ZACCO CONTRACTORS, INC., APPELLANT,
v.
IRVING TRUST COMPANY, APPELLEE
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A subcontractor awarded an equitable lien on undisbursed loan proceeds is entitled to prejudgment interest, even without privity of contract with the lender, based on the loss theory of damages.
[1] A subcontractor awarded an equitable lien on undisbursed loan proceeds is entitled to prejudgment interest, even in the absence of privity of contract with the lender.
[2] Prejudgment interest is recoverable as a matter of law when a verdict liquidates a plaintiff's out-of-pocket, pecuniary losses.
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Join FLexlaw to unlock all legal intelligenceZaceo, a subcontractor, performed work for Gemini but was not paid. Zaceo obtained an equitable lien against construction loan proceeds held by lender…
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BASKIN, Judge.
In this appeal we decide whether a subcontractor is entitled to recover prejudgment interest when it has been awarded an equitable lien on undisbursed loan proceeds held by a lender and no privity of contract exists between the subcontractor and the lender. We hold that prejudgment interest is appropriate and reverse the trial court’s order insofar as it denied prejudgment interest.
Zaceo Contractors, Inc., [Zaceo] was a subcontractor on a construction project for Gemini Group, Inc. [Gemini]. Irving Trust Company [Irving Trust] loaned construction funds to Gemini. Zaceo and Irving Trust had no contractual relationship. When Gemini failed to pay Zaceo for work performed, Zaceo filed a claim of lien for $37,747.22. After Gemini defaulted on the loan, Irving Trust filed a mortgage foreclosure action joining all lienors, including Zaceo. Zaceo counterclaimed against Irving Trust to foreclose its mechanic’s lien. At the time of Gemini’s default, Irving Trust had disbursed all but approximately $50,000 of the construction funds.
Zaceo moved for a summary judgment on its counterclaim. The trial court granted Zaceo a partial summary judgment and awarded it an equitable lien to the extent of its claim, to be paid from the undis-bursed construction loan funds held by Irving Trust. Irving Trust did not appeal and subsequently paid Zaceo the amount of the judgment. Zaceo then sought attorney’s fees and prejudgment interest. The trial court denied both requests and Zaceo appealed only the denial of prejudgment interest.
The supreme court of Florida recently considered entitlement to prejudgment interest. Trend Coin Co. v. Honeywell, Inc., 487 So. 2d 1029 (Fla.1986); Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985). In Argonaut, the court held that “when a verdict liquidates damages on a plaintiff’s out-of-pocket, pe cuniary losses, plaintiff is entitled, as a matter of law, to prejudgment interest at the statutory rate from the date of that loss.” Argonaut, 474 So. 2d at 215. After comparing penalty and loss theories 1 as reasons for awarding prejudgment interest, the court approved the loss theory as the appropriate rationale for such awards. The court also recognized the longstanding Florida rule that prejudgment interest is an element of pecuniary damages, except in personal injury awards, where prejudgment interest is not recoverable.2 Argonaut, 474 So. 2d at 214 n. 1.
Arguing that Argonaut did not consider situations involving equitable liens on a limited fund, Irving Trust maintains that the absence of privity of contract between Zaceo and Irving Trust precludes the award of prejudgment interest to Zaceo. We disagree. Argonaut emphasized that entitlement to prejudgment interest arises when “a verdict liquidates damages on a plaintiff’s out-of-pocket, pecuniary losses _” Argonaut, 474 So. 2d at 215. Those losses do not depend on the existence of a contractual relationship. Furthermore, by rejecting the penalty theory, the supreme court tacitly disapproved cases holding that prejudgment interest is not available in equitable actions absent contractual privity.3
We reject Irving Trust’s contention that Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. 3d DCA 1970), cert. denied, 247 So. 2d 324 (Fla.1971), disposes of the issue before us. In Sharpe, this court approved the denial of prejudgment interest where no privity of contract existed between the subcontractor and the party from whom equitable relief was sought. However, in Sharpe, the denial of prejudgment interest resulted from the subcontractor’s defective work and the court expressly limited its ruling to the facts before it. Argonaut ’s holding that prejudgment interest follows a pecuniary loss strikes us as sufficiently broad to cover prejudgment interest awards in equitable actions even when the parties are not in contractual privity. Argonaut’s emphasis on the mandatory aspect of the award supports our view:
Once a verdict has liquidated the damages as of a date certain, computation of prejudgment interest is merely a mathematical computation. There is no “finding of fact” needed. Thus, it is a purely ministerial duty of the trial judge or clerk of the court to add the appropriate amount of interest to the principal amount of damages awarded in the verdict.
Argonaut, 474 So. 2d at 215. For these reasons, we hold that Zaceo is entitled to prejudgment interest from the fund held by Irving Trust.
