JOHN W. BERTOGLIO, APPELLANT,
v.
AMERICAN SAVINGS & LOAN ASSOCIATION OF FLORIDA AND SHEPARD BROAD, APPELLEES
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Bertoglio appealed a jury verdict finding civil conversion by individual defendant Shepard Broad but refusing to hold the corporate defendant liable or award treble damages under the Anti-Fencing Act. The court affirmed, holding that civil conversion alone does not establish the criminal intent required for treble damages and that the jury instruction on interference with business relationships was proper.
The court affirmed the judgment. The $215,000 damage award was supported by substantial evidence calculating losses from the date of conversion. The jury instruction was consistent with plaintiff's no-contract theory. Defense counsel's improper remarks were not grounds for reversal absent a timely objection and a fundamental error. A civil conversion finding alone does not establish the criminal intent necessary for treble damages under the Anti-Fencing Act.
[1] A jury verdict must be sustained if there is competent substantial evidence to support it.
[2] A claim for interference with an advantageous business relationship does not necessarily require an enforceable contract.
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Join FLexlaw to unlock all legal intelligence“if there is any competent substantial evidence to support verdict, it must be sustained”
Establishes the standard of review for jury verdicts on appeal; supports affirmance of the $215,000 damage award
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Join FLexlaw to unlock all legal intelligencePlaintiff Bertoglio and defendant Broad entered into a voting trust agreement regarding stock. Broad allegedly converted Bertoglio's stock interest. T…
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FERGUSON, Judge.
In this appeal from a judgment against the individual defendant Shepard Broad, entered after a ten-day trial, plaintiff contends: (1) the damage award was grossly inadequate; (2) it was error not to instruct the jury that an enforceable contract is not necessary in an action for interference with an advantageous business relationship; (3) a comment of defense counsel during clos ing argument was so prejudicial as to require reversal; (4) a judgment notwithstanding the jury verdict should have been entered against the corporate defendant in that the acts for which the individual defendant was held liable for conversion were committed within the scope and course of his employment; and (5) the damage award should have been trebled, pursuant to the Florida Anti-Fencing Act, sections 812.-012-.037, Florida Statutes (1985), in that the jury’s finding that a civil conversion was committed is equivalent to a finding of the requisite felonious intent. We affirm.
On review of the record, we find substantial evidence to fix February 4, 1983, as the date of loss. A calculation of losses from that date, based on fluctuations in the value of appellant’s stock, accords with the $215,000 damage award. There is also sufficient evidence in the record to support the jury’s finding that the corporation was not a party to the voting trust agreement, out of which the conversion arose, and that the agreement was a proxy arrangement between only the plaintiff, the defendant and a third individual. Helman v. Seaboard Coast Line Railroad, 349 So. 2d 1187 (Fla.1977) (if there is any competent substantial evidence to support verdict, it must be sustained); Landry v. Homstein, 462 So. 2d 844 (Fla. 3d DCA 1985) (same).
The instruction given the jury on the claim for interference with an advantageous business relationship was consistent with the “no-contract” theory advanced by plaintiff. Further there was no objection to the given instruction. See Enfield’s Miami Photo, Inc. v. Keyes Co., 489 So. 2d 1203 (Fla. 3d DCA 1986); Wagner v. Nottingham Associates, 464 So. 2d 166 (Fla. 3d DCA), rev. denied, 475 So. 2d 696 (Fla.1985).
The improper remarks of counsel, essentially that he was “a shareholder in American Savings,” were not met with a contemporaneous objection. Nor was there dissatisfaction expressed with the court’s sua sponte instruction to the jury to disregard the statement. Generally, a timely objection to a prejudicial statement by counsel must be interposed in order to assert the error as grounds for a new trial. See Honda Motor Co. v. Marcus, 440 So. 2d 373 (Fla. 3d DCA 1983), rev. dismissed, 447 So. 2d 886 (Fla.1984); Bishop v. Watson, 367 So. 2d 1073 (Fla. 3d DCA 1979). Appellant did not contend in the trial court, and the record does not reflect, that a recognized exception to the requirement for a contemporaneous objection is applicable. See Sears Roebuck & Co. v. Jackson, 433 So. 2d 1319 (Fla. 3d DCA 1983) (timely objection to counsel’s remarks is predicate for grant of new trial or reversal on appeal unless error is fundamental); Tyus v. Apalachicola Northern Railroad, 130 So. 2d 580 (Fla.1961) (where timely objection to counsel’s remarks not made, case will not be reversed unless error is one of many which in “collective import” denies fair trial).
