VICTOR POSNER, APPELLANT,
v.
RICHARD S. FLINK, APPELLEE
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The Florida District Court of Appeal affirmed that prejudgment interest may be awarded in contract actions on unliquidated damages, but reversed the 10% rate applied by the trial court and remanded for recalculation at the statutorily mandated 6% rate. The court also reversed the award of accountant fees as costs because the trial court failed to conduct a proper evidentiary hearing on reasonableness.
Prejudgment interest is appropriately awarded in contract actions on unliquidated damages when the trier of fact chooses to assess it, but the rate must be 6% as statutorily mandated, not 10%. The trial court's failure to conduct a separate evidentiary hearing to determine the reasonableness of expert witness fees violated statutory duty and requires remand for proper determination.
[1] Prejudgment interest may be awarded in actions ex contractu on unliquidated damages when assessed by the trier of fact.
[2] The statutory rate for prejudgment interest is six percent.
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Join FLexlaw to unlock all legal intelligence“In actions ex contractu, prejudgment interest is appropriately added to unliquidated damages where the trier of fact chooses to assess it.”
Establishes that prejudgment interest is proper in contract actions on unliquidated damages when discretionarily awarded.
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Join FLexlaw to unlock all legal intelligenceAppellant Posner appealed a judgment in favor of appellee Flink that included an award of prejudgment interest at 10% and costs for professional fees …
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PER CURIAM.
Appellant challenges the award to appel-lee of prejudgment interest, at a rate of ten percent, and the award of certain costs. We affirm the propriety of an award of prejudgment interest, but reverse on the rate awarded, and remand for recomputation of the proper award. Additionally, we reverse the cost award, and remand for evidentiary hearing.
In actions ex contractu, prejudgment interest is appropriately added to un-liquidated damages where the trier of fact chooses to assess it. Cases cited in Plantation Key Developers, Inc. v. Colonial Mortgage Co. of Indiana, 589 F. 2d 164, 170-71 (5th Cir. 1979); contra, McCoy v. Rudd, 367 So. 2d 1080 (Fla. 1st DCA), appeal dismissed, 370 So. 2d 461 (Fla.1979); Parker’s Mechanical Contractors, Inc. v. East Point Water & Sewer District, 367 So. 2d 665 (Fla. 1st DCA), cert. denied, 378 So. 2d 347 (Fla.1979).
If assessed, a rate of six percent is statutorily mandated. Chelsea Title & Guaranty Co. v. Turner, 389 So. 2d 691 (Fla. 4th DCA 1980); § 687.01, Fla.Stat. (1979).
The court below awarded to appel-lees costs for professional fees submitted by his accountant, basing its post-judgment award solely on review of the record, and observation of the accountant’s testimony and other presentation of evidence on the substantive issues made during trial. The failure to conduct an evidentiary hearing to determine reasonable expert witness fees constituted an abrogation of the court’s statutory duty. See, § 92.231(2), Fla.Stat. (1979).
In all litigation involving professional fees proof is required of the nature of, and the necessity for, the services rendered, and the reasonableness of the charge made therefor. * * * * * *
The reasonableness of the... fee is not the subject of judicial notice, neither is it to be left to local custom, conjecture or guesswork. Each award must be made on its own merits and should be justified by the circumstances in each particular case.
Lyle v. Lyle, 167 So. 2d 256, 257 (Fla. 2d DCA), cert. denied, 172 So. 2d 601 (Fla.1964); See Trustees of Cameron-Brown v. Tavormina, 385 So. 2d 728, 730 (Fla. 3d DCA 1980) (quantum meruit, and not the bill, is the standard by which reasonability is determined in fee awards). (Although both these cases deal with attorneys’ fee awards, we consider their holdings to be illuminating to our analysis of the facts sub judice).
We affirm in part, reverse in part, and remand for reassessment of the interest due appellee, using a six percent rate; and further remand for an evidentiary hearing at which competent evidence will be submitted to aid the court in the assessment against appellant of a reasonable fee for appellee’s accountant’s services, to be taxed as costs.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Lafferty v. Lafferty, 413 So. 2d 170 (Fla. 2d DCA 1982)…ne half hours in court, and charged $40 an hour. The husband now asserts that the court could not tax the costs of this expert witness without first taking testimony with respect to whether his charge was a reasonable fee. He cites Posner v. Flink, 393 So. 2d 1140 (Fla. 3d DCA), petition for review denied, 402 So. 2d 612 (Fla.1981), in which the court held that as in the ease of attorney’s fees it was necessary to conduct an evidentiary hearing in order to determine the reasonable fee of any expert witness. I…
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Diversified Commercial Developers, Inc. v. Formrite, Inc., 450 So. 2d 533 (Fla. 4th DCA 1984)…e lawful rate from the date-due thereof... Whenever a verdict liquidates a claim and fixes it as of a prior date, interest should follow from that date.” The matter of prejudgment interest was also considered by our sister court in Posner v. Flink, 393 So. 2d 1140 (Fla. 3rd D.C.A.1981), wherein it was held that in actions ex contractu, prejudgment interest is appropriately added to unliquidated damages where the trier of fact chooses to assess it. In the action herein the date of breach is clearly ascertaina…
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Bystrom v. Fla. Rock Indus., Inc., 513 So. 2d 742 (Fla. 3d DCA 1987)…ty of the testimony and exhibit provided by the county’s expert witness. Appellants were justified in objecting to such a low fee award. They are entitled to an evidentiary hearing to determine a reasonable expert witness fee award. Posner v. Flink, 393 So. 2d 1140 (Fla. 3d DCA), review denied, 402 So. 2d 612 (Fla.1981). Accordingly, the order appealed from is [*744] reversed and the cause remanded for further proceedings. Reversed and remanded.…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964)
- Plantation KEY Developers, Inc. v. Colonial Mortg. Co. OF Ind., Inc., 589 F.2d 164 (5th Cir. 1979)
- Trs. OF Cameron-Brown Inv. Grp. v. Tavormina, 385 So. 2d 728 (Fla. 3d DCA 1980)
- Clark v. State, 172 So. 2d 601 (Fla. 1965)
- McCOY v. Rudd, 367 So. 2d 1080 (Fla. 1st DCA 1979)
- Parker's Mech. Contractor's, Inc. v. Eastpoint Water & Sewer Dist., 367 So. 2d 665 (Fla. 1st DCA 1979)
- Chelsea Title & Guar. Co. v. Turner, 389 So. 2d 691 (Fla. 4th DCA 1980)