Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc.
| Decision Date | 03 December 1991 |
| Docket Number | No. 90-2552,90-2552 |
| Citation | 590 So.2d 986 |
| Parties | WESTINGHOUSE ELECTRIC CORP., INC., Bay County Energy Systems, Inc., and Bay Resource Management, Inc., Appellants, v. SHULER BROTHERS, INC., and Mitchell Larkins and Robert Aldrich, d/b/a Liberty Fuels, Appellees. 590 So.2d 986, 16 Fla. L. Week. D3029 |
| Court | Florida District Court of Appeals |
Lynn C. Higby of Bryant, Higby & Williams, Panama City, Julian Clarkson and Susan L. Turner of Holland & Knight, Tallahassee for appellant/cross-appellee.
H. Hentz McClellan of McClellan & House, Blountstown, Frank A. Baker of Baker & Swearingen, Marianna, for appellee/cross-appellant/Shuler.
Harold S. Richmond, Quincy, for appellee/Liberty Fuels, for appellee.
We grant Westinghouse's motion for rehearing filed herein on May 17, 1991, withdraw the earlier opinion, and substitute the following opinion in its place.
This is an appeal and cross-appeal in which appellant, Westinghouse Electric Corporation and its subsidiaries (Westinghouse), challenge final judgments entered in favor of appellees, Shuler Brothers, Inc. (Shuler), and the Liberty Fuels joint venture of Mitchell Larkins and Robert Aldrich (Liberty Fuels). Among the errors asserted by Westinghouse are the amount of damages awarded to Liberty Fuels on Liberty's contract and conversion claims, and the denial of Westinghouse's so-called "motion for judgment notwithstanding the verdict" on Shuler's civil theft claim. 1 We affirm the award to Liberty Fuels without elaboration, but we agree with Westinghouse that Shuler's award for civil theft must be reversed. Shuler's cross-appeal asserts the following as error: (1) the trial court improperly directed a verdict in favor of Westinghouse on Shuler's common law fraud claim; (2) the trial court neglected to include post-verdict, prejudgment interest, and (3) the trial court erred in calculating Shuler's attorneys' fees. We affirm on the first point, and our reversal of the civil theft award makes it unnecessary to address the latter two points.
Westinghouse operates the Bay County Resource Recovery Facility, which is an incinerator that burns garbage to generate electricity. Because the incinerator requires waste wood in addition to garbage, Westinghouse contracted with Liberty Fuels to provide various amounts of waste wood. In October 1987, Westinghouse's plant manager, Gregg Pennington, contacted Shuler and asked if Shuler would deliver additional waste wood through Liberty Fuels' contract. The agreement reached between Pennington and Shuler became the basis for Shuler's civil theft claim against Westinghouse.
At trial, counsel for Shuler urged the jury to accept the following interpretation of the parties' arrangement: Westinghouse, through Pennington, misrepresented to Shuler that Westinghouse was contractually obligated to purchase all of its wood through Liberty Fuels, and therefore, Shuler must broker its wood through Liberty Fuels in order to sell to Westinghouse. Shuler would have to receive payment from Liberty Fuels and would have to make its deal for price with Liberty Fuels. Westinghouse failed to reveal that it had advanced Liberty Fuels $25,000.00, which sum Westinghouse had the right to apply against amounts owed to Liberty Fuels for wood; thus, Shuler was unaware that running wood through the Liberty Fuels contract would expose it to the set-off. Westinghouse also failed to tell Shuler that the relationship between Liberty Fuels and Westinghouse had become strained to the extent that Liberty Fuels was not running any more of its own wood through the contract. Westinghouse exercised its set-off and refused to pay Liberty Fuels for wood that was delivered by Shuler, thus giving rise to Shuler's action for civil theft. In short, it was Shuler's position that Westinghouse had devised a scheme whereby it could obtain Shuler's wood without paying for it and at the same time recoup its $25,000.00 set-off, all at Shuler's expense. For its part, Westinghouse argued, apparently without success, that there was no criminal intent, and that Shuler's counsel had merely "dressed up a contract case and ... made it into a criminal case."
To obtain treble damages for civil theft, Shuler had the burden of proving "by clear and convincing evidence that [it had] been injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037," which statutes prohibit theft and dealing in stolen property. Sec. 772.11, Fla.Stat. (1989). A necessary element of proof in such a case is a felonious intent to steal on the part of the defendant. Lewis v. Heartsong, Inc., 559 So.2d 453 (Fla. 1st DCA 1990). By moving for judgment in accordance with its motion for directed verdict,...
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