The Leila Corporation of St. Pete v. Ossi

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
THE LEILA CORPORATION OF ST. )
PETE, a Florida corporation; SUSAN J. )
AGIA, individually and as trustee of the )
Susan J. Agia Living Trust; and )
DR. RAYMOND AGIA, )
)
Appellants, )
)
v. ) Case No. 2D15-3279
)
FAREED OSSI; OSSI CONSULTING )
ENGINEERS, INC., a Florida corporation; )
and OSSI CONSTRUCTION, INC., a )
Florida corporation, )
)
Appellees. )
)
Opinion filed July 21, 2017.
Appeal from the Circuit Court for
Hillsborough County; James M. Barton II,
Judge.
Arnold D. Levine and Robert H.
MacKenzie of Levine & Sullivan, P.A.,
Tampa, for Appellants.
Stuart Jay Levine and Heather A.
DeGrave of Walters, Levine, Klingensmith
& Thomison, P.A., Tampa, for Appellees.
ROTHSTEIN-YOUAKIM, Judge.
The Leila Corporation of St. Pete (Leila Corp), Susan J. Agia, individually
and in her capacity as trustee of the Susan J. Agia Living Trust (the Trust), and Dr.
Raymond Agia (collectively, the Defendants) appeal from a final judgment in favor of
Fareed Ossi, Ossi Consulting Engineers, Inc. (O.C.E.), and Ossi Construction, Inc.
(collectively, the Plaintiffs). The Defendants failed to timely appeal with respect to
matters included in the original final judgment, which they challenge in Issues I, II, III, VI,
and VII of their brief on appeal. Therefore, with respect to those issues, we dismiss the
appeal for lack of jurisdiction. The Defendants timely appealed, however, with respect
to the award of prejudgment interest included in the amended final judgment, which they
challenge in Issues IV and V. With respect to those issues, we affirm the determination
of entitlement to prejudgment interest but reverse as to the amount.
FACTUAL HISTORY
The seeds of the dispute underlying this appeal were sown in 1993, when
Dr. Agia transferred an undeveloped piece of property to the Trust and began planning
with Ossi and Ossi's company, O.C.E., to construct a condominium on it. Dr. Agia and
Ossi did not enter into a written contract for Ossi's services.
In 2005, Mrs. Agia and Ossi created Leila Corp.1 Mrs. Agia held a
seventy-five percent interest in Leila Corp, and Ossi held the remaining twenty-five
percent. The Trust sold the property to Leila Corp for $5,850,000. Leila Corp funded
the purchase, in part, via a promissory note in favor of the Trust in the amount of
$2,850,000; the remainder was financed by a bank loan that Ossi personally
guaranteed. Leila Corp then entered into an oral contract with Ossi Construction
1Having transferred the property to the Trust, Dr. Agia no longer had any
legal interest in it; nor does he have any position with or legal interest in Leila Corp.
Nonetheless, Dr. Agia is named as a defendant and counter-plaintiff in the pleadings,
participated in all of the proceedings in this case, and is named in the final judgment.
Neither party addresses this apparent incongruity in this appeal.
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(owned by Ossi's son, Robert) for the construction of the condominium. During
construction, additional capital contributions were deemed necessary. Ossi could not
come up with his proportionate share, so Mrs. Agia paid both her share and Ossi's
share.
When construction was complete, Dr. and Mrs. Agia purchased one unit in
the condominium for fair market value. Then the bottom fell out of the real estate
market. Prospective buyers were unwilling to pay the asking price for the units, and the
parties began to squabble.
In 2009, Ossi and O.C.E. filed a complaint in Hillsborough County against
Leila Corp, Mrs. Agia, individually and in her capacity as trustee of the Trust, and Dr.
Agia; the Defendants filed an answer and affirmative defenses and a counterclaim.
Meanwhile, a separate foreclosure action with multiple attendant cross-claims had been
filed in Pinellas County. By agreement of the parties, Ossi Construction's cross-claim
against Leila Corp and Leila Corp's cross-claims against Ossi Construction were
severed, transferred to Hillsborough County, and subsumed within this suit.2 A nonjury
trial was held on all claims in July 2012. The trial court denied everyone's claims based
on unclean hands, and everyone appealed. This court reversed. See Leila Corp. of St.
Pete v. Ossi, 138 So. 3d 470 (Fla. 2d DCA 2014).
