Srybnik v. Ice Tower, Inc., 65-348
| Decision Date | 08 February 1966 |
| Docket Number | No. 65-348,65-348 |
| Citation | 183 So.2d 224 |
| Parties | Simon SRYBNIK, Appellant, v. ICE TOWER, INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Frates, Fay, Floyd & Pearson, Miami, for appellant.
Thomas A. Horkan, Jr., Fuller Warren, Miami, for appellee.
Before CARROLL, BARKDULL and SWANN, JJ.
This was originally an equitable action for rescission, accounting and other relief, in connection with fraud and misrepresentation involved in a contract for the sale of 20 vending machines. The initial hearing of this case resulted in a judgment of $108,500.00 against the defendant, Srybnik. The plaintiff-purchaser had also recovered $17,500.00 from Seaboard Airline Railway on a claim for damage in shipment of the machines. That judgment was reversed by this court for failure to apply the correct rule of damages, and remanded to 'redetermine the damages.' See: Srybnik v. Ice Tower, Inc., Fla.App.1964, 162 So.2d 294. The cause was reheard on the issue of damages, and the chancellor entered judgment against the defendant, Srybnik, for $63,500.00 and, in addition, $14,382.75 for pre-judgment interest. The defendant filed a timely petition for rehearing on March 5, 1965. On March 8, 1965, after time for filing had expired, the plaintiff filed a petition for rehearing. The defendant moved to strike the plaintiff's petition and the plaintiff moved for an enlargment of the period within which it might file its petition. The chancellor denied the motion to strike and granted the plaintiff's motion for enlargement. On rehearing, the chancellor increased the damages assessed against the defendant by the amount of $21,166.67. The interest was increased by $4,784.25. Additionally, the chancellor ruled that the defendant was not entitled to a credit or set-off for the sum of $17,500.00 paid to the plaintiff by Seaboard Airline Railway for damages to the vending machines in transit.
The defendant appealed, and he has preserved the following points for review: 1. That the chancellor erred in considering the plaintiff's untimely filed petition for rehearing. 2. That the allowance of prejudgment interest was not within the mandate of this court, and was improper because the damages were unliquidated and uncertain. 3. That the defendant is entitled to set off the amount received by the plaintiff from the Seaboard Airline Railway. The appellee has cross-assigned error and urges that the defendant should not be allowed 100% credit for monies paid on a guaranty of a debt of the plaintiff.
As to the appellant's first point, we do not consider whether or not the plaintiff's petition for rehearing was timely or untimely, because we find that upon the filing of the defendant's petition for rehearing the chancellor had a right to reconsider his entire decree. See: Cole v. Cole, Fla.App.1961, 130 So.2d 126; State ex rel. Owens v. Pearson, Fla.1963, 156 So.2d 4. As to the allowance of pre-judgment interest, it is true that in certain actions based upon tortious claims, prejudgment interest is not allowed. See: Farrelly v. Heuacker, 118 Fla. 340, 159 So. 24; Zorn v. Britton, 120 Fla. 304, 162 So. 879. But, this court and other courts have held that pre-judgment interest is allowed on a tortious claim which arises out of a contract. See: Jackson Grain Co. v. Hoskins, Fla.1954, 75 So.2d 306; Parker v. Brinson Construction Co., Fla.1955, 78 So.2d 873; Martin v. E. A. McCabe & Company, Fla.App.1959, 113 So.2d 879; Huntley v....
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Harris v. Lewis State Bank
...at 683.23 Beverly Beach Properties, Inc., 68 So.2d at 607.24 See 2 Fla.Jur.2d, Appellate Review §§ 421-22. But see Srybnik v. Ice Tower, Inc., 183 So.2d 224 (Fla. 3d DCA 1966), cert. den., 192 So.2d 493, (Fla.1966).25 See cases cited in 2 Fla.Jur.2d, Appellate Review § 425 n. 47.26 See case......
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E. S. I. Meats, Inc. v. Gulf Florida Terminal Co., 78-3017
...is no rule forbidding the award of prejudgment interest in tort cases. Indeed, they imply the contrary. See also, Srybnik v. Ice Tower, Inc., 183 So.2d 224 (Fla.App.), cert. denied, 183 So.2d 224 (Fla.1966) (tortious misrepresentation: "prejudgment interest is allowed on a tortious claim wh......
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Johnson v. Kruglak
...898. We will not, therefore, consider the question of the apportionment of the fees and costs in this appeal. See Srybnik v. Ice Tower, Inc., Fla.App.1966, 183 So.2d 224. 1 '* * * the court shall have the power and jurisdiction, upon application of the department, to impound and to appoint ......
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Bergen Brunswig Corp. v. State, Dept. of Health and Rehabilitative Services
...awarded in conversion and ex contractu actions. See Gillette v. Stapleton, 336 So.2d 1226 (Fla. 2d DCA 1976), and Srybnik v. Ice Tower, Inc., 183 So.2d 224 (Fla. 3d DCA 1966). Although it has sometimes been indicated that prejudgment interest is appropriate only where damages are liquidated......