Third District Court of Appeal State of Florida
Opinion filed June 18, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-592 Lower Tribunal No. 16-9912 ________________
Eloquence on the Bay Condominium Association, Inc., etc., Appellant,
vs.
CDC Builders, Inc., etc., et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge.
Klein Park & Lowe, P.L., and Robert M. Klein and Andrew M. Feldman, for appellant.
Cole Scott & Kissane, P.A., and Scott A. Cole and Therese A. Savona (Orlando), for appellee CDC Builders, Inc.
Before LINDSEY, LOBREE and BOKOR, JJ.
LOBREE, J.
Eloquence on the Bay Condominium Association, Inc. (“Eloquence”) appeals the entry of final judgment in favor of CDC Builders, Inc. (“CDC”)
and an order denying its motion for new trial based on the trial court’s
decision to modify the agreed jury instructions mid-trial to include CDC’s new
proposed jury instruction on damages. For the reasons that follow, we affirm.
BACKGROUND
In 2016, Eloquence filed suit against its condominium developer Ness
Racquet Club, LLC, and its general contractor, CDC, alleging the
condominium was constructed with numerous construction and design
defects. Eloquence amended its complaint in 2018 to include claims against
CDC for breach of the statutory implied warranty of fitness, negligence, and
for breach of the Florida Building Code.
The matter proceeded and the case was set for a jury trial. Eleven
days before trial began, the parties attended a charge conference where they
discussed jury instructions. Both parties had submitted proposed jury
instructions, which each stated that the measure of damages was “the
reasonable cost of necessary repairs which the greater weight of the
evidence shows resulted, or will result, from” CDC’s alleged breach or
negligence. At the pretrial conference neither party presented any argument
regarding the time frame or date on which the amount of damages should be
measured.
2 An eight-day trial was held. After the jury was sworn in, the trial court
told the jury that it would receive a complete set of jury instructions at the
end of the trial but that it would give the jury some of the rules at the start of
trial so the jury could begin to understand how to apply the evidence. While
walking the jury through its instructions, the trial court told the jury that the
measure of damages would be “the reasonable cost of any necessary repairs
which the greater weight of the evidence shows resulted or will result from
Defendant CDC’s” breach of the implied warranty of fitness, negligence, and
breach of the Florida Building Code.
As trial progressed, the trial court granted Eloquence’s motion for
directed verdict finding CDC violated a provision of the Florida Building Code
involving the building’s post-tensioning system because both Eloquence and
CDC’s experts testified that there was a violation. However, the trial court
reviewed the language of section 553.84, Florida Statutes, and found the jury
should still be permitted to make liability findings as to whether CDC knew
or should have known that a material violation existed, and whether there
was any personal injury or damage to property other than that subject to the
construction plans as CDC received approval for its construction plans.
At the end of the sixth day of trial, Eloquence stated its objection to a
new set of jury instructions that CDC had circulated that morning. Eloquence
3 argued it did not agree to the newly-proposed jury instructions as they had
substantive changes, the case was already six days into trial, and the parties
already had a three-hour charge conference where the trial court ruled on
the instructions. The trial court directed the parties to meet and discuss the
proposed instructions before the continuation of trial the next day.
The next day, the parties discussed the jury instructions after all parties
rested their case. During this discussion, Eloquence noted it objected to
CDC’s inclusion of a sentence to the damages instructions that stated: “The
cost of repair must be measured at the time of the breach, not the time of
trial.” Eloquence asserted this was improper because its claims against CDC
were not for breach of contract, but rather breach of statutory warranty and
the Florida Building Code. Notably, Eloquence did not argue that inclusion
of this jury instruction would mislead the jury or result in an unfair trial.
CDC argued that limitation of the damages to the time of the breach
was proper pursuant to Grossman Holdings Ltd. v. Hourihan, 414 So. 2d
1037, 1040 (Fla. 1982), and further contended the time of the breach should
be considered 2015, as that was after the condominium building was turned
over to Eloquence. Eloquence countered that damages should be equal to
the cost of repair at the time of trial. The trial court disagreed. Eloquence
then acquiesced to the inclusion of the modified jury instruction and agreed
4 that the jury instruction should state the cost of repairs should be measured
as of 2015. Eloquence did not move to reopen the evidence, seek to recall
its damages expert, or request that the trial court preclude CDC from arguing
during closing that Eloquence presented no evidence of what the cost of
repair was in 2015.
