EDWARD C. VINING, JR., APPELLANT/CROSS-APPELLEE,
v.
EVA MARTYN, APPELLEE/CROSS-APPELLANT

Fla. 4th DCA | 1995-08-16
No. 94-0415
GUNTHER, C.J., concurs., FARMER, J., concurs specially with opinion.
660 So. 2d 1081 Florida District Court of Appeal, Fourth District (1995) Positive Treatment
Cited by 17 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this attorney-client dispute, the Fourth District Court of Appeal affirmed the trial court's judgment against attorney Edward Vining for conversion, civil theft, and fraud on the court in connection with his representation of Eva Martyn in a 1980 dissolution proceeding. The court reversed on two damage-related issues raised by Martyn on cross-appeal, holding that prejudgment interest should be awarded on the compensatory damages from the date of theft and that settlement offsets should be deducted after trebling damages, not before.


Holding

Prejudgment interest should be awarded as an element of compensatory damages from the date the theft occurred, but only on the actual amount stolen and not on the treble damages portion. Settlement offsets must be deducted from the trebled damage amount, not from the base compensatory damages before trebling.


Headnotes

[1] Prejudgment interest is an element of compensatory damages in a civil theft case and should be awarded from the date the theft occurred.

[2] Prejudgment interest in a civil theft case should be awarded only on the actual amount stolen, not on treble damages, as its purpose is restitution, not retribution.

Previewing 2 of 4 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

Key Quotes

“under the "loss theory" applicable in Florida, prejudgment interest is merely another element of compensatory damages and that once a defendant is held liable for a plaintiffs damages "interest should follow as a matter of law"”

Establishes the foundational principle that prejudgment interest is an automatic compensatory element once liability is found

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Edward Vining represented Eva Martyn in a 1980 dissolution of marriage proceeding in Martin County. A dispute arose between the attorney and client re…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
POLEN, Judge.

POLEN, Judge.

This appeal stems from an attorney-client dispute which grew out of Edward J. Vin-ing’s representation of Eva Martyn in a 1980 dissolution of marriage proceeding in Martin County. As a result of this dispute, Martyn filed a complaint against Vining, which included counts for conversion, civil theft, and fraud on the court. The trial court entered judgment in favor of Martyn on these counts, and Vining raised five points on appeal challenging the judgment. We affirm on all of appellant’s points, but reverse based on a consideration of both points regarding damages that Martyn raised on her cross-appeal.

As to Martyn’s first point on cross-appeal, we agree that the trial court should have awarded prejudgment interest from the date the theft occurred. See Florida Steel Corp. v. Adaptable Dev., Inc., 503 So. 2d 1232 (Fla.1986) (under the “loss theory” applicable in Florida, prejudgment interest is merely another element of compensatory damages and that once a defendant is held liable for a plaintiffs damages “interest should follow as a matter of law”); O’Donnell v. Arcoiries, Inc., 561 So. 2d 344 (Fla. 4th DCA 1990) (recognizing that prejudgment interest was an element of damages in a civil theft ease).

We are not persuaded by Vining’s argument that Martyn was not entitled to prejudgment interest because there was no date certain for the loss set out in the verdict form. See Charles Buzbee & Sons, Inc. v. Falkner, 585 So. 2d 1190 (Fla. 2d DCA 1991) (reversible error not to award prejudgment interest on ostensible basis that date of loss could not be determined where it was apparent from the record).

However, we agree with Vining that because the purpose of prejudgment interest is restitution, rather than retribution, the prejudgment interest should only be awarded on the actual amount stolen and not on the treble damages. Zucker v. Sears Roebuck & Co., 589 So. 2d 454 (Fla. 5th DCA 1991) (in a worthless check action, creditor could only recover prejudgment interest on face amount of cheek but not on treble damages based on the principle that such interest was restitution and not retribution).

Although this court in O’Donnell, 561 So. 2d at 345, stated that “the trial court properly computed treble damages by including prejudgment interest as an element of damages,” this single sentence does not make clear whether this court was authorizing prejudgment interest on the treble damages or the compensatory portion of the award.

