Ault v. Lohr, 538 So. 2d 454 (Fla. 1989). · Go Syfert
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Ault v. Lohr, 538 So. 2d 454 (Fla. 1989). Cases Citing This Book View Copy Cite
“the narrow question for resolution by this court is whether a plaintiff can recover punitive damages where the factfinder has found a breach of duty but no compensatory or actual damages have been proven.”
94 citation events (56 in the last 25 years) across 17 distinct courts.
Strongest positive: Morgan Stanley & Co. v. Coleman Holdings (fladistctapp, 2007-03-21)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 31 distinct citers.
examined Cited as authority (verbatim quote) Morgan Stanley & Co. v. Coleman Holdings (4×) also: Cited as authority (rule), Cited "see"
Fla. Dist. Ct. App. · 2007 · quote attribution · 1 verbatim quote · confidence high
the narrow question for resolution by this court is whether a plaintiff can recover punitive damages where the factfinder has found a breach of duty but no compensatory or actual damages have been proven.
discussed Cited as authority (rule) United States Sugar Corporation v. Commerce and Industry Insurance Company
S.D. Fla. · 2024 · confidence medium
Plaintiff asserts that Defendant “wrongly assumes U.S. Sugar will not recover compensatory damages” and notes that punitive damages are recoverable even if only nominal damages are awarded [ECF No. 175, p. 8 (citing Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989))]. 46 At this time, the Court does not need to decide whether a theoretical award of nominal damages would be enough to support punitive damages.
discussed Cited as authority (rule) Shirley Johnson v. New Destiny Christian Center Church, Inc.
11th Cir. · 2019 · signal: cf. · confidence medium
Cf. Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989) (finding that, although it does not require a compensatory damages award, a punitive damages award requires a finding of liability for the underlying cause of action).
examined Cited as authority (rule) Engle v. Liggett Group, Inc. (7×) also: Cited "see", Cited "see, e.g."
Fla. · 2006 · confidence medium
A majority of the Court (Anstead, Pariente, Lewis, and Quince) also concludes that the Third District misapplied Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989), by holding that compensatory damages must be determined before a jury can consider entitlement to punitive damages.
discussed Cited as authority (rule) Kekona v. Abastillas
Haw. · 2006 · confidence medium
Therefore, the failure of the plaintiff to actually receive an aivard of either nominal or compensatory damages is immaterial”) (Emphasis in original.); Au lt v. Lohr, 538 So.2d 454, 455 (Fla.1989) (concluding that “a jury finding of liability is the equivalent of finding nominal damages and, consequently, the jury may assess punitive damages.”); 5 Maring-Crawford Motor Co. v. Smith, 285 Ala. 477 , 233 So.2d 484, 492 (1970) (“[A]n award of nominal damages authorizes, in the discretion of the trier of fact, the award of punitive damages where legal malice, willfulness, and a reckless di…
examined Cited as authority (rule) Liggett Group, Inc. v. Engle (5×) also: Cited "see", Cited "see, e.g."
Fla. Dist. Ct. App. · 2003 · confidence medium
Accordingly, "[w]here actual damage is an element of the underlying cause of action, an award of compensatory damages must be a prerequisite to an award of punitive damages." Ault v. Lohr, 538 So.2d 454, 457 (Fla.1989)(Ehrlich, C.J. concurring); see also W.R.
discussed Cited as authority (rule) Tonia L. Cush-Crawford, Plaintiff-Appellee-Cross-Appellant v. Adchem Corp., Defendant-Appellant-Cross-Appellee
2d Cir. · 2001 · confidence medium
See, e.g., Ad-Vantage Telephone Directory Consultants, Inc. v. GTE Directories Corp., 943 F.2d 1511, 1520 (11th Cir.1991) (Florida law); Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989); Rosenberg v. Lee’s Carpet & Furniture Warehouse Outlet, Inc., 80 Misc.2d 479 , 363 N.Y.S.2d 231, 233-35 (County Sup.Ct.1974).
discussed Cited as authority (rule) Hi-Ho Tower, Inc. v. Com-Tronics, Inc.
Conn. · 2000 · confidence medium
Ed. 2d 825 (1997); Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989) (jury finding of liability is equivalent to finding of damage; thus punitive damages may be assessed).
discussed Cited as authority (rule) Brown v. Moore
