Giglio v. Weaner, 86-898
| Decision Date | 18 March 1987 |
| Docket Number | No. 86-898,86-898 |
| Citation | 503 So.2d 1380,12 Fla. L. Weekly 826 |
| Parties | 12 Fla. L. Weekly 826 Naomi GIGLIO, as Personal Representative of the Estate of Joseph Bartow Giglio, a/k/a Guiseppe Giglia, Deceased, Appellant, v. Frank A. WEANER, Appellee. |
| Court | Florida District Court of Appeals |
Frances Makemie Toole of Bush, Ross, Gardner, Warren & Rudy, Tampa, for appellant.
T. Paine Kelly, Jr., and Susan W. Fox of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
The trial court awarded the plaintiff, Naomi Giglio, as personal representative, $30,000 principal, $2,100 attorney's fees, and $78.50 costs in her action on the defendant's promissory note. The plaintiff appeals contending the court erred in (1) not awarding her interest from the date of maturity of the non-interest bearing note and (2) limiting her entitlement to attorney's fees to those incurred prior to the defendant's first offer of judgment. We reject the plaintiff's arguments.
On the first point: plaintiff argues that even though the promissory note contained no express provision as to payment of interest after maturity, the statutory rate of 12% is applicable for the period from maturity until final judgment. Since the defendant had the benefit of the funds advanced by the plaintiff's decedent beyond the agreed time, plaintiff argues the defendant should pay interest after the due date of the note. She supports her argument on the rationale of Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985). Argonaut allowed prejudgment interest as an element of pecuniary damages where the plaintiff's damages were liquidated as of a date certain. In Argonaut, however, the court referred to its holding being applicable "absent a controlling contractual provision." Argonaut 474 So.2d at 215. In the case before us, the defendant's note bore the following legend: "This note shall not bear interest." Under these circumstances we hold that the note will not support the award of prejudgment interest. See Lattin v. La France, 475 So.2d 299 (Fla. 4th DCA 1985).
On the second point: plaintiff's demand for attorney's fees was based on a provision in the note requiring payment of all costs including attorney's fees incurred in collecting or enforcing payment of the note. In awarding attorney's fees in the amount of $2,100 the trial court specifically limited the fees to those incurred prior to a first offer of judgment by the defendant which was filed on May 31, 1985 in the amount of $33,000. The principal amount of the promissory note was $30,000. On May 16, 1985 the Plaintiff had filed a motion for summary judgment, attaching thereto an attorney fee affidavit indicating reasonable attorney's fees for the plaintiff in connection with the suit were $3,000. Hence, the offer of judgment was sufficient to cover the principal amount claimed due under the note and the amount of attorney's fees sought by the plaintiff.
The plaintiff did not accept the offer and since the trial court correctly held plaintiff was not entitled to interest after maturity of the non-interest bearing note, plaintiff failed to obtain a judgment more favorable than the offer. Nev...
To continue reading
Request your trial
-
Ascontec Consulting. Inc. v. Young, 95-2714
...no interest was due. The claim to impose statutory interest after the due date of the loan is without merit. See Giglio v. Weaner, 503 So.2d 1380, 1381 (Fla. 2d DCA 1987); Lattin v. LaFrance, 475 So.2d 299, 299 (Fla. 4th DCA Ascontec argues that it should have been granted attorney's fees u......
-
Genvest General Investments v. Lake Nona Corp., 90-2424
...So.2d 492 (Fla.1962). Of course, the parties to a loan may agree that a debt is to be interest free until maturity. E.g., Giglio v. Weaner, 503 So.2d 1380 (Fla. 2d DCA), rev. denied, 513 So.2d 1061 (Fla.1987); Spath v. McLaughlin, 490 So.2d 217 (Fla. 4th DCA 1986). However, the mortgage not......
-
Holdings v. Mercantile Bank
...case law holding that the prior rule 1.442 cut-off a party's entitlement to post-offer contractual fees and costs. See Giglio v. Weaner, 503 So.2d 1380 (Fla. 2d DCA 1987); see also Fixel Enterprises Inc. v. Theis, 507 So.2d 697 (Fla. 1st DCA 1987). Tierra also cites to several cases which i......
-
Roberts v. CFW Const. Co., Inc.
...interest was inappropriate because the notes guaranteeing payment were non-interest bearing. We find however, unlike Giglio v. Weaner, 503 So.2d 1380 (Fla. 2d DCA 1987), rev. denied, 513 So.2d 1061 (Fla.1987), the notes were non-interest bearing only through the due date. Once the due date ......