The next day, before closing arguments, the parties discussed the
verdict form and Eloquence did not raise any objections or seek any
additional interrogatories. During closing arguments, Eloquence did not
address the amended measure of damages. CDC, on the other hand, noted
that “[e]very single jury instruction on damages for all three counts requires
[Eloquence] to prove the cost of repair in 2015 and you didn’t hear any
evidence of it here. You heard 2019, 2022, but you didn’t hear 2015.”
Eloquence did not contemporaneously object to this argument or move for a
mistrial asserting it had been denied the opportunity to present evidence to
the jury about the costs of repair in 2015. At the end of the trial, the jury
rendered a verdict for CDC and the trial court entered final judgment in
CDC’s favor.
Eloquence filed a motion for new trial asserting that the new jury
instruction: (1) misled and confused the jury; (2) was improper as
Eloquence’s claims were not based on breach of contract; and (3) was
5 inconsistent with the prior instructions, warranting a new trial. CDC
responded asserting that: (1) the jury never reached the issue of Eloquence’s
damages so any error in the measure of damages instruction was harmless;
(2) Eloquence’s argument that the jury instructions were misleading was not
preserved; (3) the law supported the new damages jury instruction; and (4)
the verdict was not contrary to the manifest weight of the evidence.
Eloquence filed a reply. The trial court heard the motion for new trial and
ultimately denied the motion. This appeal followed.
ANALYSIS
“The standard of review over a trial court’s decision regarding a motion
for new trial is abuse of discretion.” Barkett v. Gomez, 908 So. 2d 1084,
1086 (Fla. 3d DCA 2005). “A trial court’s decision to give or refuse to give a
Free access — add to your briefcase to read the full text and ask questions with AI
Third District Court of Appeal State of Florida
Opinion filed June 18, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-592 Lower Tribunal No. 16-9912 ________________
Eloquence on the Bay Condominium Association, Inc., etc., Appellant,
vs.
CDC Builders, Inc., etc., et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Lisa S. Walsh, Judge.
Klein Park & Lowe, P.L., and Robert M. Klein and Andrew M. Feldman, for appellant.
Cole Scott & Kissane, P.A., and Scott A. Cole and Therese A. Savona (Orlando), for appellee CDC Builders, Inc.
Before LINDSEY, LOBREE and BOKOR, JJ.
LOBREE, J.
Eloquence on the Bay Condominium Association, Inc. (“Eloquence”) appeals the entry of final judgment in favor of CDC Builders, Inc. (“CDC”)
and an order denying its motion for new trial based on the trial court’s
decision to modify the agreed jury instructions mid-trial to include CDC’s new
proposed jury instruction on damages. For the reasons that follow, we affirm.
BACKGROUND
In 2016, Eloquence filed suit against its condominium developer Ness
Racquet Club, LLC, and its general contractor, CDC, alleging the
condominium was constructed with numerous construction and design
defects. Eloquence amended its complaint in 2018 to include claims against
CDC for breach of the statutory implied warranty of fitness, negligence, and
for breach of the Florida Building Code.
The matter proceeded and the case was set for a jury trial. Eleven
days before trial began, the parties attended a charge conference where they
discussed jury instructions. Both parties had submitted proposed jury
instructions, which each stated that the measure of damages was “the
reasonable cost of necessary repairs which the greater weight of the
evidence shows resulted, or will result, from” CDC’s alleged breach or
negligence. At the pretrial conference neither party presented any argument
regarding the time frame or date on which the amount of damages should be
measured.
2 An eight-day trial was held. After the jury was sworn in, the trial court
told the jury that it would receive a complete set of jury instructions at the
end of the trial but that it would give the jury some of the rules at the start of
trial so the jury could begin to understand how to apply the evidence. While
walking the jury through its instructions, the trial court told the jury that the
measure of damages would be “the reasonable cost of any necessary repairs
which the greater weight of the evidence shows resulted or will result from
Defendant CDC’s” breach of the implied warranty of fitness, negligence, and
breach of the Florida Building Code.
