Mullenmaster v. Newbern, s. 94-2750
| Decision Date | 29 May 1996 |
| Docket Number | Nos. 94-2750,94-3227,s. 94-2750 |
| Citation | 679 So.2d 1186 |
| Parties | 21 Fla. L. Weekly D1263 John K. MULLENMASTER, Appellant, v. Nathan NEWBERN, Appellee. |
| Court | Florida District Court of Appeals |
John Beranek of MacFarlane Ausley Ferguson & McMullen, Tallahassee, and Charles A. Sullivan, Jr. of Sullivan, Sullivan & Thacker, Vero Beach, for appellant.
Louis B. Vocelle, Jr. of Clem, Polackwich, Vocelle & Taylor, Vero Beach, for appellee.
In an action for conversion of a boat, a jury found in favor of appellee and assessed both compensatory and punitive damages against appellant. On appeal, appellant claims that the evidence was both insufficient to prove a conversion as of the date found by the jury and to award punitive damages. We affirm.
As to the conversion count, appellant's main contention is that where the original taking was lawful, a demand for return must be made before a conversion can occur. Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157 (Fla. 3d DCA 1984); Rupp v. Schon, 608 So.2d 934 (Fla. 4th DCA 1992). Taking the evidence most favorably to the appellee, there was proof that the original taking by this appellant was not lawful as to appellee. The appellee had left his boat with one Jim Wharton for sale. Appellant was involved in Wharton's boat business, but the two had a falling out. Appellant took appellee's boat from the business premises without either the permission of Wharton or appellant. The appellant's ex-wife also testified that appellant knew the boat belonged to appellee when he took it. If the jury believed this evidence, then the taking by appellant was not lawful, and no demand was necessary.
We also affirm the award of punitive damages. See Jonat Properties, Inc. v. Gateman, 226 So.2d 703 (Fla. 3d DCA), cert. denied, 234 So.2d 123 (Fla.1969); Bank of Miami v. Tambourine, 218 So.2d 507 (Fla. 3d DCA 1969).
We affirm the remaining issues on appeal.
We deny appellant's motion for rehearing. We grant appellee's motion for rehearing, and withdraw our affirmance of the issue on cross-appeal, namely whether the trial court erred in denying the motion for award of attorney's fees pursuant to an offer of judgment made under section 768.79, Florida Statutes. In denying the demand for fees the trial court determined both that the net recovery did not exceed the offer by 25% and that the offer was not made in good faith.
Both findings were based on the fact that appellee's offer did not account for the transfer of title to the boat and trailer. The trial court reasoned that the $104,784 judgment did not exceed the offer of $80,000 by 25%, because the value of the boat, the title to which must be transferred to the appellant upon satisfaction, must be deducted from the judgment. However, the jury already decided that the boat was converted by the appellant. That necessarily included a finding that the appellant had control over the boat for his...
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Ranger v. Wells Fargo Bank N.A.
..."[i]f the original taking is lawful, the withholding being the wrongful element, a demand is necessary . . . ." Mullenmaster v. Newbern, 679 So. 2d 1186, 1186 (Fla. 4th DCA 1996). Here, Wells Fargo's failure to apply the payments to Plaintiffs' account did not constitute conversion. As Plai......