Fla. Dist. Ct. App. · 2000 · confidence medium
The amended complaint alleges that the Department of Corrections unlawfully detained or destroyed legal documents that belonged to Mr. Brown, not the Department. “[N]ominal damages will be presumed from an encroachment upon an established right.” Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989) (citing Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90 , 186 A. 585, 587 (1936) (‘While the fundamental legal concept of a tort is a wrong with resulting damage, the damage requisite to make the injury actionable is frequently implied or presumed.”)).
discussed Cited as authority (rule) Audiotext Communications Network, Inc. v. U.S. Telecom, Inc.
10th Cir. · 1998 · confidence medium
Although Connections argues in its reply brief that under Florida law punitive damages for fraud may be awarded in the absence of compensatory fraud damages, see Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989), it did not raise this point in the district court.
discussed Cited as authority (rule) Audiotext v. U.S. Telecom, Inc.
10th Cir. · 1998 · confidence medium
Although Connections argues in its reply brief that under Florida law punitive damages for fraud may be awarded in the absence of compensatory fraud damages, see Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989), it did not raise this point in the district court.
discussed Cited as authority (rule) Pulla v. Amoco Oil Co.
S.D. Iowa · 1994 · confidence medium
Co. of Pittsburgh, 23 Cal.App.4th 1132 , 29 Cal.Rptr.2d 559, 578 (Cal.Ct.App. 1994); Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989) (a finding of liability alone will support an award of punitive damages, even in the absence of financial loss for which compensation would be appropriate); Beerman v. Toro Mfg.
discussed Cited as authority (rule) Stockett v. Tolin (2×) also: Cited "see"
S.D. Fla. · 1992 · confidence medium
Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989) (answering certified question posed in Lohr v. Florida Dep’t of Corrections, 835 F.2d 1402 (11th Cir.1988)).
cited Cited as authority (rule) Bauer Lamp Co., Inc. v. Martin Shaffer, Howard Levi, Shaffer & Levi, Inc., a Florida Corp.
11th Cir. · 1991 · confidence medium
Ault v. Lohr, 538 So.2d 454, 455 (Fla.1989).
discussed Cited as authority (rule) Palm Beach Atlantic College, Inc., Cross-Appellant v. First United Fund, Ltd., Stanmar Corporation, Mario Renda, Cross-Appellees
1st Cir. · 1991 · confidence medium
Furthermore, the district court’s award of punitive damages is supported by the decision of the Florida Supreme Court in Ault v. Lohr, 538 So.2d 454, 457 (Fla.1989), on a question of law certified by this court.
cited Cited as authority (rule) Horizon Leasing v. Leefmans
Fla. Dist. Ct. App. · 1990 · confidence medium
Ault v. Lohr, 538 So.2d 454, 456 (Fla. 1989).
discussed Cited as authority (rule) National Aircraft Servs., Inc. v. Aeroserv Intern., Inc.
Fla. Dist. Ct. App. · 1989 · confidence medium
Finally, the law, as summarized in Chief Justice Ehrlich's specially concurring opinion in Ault v. Lohr, 538 So.2d 454, 457 (Fla. 1989), is that punitive damages for fraud may not be based upon nominal damages alone.
cited Cited "see" SE Property Holdings, LLC v. Neverve LLC
11th Cir. · 2023 · signal: see · confidence high
See Ault, 538 So. 2d at 456 ; Engle, 945 So. 2d at 1263 ; Palm Beach Atl., 928 F.2d at 1547 ; see also Fla. Stat. § 726.111 .
discussed Cited "see" Brinda Coates, etc. v. R.J. Reynolds Tobacco Company
Fla. · 2023 · signal: see · confidence high
See Land & Sea Petroleum Holdings, Inc. v. Leavitt, 321 So. 3d 810 , 816 (Fla. 4th DCA 2021) (“[N]ominal damages are in effect zero damages and are defined as those damages flowing from the establishment of an invasion of a legal right where actual or compensatory damages - 17 - have not been proven.”) (quoting Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989)).
discussed Cited "see" LAND & SEA PETROLEUM HOLDINGS, INC. v. STEVEN LEAVITT and ATLAS OIL SUPPLY COMPANY OF FLORIDA a/k/a ATLAS OIL COMPANY
Fla. Dist. Ct. App. · 2021 · signal: see · confidence high