As trial progressed, the trial court granted Eloquence’s motion for
directed verdict finding CDC violated a provision of the Florida Building Code
involving the building’s post-tensioning system because both Eloquence and
CDC’s experts testified that there was a violation. However, the trial court
reviewed the language of section 553.84, Florida Statutes, and found the jury
should still be permitted to make liability findings as to whether CDC knew
or should have known that a material violation existed, and whether there
was any personal injury or damage to property other than that subject to the
construction plans as CDC received approval for its construction plans.
At the end of the sixth day of trial, Eloquence stated its objection to a
new set of jury instructions that CDC had circulated that morning. Eloquence
3 argued it did not agree to the newly-proposed jury instructions as they had
substantive changes, the case was already six days into trial, and the parties
already had a three-hour charge conference where the trial court ruled on
the instructions. The trial court directed the parties to meet and discuss the
proposed instructions before the continuation of trial the next day.
The next day, the parties discussed the jury instructions after all parties
rested their case. During this discussion, Eloquence noted it objected to
CDC’s inclusion of a sentence to the damages instructions that stated: “The
cost of repair must be measured at the time of the breach, not the time of
trial.” Eloquence asserted this was improper because its claims against CDC
were not for breach of contract, but rather breach of statutory warranty and
the Florida Building Code. Notably, Eloquence did not argue that inclusion
of this jury instruction would mislead the jury or result in an unfair trial.
CDC argued that limitation of the damages to the time of the breach
was proper pursuant to Grossman Holdings Ltd. v. Hourihan, 414 So. 2d
1037, 1040 (Fla. 1982), and further contended the time of the breach should
be considered 2015, as that was after the condominium building was turned
over to Eloquence. Eloquence countered that damages should be equal to
the cost of repair at the time of trial. The trial court disagreed. Eloquence
then acquiesced to the inclusion of the modified jury instruction and agreed
4 that the jury instruction should state the cost of repairs should be measured
as of 2015. Eloquence did not move to reopen the evidence, seek to recall
its damages expert, or request that the trial court preclude CDC from arguing
during closing that Eloquence presented no evidence of what the cost of
repair was in 2015.
The next day, before closing arguments, the parties discussed the
verdict form and Eloquence did not raise any objections or seek any
additional interrogatories. During closing arguments, Eloquence did not
address the amended measure of damages. CDC, on the other hand, noted
that “[e]very single jury instruction on damages for all three counts requires
[Eloquence] to prove the cost of repair in 2015 and you didn’t hear any
evidence of it here. You heard 2019, 2022, but you didn’t hear 2015.”
Eloquence did not contemporaneously object to this argument or move for a
mistrial asserting it had been denied the opportunity to present evidence to
the jury about the costs of repair in 2015. At the end of the trial, the jury
rendered a verdict for CDC and the trial court entered final judgment in
CDC’s favor.
Eloquence filed a motion for new trial asserting that the new jury
instruction: (1) misled and confused the jury; (2) was improper as
Eloquence’s claims were not based on breach of contract; and (3) was
5 inconsistent with the prior instructions, warranting a new trial. CDC
responded asserting that: (1) the jury never reached the issue of Eloquence’s
damages so any error in the measure of damages instruction was harmless;
(2) Eloquence’s argument that the jury instructions were misleading was not
preserved; (3) the law supported the new damages jury instruction; and (4)
the verdict was not contrary to the manifest weight of the evidence.
Eloquence filed a reply. The trial court heard the motion for new trial and
ultimately denied the motion. This appeal followed.
ANALYSIS
“The standard of review over a trial court’s decision regarding a motion
for new trial is abuse of discretion.” Barkett v. Gomez, 908 So. 2d 1084,
1086 (Fla. 3d DCA 2005). “A trial court’s decision to give or refuse to give a
proposed jury instruction is reviewed for an abuse of discretion.” Philip
Morris USA, Inc. v. McCall, 234 So. 3d 4, 14 (Fla. 4th DCA 2017). “The test
regarding jury instructions is whether, under the particular facts of the case,
the instructions misled the jury or prejudiced a party’s right to a fair trial.” ITT-
Nesbitt, Inc. v. Valle’s Steak House of Fort Lauderdale, Inc., 395 So. 2d 217,
220 (Fla. 4th DCA 1981).
