dead-
lines. 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 notification if the un-
derstanding 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 findings under a clear error
standard of review.
Id. “A factual finding is clearly erroneous ‘when
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22-10305 Opinion of the Court 3
although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” Morrissette-Brown v. Mobile Infirmary
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 first argues that Oelrich breached the contract first 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 installa-
tion dates. These findings are supported by the record. PRC has not
shown clear error in the district court’s factual findings 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 deter-
mined that it was too late to cure performance and, given the cir-
cumstances at the time, PRC would have been unable to complete
performance. Consequently, notice for an opportunity to cure was
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4 Opinion of the Court 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 findings.
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 dam-
ages: $78,235.76. After applying offsets of $10,365.00 for improp-
erly 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 difference in price between PRC’s contract
and the replacement contractor’s price, and (3) Oelrich did not
prove “delay” damages with substantial evidence.
1“[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).
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22-10305 Opinion of the Court 5
We find no reversible error in the district court’s calculation
of damages. All that is required is that “the evidence affords a suf-
ficient 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 findings 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 affirm the judgments of the district court.
AFFIRMED.
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22-10305 NEWSOM, J., dissenting in part 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, re-
lieving the company of all but $4,516.39 of the cost of the manu-
facturing work left incomplete by PRC’s breach.1 Had PRC not
breached, though, Oelrich would have paid it $20,415.39 to finish
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
suffered 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 im-
permissibly 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.
1 $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 dif-
ference between these figures, therefore—$4,516.39—is all that Oelrich actu-
ally paid toward the uncompleted portion.