We therefore reverse that portion of the trial court’s order denying Zaceo prejudgment interest and remand for further proceedings consistent with this opinion.
Affirmed in part; reversed in part; remanded with directions.
. Under the penalty theory, prejudgment interest represents a penalty for a defendant’s "wrongful'’ act of disputing a valid claim. Under the loss theory, prejudgment interest is considered restitution. Argonaut, 474 So. 2d at 215.
. One commentator reasoned that the language of Argonaut suggests that prejudgment interest is available for all cases except "those involving damages for intangible injury such as pain and suffering." Vezina, Recoverability of Pre-Judgment Interest: Argonaut v. May Plumbing, Fla. B.J., March 1986, at 39, 41.
. The loss theory espoused by Argonaut renders unnecessary consideration of wrongful acts of the custodian of the fund employed in Largo Hospital Owners, Ltd. v. International Glass & Manufacturing Co., 410 So. 2d 518 (Fla. 2d DCA 1981), modified on other grounds sub nom. Gorman v. Largo Hospital Owners, Ltd., 435 So. 2d 872 (Fla. 2d DCA 1983), review denied, 446 So. 2d 99 (Fla.1984). By eliminating the merit of the defense as a basis for entitlement to prejudgment interest, Argonaut negates the "litigable” requirement of Gerber Groves, Inc. v. Belle Glade Agricultural Contractors, Inc., 212 So. 2d 669 (Fla. 2d DCA 1968). Horne v. C & R Building Materials, Inc., 321 So. 2d 617 (Fla. 3d DCA 1975), cert. dismissed, 327 So. 2d 32 (Fla.1976), relies on Gerber which Argonaut implicitly rejects. Argonaut apparently does not affect Flood v. Clark, 111 So. 2d 465 (Fla. 3d DCA 1959), in which this court recognized a lienor’s entitlement to prejudgment interest where a group of unpaid lienors sought payment of their liens from a retainage fund. Flood supports the decision we reach today.
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Gordon v. Flamingo Holding P'ship, 624 So. 2d 294 (Fla. 3d DCA 1993)…amount by which his collateral had been impaired. See Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985) (prejudgment interest from date of loss recoverable as element of pecuniary damage); Zacco Contractors, Inc. v. Irving Trust Co., 488 So. 2d 616 (Fla. 3d DCA 1986) (prejudgment interest awarded on contractor’s equitable lien). The date on which the interest begins to accrue is the date of loss, specifically, the date on which the transfer of development rights was accomplished. Affirmed in…
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Int'l Cmty. Corp. v. Overstreet Paving Co., 493 So. 2d 25 (Fla. 2d DCA 1986)…niary losses, the plaintiff is, as a matter of law, entitled to prejudgment interest from the date of the loss. Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985). Our sister court in Zacco Contractors, Inc. v. Irving Trust Co., 488 So. 2d 616 (Fla. 3d DCA 1986), has now had occasion to consider the effect of the Argonaut decision on facts analogous to those in the instant case. The court held that in view of Argonaut, a subcontractor which had been awarded an equitable lien on undis-burs…
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Suchman v. Nat'l Hauling, Inc., 549 So. 2d 200 (Fla. 3d DCA 1989)…assessment of prejudgment interest, representing the value of the materials received and utilized by the owner, was required in this case. Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985); Zacco Contractors, Inc. v. Irving Trust Co., 488 So. 2d 616 (Fla. 3d DCA 1986). The trial judge was thus correct in his initial ruling allowing this item and incorrect in striking it from the judgment finally entered below. Lastly, as has been indicated, we have carefully considered the contentions raised b…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Argonaut Ins. Co. v. MAY Plumbing Co., 474 So. 2d 212 (Fla. 1985)
- Sharpe v. Ceco Corp., 242 So. 2d 464 (Fla. 3d DCA 1970)
- Trend Coin Co. v. Honeywell, Inc., 487 So. 2d 1029 (Fla. 1986)
- Largo Hosp. Owners, Ltd. v. Int'l Glass & Mfg. Co., Inc., 410 So. 2d 518 (Fla. 2d DCA 1981)
- Gerber Groves, Inc. v. Belle Glade Agric. Contractors, Inc., 212 So. 2d 669 (Fla. 2d DCA 1968)
- Kraus v. State, 247 So. 2d 324 (Fla. 1971)
- Sharpe v. Ceco Corp., 247 So. 2d 324 (Fla. 1971)
- David Gorman in Bankr. for Int'l Glass & Mfg. Co., Inc. v. Largo Hosp. Owners, Ltd., 435 So. 2d 872 (Fla. 2d DCA 1983)
- Flood v. Clark, 111 So. 2d 465 (Fla. 3d DCA 1959)
- Logan B. Horne v. C & R Bldg. Materials, Inc., 321 So. 2d 617 (Fla. 3d DCA 1975)