AVP DESTINY LLC v. ELISABETH DELUCA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AVP DESTINY, LLC, a Florida limited liability company, ANTHONY V.
PUGLIESE, III, individually, ANTHONY V. PUGLIESE, INC. d/b/a THE
PUGLIESE COMPANY and JOSEPH REAMER,
Appellants/Cross-Appellees,
v.
FD DESTINY, LLC, ELISABETH and JONATHAN DELUCA
as Co-Personal Representatives of the Estate of
FREDERICK A. DELUCA, LAND COMPANY OF OSCEOLA COUNTY,
LLC, FD DESTINY CREDIT, LLC, and
DOCTORS’ ASSOCIATES, INC. f/k/a SUBWAY,
Appellees/Cross-Appellants.
No. 4D17-2439
[April 10, 2019]
Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case
Nos. 502009CA040295XXXXAG and 502009CA029903XXXXMB.
Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm
Beach Gardens, John F. Mariani of Kammerer Mariani PLLC, West Palm
Beach, and Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, for
appellants/cross-appellees.
Christopher N. Bellows and Rodolfo Sorondo, Jr. of Holland & Knight
LLP, Miami, Richard C. Hutchison of Holland & Knight LLP, West Palm
Beach, and John R. Chapman of Holland & Knight LLP, Fort Lauderdale,
for appellees/cross-appellants.
DAMOORGIAN, J.
AVP Destiny, LLC, Anthony V. Pugliese, III, individually, Anthony V.
Pugliese, Inc. d/b/a The Pugliese Company, and Joseph Reamer
(collectively the “Pugliese Parties”) appeal the final judgment entered in
favor of FD Destiny, LLC, Elisabeth and Jonathan DeLuca as Co-Personal
Representatives of the Estate of Frederick A. DeLuca, and Land Company
of Osceola County, LLC (collectively the “FD Parties”) following a five-week
jury trial. On appeal, the Pugliese Parties argue that the trial court erred
in: 1) denying their motion for directed verdict; 2) denying their motion to
set aside a previously entered judgment; 3) denying their motion to amend
the pleadings to conform to the evidence; 4) excluding certain evidence;
and 5) instructing the jury on the FD Parties’ affirmative defenses. We
affirm on these arguments without further comment. The FD Parties
cross-appeal the final judgment, arguing that the court erroneously
calculated its damages. We affirm on this issue for the reasons discussed
below.
This appeal arises from the failed development of a large parcel of
property. For reasons not relevant to the issue being addressed in this
opinion, the FD Parties sued the Pugliese Parties for civil theft. The jury
ultimately awarded the FD Parties $2.9 million in compensatory damages
on that count. Pursuant to the civil theft statute, section 772.11, Florida
Statutes, the court trebled that amount. It then added prejudgment
interest on the $2.9 million awarded by the jury to the trebled sum. The
FD Parties challenge this computation on appeal, arguing that the court
should have added the prejudgment interest to the $2.9 million and then
trebled that combined sum. In other words, they argue that the
prejudgment interest should have been included as an element of damages
and trebled. We disagree.
It is well established that “because the purpose of prejudgment interest
is restitution, rather than retribution, the prejudgment interest should
only be awarded on the actual amount stolen and not on the treble
damages.” Vining v. Martyn, 660 So. 2d 1081, 1082 (Fla. 4th DCA 1995);
accord Sebastiano v. Sclafani, 984 So. 2d 673, 673 (Fla. 4th DCA 2008);
R & B Holding Co. v. Christopher Advert. Grp., Inc., 994 So. 2d 329, 334
(Fla. 3d DCA 2008). Therefore, it stands to reason that if prejudgment
interest cannot be awarded on the amount as trebled under the civil theft
statute, it likewise cannot be added to the actual amount stolen and then
trebled. Whether the prejudgment interest is added to the actual amount
stolen and then trebled or whether the actual amount stolen is trebled and
then prejudgment interest added, the result is the same: the prejudgment
interest is impermissibly trebled.
The FD Parties nonetheless argue that their proposed method for
computing damages is correct pursuant to O’Donnell v. Arcoiries, Inc., 561
So. 2d 344 (Fla. 4th DCA 1990). Specifically, they rely on a single sentence
in that case wherein this Court held that “the trial court properly
computed treble damages by including prejudgment interest as an element
of damages.” Id. at 345. This Court, however, has declined to interpret
O’Donnell as authorizing prejudgment interest on the treble damages:
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Although this court in O’Donnell . . . stated that “the trial court
properly computed treble damages by including prejudgment
interest as an element of damages,” this single sentence does
not make clear whether this court was authorizing
prejudgment interest on the treble damages or the
compensatory portion of the award. Thus, we do not read
O’Donnell as restricting our opinion at bar.
Vining, 660 So. 2d at 1082.
Based on the foregoing, we affirm the final judgment in all respects.
Affirmed.
CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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