On appeal, Eloquence contends that the trial court’s erroneous
inclusion of CDC’s requested jury instruction on damages six days into the
6 trial deprived it of a fair trial. Under the specific factual circumstances of this
case, we conclude that Eloquence’s failure to present evidence of 2015
damages on its Florida Building Code claim as to the post-tensioning system
does not warrant reversal because it is not attributable to judicial error.1
“It is axiomatic that a plaintiff must prove damages resulting from the
defendant’s wrongdoing to be entitled to recover.” Regions Bank v. Maroone
Chevrolet, L.L.C., 118 So. 3d 251, 257 (Fla. 3d DCA 2013). This includes
the proper measure of damages. See Bandklayder Dev., LLC v. Sabga, 406
So. 3d 265, 270 (Fla. 3d DCA 2025). “This court has consistently held that
when a party has ‘failed to meet [its] burden of establishing the correct
measure of damages at trial, and such failure was not the result of judicial
error, [that party] is not entitled to a new trial on damages.’” Id. (quoting Levy
v. Ben-Shmuel, 255 So. 3d 493, 495 (Fla. 3d DCA 2018)). However, a new
trial on damages is “appropriate where the party’s failure to establish
1 We further conclude that this issue is harmless with respect to the breach of statutory warranty and negligence claims. The jury found Eloquence had failed to show that CDC was liable for either negligence or breach of the statutory warranty. Accordingly, the jury never made a determination as to damages on either claim. Thus, any alleged error related to the new damages jury instruction was harmless. Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014) (“To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict.”). We therefore affirm the trial court’s entry of final judgment and denial of Eloquence’s motion for new trial as to those claims.
7 damages was the result of judicial error.” Levy, 255 So. 3d at 497 n.4; see
also Sharick v. Se. Univ. of the Health Scis., Inc., 780 So. 2d 136, 140 (Fla.
3d DCA 2000) (reversing and remanding for new trial on damages because
trial court erroneously denied plaintiff “the opportunity to plead and prove
damages in the form of the loss of earning capacity”).
Eloquence urges this court to reverse and find that its failure to present
any evidence of 2015 damages was because of the trial court’s erroneous
inclusion of the late-amended damages jury instruction. Consistent with the
trial court’s directed verdict finding that CDC violated the Florida Building
Code in its construction of the post-tensioning system, the jury found that
Eloquence proved by the greater weight of the evidence that CDC should
have known that a Florida Building Code violation existed for the post-
tensioning system. However, the jury further found that Eloquence failed to
prove by the greater weight of the evidence that this violation of the Florida
Building Code in the construction of the post-tensioning system caused
damage to the property.
We decline to conclude that Eloquence’s failure to present any
evidence of 2015 damages is due to judicial error. CDC presented its
amended jury instructions to the trial court on the sixth day of the eight-day
trial. The trial court agreed to alter the jury instructions a day before the
8 closing arguments. At that time, neither Eloquence nor CDC had presented
any evidence or expert testimony relating to the measure of damages to the
post-tensioning system in 2015. Even so, Eloquence ultimately agreed to
use 2015 as the date when damages should be measured. Moreover,
Eloquence did not move to reopen the evidence, seek to recall its damages
expert, request that CDC be precluded from arguing the lack of evidence of
2015 damages during closing arguments, move for a mistrial based on its
inability to present evidence of 2015 damages, or request any interrogatory
on the verdict form relating to proof of the date of any damages.
While the modification of the jury instruction was certainly delayed, we
cannot attribute the failure to prove the measure of damages in 2015 to
judicial error. Eloquence failed to object to the amended instruction based
on prejudice and failed to timely request relief. See City of Orlando v.
Birmingham, 539 So. 2d 1133, 1135 (Fla. 1989) (“In the absence of a timely
objection, the trial judge does not have the opportunity to rule upon a specific
point of law. Consequently, no issue is preserved for appellate review.”).
Accordingly, we are constrained to affirm.
Affirmed.