2The initial pleadings in the Hillsborough County action, including the
amended complaint and the amended counterclaim, repeatedly referred to actions
undertaken by Ossi Construction, although Ossi Construction was not a party to those
proceedings. The pleadings also contain several instances of a repeated scrivener's
error in which "Ossi Construction" appears where "Ossi Consulting Engineers" was
clearly intended. In any case, Ossi Construction was eventually added as a party when
the cross-claims from the Pinellas County action were severed and transferred to the
Hillsborough County case.
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On September 30, 2014, the trial court rendered a final judgment after
remand that, in short, awarded lost profits to Ossi per Count I of the first amended
complaint in the Hillsborough County action, awarded O.C.E. payment for its
construction administration services per Count V of that complaint, and awarded Ossi
Construction its unpaid construction charges per Count II of its cross-claim in the
Pinellas County action. The court denied any relief on all other claims, counterclaims,
and cross-claims before it in the two actions.
On October 9, 2014, the Plaintiffs moved to amend or correct the final
judgment to include prejudgment interest and to correct an apparent scrivener's error,
specifically, that the judgment failed to identify Mrs. Agia individually as a judgment
debtor with respect to Ossi's award of lost profits in the "conclusion" section of the
judgment. The Plaintiffs identified in their motion the trial exhibits that supported their
position concerning the dates from which prejudgment interest should be calculated.
The Defendants replied and objected to the motion and, on October 13, 2014, moved
for rehearing of the final judgment. On November 7, 2014, the trial court entered orders
denying the Defendants' motion for rehearing and granting the Plaintiffs' motion to
include prejudgment interest and to correct the scrivener's error. On the same date, the
trial court entered an amended final judgment that included awards of prejudgment
interest and inserted Mrs. Agia's name in the appropriate paragraph in the "conclusion"
section of the final judgment.
On November 20, 2014, the Defendants moved to vacate and for
rehearing of the amended final judgment. In that motion, they argued that the trial court
should not have awarded prejudgment interest without first holding a hearing at which
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they could have contested the dates governing the amount of interest awarded. The
Plaintiffs responded that an evidentiary hearing was unnecessary because the
computation of prejudgment interest is merely mathematical. They again identified the
evidentiary bases for the dates on which they relied and also included tables setting
forth the statutory interest rates in effect at the relevant times within those dates. On
July 7, 2015, the trial court denied the Defendants' motion to vacate and for rehearing.
On July 17, 2015, the Defendants filed their notice of appeal from the
November 7, 2014, amended final judgment and from the July 7, 2015, denial of their
motion for rehearing.
JURISDICTION
On appeal, the Defendants raise seven arguments, five of which (raised in
Issues I, II, III, VI, and VII) are directed to findings of fact and conclusions of law that
were included in the September 30, 2014, final judgment after remand. We conclude,
however, that we lack jurisdiction to consider the Defendants' challenges to any issues
addressed in that original final judgment because their notice of appeal was untimely as
to those issues. Although the Defendants contend that their November 20, 2014,
motion to vacate and for rehearing of the November 7, 2014, amended final judgment
tolled the time for filing a notice of appeal as to matters adjudicated in the original final
judgment, we disagree. The only substantive difference between the original final
judgment and the amended final judgment was the addition of the awards of
prejudgment interest,3 and, like an award of attorney's fees, "the issue of prejudgment
3Inthe body of the final judgment, the trial court explicitly determined that
Ossi was entitled to relief on his claim against Mrs. Agia. Thus, we readily conclude
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interest does not alter the substance of the underlying final judgment." Westgate Miami
Beach Ltd. v. Newport Operating Corp., 55 So. 3d 567, 575 (Fla. 2010) (explaining that
although prejudgment interest is not incidental to final judgment like attorneys' fees and
costs, they are all matters for judge, rather than finder of fact, to calculate and award
and are all calculated at completion of case). Thus, where only prejudgment interest is
added in an amended judgment, an appeal from that judgment does not "reach back to
the original judgment" but perfects an appeal only from the award of prejudgment
interest. See Janelli v. Pagano, 492 So. 2d 796, 797 (Fla. 2d DCA 1986) ("[W]here only
attorney's fees are added in an amended judgment, an appeal from that judgment does
not reach back to the original judgment but only brings the propriety of the attorney's
fees up for review.").
It follows, therefore, that a motion for rehearing of the amended final
judgment does not reach back to matters adjudicated in the original final judgment.4
Thus, the matters adjudicated in the original final judgment were ripe for appeal upon
the trial court's November 7, 2014, denial of the Defendants' motion for rehearing of the
original final judgment, see Fla. R. App. P. 9.020(i)(1), and, as to those matters, the
Defendants' July 17, 2015, notice of appeal was plainly untimely, see Janelli, 492 So. 2d
that the omission of Mrs. Agia's name from the conclusion section of the original final
judgment was, in fact, merely a scrivener's error.
