DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HCA HEALTH SERVICES OF FLORIDA, INC. d/b/a ST. LUCIE 

MEDICAL CENTER, a Florida corporation,

Appellant,

v.

CYBERKNIFE CENTER OF THE TREASURE COAST, LLC, a Florida 

Limited Liability Company,

Appellee.

No. 4D14-3199

[ June 29, 2016 ]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; George A. Shahood, Senior Judge; L.T. Case No. 08-852 

CA.

Thomas E. Warner, M. Derek Harris, Dean A. Morande and Michael 

David Sloan of Carlton Fields Jorden Burt, P.A., West Palm Beach, for 

appellant.

Major B. Harding and Anthony L. Bajoczky, Jr. of Ausley & McMullen, 

P.A., Tallahassee, and Richard Levenstein and Abby M. Spears of 

Kramer, Sopko & Levenstein, P.A., Stuart, for appellee.

TAYLOR, J.

Appellant, HCA Health Services of Florida, Inc., d/b/a St. Lucie 

Medical Center (the “Hospital”), appeals an amended final judgment 

awarding the plaintiff/appellee, CyberKnife Center of the Treasure Coast, 

LLC (“CyberKnife”), $1,842,392 in damages for lost revenue on 

CyberKnife’s claim for breach of contract, together with prejudgment 

interest and costs. We reverse the final judgment, concluding that lost 

revenue was an improper measure of damages, and appellee offered no 

proof at trial regarding the correct measure of damages.

In March 2007, CyberKnife and the Hospital entered into the 
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CyberKnife Services Agreement for a term of five years. Under the 

Agreement, CyberKnife was required to provide “the Equipment and the 

Site” to the Hospital for CyberKnife radiosurgery treatments to patients of 

the Hospital. In exchange, the Hospital would pay CyberKnife $5,150, 

plus sales tax of $334.75, “per-click” for each treatment rendered to a 

patient. The site was to be staffed and “operated exclusively by” the 

Hospital, but CyberKnife was responsible for maintenance of the 

equipment. The Agreement stated that “in no event shall either party be 

entitled to consequential or punitive damages.”

Before the parties reached a written agreement, they hired an 

independent expert to perform a fair market valuation (“FMV”) of the 

CyberKnife treatments under the parties’ proposed business agreement. 

The FMV included volume projections and estimates of the number of 

treatments per patient.

On or about January 25, 2008, the Hospital notified CyberKnife that 

it was terminating the Agreement. Notably, federal regulations 

implementing the Stark law1 later made so-called “per-click” agreements 

illegal as of October 1, 2009. See 42 C.F.R. § 411.357(b)(4)(ii)(B) (2009).

Litigation ensued following the Hospital’s termination of the 

Agreement. At trial, CyberKnife’s damages expert testified to his 

damages calculations under various scenarios. In one scenario, the 

expert relied upon the original volume projections in the FMV report and 

opined that CyberKnife’s lost revenue was $1,842,392, between January 

25, 2008 (when the parties’ contract was terminated) and October 1, 

2009 (the effective date of the change in the Stark law regulations).

After CyberKnife rested, the Hospital moved for an involuntary 

dismissal, raising the same arguments it now raises in this appeal. The 

Hospital renewed its motion for involuntary dismissal at the close of all 

the evidence. The trial court denied the Hospital’s motions for 

involuntary dismissal and later entered judgment against the Hospital in 

the amount of $1,842,392 on CyberKnife’s claim for breach of contract, 

plus prejudgment interest and costs.

On appeal, the Hospital’s primary arguments concern damages 

issues. The Hospital argues, as it did below, that the consequential 

damages waiver in the parties’ contract barred the damages CyberKnife 

1 The Stark law generally restricts physicians who have a “financial 

relationship” with a hospital from referring Medicare patients to that hospital, 

but there are various exceptions. See generally 42 U.S.C. § 1395nn.
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sought, and that CyberKnife failed to submit any proof on the proper 

measure of damages, which was lost profits. Although we conclude that 

CyberKnife’s damages were general damages rather than consequential 

damages,2 we agree that CyberKnife failed to present evidence of the 

correct measure of its damages—lost profits.

