Page 1 43 So.3d 68, 35 Fla. L. Weekly D1111 (Cite as: 43 So.3d 68) (2) opinion testimony of radio station account exec- utives constituted inadmissible hearsay evidence; District Court of Appeal of Florida, (3) radio station failed to provide competent sub- Fourth District. stantial evidence linking advertising losses to JAMES CRYSTAL LICENSES, LLC, James Crys- former employee violating non-compete agreement; tal Holdings, Inc., and James Crystal Enterprises, (4) evidence was insufficient to support claim for LLC, Elena Whitby a/k/a Jennifer Ross, Appellants, punitive damages against radio station; v. (5) while evidence was sufficient to support a find- INFINITY RADIO INC., a Delaware corporation, ing of tortious interference, it did not rise to requis- f/k/a CBS Radio Inc., Appellee. ite level of gross and flagrant behavior sufficient to No. 4D08-3504. support $2,300,000 punitive damages award; (6) punitive damages award of $2,300,000 was dis- May 19, 2010. proportionate to the harm, and thus failed to bear Rehearing Denied Oct. 5, 2010. reasonable relationship required by Due Process Background: Radio station brought action against clause. former employee and competitor that hired her, Reversed and remanded. seeking injunctive relief and alleging breach of contract and tortious interference with contract. De- West Headnotes fendants filed counterclaim for wrongful injunction damages. The Circuit Court, Palm Beach County, [1] Appeal and Error 30 893(1) Lucy Chernow Brown, J., denied radio station's motion for a temporary injunction. Radio station 30 Appeal and Error appealed. The District Court of Appeal, 780 So.2d 30XVI Review 248, reversed and remanded. On remand, and after 30XVI(F) Trial De Novo injunction was entered, the Circuit Court, Fifteenth 30k892 Trial De Novo Judicial Circuit, Palm Beach County, Diana Lewis, 30k893 Cases Triable in Appellate J., granted partial summary judgment on issue of Court enforceability of non-compete covenant, struck 30k893(1) k. In general. Most Cited counterclaim for wrongful injunction, and entered Cases judgment on jury verdict against former employee The District Court of Appeal has de novo review of on breach of contract claim, and against competitor the court's failure to direct a verdict on damages. on tortious interference claim. Parties appealed. [2] Damages 115 140 The District Court of Appeal, 951 So.2d 890, Hazouri, J., reversed and remanded. Following a 115 Damages jury trial, the Circuit Court entered judgment in the 115VII Amount Awarded amount of $126,511.48 in compensatory damages, 115VII(D) Breach of Contract and $2,300,000 in punitive damages, and defend- 115k140 k. Particular cases. Most Cited ants appealed. Cases Evidence of loss or reduction in advertising receiv- Holdings: The District Court of Appeal, May, J., ables after former radio broadcaster departed radio held that: station was insufficient to support jury award of (1) evidence was insufficient to support jury award $126,511.48 in compensatory damages at trial on of $126,511.48 in compensatory damages; breach of non-compete agreement, in the absence of © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 43 So.3d 68, 35 Fla. L. Weekly D1111 (Cite as: 43 So.3d 68) any evidence that loss was due to broadcaster's vi- [5] Damages 115 117 olation of agreement, or competitor's affirmative steps to secure broadcaster for its radio show, and 115 Damages no proof that lost profits were not the result of more 115VI Measure of Damages competitive advertising costs at competitor, level of 115VI(C) Breach of Contract competence of broadcaster's replacement, or intro- 115k117 k. Mode of estimating damages duction of a new morning team of broadcasters at a in general. Most Cited Cases different radio station. Requiring a deduction of a share of fixed costs re- lated to the performance of a contract allows for a [3] Evidence 157 501(9) true measurement of the amount the non-breaching party would have earned on the contract had there 157 Evidence been no breach, which is the proper measure of 157XII Opinion Evidence damages. 157XII(A) Conclusions and Opinions of Wit- nesses in General [6] Damages 115 189.5 157k499 Examination of Witnesses 157k501 Facts Forming Basis of Opin- 115 Damages ion 115IX Evidence 115k183 Weight and Sufficiency 157k501(9) k. Cause and effect. Most Cited Cases 115k189.5 k. Punitive damages. Most Radio station account executives' opinion testimony Cited Cases on reason advertising accounts were lost was inad- Evidence was insufficient to support a claim for missible in radio station's action for breach of non- punitive damages against radio station's competitor compete agreement and tortious interference on the for allegedly tortiously interfering with station's ground that the testimony was based on hearsay; business relationship with former employee, where, executives