Allard v. Al-Nayem International, Inc.
59 So. 3d 198
| Fla. Dist. Ct. App. | 2011Background
- Al-Nayem purchased commercial property from Allard for $1,650,000, including a restaurant and paved parking, with a 30-foot drainage ditch on the east side subsequently found to be DOT-owned.
- Al-Nayem sued Allard for breach of the warranty deed and the title company for breach of the title policy; the trial court found both in breach and noted the loss of the swale impaired development potential.
- Damages were contested under Burton v. Price (1932) measure of damages for breach of the covenant of seisin, with Al-Nayem advocating a simple proportional calculation based on square footage affected and the purchase price.
- Allard argued Burton should base damages on proportionate value of the conveyed land, not merely area, emphasizing improvements and citing Hillsboro Cove and related authority.
- The trial court granted an involuntary dismissal at the close of Al-Nayem’s case, finding Al-Nayem failed to prove a competent damages theory under Burton/Hillsboro Cove.
- Al-Nayem moved for rehearing; the trial court granted rehearing to consider a different damages approach, which the appellate court later reversed on rehearing but affirmed the involuntary dismissal in part and reversed on the rehearing issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the proper Burton measure of damages? | Al-Nayem contends Burton uses the proportionate cost/value of the unconveyed land (including improvements) at purchase. | Allard argues Burton yields a value-based, not cost-based, measure and may be limited when improvements are involved; Hillsboro Cove supports a value-based approach. | Correct measure requires considering improvements; involuntary dismissal proper due to inadequate damages proof under Burton. |
| Was the involuntary dismissal appropriate given the damages evidence? | Al-Nayem provided evidence under Burton/Hillsboro Cove theory of damages. | Damages theory flawed; no competent damages proof under Burton’s framework. | Yes; the trial court properly granted involuntary dismissal for failure to prove damages under Burton/Hillsboro Cove framework. |
| Was the rehearing proper to allow a new damages theory? | Rehearing necessary to allow development under a different, unsettled Florida measure of damages. | Rehearing was improper, as damages failure alone is not grounds for rehearing; Burton remains controlling. | Rehearing improper; reverse as to the rehearing issue; but affirm the involuntary dismissal and remand for proceedings consistent with Burton. |
Key Cases Cited
- Burton v. Price, 105 Fla. 544 (Fla.1932) (measure of damages is the fractional part of the whole consideration for the part not conveyed)
- Williams v. Azar, 47 So.2d 624 (Fla.1950) (affirmed Burton’s approach to seisin damages)
- Hillsboro Cove, Inc. v. Archibald, 322 So.2d 585 (Fla.4th DCA 1975) (damages based on proportionate cost of the unconveyed land as of conveyance date)
- MCI WorldCom Network Services, Inc. v. Mastec, Inc., 995 So.2d 221 (Fla.2008) (unsettled measure of damages; in particular damages for loss of use may be disallowed while repairs may be recoverable)