FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 8, 2011

JOHN LEY

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 10-12682

Non-Argument Calendar

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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.

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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.

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Appeals from the United States District Court

for the Southern District of Florida

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(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. Id. Multiple hurricanes hit the area after restoration work 1

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.

 Sea Byte was a party to the suit before the district court but settled its claims against 1

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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