4Thatis especially true where, as here, the party seeking rehearing of the
amended final judgment has already unsuccessfully sought rehearing of the original
final judgment. See Matamoros v. Infinity Auto Ins. Co., 177 So. 3d 682, 684 (Fla. 3d
DCA 2015) (observing that prohibition against successive motions for rehearing is "well-
established and unassailable").
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at 796-97. Accordingly, we dismiss the Defendants' appeal for lack of jurisdiction
except as to Issues IV and V pertaining to the awards of prejudgment interest.
PREJUDGMENT INTEREST
The original final judgment awarded the following damages: (1) $662,500
in lost profits to Ossi (per Count I of the first amended complaint in the Hillsborough
County action); (2) $322,050 in unpaid construction-administration-services costs to
O.C.E. (per Count V of the first amended complaint in the Hillsborough County action);
and (3) $204,687.15 in unpaid construction costs to Ossi Construction (per Count II of
the cross-claim in the Pinellas County action). The amended final judgment added to
those damages awards the following awards of prejudgment interest: (1) $310,040.92
to Ossi's award of lost profits; (2) $106,648.04 to O.C.E.'s award of unpaid construction-
administration-services costs; and (3) $73,073.45 to Ossi Construction's award of
unpaid construction costs.
The Defendants challenge the awards of prejudgment interest on due
process and equitable grounds. We review the awards de novo. See Wood v.
Unknown Pers. Representative of Estate of Burnette, 56 So. 3d 74, 76 (Fla. 2d DCA
2011).
A. Due Process
As an initial matter, the Defendants assert that the Plaintiffs failed to plead
entitlement to prejudgment interest. The record, however, squarely rebuts this
assertion—Ossi and O.C.E. demanded interest in the first amended complaint, and Ossi
Construction demanded prejudgment interest in connection with its cross-claim from the
Pinellas County action. See Napp v. Carman, 576 So. 2d 361, 362 (Fla. 4th DCA 1991)
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(explaining that plea for "interest" can only refer to prejudgment interest "as the matter
of postjudgment interest is governed by statute and need not be pled"). And regardless:
"prejudgment interest is merely an element of damage. It does not need to be specially
pleaded." See RDR Comput. Consulting Corp. v. Eurodirect, Inc., 884 So. 2d 1053,
1055 (Fla. 2d DCA 2004), implicitly overruled on other grounds by Lamb v. Matetzschk,
906 So. 2d 1037 (Fla. 2005), as recognized in Easters v. Russell, 942 So. 2d 1008,
1009 n.1 (Fla. 2d DCA 2006). "[W]hen a verdict liquidates damages on a plaintiff's out-
of-pocket, pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment
interest at the statutory rate from the date of that loss." Argonaut Ins. Co. v. May
Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985).
The Plaintiffs' timely motion to amend or correct the final judgment to
include prejudgment interest preserved the trial court's jurisdiction to award it. See Jaye
v. Royal Saxon, Inc., 900 So. 2d 634, 635 (Fla. 4th DCA 2005) (noting that specific
reservation of jurisdiction to address attorney's fees in final order is not required so long
as timely motion for fees is filed); Emerald Coast Commc'ns, Inc. v. Carter, 780 So. 2d
968, 970 (Fla. 1st DCA 2001) ("[T]he failure to award prejudgment interest is an error
which can be corrected by a motion for rehearing."), abrogated on other grounds by
Westgate Miami Beach, 55 So. 3d 567. Although the amended final judgment did not
include any findings as to the dates of loss, we assume that the trial court accepted the
dates set forth in the Plaintiffs' motion to amend or correct the final judgment to include
prejudgment interest. In that motion, the Plaintiffs asserted that (1) the date of loss
applicable to Ossi's award of lost profits was September 21, 2007, which was the date
on which the parties' increased, extended loan would have matured and after which the
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parties would have realized their profit upon paying off the loan; (2) the date of loss
applicable to O.C.E.'s award of unpaid construction-administration-services costs was
December 19, 2008, which was the date on which O.C.E. had submitted a claim for
payment to Dr. Agia; and (3) the date of loss applicable to Ossi Construction's award of
unpaid construction costs was September 24, 2008, which was the date on which Ossi
Construction had filed a valid claim of lien for unpaid "labor, services, or materials and
related work for construction" of the condominium project.
