Crestwood Park, Inc. v. Apostal

MILLER, Judge,

dissenting.

I dissent.

I disagree with the majority’s characterization of the evidence in this case as being too speculative to support the award of the trial court. The plaintiff-appellee, Joseph Apostal, owner of the subdivision lots in question and an experienced residential subdivision developer, testified that at the time of the breach his seven lots each had a value of $1,000. Further, with the added improvements (prevented by Crestwood’s breach of contract), Apostal opined each lot had a sale value of $3,600. He estimated his lost net profit per lot, after improvement costs, at $1,800, thus establishing the improvement expenses at $800 per lot. Other evidence substantiated his estimate of expenses. The accepted bid for the street, curb, and storm sewer improvements on Oakwood Drive was $9,103.25. There were 14 lots on the street, seven owned by Apostal and seven by Crestwood. Dividing the improvement cost among the 14 lots on the street, we arrive at a figure of $650 per lot for cost of the actual improvements. The other $150 per lot allocated by Apostal for expenses does not seem unreasonable in light of the normal legal and other expenses of closing, i. e. preparation of deed, title insurance, etc. I therefore conclude the evidence of profits lost by Apostal “while not sufficient to put the amount beyond doubt, is sufficient to enable the [trial court] to make a fair and reasonable finding with respect thereto.” Jerry Alderman Ford Sales, Inc. v. Bailey, (1972) 154 Ind. 632, 653, 291 N.E.2d 92, 106.

Nor can I agree with the majority’s position that Apostal, by recovery of $7,000, “will be placed in a better position than he would have been if a contract had not been broken and the lots improved and sold,” basing its conclusion on evidence that the *660lots if improved at the time of trial retained their profit potential. Here, I believe the majority has applied an incorrect measure of damages. It is stated in 9 I.L.E. Damages § 127 (1971) that “[t]he measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of a contract would have prevented or the breach of it has entailed.” Further, “[a]s a general rule, the damages upon breach of contract are to be measured as of the date of the breach. Under this rule, fluctuations in value after breach do not affect the recovery allowed.” 22 Am.Jur.2d Damages § 51 (1965). Thus, for example, it has been held that for a breach of contract to purchase real estate the measure of damages is the difference between the price of the property as fixed in the contract and the fair cash value at the time of the breach. Foster v. Klinger, (1931) 92 Ind.App. 700, 175 N.E. 136; Goodwine v. Kelley, (1904) 33 Ind.App. 57, 70 N.E. 832; Farmers and Citizens Building, Loan Fund and Savings Association v. Rector, (1899) 22 Ind.App. 101, 53 N.E. 297.

Evidence in the case at bar reveals that after the breach Apostal retained seven unimproved lots, each with a value of $1,000. Had he sold the lots at that time and at that figure he would have sustained the loss of net profits which would have been realized had the lots been improved. However, he elected not to sell, and admittedly, some four years later at trial, evidence was admitted indicating the lots had a potential profit similar to that which had existed at the time of breach. However, Apostal also testified that he had been denied the right to tap new sewers into the Hobart sewer system, thereby raising the question as to whether such potential actually existed. I believe the possible value of the property some four years after Crestwood Park’s breach is evidence too conjectural in nature to be considered in measuring damages in this case. Further, I believe the testimony of Apostal concerning the unavailability of city sewers, although meager, was sufficient to support a conclusion by the trial judge that the lots in question had lost their full development potential because of Crest-wood’s breach of contract.

The $7,000 damage award of the trial court was within the evidence and arrived at by application of the proper measure of damages. The judgment of the trial court should be affirmed.