testified they either believed that advert- since no economic damage to radio station as a res- ising accounts were lost due to radio broadcaster's ult of alleged interference was shown, station's tor- departure from radio station, or were told so by ad- tious interference claim against competitor could vertiser's agent. West's F.S.A. § 90.701. not stand. [4] Damages 115 190 [7] Appeal and Error 30 893(1) 115 Damages 30 Appeal and Error 115IX Evidence 30XVI Review 115k183 Weight and Sufficiency 30XVI(F) Trial De Novo 30k892 Trial De Novo 115k190 k. Loss of profits. Most Cited Cases 30k893 Cases Triable in Appellate Radio station failed to provide competent substan- Court tial evidence that lost profits related to advertising 30k893(1) k. In general. Most Cited losses were directly linked to radio broadcaster vi- Cases olating non-compete agreement, even though sta- The District Court of Appeal has de novo review of tion deducted sales commission and talent fees in whether a punitive damages award exceeds the its damages calculation, where it did not deduct boundaries of due process as guaranteed by the general overhead expenses in making its lost profits United States Constitution. U.S.C.A. Const.Amend. calculation. 14. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 43 So.3d 68, 35 Fla. L. Weekly D1111 (Cite as: 43 So.3d 68) [8] Torts 379 211 In evaluating reprehensibility with regard to a claim for punitive damages, the District Court of Appeal 379 Torts must consider whether: the harm caused was phys- 379III Tortious Interference ical as opposed to economic; the tortious conduct 379III(B) Business or Contractual Relations evinced an indifference to or a reckless disregard of 379III(B)1 In General the health or safety of others; the target of the con- 379k211 k. Business relations or eco- duct had financial vulnerability; the conduct in- nomic advantage, in general. Most Cited Cases volved repeated actions or was an isolated incident; A claim for tortious interference with a business re- and the harm was the result of intentional malice, lationship requires proof of the following elements: trickery, or deceit, or mere accident. (1) the existence of a business relationship, not ne- cessarily evidenced by an enforceable contract, un- [11] Damages 115 94.10(1) der which the plaintiff has legal rights; (2) the de- fendant's knowledge of the relationship; (3) an in- 115 Damages tentional and unjustified interference with the rela- 115V Exemplary Damages tionship by the defendant; and (4) damage to the 115k94 Measure and Amount of Exemplary plaintiff as a result of the interference. Damages 115k94.10 Amount Awarded in Particular [9] Damages 115 91.5(1) Cases 115k94.10(1) k. In general. Most Cited 115 Damages Cases 115V Exemplary Damages Evidence that competitor allowed former radio 115k91.5 Grounds for Exemplary Damages broadcaster to go on the air at competitor's station 115k91.5(1) k. In general. Most Cited the same day she left former radio station, and that Cases competitor launched an aggressive advertising cam- To sustain an award of punitive damages, the char- paign, while sufficient to support a finding of tor- acter of negligence must be of a gross and flagrant tious interference, did not rise to requisite level of character, evincing reckless disregard of human gross and flagrant behavior sufficient to support life, or of the safety of persons exposed to its dan- $2,300,000 punitive damages award against com- gerous effects, or there is that entire want of care petitor, where harm was economic, not physical, which would raise the presumption of a conscious and tortious conduct alleged did not evince an in- indifference to consequences, or which shows wan- difference or reckless disregard of health of safety. tonness or recklessness, or a grossly careless dis- regard of the safety and welfare of the public, or [12] Constitutional Law 92 4427 that reckless indifference to the rights of others which is equivalent to an intentional violation of 92 Constitutional Law them. 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- [10] Damages 115 94.2 tions 92XXVII(G)19 Tort or Financial Liabilit- 115 Damages ies 115V Exemplary Damages 92k4427 k. Punitive damages. Most 115k94 Measure and Amount of Exemplary Cited Cases Damages 115k94.2 k. Nature of act or conduct. Damages 115 94.10(1) Most Cited Cases © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 43 So.3d 68, 35 Fla. L. Weekly D1111 (Cite as: 43 So.3d 68) 115 Damages MAY, J. 115V Exemplary Damages 115k94 Measure and Amount of Exemplary In a repeat performance, the defendant Elena Damages Whitby a/k/a Jennifer Ross, and three corporate de- fendants who owned and operated the WRMF-FM 115k94.10 Amount Awarded in Particular FN1 Cases radio station, appeal a final judgment entered in favor of the plaintiff Infinity Radio, Inc., who 115k94.10(1) k.