The Defendants argue that the trial court denied them due process by
awarding the Plaintiffs their requested prejudgment interest without conducting a
hearing at which the Defendants could challenge the asserted dates of loss. The
Plaintiffs' motion to amend, however, identified the specific trial exhibits that established
those dates, and, notwithstanding their repeated protestation that they were denied an
opportunity to be "heard," the Defendants never actually challenged those dates despite
opportunities to do so in their reply and objection to the Plaintiffs' motion to amend or
correct the final judgment and in their motion to vacate and for rehearing of the
amended final judgment. Indeed, they do not even do so on appeal. Accordingly, they
have failed to establish a denial of due process on that basis.
B. Equitable Reduction of Prejudgment Interest
As noted above, on October 11, 2012, the trial court rendered judgment
denying relief to all parties, and this court subsequently reversed and remanded for
further proceedings, resulting in the September 30, 2014, judgment for the Plaintiffs. In
their amendment to their motion to vacate and for rehearing of the amended final
judgment, the Defendants argued, as they argue on appeal, that the trial court should
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have excluded from the prejudgment-interest calculus the period between rendition of
the original judgment and rendition of the final judgment after remand. The Defendants
argued that such equitable relief was warranted because until that judgment on
September 30, 2014, there had been no judgment in favor of the Plaintiffs and because,
during that approximately two-year period, the Defendants (and everyone else) had
been powerless to conclude the litigation by obtaining a trial court judgment.
The Plaintiffs suggested that such equitable relief was unavailable, and
the trial court denied the amendment without elaboration. Consequently, it is not clear
to us that the trial court understood that it did, in fact, have the discretion to reduce the
awards of prejudgment interest based on equitable considerations. Although the
Plaintiffs argue that such considerations are inconsistent with the "loss theory" of
damages employed in Florida courts, the supreme court has explained:
[T]he general rule concerning the payment of prejudgment
interest [is]: "[O]nce damages are liquidated, prejudgment
interest is considered an element of those damages as a
matter of law, and the plaintiff is to be made whole from the
date of the loss." This general rule is not absolute. . . .
"[I]nterest is not recovered according to a rigid theory of
compensation for money withheld, but is given in
response to considerations of fairness. It is denied
when its exaction would be inequitable." We did not
recede from this principle in Argonaut Insurance or
Kissimmee Utility Authority [v. Better Plastics, Inc., 526
So. 2d 46 (Fla. 1988)]. Further, in Ball v. Public Health
Trust, 491 So. 2d 608 (Fla. 3d DCA 1986), the Third District
Court of Appeal allowed prejudgment interest but restricted
the date it commenced to the date of demand or the
commencement of the lawsuit, whichever occurred first. The
district court did so on equitable grounds, relying on our
decision in First State Bank v. Singletary, 124 Fla. 770, 169
So. 407 (1936). As noted by these decisions, the law is
not absolute and may depend on equitable
considerations.
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Broward County v. Finlayson, 555 So. 2d 1211, 1213 (Fla. 1990) (third alteration in
original) (emphases added) (citation omitted) (first quoting, in part, Kissimmee Util.
Auth., 526 So. 2d at 47; and then quoting, in part, Flack v. Graham, 461 So. 2d 82, 84
(Fla. 1984)). The First District Court of Appeal most recently recognized this exception
in Arizona Chemical Co. v. Mohawk Industries, Inc., 197 So. 3d 99 (Fla. 1st DCA 2016):
As an exception to the general rule set forth in
Argonaut, courts sometimes calculate prejudgment interest
from a date later than the date of the plaintiff's actual loss,
where unique facts and considerations of fairness militate
against calculating prejudgment interest from the date of
actual loss. The trial court in this case did not address the
question of whether equitable considerations might justify
moving the prejudgment interest date forward. Therefore,
we cannot tell whether the court determined that the equities
were not in Arizona's favor or whether the court declined to
recognize an equitable exception to the general prejudgment
interest rule.
Id. at 105 (citations omitted); see also Volkswagen of Am., Inc. v. Smith, 690 So. 2d
1328, 1331 (Fla. 1st DCA 1997) ("The Argonaut decision did not establish an inflexible
rule that requires trial judges to assess prejudgment interest in every case regardless of
the circumstances. Depending on the equities of a given case, an award of
prejudgment interest may be a windfall to the plaintiff and an unfair burden on the
defendant.").
CONCLUSION
Accordingly, we vacate the awards of prejudgment interest and remand for
the trial court to consider whether the Defendants have set forth an equitable basis for
reducing the awards. Having so considered, the trial court may reinstate the vacated
awards or may reduce them in the manner that the Defendants request or in any
manner it deems just and equitable.
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Dismissed in part; affirmed in part; vacated in part; remanded.
CASANUEVA and CRENSHAW, JJ., Concur.
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