A trial court’s determination as to the method of calculating damages 

is reviewed de novo. Katz Deli of Aventura, Inc. v. Waterways Plaza, LLC, 

183 So. 3d 374, 380 (Fla. 3d DCA 2013).

Where a party’s repudiation of the contract prevents performance by 

the non-breaching party, the non-breaching party “may elect between 

reliance damages (those costs and expenses of preparing to perform, the 

recovery of which will place the recipient in the position it occupied 

before entering into the contract) or lost profits (the benefit of the bargain 

or ‘expectation interest’).” Del Monte Fresh Produce Co. v. Net Results, 

Inc., 77 So. 3d 667, 673 (Fla. 3d DCA 2011). Unless the non-breaching 

party elects reliance damages, “Florida law requires proof of lost profits 

(income less expense) rather than merely lost gross revenue.” Id. at 673 

n.11. In a lost profits case, the proper computation of damages “requires 

the non-breaching party to deduct from anticipated contract revenue the 

costs incurred in performing the contractual services.” Id. at 674. 

“Typically these include an appropriate allocation of overhead as well as 

2 While case law often refers to lost profits as consequential damages, lost 

profits do not always constitute consequential damages as a matter of law. For 

example, “[l]ost profits are recoverable as general damages where they flow 

directly and immediately from the breach of a contract.” Bird Lakes Dev. Corp. 

v. Meruelo, 626 So. 2d 234, 238 (Fla. 3d DCA 1993). Indeed, “when the nonbreaching party seeks only to recover money that the breaching party agreed to 

pay under the contract, the damages sought are general damages.” Tractebel 

Energy Mktg., Inc. v. AEP Power Mktg., Inc., 487 F.3d 89, 109 (2d Cir. 2007). 

Lost profits can constitute general damages where the non-breaching party 

seeks to recover the total value of the breaching party’s promised payments less 

the cost of performance. Id. By contrast, consequential damages do not arise 

within the scope of the immediate transaction between the parties to a contract, 

“but rather stem from losses incurred by the non-breaching party in its 

dealings, often with third parties, which were a proximate result of the breach, 

and which were reasonably foreseeable by the breaching party at the time of 

contracting.” Hardwick Props., Inc. v. Newbern, 711 So. 2d 35, 40 (Fla. 1st DCA 

1998) (citation omitted). Here, although treatments at the CyberKnife facility 

were provided to third-party patients, the parties’ agreement required the 

Hospital to pay per-click each time the equipment was used. Therefore, 

CyberKnife’s lost profits, had they been proven, would have constituted general 

damages that flowed directly from the parties’ immediate transaction.
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any personnel expenses that would have been incurred.” Id. Evidence 

pertaining to loss of income or gross receipts, without specific evidence 

concerning expenses, is inadequate to prove lost profits. E.T. Legg & 

Assocs., Ltd. v. Shamrock Auto Rentals, Inc., 386 So. 2d 1273, 1274 (Fla. 

3d DCA 1980).

Here, CyberKnife did not present evidence of its reliance damages or 

its lost profits, but instead merely proved its lost revenue. CyberKnife 

nevertheless argues that lost revenue was a proper measure of damages 

in this case because the lost revenue consisted of unpaid rent under a 

lease agreement. We disagree.

In the landlord-tenant context, a lessor’s damages are generally 

measured by “the difference between the rentals stipulated to be paid 

and what, in good faith, the landlord is able to recover from a reletting.” 

Kanter v. Safran, 99 So. 2d 706, 707 (Fla. 1958) (citations omitted). We 

find, however, that this measure of damages is inapplicable to the case at 

bar. Although the CyberKnife Services Agreement has some 

characteristics of a lease, it is not merely a lease. The Agreement also 

involved the provision of services. Moreover, because the payment 

structure was conditioned upon anticipated treatments with third-party 

patients, there was no stipulated rent under the Agreement, as there 

would be in a typical lease. In fact, the Agreement does not refer to itself 

as a “lease” or to the payments thereunder as “rent.” Accordingly, we 

conclude that lost profits, not lost revenue, is the correct measure of 

expectation damages in this case.

Finally, because there was no proof at trial concerning the correct 

measure of damages, we reverse and remand for entry of judgment in 

favor of the Hospital. See Teca, Inc. v. WM-TAB, Inc., 726 So. 2d 828, 830 

(Fla. 4th DCA 1999) (where there has been no proof at trial concerning 

the correct measure of damages, a plaintiff is not entitled to a second 

opportunity to prove damages and judgment should be entered in favor 

of the defendant); see also Morgan Stanley & Co. v. Coleman, 955 So. 2d 

1124, 1131 (Fla. 4th DCA 2007) (same). This disposition renders the 

remaining issues moot.

Reversed and Remanded.

MAY, J., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.