A felonious intent to steal marks the distinction between civil and criminal theft. Thus, in the absence of a pleading and proof of criminal intent, a finding of civil conversion alone does not justify an award of treble damages under Florida’s Anti-Fencing Act. See State v. Dunmann, 427 So. 2d 166 (Fla.1983); Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986); Pridgen v. Bill Terry’s Inc., 478 So. 2d 837 (Fla. 1st DCA 1985).
Affirmed.
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Cited By (12 total)
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Becerra v. Equity Imports, Inc., 551 So. 2d 486 (Fla. 3d DCA 1989)…llegations supporting the legal conclusion. We have recently held, on two occasions, that treble damages may not be awarded for civil theft under Chapter 812 absent a pleading of criminal intent. See Bertoglio v. American Sav. & Loan Ass’n of Fla., 491 So. 2d 1216 (Fla. 3d DCA 1986); Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA), rev. denied, 494 So. 2d 1151 (Fla.1986). A sufficient pleading of theft, as a basis for an award of treble damages, goes to the foundation of the statutory cause of action. The powe…
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Country Manors Ass'n, Inc. v. Master Antenna Sys., Inc., 534 So. 2d 1187 (Fla. 4th DCA 1988)…strike all awards of punitive and treble damages arising out of the conversion and civil theft claims. See Sporting Goods Distributors, Inc. v. Whitney, 498 F.Supp. 1088 (N.D.Fla.1980); Bertoglio v. American Savings and Loan Association of Florida, 491 So. 2d 1216 (Fla. 3d DCA 1986); Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA), rev. denied, 494 So. 2d 1151 (Fla.1986); St. John v. Kuper, 489 So. 2d 833 (Fla. 3d DCA 1986); Auto-Owners Insurance Co. v. Hooks, 463 So. 2d 468 (Fla. 1st DCA 1985); Henderson v. Pe…
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City OF Cars, Inc. v. Simms, 526 So. 2d 119 (Fla. 5th DCA 1988)…paragraph 9 of the special verdict form. A finding of a civil conversion does not justify an award of treble damages under Florida’s Anti-fencing Act statute, section 812.035, Florida Statutes (1985). See Bertoglio v. American Savings & Loan Ass’n., 491 So. 2d 1216 (Fla. 3d DCA 1986). At trial, at the request of the girlfriend and over the objection of the car dealer, the trial court gave a jury instruction as to count II that in effect required only a finding of conversion and did not require the jury to find…
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 (12 total)
- Helman v. Seaboard Coast Line R.R. Co. & William A. Cagle, 349 So. 2d 1187 (Fla. 1977)
- Tyus v. Apalachicola N. R.R. Co., 130 So. 2d 580 (Fla. 1961)
- Murray Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986)
- Sears Roebuck & Co. v. Arlee Jackson and Mugge Rivers, 433 So. 2d 1319 (Fla. 3d DCA 1983)
- State v. Dunmann, 427 So. 2d 166 (Fla. 1983)
- Honda Motor Co., Ltd. v. Marcus, 440 So. 2d 373 (Fla. 3d DCA 1983)
- Bishop v. Watson, 367 So. 2d 1073 (Fla. 3d DCA 1979)
- Wagner v. Nottingham Assocs., 464 So. 2d 166 (Fla. 3d DCA 1985)
- F.T. Landry v. Hornstein, 462 So. 2d 844 (Fla. 3d DCA 1985)
- Lester v. Lester, 462 So. 2d 844 (Fla. 3d DCA 1985)