See Ault v. Lohr, 538 So. 2d 454, 456 (Fla. 1989) (nominal damages flow from the establishment of an invasion of a legal right, closely matching the definition of general damages); Armistead v. Waters, 198 So. 59, 60 (Fla. 1940) (no special damages were alleged but finding the award of nominal damages appropriate); Tedder v. Riggin, 61 So. 244, 246 (Fla. 1913) (“No recoverable special damages are alleged, and the plaintiff is entitled on this record to a verdict and judgment only for nominal damages.”). 5 However, Competitor’s argument that Appellant waived its entitlement to nominal dam…
cited Cited "see" In Re Standard Jury Instructions in Civil Cases—Report No. 09-01
Fla. · 2010 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454 (Fla.1989).
discussed Cited "see" Alphamed Pharmaceuticals Corp. v. Arriva Pharmaceuticals, Inc.
S.D. Fla. · 2006 · signal: see · confidence high
See Liggett Group, Inc. v. Engle, 853 So.2d 434, 451 (Fla. 3d DCA 2003)(quoting Ault v. Lohr, 538 So.2d 454, 457 (Fla.1989) (Ehrlich, C.J., concurring) (“[w]here actual damage is an element of the underlying cause of action, an award of compensatory damages must be a prerequisite to an award of punitive damages.”)); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So.2d 43, 48 (Fla. 3d DCA 2006) (“Punitive damages must be proportionate to the actual harm inflicted on the plaintiff, and since the actual harm was not ascertainable, the punitive damages claim must fail.”).
discussed Cited "see" Laney v. American Equity Investment Life Ins.
M.D. Fla. · 2003 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989); Mortellite v. American Tower, L.P., 819 So.2d 928, 934-35 (Fla. 2d DCA 2002). 6 The purpose of compensatory damages in a tort case is to restore the injured party to the position it would have been had the wrong not been committed.
discussed Cited "see" Sanchez v. Clayton
N.M. · 1994 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454, 457 (Fla.1989) (Ehrlich, J., specially concurring) (stating that because the tort was battery, which did not require proof of actual damages, “punitive damages could properly be awarded even absent an award of compensatory damages”).
discussed Cited "see" Sanchez v. Clayton
N.M. · 1994 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454, 457 (Fla.1989) (Ehrlich, J., specially concurring) (stating that because the tort was battery, which did not require proof of actual damages, "punitive damages could properly be awarded even absent an award of compensatory damages").
cited Cited "see" Crown Eurocars, Inc. v. Schropp
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454 (Fla. 1989) (Ehrlich, C.J., concurring).
cited Cited "see" Kaufman v. Heller
Fla. Dist. Ct. App. · 1993 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454 (Fla.1989); Bankers Multiple Line Ins.
cited Cited "see" In Re Standard Jury Instructions
Fla. · 1991 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454 (Fla. 1989).
discussed Cited "see" Miami Nat. Bank v. Nunez
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454 (Fla. 1989); Lassiter v. International Union of Operating Eng'rs, 349 So.2d 622 (Fla. 1976). [2] Mr. Nunez's own testimony indicates that part of the 400 hours for which Mrs. Nunez sought compensation was spent by Mr. Nunez securing bank loans to finance his own litigation expenses, which were unrelated to the malicious prosecution claim.
cited Cited "see" Continental Assur. Co. v. Davis
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Ault v. Lohr, 538 So.2d 454 (Fla. 1989); Eglin Federal Credit Union v. Curfman, 386 So.2d 860 (Fla. 1st DCA 1980).
discussed Cited "see, e.g." Zanakis-Pico v. Cutter Dodge, Inc. (2×)
Haw. · 2002 · signal: see, e.g. · confidence medium
See, e.g., Ault v. Lohr, 538 So.2d 454, 456 (Fla.1989) (although based on a civil rights action, stated that, under the law of Florida, "a finding of liability alone will support an award of punitive damages even in the absence of financial loss for which compensatory damages would be appropriate" (internal quotation marks and citation omitted)); Sanchez v. Clayton, 117 N.M. 761 , 877 P.2d 567, 573 (1994) (stating that nominal damages may be the basis of an award of punitive damages in intentional torts, because "the jury may award nominal damages to acknowledge that the cause of action was es…
Ken AULT, Defendant-Appellant,
v.
Roy LOHR, et al., Plaintiffs-Appellees.
71817.
Supreme Court of Florida.
Feb 2, 1989.
538 So. 2d 454
Overton.
Cited by 52 opinions  |  Published

