MARTIN F. GREENBERG, STANLEY H. KUPERSTEIN AND KARL M. SACHS, AS THE MAJORITY IN INTEREST OF THE GENERAL PARTNERS AND FOR THE USE AND BENEFIT OF KISMET APARTMENTS, LTD., A FLORIDA LIMITED PARTNERSHIP, APPELLANTS,
v.
HARRY GROSSMAN, APPELLEE

Fla. 3d DCA | 1996-10-30
No. 96-1
Before BARKDULL, NESBITT and JORGENSON, JJ.
683 So. 2d 156 Florida District Court of Appeal, Third District (1996) Positive Treatment
Cited by 7 cases

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Synopsis

Appellants appealed a trial court's judgment that awarded damages for fraud, civil theft, breach of fiduciary duty, and punitive damages but refused to award prejudgment interest. The appellate court affirmed the damage calculation but reversed and remanded regarding prejudgment interest, directing the trial court to award prejudgment interest on compensatory damages determinable from the record and requiring appellants to elect between punitive damages and trebled civil theft damages.


Holding

The trial court erred in refusing to award prejudgment interest on compensatory damages determinable as of a date certain from the record. Appellants cannot recover both punitive damages and the trebled civil theft award and must elect between them. Prejudgment interest is only recoverable on the amount stolen, not on the amount as trebled under the civil theft statute or on punitive damages.


Headnotes

[1] A plaintiff is entitled to prejudgment interest on liquidated damages representing out-of-pocket pecuniary losses from the date of the loss.

[2] When a jury verdict liquidates damages on a plaintiff's out-of-pocket pecuniary losses, prejudgment interest should be awarded at the statutory rate.

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Key Quotes

“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.”

Establishes the fundamental rule that prejudgment interest is owed on liquidated compensatory damages from the date of loss.

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Facts & Procedural History

The trial court awarded damages in four categories: Fraud ($65,000), Punitive Damages ($80,000), Civil Theft ($36,000), and Breach of Fiduciary Duty (…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellants Greenberg, et al., challenge a damage award in their favor in which the trial judge refused to award prejudgment interest. The appellee Grossman cross-appeals, contending that the trial court erred in aggregating three separate compensatory damage counts. We find no merit in the cross-appeal, see Brod v. Adler, 570 So. 2d 1312 (Fla. 3d DCA 1990), review denied, 577 So. 2d 1325 (Fla.1991); Phillips v. Ostrer, 481 So. 2d 1241 (Fla. 3d DCA 1985), review denied, 492 So. 2d 1334 (Fla.1986); R.W. King Const. Co. v. City of Melbourne, 384 So. 2d 654 (Fla. 5th DCA 1980), and therefore discuss only the initial appeal.

This matter recurred in the trial court following remand for a new trial on damages that was ordered in Grossman v. Greenberg, 619 So. 2d 406 (Fla. 3d DCA 1993), review denied, 629 So. 2d 133 (Fla.1993). At this trial a verdict form was submitted to the jury, (the form of which is not complained of here), and it listed four separate categories of possible damages.

The jury returned a verdict as follows: Fraud — $65,000, Punitive Damages — $80,000, Civil Theft — $36,000 and Breach of Fiduciary Duty — $50,000. Green-berg filed a motion for entry of final judgment and for a correction of the jury verdict, arguing that prejudgment interest should have been added to the total compensatory damages and the civil theft verdict should have been trebled. The court entered judgment for $303,000, which amount was calculated as follows: Aggregation of damages— $151,000, Trebling of Civil Theft — $72,000 and Punitive Damages — $80,000. This appeal and cross-appeal ensued.

We find no error in the trial court’s computation of damages except that, as Greenberg recognizes, he cannot recover both punitive damages and the $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 Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985); Underhill Fancy Veal, Inc. v. Padot, 677 So. 2d 1378 (Fla. 1st DCA 1996); Machado v. Foreign Trade, Inc., 478 So. 2d 405 (Fla. 3d DCA 1985), disapproved on other grounds, Cheek v. McGowan Elec. Supply Co., 511 So. 2d 977 (Fla.1987).

Where there has been a series of civil thefts, prejudgment interest is an element of compensatory damages and should be calculated from the date of each taking. Miller v. Reinhart, 548 So. 2d 1174 (Fla. 4th DCA 1989).

In this case, the damages consisted of payments on a note and commissions from a consulting agreement. Greenberg asserts that a certified public accountant testified as to the date that each payment was made and calculated prejudgment interest for each payment from that date. The accountant also calculated the prejudgment interest on the commissions from the last date that Grossman testified he received those commissions. Since the dates at which the losses occurred are ostensibly ascertainable from the record, it would appear that it was error for the trial judge not to award prejudgment interest. The parties agreed at oral argument that neither side wanted any further evidentiary hearings and that the case should be brought to an end.

Therefore, the trial judge is directed to award prejudgment interest on any portion of the damages that are determinable as of a date certain from the record. Upon remand of this matter for calculation of prejudgment interest, Greenberg must make an election between the punitive damages and the trebled civil theft award. If he elects the civil theft award, he is entitled to attorney’s fees pursuant to Florida Statute section 772.11 (1995).1

Affirmed in part, reversed in part with directions.

. We also conditionally grant his motion for appellate fees in the event he elects to recover under Florida Statute section 772.11 (1995) and remand to the trial court to fix amount of any such award.


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Citator

Cited By

  • …of $220,412.50 in civil theft damages for the converted 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 replac…
  • …except as to the inclusion of prejudgment interest in the calculation of treble damages for civil theft. Prejudgment interest may only be awarded on the amount actually stolen; it may not be awarded on the trebled amount. See Greenberg v. Grossman, 683 So. 2d 156 (Fla. 3d DCA 1996). REVERSED and REMANDED with directions to calculate and award prejudgment interest only on the principal amount involved. BOOTH, JOANOS and WOLF, JJ., concur.…
  • Sebastiano v. Sclafani, 984 So. 2d 673 (Fla. 4th DCA 2008)

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