BERGEN BRUNSWIG CORPORATION AND HEALTH APPLICATION SYSTEMS, INC., APPELLANTS,
v.
STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
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The court held that the denial of prejudgment interest was error because the jury verdict fixed the damages as of a prior date, and otherwise affirmed the lower court's order.
[1] A statutory limitation on a party's capacity to sue does not alter a court's subject matter jurisdiction but rather delimits the instances in which that jurisdiction may…
[2] Failure to raise an argument regarding a party's lack of capacity to sue before the trial court precludes the pursuit of that argument on appeal.
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Join FLexlaw to unlock all legal intelligenceAppellee sued appellants for misappropriation and misuse of funds under a contractual arrangement. Appellants argued the court lacked jurisdiction due…
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WENTWORTH, Judge.
Appellants seek review of an order by which they were adjudged liable for the misappropriation and misuse of funds derived pursuant to a contractual arrangement involving various entities including appellants and appellee; appellee cross-appeals. We conclude that the lower court’s denial of prejudgment interest was error, and we otherwise affirm the order appealed.
Appellee is a body corporate and statutorily possessed of the power “to sue and be sued in actions ex contractu but not in torts .. . . ” § 402.34, Florida Statutes. Appellants argue, among various other contentions, that this statutory limitation deprives the circuit court of subject matter jurisdiction as to tort actions brought by appellee; appellants further argue that the present case is primarily a tort action.
However, the circuit court is generally possessed of subject matter jurisdiction in tort actions, and, contrary to appellants’ contention, § 402.34 does not alter that jurisdiction, but rather delimits appellee’s capacity to sue by describing those instances in which the established jurisdiction of the court may be invoked. Cf., State ex rel. Jacksonville Gas Co. v. Lewis, 125 Fla. 816, 170 So. 306 (1936). Since appellants declined to raise a “lack of capacity” argument before the circuit court, this argument may not now be pursued on appeal. Cf., Cowart v. City of West Palm Beach, 255 So. 2d 673 (Fla.1971).
Appellants also argue that the circumstances of the present case do not sup port appellee’s claim of conversion.1 Appel-lee established the misappropriation and misuse of funds which were provided for a specific purpose with an express direction that the funds be used for no other purpose. The wrongful use of such funds, contrary to appellee’s express instruction, constitutes conversion. See All Cargo Transport Inc. v. Florida East Coast Railway Co., 355 So. 2d 178 (Fla. 3d DCA 1978).
On cross-appeal appellee contends that the lower court erred in denying the claim for prejudgment interest. Such interest may be awarded in conversion and ex contractu actions. See Gillette v. Stapleton, 336 So. 2d 1226 (Fla. 2d DCA 1976), and Srybnik v. Ice Tower, Inc., 183 So. 2d 224 (Fla. 3d DCA 1966). Although it has sometimes been indicated that prejudgment interest is appropriate only where damages are liquidated, in Florida the distinction between liquidated and unliquidated damages “has been substantially blurred.” See Town of Longboat Key v. Carl E. Widell & Son, 362 So. 2d 719 (Fla. 2d DCA 1978).
Accordingly, in Florida there has evolved a principle that prejudgment interest may be awarded when damages are a fixed sum or an amount readily ascertainable by simple calculation and not dependent on the resolution of conflicting evidence, inferences, and interpretations. See Alarm Systems of Florida, Inc. v. Singer, 380 So. 2d 1162 (Fla. 3d DCA 1980); Town of Longboat Key v. Carl E. Widell & Son, supra; also see Tampa Electric Co. v. Nashville Coal Co., 214 F.Supp. 647 (M.D.Tenn.1963). Indeed, this court has recited such, in dicta, as the applicable rule. See McCoy v. Rudd, 367 So. 2d 1080 (Fla. 1st DCA 1979).
However, we now determine that the better view is expressed in the case of Tech Corp. v. Permutit Co., 321 So. 2d 562 (Fla. 4th DCA 1975), where the court held that, for the purpose of assessing prejudgment interest, a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing damages as of a prior date. Such a rule eliminates the unwarranted disparate treatment of those litigants who contest liability only, and those who contest the measure of damages.