Keith C. Tischler of Parker, Skelding, McVoy & Labasky, Tallahassee, for defendant-appellant.

Salvatore Scibetta and Evan I. Fetterman of the Law Offices of Fetterman and Associates, North Palm Beach, for plaintiffs-appellees.

OVERTON, Justice.

This case is before us on the following question certified by the United States Court of Appeals for the Eleventh Circuit in Lohr v. Florida Department of Corrections, 835 F.2d 1402 (11th Cir.1988):

In Florida, must a compensatory damages award underlie a punitive damages award in a case in which the jury has[*455] made express findings against a defendant?

Id. at 1403.[1] We answer the question in the negative, concluding that a jury finding of liability is the equivalent of finding nominal damages and, consequently, the jury may assess punitive damages.

The Eleventh Circuit Court of Appeals set forth the relevant facts as follows:

In March, 1984, appellees Roy Lohr and Larry Randolph, inmates at Martin Vocational Center in Martin County, Florida, attempted to escape from the Vocational Center. Due to mitigating circumstances unrelated to this case, both plaintiffs were acquitted of the crime of escape before a Circuit Court of Martin County.
Lohr and Randolph were recaptured by defendant Ken Ault, an officer with the Martin County Sheriffs office, and his canine, Bear.
Lohr and Randolph maintain that Ault handcuffed them, forced them to lie on the ground, and ordered Bear to bite and scratch them. Lohr and Randolph sued Ault, asserting a state claim of assault and battery and a federal claim of a violation of their constitutional rights. In answering special verdict questions posed by the judge, the jury specifically found that Ault had committed an assault and battery on Lohr, but that Ault had not violated Lohr's civil rights. The jury awarded Lohr $0 in compensatory damages, but $5,000 in punitive damages. The jury determined that Ault had both assaulted and battered Randolph and violated his civil rights. Accordingly, the jury awarded Randolph $10,000 in compensatory damages and $30,000 in punitive damages.

Id. at 1403.

In considering the limitations in assessing punitive damages, Florida's district courts of appeal clearly disagree in their interpretations of McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So.2d 221 (1943), and Lassiter v. International Union of Operating Engineers, 349 So.2d 622 (Fla. 1976). In McLain, we quoted with approval 4 Am.Jur. 219, which stated:

"The general rule that exemplary or punitive damages are not recoverable in an action of tort unless actual damages are shown finds application in cases of assault and battery."

McLain, 152 Fla. at 878, 13 So.2d at 222. In Lassiter, we considered the question of whether punitive damages had to be proportionally related to actual damages. In holding that no relationship was required, we commented in dicta:

Nominal damages are awarded to vindicate an invasion of one's legal rights where, although no physical or financial injury has been inflicted, the underlying cause of action has been proved to the satisfaction of a jury. Accordingly, the establishment of liability for a breach of duty will support an otherwise valid punitive damage award even in the absence of financial loss for which compensatory damages would be appropriate.

Lassiter, 349 So.2d at 625-26 (emphasis added, citations omitted). Nowhere in Lassiter did we expressly overrule McLain.

On the one hand, some district courts have strictly followed the requirement of actual or compensatory damages as expressed in McLain. In Sonson v. Nelson, 357 So.2d 747 (Fla. 3d DCA), cert. denied, 364 So.2d 889 (Fla.), cert. denied, 364 So.2d 891 (Fla. 1978), the jury found liability and awarded punitive damages to the plaintiffs although no compensatory damages were awarded. The trial court held that the verdicts were defective and granted a new trial. The district court affirmed and held that Lassiter does not allow an award of punitive damages without an award of nominal or compensatory damages. The district court concluded that the trial court properly granted a new trial since the issue of nominal damages had not been submitted to the jury. In Raffa v. Dania Bank, 372 So.2d 1173 (Fla. 4th DCA 1979), the jury found for the plaintiff in a conversion action, assessed no compensatory damages, but awarded $25,000 in punitive damages. The Fourth District, citing Sonson, stated: "The law is well settled that punitive[*456] damages require an underlying award of compensatory damages. A verdict which finds no compensatory damages whatsoever and punitive damages of $25,000 is within this prohibition." 372 So.2d at 1174 (citations omitted). Further, in Buonopane v. Fritz, 477 So.2d 1030 (Fla. 4th DCA 1985), the jury rendered a verdict in favor of the plaintiff, assessed no compensatory damages, yet awarded the plaintiff $3,000 in punitive damages. The Fourth District set aside the verdict, stating: "The law in Florida is clear that one cannot recover for punitive damages if no compensatory damages are awarded." Id. See also American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980); Hauser Motor Co. v. Byrd, 377 So.2d 773 (Fla. 4th DCA 1979).