Thus, we do not read O’Donnell as restricting our opinion at bar.

With regard to Martyn’s second point on cross-appeal, we also agree that the trial court erred in its computation of treble damages.

The trial court calculated the damages due and owing Eva Martyn by deducting as an off-set the settlement Eva received from codefendant Florida National Bank before trebling the damages. While there is no Florida case law directly on point, Martyn has cited numerous federal cases which support her argument that the verdict should have been trebled before deducting the offset. See Flintkote v. Lysfjord, 246 F. 2d 368, 398 (9th Cir.), cert. denied, 355 U.S. 835, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957) (the plaintiffs having already received $20,000, it was proper to deduct that sum from the trebled amount. Any other method would have resulted in plaintiffs receiving less than the whole to which they were entitled); Burlington Indus., Inc. v. Milliken & Co., 690 F. 2d 380, 391 (4th Cir.1982), cert. denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1983) (“[T]he heretofore unbroken rule has been that any settlement payments are deducted from the damages awarded after trebling”).

Thus, we reverse with directions for the trial court to deduct the off-set in the amount of the Florida National Bank settlement after the verdict is trebled, in addition to awarding prejudgment interest on the compensatory damages from the date the theft occurred.

GUNTHER, C.J., concurs.

FARMER, J., concurs specially with opinion.

Concurrence
FARMER, Judge,

[*1083] FARMER, Judge,

concurring specially.

I write separately only to make clear that our decision today is not inconsistent with Christenson & Associates, Mtg. Co. v. Palumbo-Tucker, 656 So. 2d 266 (Fla. 4th DCA 1995). In that ease we held that prejudgment interest was part of the total compensatory damages package for purposes of calculating the presumptive range of allowable punitive damages under section 768.73(1)(a), Florida Statutes (1993).

In today’s ease, we hold that prejudgment interest should be awarded only on the actual amount of the loss before any statutory trebling of compensatory damages. That is certainly agreeable with the Christenson & Associates holding, in which prejudgment interest was added to the amount of the actual loss, and the combined sum was then trebled to calculate the punitive damages.

With that understanding, I concur in today’s decision.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …ed items that were replaced as well as the interest award associated with these damages in the amount of $202,525.39. However, we reverse the trebling of the interest award. Greenberg v. Grossman, 683 So. 2d 156 (Fla. 3d DCA 1996); Vining v. Martyn, 660 So. 2d 1081 (Fla. 4th DCA 1995). We affirm on all other issues on appeal, including the cross-appeal. Reversed and remanded. SALTER, J., concurs. * We are mindful that the legal error in employing replacement cost as the method of damages for the Unreturned…
  • RDR Computer Consulting Corp. v. Eurodirect, Inc., 884 So. 2d 1053 (Fla. 2d DCA 2004)
    …y to actually determine the date on which the damages were liquidated, so long as that date is clear from the context of the litigation. See Charles Buzbee & Sons, Inc. v. Falkner, 585 So. 2d 1190, 1191 (Fla. 2d DCA 1991); see also Vining v. Martyn, 660 So. 2d 1081, 1082 (Fla. 4th DCA 1995). In this case it is clear that the jury liquidated damages in the amount of $49,214.40, the exact amount due no later than April 28, 2000, when the contract terminated.1 Nothing in existing case law requires the claimant t…
  • Greenberg v. Grossman, 683 So. 2d 156 (Fla. 3d DCA 1996)
    …$72,000 trebled civil theft award. See § 812.035(7), Fla.Stat. (1995). Greenberg concedes that he may properly recover prejudgment interest on only the amount stolen, not on the amount as trebled under the civil theft statute, see Vining v. Martyn, 660 So. 2d 1081 (Fla. 4th DCA 1995), or on the punitive damage award. When a verdict liquidates damages on a plaintiffs out-of-pocket pecuniary losses, the plaintiff is entitled to prejudgment . interest at the statutory rate from the date of such loss. Argonaut I…

Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (11 total)

View all 11 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw