Wednesday, January 6, 2010

Date Of Prejudgment Interest Must Be Set By Trial Court - Amount By Statute

In Cohen & Cohen, P.A., Cobis v. Gerson, Preston, Robinson & Company, P.A. (4D08-1479), the Fourth District affirmed in part and reversed in part a decision relating to prejudgment interest.  Briefly, the facts are as follows: "Following a bench trial, the trial court denied the Cohen Entities’ claims and awarded Conrad Scherer the principal sum of $159,543.09 for costs incurred during its representation of the Cohen Entities and $10,127.93 in prejudgment interest." 

Interestingly, the parties agreed as to the first issue, the trial court erred in failing to fix a specific date for the award of prejudgment inerest.
Both parties cite H & S Corp. v. U.S. Fidelity & Guaranty Co., 667 So. 2d 393 (Fla. 1st DCA 1995), in which the court held that the trial court’s failure to make a finding regarding a fixed date of actual expenditure before awarding and calculating prejudgment interest required the case to be remanded for further proceedings. Id. at 399.

On that basis the case was remanded.  However, the court rejected the appellant's argument that the trial court erred in failing to make a finding about the amount of prejudgment interest.  The court stated:
The Cohen Entities’ argument that the trial court erred in failing to make a finding as to the interest rate applied is without merit.
The amount of interest to be paid, absent a controlling contractual provision, is a matter of policy to be determined by the legislature. The judiciary does not have discretion in this matter but must apply the statutory interest rate in effect at the time the interest accrues.
Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985). Accordingly, we reverse and remand for the trial court to determine a date on which prejudgment interest began to accrue.
Notably (or not), the now defunt firm of Rothstein, Rosenfeldt & Adler represented the appellee.


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