In the present case the jury verdict established the amount of damages, and the record evidence indicates that, due to appel-lee’s dissatisfaction with appellants’ performance, the parties’ contractual relationship was terminated by formal notice prior to the commencement of the proceeding below. The jury verdict in this case thus had the effect of fixing damages as of a prior date, and therefore prejudgment interest should have been awarded.2
The order appealed is reversed insofar as it denies the claim for prejudgment interest. The order is otherwise affirmed, and the cause is remanded for further proceedings consistent with this opinion.
MILLS, J., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge, concur. . Appellee presented the case under multiple theories of recovery, and successfully obtained a general jury verdict despite appellants’ request for a special verdict. Accordingly, it is necessary on appeal that the verdict be without error on every theory of recovery. See Colonial Stores Inc. v. Scarbrough, 355 So. 2d 1181 (Fla.1978).
. In accordance with the parties’ stipulation, the issue of prejudgment interest was submitted to the trial judge after the jury returned a verdict.
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Argonaut Ins. Co. v. MAY Plumbing Co., 474 So. 2d 212 (Fla. 1985)…urance Co. v. Argonaut Insurance Co., 451 So. 2d 876 (Fla. 4th DCA 1984), directly and expressly conflicts with the decision of another district court of appeal. Bergen Brunswig Corporation v. State, Department of Health and Rehabilitative Services, 415 So. 2d 765 (Fla. 1st DCA 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Argonaut Insurance Company paid $249,-360.51 to the owners of the Colony Club Apartments for damages from a fire caused by the negligence of a May Plumbing Company employee.…
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Marc E. Bosem, M.D. v. Musa Holdings, Inc., 46 So. 3d 42 (Fla. 2010)…s to be made whole from the date of the loss once a finder of fact has determined the amount of damages and defendant’s liability therefor. Id. at 215. Ultimately, we agreed with the First District Court of Appeal in Bergen Brunswig Corp. v. State, 415 So. 2d 765 (Fla. 1st DCA 1982), that the “better rule” for assessing prejudgment interest is that “a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing damages as of a prior date.” Argonaut, 474 So. 2d at 2…
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Mason v. Reiter, 564 So. 2d 142 (Fla. 3d DCA 1990)…, a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing damages as of a prior date.” Argonaut, 474 So. 2d at 214 (quoting Bergen Brunswig Corp. v. State, Dep’t of Health and Rehabilitative Servs., 415 So. 2d 765, 767 [*146] (Fla. 1st DCA 1982)). “Once a verdict has liquidated the damages as of a date certain, computation of prejudgment interest is merely a mathematical computation.” Argonaut, 474 So. 2d at 215. In the instant case, the parties stipulated th…
Previewing 3 of 42 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Colonial Stores, Inc. v. Doyle Wayne Scarbrough, 355 So. 2d 1181 (Fla. 1977)
- Cowart v. City OF W. Palm Beach, 255 So. 2d 673 (Fla. 1971)
- Boyce Gillette v. Stapleton, 336 So. 2d 1226 (Fla. 2d DCA 1976)
- Tech Corp. v. The Permutit Co., 321 So. 2d 562 (Fla. 4th DCA 1975)
- Town OF Longboat KEY v. Carl E. Widell & SON, 362 So. 2d 719 (Fla. 2d DCA 1978)
- Brooker v. State, 362 So. 2d 719 (Fla. 2d DCA 1978)
- McCOY v. Rudd, 367 So. 2d 1080 (Fla. 1st DCA 1979)
- Alarm Sys. OF Fla., Inc. v. Singer, 380 So. 2d 1162 (Fla. 3d DCA 1980)
- State v. Miles W. Lewis, 125 Fla. 816 (Fla. 1936)
- Srybnik v. ICE Tower, Inc., 183 So. 2d 224 (Fla. 3d DCA 1966)