MARC E. BOSEM, M.D., AND MARC E. BOSEM, M.D., P.A., APPELLANTS,
v.
MUSA HOLDINGS, INC., D/B/A EYEGLASS WORLD, A FLORIDA CORPORATION, THE LASER VISION INSTITUTE, L.L.C., AND MARCO MUSA, INDIVIDUALLY, APPELLEES

Fla. 4th DCA | 2009-04-15
No. 4D07-3383
HAZOURI and CIKLIN, JJ., concur.
8 So. 3d 1185 Florida District Court of Appeal, Fourth District (2009) Negative Treatment
Cited by 4 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

Dr. Bosem sued for unauthorized use of his image and likeness in advertising by Musa Holdings, and obtained partial summary judgment on liability. The trial court awarded damages including lost profits and prejudgment interest. On appeal, the court reversed the prejudgment interest award because lost profits constitute unliquidated damages, affirming all other determinations.


Holding

The court reversed the award of prejudgment interest because lost profits constitute unliquidated damages. Prejudgment interest is only appropriate for damages that are 'an amount certain' or represent a vested property right, and anticipated business profits do not qualify as vested property rights. All other issues on appeal were affirmed.


Headnotes

[1] Prejudgment interest is not warranted on unliquidated damages, such as lost profits or price erosion.

[2] Lost profits and price erosion damages are generally considered unliquidated because their amount is unknown until calculated by the court.

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Key Quotes

“prejudgment interest was appropriate only for damages which were "an amount certain" and that the trial court erred in granting prejudgment interest on all damages which were not "fixed."”

Establishes the legal standard that prejudgment interest applies only to liquidated or certain damages, not uncertain future damages.

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Facts & Procedural History

Dr. Bosem, an ophthalmologist, sued Musa Holdings (operating as Eyeglass World and The Laser Vision Institute) for unauthorized use of his name, liken…

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Opinion of the Court
POLEN, J.

POLEN, J.

Appellants/Cross-Appellees, Marc E. Bosem, M.D., Marc E. Bosem, M.D., P.A., d/b/a CorrectVision Laser Institute, (Bo-sem) brought an action for injunctive relief, fraud, false advertising, and compensatory damages against Appellees/Cross-Appellants, Musa Holdings, Inc., d/b/a Eyeglass World, The Laser Vision Institute, L.L.C., and Marco Musa, (Musa) for Musa’s alleged unauthorized use of Bo-sem’s image or likeness and violation of the Lanham Act, 15 U.S.C § 1125. The trial court ultimately entered an order granting Bosem’s motion for partial summary judgment and holding that Musa’s use of Bosem’s name, likeness and biography was unauthorized and in violation of section 540.08, Florida Statutes, and the Lanham Act. Accordingly, Bosem’s entitlement to damages was the only issue determined by the subsequent bench trial and is also the only issue before this court on appeal.

Though the parties have appealed several determinations made by the trial court in its calculation of damages, we write only to address an issue cross-appealed by Musa regarding liquidated damages and prejudgment interest. Bosem argued below, in part, that Musa’s unauthorized use of his image resulted in lost profits because he was forced to reduce the price of his LASIK eye surgery procedure in order to retain patients who had seen Musa’s advertisements in which Musa claimed Bo-sem would perform the same surgery for less at its centers.

The trial court found that Bosem sustained lost profits in the amount of $93,306 and awarded Bosem prejudgment interest on that amount. In concluding that prejudgment interest was warranted in the present case, the trial court discussed Air Ambulance Professionals, Inc. v. Thin Air, 809 So.2d 28 (Fla. 4th DCA 2002). In Thin Air, this court held that prejudgment interest was appropriate only for damages which were “an amount certain” and that the trial court erred in granting prejudgment interest on all damages which were not “fixed.” 809 So.2d at 31-32. There, plaintiff sued for compensatory and punitive damages after the defendant withheld payment from plaintiff due to a dispute over excess charges. Id. at 32. The trial court ultimately awarded prejudgment interest on all damages, and this court held that the only claim which was liquidated was that for an open account — the payment withheld by defendant — because it was a known amount from the beginning which defendant refused to pay. See id. Thus, prejudgment interest was appropriate as to that claim but none of the others. Id.

In the present case, the amount of damages was never certain until the trial court calculated Bosem’s lost profits. Bosem claimed he had sustained lost profits of between $300,000 and $400,000 and maintained that the period of infringement was from 2000 to 2002. The trial court found that Bosem’s lost profits were actually $93,306 and that the period of infringement was from July 2000 to December 2001. Florida case law suggests that on a claim for lost profits or price-erosion damages, prejudgment interest is not warranted because the amount of damages is generally unknown. For example, in Jones v. Sterile Products Corp., 572 So.2d 519, 520 *1187(Fla. 5th DCA 1990), the court held that lost profit and price erosion damages resulting from a breach of a non-compete agreement were unliquidated and, thus, that prejudgment interest was not warranted. Moreover, “[t]o date, cases recognizing a right to prejudgment interest have all involved the loss of a vested property right,” and anticipated business profits are not a vested property right. See Scheible v. Joseph L. Morse Geriatric Ctr., Inc., 988 So.2d 1130, 1134 (Fla. 4th DCA 2008). Therefore, we reverse the award of prejudgment interest. As to all other issues, we affirm.

Reversed.

HAZOURI and CIKLIN, JJ., concur.


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Citator

Cited By

  • Marc E. Bosem, M.D. v. Musa Holdings, Inc., 46 So. 3d 42 (Fla. 2010)
    …PER CURIAM. Dr. Marc Bosem seeks review of the decision of the Fourth District Court of Appeal in Bosem v. Musa Holdings, Inc., 8 So. 3d 1185 (Fla. 4th DCA 2009), on the ground that it expressly and directly conflicts with a decision of this Court in Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla.1985), on whether a plaintiff is entitled to prejudgment interest on lost pr…
    1 / 2
  • …Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 214 (Fla.1985) (citation omitted). Future damages, such as “anticipated business profits,” are not vested property rights and cannot be liquidated as of a past date certain. Bosem v. Musa Holdings, Inc., 8 So. 3d 1185, 1187 (Fla. 4th DCA 2009). The trial court awarded appellee prejudgment interest of $111,786.79 from December 31, 2003, to the date of the judgment. We cannot determine how the trial court calculated this amount. The trial court’s findings of fact…

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