Apple Glen Investors, L.P. v. Express Scripts, Inc.
ORDER: Plaintiff Apple Glen Investors, L.P.'s Renewed Motion to Determine Amount of Prejudgment Interest and for Entry of Final Judgment (Doc. # 100 ) is GRANTED as provided. The Clerk is directed to enter an amended judgment in favor of Pl aintiff Apple Glen Investors, L.P. in a sum of $6,284,465.25 (representing $4,654,688.65 in damages and $1,629,776.60 in prejudgment interest), which shall accrue postjudgment interest at the federal statutory rate as prescribed by 28 U.S.C. § 1961, for which sum let execution issue. This case was previously closed, and it shall remain so. Signed by Judge Virginia M. Hernandez Covington on 9/8/2016. (DRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
APPLE GLEN INVESTORS, L.P.,
Case No. 8:14-cv-1527-T-33EAJ
EXPRESS SCRIPTS, INC.,
This matter comes before the Court upon consideration of
Plaintiff Apple Glen Investors, L.P.’s Renewed Motion to
Determine Amount of Prejudgment Interest and for Entry of
Final Judgment (Doc. # 100), filed on July 18, 2016. Defendant
Express Scripts, Inc. (ESI) filed its response in opposition
on August 15, 2016. (Doc. # 103). After careful review, the
Court grants the Motion as specified herein.
A detailed recitation of the facts is unnecessary for
the proper disposition of the pending Motion. Rather, an
Apple Glen filed suit against ESI in state court on May
27, 2014. (Doc. # 2). Then, on June 25, 2014, ESI removed to
this Court on the basis of diversity jurisdiction. (Doc. #
1). Apple Glen’s Complaint brought a single count for breach
of contract against ESI. (Doc. # 2). The Court referred the
impasse. (Doc. ## 14, 24). Thereafter, ESI moved for summary
judgment, which the Court denied. (Doc. ## 42, 55).
September 8, 2015, and concluded September 14, 2015. (Doc. ##
77-81). Apple Glen and ESI each submitted proposed findings
of fact and conclusions of law to the Court on November 16,
2015. (Doc. ## 83, 85). On March 10, 2016, the Court entered
its Findings of Fact and Conclusions of Law. (Doc. # 86).
Therein, the Court determined that ESI was liable to Apple
Glen in the amount of $4,654,688.65. (Id. at 64). And, as to
“entitled to prejudgment interest from April 1, 2014, through
the date on which final judgment is entered.” (Id.). Judgment
was entered consistent with the Court’s Findings of Fact and
Conclusions of Law on March 11, 2016. (Doc. # 87).
ESI subsequently filed a notice of appeal on April 7,
2016. (Doc. # 88). Shortly thereafter, on April 11, 2016,
prejudgment interest and enter an amended, final judgment.
(Doc. # 90). Apple Glen also moved for attorney’s fees and
costs on the same day. (Doc. # 91). The Court denied both
motions on April 15, 2016. (Doc. # 92).
The Eleventh Circuit dismissed ESI’s appeal for lack of
jurisdiction, concluding the Court’s March 11, 2016, judgment
was not final and appealable. (Doc. # 98 at 2). Furthermore,
determination as to the amount of prejudgment interest could
be made. (Id.). The Eleventh Circuit instructed, “[o]nce a
determination has been made, the district court can enter an
appealable final judgment.” (Id.).
Apple Glen then filed its pending Motion on July 18,
2016, and ESI filed its response on August 15, 2016. (Doc. ##
100, 103). In their memorandums, the parties contest whether
Apple Glen is entitled to prejudgment interest, what the
applicable prejudgment interest rate is, and when prejudgment
interest stops accruing.
Generally speaking, “[t]he computation of prejudgment
ministerial duty.’” SEB S.A. v. Sunbeam Corp., 476 F.3d 1317,
1320 (11th Cir. 2007). “The ministerial task of calculating
prejudgment interest can be accomplished if the judgment
amount, the prejudgment interest rate, and the date from which
prejudgment interest accrues have been established.” U.S.
