Bergen Brunswig Corp. v. State, Dept. of Health and Rehabilitative Services

• Decision Date: 21 May 1982
• Docket Number: XX-386,Nos. AB-412,s. AB-412
• Citation: Bergen Brunswig Corp. v. State, Dept. of Health and Rehabilitative Services, 415 So.2d 765 (Fla. App. 1982)
• Parties: BERGEN BRUNSWIG CORPORATION and Health Application Systems, Inc., Appellants, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 765

415 So.2d 765

BERGEN BRUNSWIG CORPORATION and Health Application Systems, Inc., Appellants, v.STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

Nos. AB-412, XX-386.

District Court of Appeal of Florida First District.

May 21, 1982.

Rehearing Denied July 15, 1982.

F. Perry Odom, C. Everett Boyd, and Mary Lee Sweet, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.

M. Stephen Turner, of Culpepper, Beatty & Turner, Tallahassee, for appellee.

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 support appellee's claim of conversion.¹Appellee 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.SeeAll Cargo Transport Inc. v. Florida East Coast Railway Co., 355 So.2d 178(Fla. 3d DCA1978).

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.SeeGillette v. Stapleton, 336 So.2d 1226(Fla. 2d DCA1976), andSrybnik v. Ice Tower, Inc., 183 So.2d 224(Fla. 3d DCA1966).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."SeeTown of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719(Fla. 2d DCA1978).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.SeeAlarm Systems of Florida, Inc. v. Singer, 380 So.2d 1162(Fla. 3d DCA1980);Town of Longboat Key v. Carl E. Widell & Son, supra;also seeTampa 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.SeeMcCoy v. Rudd, 367 So.2d 1080(Fla. 1st DCA1979).However, we now determine that the better view is expressed in the case of Tech Corp. v. Permutit Co., 321 So.2d...