CAPITAL BANK, APPELLANT/CROSS APPELLEE,
v.
G & J INVESTMENTS CORPORATION, A FLORIDA CORPORATION, APPELLEE/CROSS APPELLANT
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Capital Bank appeals a jury verdict for breach of contract and conversion brought by G & J Investments. The appellate court reversed and remanded for a new trial on the breach of contract claim due to the trial court's abuse of discretion in allowing undisclosed expert testimony, and directed judgment for Capital Bank on the conversion claim.
The court held that: (1) the breach of contract claim presented a jury question on the critical factual issue of timing, but a new trial is required due to the trial court's abuse of discretion in admitting undisclosed expert testimony; (2) conversion does not lie because G & J sought to enforce an oral contract for the general payment of money, not specific identified money; and (3) punitive damages are not recoverable absent an independent tort accompanying the breach of contract.
[1] A new trial is required where a party is prejudiced by the testimony of an undisclosed expert witness, and the objecting party was surprised in fact.
[2] A mere obligation to pay money may not be enforced by an action for conversion.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Where a party is prejudiced by the testimony of an undisclosed expert, reversal is required.”
Establishes the standard for reversing a verdict when expert testimony is improperly admitted without disclosure, requiring only that the objecting party be surprised in fact.
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Join FLexlaw to unlock all legal intelligenceG & J Investments sued Capital Bank for conversion and breach of an oral contract. The critical factual dispute concerned whether Capital Bank accepte…
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FERGUSON, Judge.
Plaintiff, G & J Investments Corp. [G & J], commenced this action against Capital Bank on a complaint for conversion and breach of an oral contract. This appeal is brought from a judgment entered for plaintiff on a $35,600 jury verdict, plus interest and costs.
We agree with G & J that the facts essentially made for a jury question on the count alleging breach of contract. The critical factual question is whether the bank accepted an instrument presented for payment, thus becoming liable on the instrument, before receipt of a stop payment order from the depositor. See Tepper v. Citizens Federal Savings & Loan Association, 448 So. 2d 1138, 1140 (Fla. 3d DCA 1984).
A new trial is required nevertheless because the court abused its discretion in permitting G & J to put on an expert witness, as part of its case-in-chief, who had not been disclosed to Capital Bank pursuant to the pretrial order. Without the expert testimony, G & J’s proof as to the order of events — that acceptance of the instrument for payment preceded the stop payment acknowledgement — was based on circumstantial evidence. The expert witness, a handwriting analyst, concluded that the acceptance preceded the stop payment, based on microscopic examination of the checks using side lighting, reflected lighting, transmitted lighting, and spectrum reflective lighting. The record supports Capital Bank’s contention that it was unprepared to cross examine the witness. Where a party is prejudiced by the testimony of an undisclosed expert, reversal is required. Binger v. King Pest Control, 401 So. 2d 1310 (Fla.1981). The requisite prejudice in such cases does not depend upon proof that the testimony was adverse in nature, but only that the objecting party was surprised in fact. Id. at 1314. It is equally clear from the record that Capital Bank was without the ability to cure the prejudice, and that G & J’s noncompliance with the pretrial order was not in good faith. We have repeatedly condemned such “ambush” tactics.
Since a new trial is in order, we address Capital Bank’s third point on appeal. A directed verdict should have been granted on the count for conversion.
A^mere obligation to pay money may not be enforced by an action for conversion. Douglas v. Braman Porsche Audi, Inc., 451 So. 2d 1038 (Fla. 3d DCA 1984); Belford Trucking Co. v. Zagar, 243 So. 2d 646 (Fla. 4th DCA 1970). Neither the pleadings nor the proof described or otherwise identified specific money so as to make a conversion action proper. To the contrary, it is clear from the pleadings and proof that G & J was seeking to enforce an oral contract by terms of which Capital Bank obligated itself to pay money generally-
We affirm the cross appeal from the order directing a verdict for Capital Bank on the claim for punitive damages. Punitive damages are not recoverable in a breach of contract action absent an accompanying independent tort. Lewis v. Guthartz, 428 So. 2d 222 (Fla.1982); Griffith v. Shamrock Village, Inc., 94 So. 2d 854 (Fla.1957). Our determination here that conversion does not lie leaves no indepen dent tort upon which to base a punitive damage award.
Reversed and remanded with instructions to enter a judgment for Capital Bank on the claim for conversion and to grant a new trial on the count for breach of contract. The judgment on the cross appeal is affirmed.
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Murray Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986)…orida Statutes (Supp.1984). A claim for breach of contract to pay money which is not specifically identifiable cannot be the subject of conversion or theft allowing for the assessment of treble damages. Capital Bank v. G & J Investments Corporation, 468 So. 2d 534 (Fla. 3d DCA 1985); Plotch v. Gregory, 463 So. 2d 432 (Fla. 4th DCA 1985); Belford Trucking Co., Inc. v. Zagar, 243 So. 2d 646 (Fla. 4th DCA 1971); Advanced Surgical Technologies, Inc. v. Automated Industries, Inc., 777 F. 2d 1504 (11th Cir.1985). N…
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Futch v. Head, 511 So. 2d 314 (Fla. 1st DCA 1987)…Futch merely owed a debt to Head which could be discharged by the payment of money in general and as such was not the proper basis for conversion. See Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986); accord Capital Bank v. G &J Investments Corp., 468 So. 2d 534 (Fla. 3d DCA 1985); Douglas v. Braman Porsche Audi, Inc., 451 So. 2d 1038 (Fla. 3d DCA 1984). We also note that although the trial court judge found that “[pjlaintiff was damaged by the breech [sic] of contract and subsequent conversion in the amou…
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Fittipaldi USA, Inc. v. Helio Castroneves, 905 So. 2d 182 (Fla. 3d DCA 2005)…he trial court to allow Miller’s expert testimony, we do not believe that this testimony unduly prejudiced FUSA or the outcome of the case. See Singer v. King Pest Control, 401 So. 2d 1310 (Fla.1981). Unlike Capital Bank v. G & J Investments Corp., 468 So. 2d 534 (Fla. 3d DCA 1985), upon which FUSA relies, the proof of Castroneves’ claims did not turn on Miller’s expert testimony. In Capital Bank, supra, this court reversed a jury verdict on the basis that the trial court permitted one party to solicit exper…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)
- Griffith v. Shamrock Vill., Inc., 94 So. 2d 854 (Fla. 1957)
- Belford Trucking Co., Inc. v. Zagar, 243 So. 2d 646 (Fla. 4th DCA 1970)
- Lewis v. Barnett Guthartz, 428 So. 2d 222 (Fla. 1982)
- Henry Angelo & Sons, Inc. v. Ins. Co. OF N. Am., 451 So. 2d 1038 (Fla. 3d DCA 1984)
- Tepper v. Citizens Fed. Sav. & Loan Ass'n, 448 So. 2d 1138 (Fla. 3d DCA 1984)