Miami Nat. Bank v. Nunez
| Citation | 14 Fla. L. Weekly 1143,541 So.2d 1259 |
| Decision Date | 14 March 1989 |
| Docket Number | No. 87-2556,87-2556 |
| Parties | 14 Fla. L. Weekly 1143, 14 Fla. L. Weekly 690 MIAMI NATIONAL BANK, Appellant, v. Ricardo NUNEZ and Delores Nunez, Appellees. |
| Court | Court of Appeal of Florida (US) |
Tew, Jorden, Schulte & Beasley and Gregory P. Borgognoni and Osmer D. Batcheller, Miami, for appellant.
Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and Kendall Coffey, Daniels & Hicks and Patrice A. Talisman and Sam Daniels, Miami, for appellees.
Before NESBITT, BASKIN and LEVY, JJ.
Appellant Miami National Bank seeks reversal of an order denying appellee Ricardo Nunez's liability under an alleged guaranty agreement and holding the bank liable for breach of contract and fraud as to Mr. Nunez and for malicious prosecution as to Delores Nunez, Mr. Nunez's wife. We affirm the trial court's determinations except as to the compensatory damages awarded appellee Mrs. Nunez. Because we find that neither the facts presented nor Florida law confirm the propriety of a portion of that award, we remand to the trial court the issue of compensatory damages due Mrs. Nunez for determination consistent with this opinion. 1
The facts in part demonstrate that Miami National Bank chose to sue Mrs The compensatory damages awarded to Mrs. Nunez were composed of: first, the compensation due her for the mental suffering she incurred as a result of the bank's malicious prosecution of her; and, second, the compensation due her for services performed by Mr. Nunez to aid in his wife's defense against the bank's wrongful prosecution.
Nunez on a personal guaranty despite: the bank's awareness that Mrs. Nunez was not a guarantor of the corporate indebtedness for which it sought payment; the bank's knowledge that Mrs. Nunez had revoked her guaranty of her husband's personal indebtedness; and the bank's cognizance of the legal effect of that revocation. See Miami Nat'l Bank v. First Int'l Realty Corp., 364 So.2d 873 (Fla. 3d DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979).
We do not doubt that it was within the trial court's discretion to award as it stated: "substantial damages for the years of mental suffering she (Delores) endured" as a result of the malicious prosecution. See Fla.Jur.2d False Imprisonment § 35, at 578 citing S.H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757 (1938). However, the trial court additionally allocated some unspecified sum as compensation for the services performed by her husband in preparation for the initial litigation as to the guaranty. We find no precedent for awarding a litigant compensatory damages for her own or her spouse's participation in the preparation for litigation. See Maulden v. Corbin, 537 So.2d 1085 (Fla. 1st DCA 1989). We agree that if Mr. Nunez was a banking expert and acted in that capacity for his wife, she might be compensated for the reasonable value of the services he performed. See Maulden, at 1085; see also Behar v. Jefferson Nat'l Bank, 519 So.2d 641 (Fla. 3d DCA 1987), review denied, 531 So.2d 167 (Fla.1988); Brinson v. Southeastern Util. Serv. Co., 72 So.2d 37 (Fla.1954); Gamble v. Webb Quarterback Club, 386 So.2d 455 (Ala.App.), writ denied, 386 So.2d 459 (Ala.1980); Vandersluis v. Weil, 176 Conn. 353, 407 A.2d 982 (1978).
In the instant case, however, Mr. Nunez's testimony indicates that Mrs. Nunez's claim for compensation included payment for forty hours her husband spent searching the family garage for documents and three hundred fifty hours he spent discussing the suit with his spouse and others involved in the litigation. The only evidence of these hours consisted of Mr. Nunez's self-serving, years after-the-fact testimony without benefit of any time records. Mr. Nunez claimed he spent those hours: "talking to the lawyers and putting papers together and talking to people and thinking about what the problem was and why the problem was ... getting loans to see if I could meet the payments of the lawyer 2 and going out and having a lot of personal problems."
We are not prepared to provide carte blanche approval to an award based on such a claim. Also, while lack of documentation does not bar compensation, inadequate documentation may require a reduction in the number of hours for which compensation is afforded. See Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985); Asgrow-Kilgore Co. v. Mulford Hickerson Corp., 301 So.2d 441 (Fla.1974); R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60 (Fla. 3d DCA), review dismissed, Ford Motor Co. v. R.A. Jones & Sons, Inc., 482 So.2d 348 (Fla.1985). A successful claimant in a malicious prosecution action could conceivably be due expert fee compensation if she was forced to employ a banking expert, albeit her husband, in her defense; however, such a litigant should not be compensated for those hours during which her husband's actions were solely those of a devoted spouse.
In total, Mrs. Nunez claimed 400 hours for her husband's time at $150 an hour. Mr. Nunez indicated that h...
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Ware v. U.S.
...out-of-pocket expenses are one type of compensatory damages available to a malicious prosecution plaintiff. See Miami National Bank v. Nunez, 541 So.2d 1259 (Fla. 3d DCA), rev. denied, 553 So.2d 1165 (Fla.1989). Ware, however, did not incur any discernable out-of-pocket expenses to defend h......
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