On the other hand, the First District, in Eglin Federal Credit Union v. Curfman, 386 So.2d 860 (Fla. 1st DCA 1980), held that the jury's failure to assess nominal damages did not preclude an award of punitive damages since the jury specifically found that the defendant had converted the plaintiff's property. Further, the Second District, in Nales v. State Farm Mutual Automobile Insurance Co., 398 So.2d 455 (Fla. 2d DCA), review denied, 408 So.2d 1092 (Fla. 1981), held that punitive damages may be awarded upon a finding of liability even though the plaintiff could not recover compensatory damages due to his failure to meet the statutory threshold under Florida's no-fault law.[2]

The narrow question for resolution by this Court is whether a plaintiff can recover punitive damages where the factfinder has found a breach of duty but no compensatory or actual damages have been proven. The law in this state is in conflict as illustrated by the above decisions.

We find our decision in McLain does not control. A careful reading of McLain reflects that the jury expressly found that no right of action or breach of duty existed; consequently, as this Court stated in that opinion, no actual or punitive damages could be awarded. Although we recognize that our opinion in McLain could very reasonably be interpreted to require a finding of actual damages as expressed by the district courts in Sonson, Raffa, Buonopane, American Motorcycle Institute, and Hauser, we find that we should adopt the principles set forth in our dicta in Lassiter. We believe an express finding of a breach of duty should be the critical factor in an award of punitive damages. Accordingly, we hold that a finding of liability alone will support an award of punitive damages "even in the absence of financial loss for which compensatory damages would be appropriate." 349 So.2d at 626. We reject Ault's contention that at least nominal damages must first be awarded before punitive damages are proper. We conclude that nominal damages are in effect zero damages and are defined as those damages flowing from the establishment of an invasion of a legal right where actual or compensatory damages have not been proven.[3] In approving an award of punitive damages upon an express finding of liability by the factfinder, we accept the view that nominal damages will be presumed from an encroachment upon an established right. See Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 186 A. 585 (N.J. 1936).

For the reasons expressed, we answer the certified question in the negative, disapprove Buonopane v. Fritz, 477 So.2d 1030 (Fla. 4th DCA 1985); American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980); Hauser Motor Co. v. Byrd, 377 So.2d 773 (Fla. 4th DCA 1979); Raffa v. Dania Bank, 372 So.2d 1173 (Fla. 4th DCA 1979); and Sonson v. Nelson, 357 So.2d 747 (Fla. 3d DCA 1978), to the extent they conflict with our holding, and remand this cause to the United States Court of Appeals for the Eleventh Circuit for disposition.

It is so ordered.

[*457] McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.

EHRLICH, C.J., concurs specially with an opinion, in which McDONALD, J., concurs.

EHRLICH, Chief Justice, concurring specially.

The crucial element in determining whether punitive damages may be awarded absent an award of compensatory damages is proof of the underlying cause of action. Where actual damage is an essential element of the underlying cause of action, an award of compensatory damages must be a prerequisite to an award of punitive damages. This case involved the torts of assault and battery, which do not require proof of actual damage. Therefore, I agree that in this case, where the jury made an express finding of liability, punitive damages could properly be awarded even absent an award of compensatory damages.

McDONALD, J., concurs.

1 We have jurisdiction. Art. V, § 3(b)(6), Fla. Const.
2 §§ 627.730-.741, Fla. Stat. (1979).
3 See Magnett v. Pelletier, 488 F.2d 33 (1st Cir.1973); McClellan v. Highland Sales & Inv. Co., 484 S.W.2d 239 (Mo. 1972); Shearing v. City of Rochester, 51 Misc.2d 436, 273 N.Y.S.2d 464 (Sup.Ct. 1966); Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582 (Tex.Civ.App. 1979); Gould v. Mountain States Tel. & Tel. Co., 6 Utah 2d 187, 309 P.2d 802 (1957); Steele v. Organon, Inc., 43 Wash. App. 230, 716 P.2d 920 (Ct.App. 1986); 22 Am.Jur.2d Damages § 8 (1988); Black's Law Dictionary 353 (5th ed. 1979).