[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 8, 2011
No. 10-12682 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 1:06-cv-21315-CMA
HUDSON MARINE MANAGEMENT SERVICES, INC.,
Plaintiff-Appellant,
versus
THOMAS MILLER (MIAMI), INC.,
THOMAS MILLER P&L LTD.,
Defendants-Appellees.
________________________
No. 10-12683
Non-Argument Calendar
________________________
D. C. Docket No. 1:06-cv-21315-CMA
HUDSON MARINE MANAGEMENT SERVICES, INC.,
Plaintiff-Appellee,
versus
THOMAS MILLER (MIAMI), INC.,
THOMAS MILLER P&L LTD.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 8, 2011)
Before HULL, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Hudson Marine Management Services, Inc. (“Hudson Marine”) appeals the
district court’s entry of judgment against it on its breach of contract claim against
Thomas Miller (Miami), Inc. and Thomas Miller P&L Ltd. (collectively “Miller”)
for not paying for the full value of the work Hudson Marine performed. Miller
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cross-appeals the entry of judgment against it on its counterclaim for overpayment.
In the contract between the parties, Hudson Marine agreed to restore and repair a
marine habitat after a vessel damaged a coral reef off the coast of Florida. See Sea
Byte, Inc. v. Hudson Marine Mgmt. Servs., Inc., 565 F.3d 1293, 1296 (11th Cir.
2009). Hudson Marine subcontracted with Sea Byte, Inc. (“Sea Byte”) to perform
the restoration work.1 Id. Multiple hurricanes hit the area after restoration work
began, disrupting the project and ultimately causing it to cease. Id. at 1297.
In Hudson Marine’s initial appeal, this Court remanded for the district court
to calculate the parties’ damages, by determining what percentage of the contract’s
value Hudson Marine had performed before the hurricanes hit and multiplying that
percentage by the total contract price of $5,200,000. See Sea Byte, Inc., 565 F.3d
at 1301–03. On remand, the district court entered judgment denying both parties
any recovery for Hudson Marine’s pre-hurricane work because they failed to
establish the amount of damages to which they were entitled by a reasonable
degree of certainty. After thorough review, we affirm.
I.
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Sea Byte was a party to the suit before the district court but settled its claims against
Miller, and is therefore not a party to this appeal.
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“‘We review a district court’s factual findings when sitting without a jury in
admiralty under the clearly erroneous standard. We review the district court’s
conclusions of law de novo.’” Sea Byte, Inc., 565 F.3d at 1298 (quoting Venus
Lines Agency, Inc. v. CVG Int’l Am., Inc., 234 F.3d 1225, 1228 (11th Cir. 2000)).
“‘A finding of fact is clearly erroneous when the entirety of the evidence leads the
reviewing court to a definite and firm conviction that a mistake has been
committed.’” Id. (quoting Dresdner Bank AG v. M/V Olympia Voyager, 446 F.3d
1377, 1380 (11th Cir. 2006)).
Both parties argue that the district court erred by requiring expert testimony
on the issue of damages. The Federal Rules of Evidence provide that “[i]f
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert . . . may testify thereto.” Fed. R. Evid. 702 (emphasis added). Rule 702
and our precedent make clear that “there is no rule requiring expert testimony on
certain issues.” Worsham v. A.H. Robins Co., 734 F.2d 676, 685 (11th Cir. 1984).
There are only a limited number of “cases in which [the] case would fail without
expert testimony because the technical and scientific aspects of the case would
result in a [finder of fact’s] inability to comprehend the issues.” Id. Indeed, the
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particular “causes of action in which the law predicates recovery upon expert
testimony,” such as medical malpractice, are rare. Id.
Thus, we agree with the parties that had the district court required expert
testimony on damages, it would have erred. But after careful review, we conclude
that the district court did not require expert testimony in this case. The district
court stated its findings and conclusions on the record, pursuant to Federal Rule of
Civil Procedure 52, instead of memorializing them in a written opinion. During
the evidentiary hearing, the court mentioned that expert testimony would have
been helpful in the case. It does not appear, however, that the district court
rejected the parties’ evidence on the basis that they failed to provide expert
testimony.
Instead, the district court rejected the parties’ evidence primarily because it
was speculative. We next consider whether the district court erred in rejecting the
parties’ evidence on that basis.
II.
Hudson Marine argues that the district court erroneously found that its
evidence of damages was speculative and not based on a reasonable degree of
certainty. Florida law requires certainty of damages in a contract action. See
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Sharick v. Se. Univ. Health Scis., Inc., 780 So. 2d 136, 140 (Fla. 3d DCA 2000).
Damages cannot be “remote” or “conjectural and speculative.” Id.
On remand, we had instructed the district court to “determine what
percentage of the project’s value Hudson [Marine] provided under the contract of
September 2, and multiply that percentage by the contract price of $5,200,000.”
Sea Byte, Inc., 565 F.3d at 1301 (emphasis added). We explained that the proper
measure of the “value” of the work performed is not simply the amount of time
spent on the project before the hurricane. Id. at 1302. Rather, we noted that the
value of the completed work must take into account the different “kinds of labor,
equipment, and skills” required for the work performed during that period. Id.
The district court did not err in finding that the parties failed to establish the
“value” of the work Hudson completed before the hurricane to a reasonable degree
of certainty. Miller merely calculated the number of days involved and asked the
court to assess value based solely on time and the percentage of the work that had
been completed. We explained on remand that in this case “the circumstances
require a slightly different approach” than multiplying the total value of the
project by the percentage of the project completed. Sea Byte, Inc., 565 F.3d 1302.
Nor did Hudson Marine provide any sufficient evidence at the evidentiary hearing
of the “value” of the work it performed. Rather, Hudson Marine proposed
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multiple, competing formulas and asked the district court to choose among them in
calculating its damages.
We hold that the district court did not err by concluding that neither party
had established sufficient evidence of the “value” of the work Hudson Marine
performed to the degree of certainty required under Florida law. We therefore
AFFIRM the district court’s entry of judgment in favor of Miller on Hudson
Marine’s breach of contract claim and in favor of Hudson Marine on Miller’s
contract claim for overpayment.
AFFIRMED.
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