S.E.C. v. Carrillo, 325 F.3d 1268, 1272 (11th Cir. 2003).
“However, if the judgment amount, the prejudgment interest
rate, or the date from which prejudgment interest accrues is
unclear, the calculation of prejudgment interest is no longer
a ministerial act and the court’s order is not final.” Id.
Here, the Court’s Findings of Fact and Conclusions of
Law determined the judgment amount to be $4,654,688.65 and
further determined the date from which prejudgment interest
accrues to be April 1, 2014. (Doc. # 86 at 64). Thus, if Apple
Glen is entitled to prejudgment interest, the sole remaining
criterion to make a final order——and the calculation of
determination of the prejudgment interest rate. The Court now
considers the parties’ arguments.
Entitlement to Prejudgment Interest
prejudgment interest is a question of state law.” Venn v. St.
Paul Fire & Marine Ins. Co., 99 F.3d 1058, 1066 (11th Cir.
1996) (citation omitted). “‘[S]ince at least before the turn
prejudgment interest is merely another element of pecuniary
damages.’” Bosem v. Musa Holdings, Inc., 46 So.3d 42, 45 (Fla.
2010) (quoting Argonaut Ins. Co. v. May Plumbing Co., 474
So.2d 212, 214 (Fla. 1985)).
Furthermore, the Supreme Court of Florida has repeatedly
affirmed its adherence to the “loss theory.” Id. (citing Fla.
Steel Corp. v. Adaptable Devs., Inc., 503 So. 2d 1232, 1236
(Fla. 1986)). “Under the ‘loss theory,’ . . . neither the
merit of the defense nor the certainty of the amount of loss
affects the award of prejudgment interest. Rather, the loss
itself is a wrongful deprivation . . . [and] Plaintiff is to
be made whole from the date of the loss . . . .” Id. (quoting
Argonaut, 474 So. 2d at 214). “‘Thus, it has long been the
law in Florida that in contract actions, and in certain tort
cases, once the amount of damages is determined, prejudgment
interest is allowed from the date of the loss or the accrual
of cause of action.’” Id. (citation omitted).
“This general rule is not absolute,” Broward Cty. v.
“‘“[I]nterest is not recovered according to a rigid theory of
compensation for money withheld, but is given in response to
considerations of fairness. It is denied when its exaction
would be inequitable.”’” Id. (quoting Flack v. Graham, 461
So. 2d 82, 84 (Fla. 1984)). And, “[u]pon a consideration of
[the following] factors, a district court may decide not to
(1) in matters concerning government entities,
whether it would be equitable to put the burden of
paying interest on the public in choosing between
innocent victims; (2) whether it is equitable to
allow an award of prejudgment interest when the
delay between injury and judgment is the fault of
the prevailing party; (3) whether it is equitable
to award prejudgment interest to a party who could
have, but failed to, mitigate its damages.
Wiand v. Lee, 753 F.3d 1194, 1204 (11th Cir. 2014) (citing
Blasland, Bouck & Lee, Inc. v. City of N. Miami, 283 F.3d
1286, 1297 (11th Cir. 2002)).
In this case, the first factor is not applicable because
no government entity is involved. As to the second factor,
the record does not indicate Apple Glen delayed in bringing
this action. ESI vacated the Leased Premises on March 31,
2014, and Apple Glen brought the current action on May 27,
2014. (Doc. # 86 at 2). With less than two months having
elapsed between the date ESI vacated the Leased Premises and
the date on which suit was instituted, the Court cannot say
Apple Glen delayed in bringing the action.
And, regarding the third factor, Apple Glen argues it
could not have mitigated its damages because it suffered the
damages on the day it took possession of the Leased Premises.
ESI does not provide an argument in direct response to this
point. After review of the record, the Court does not find
that the third factor weighs heavily enough for the Court to
exercise its discretionary, equitable powers to deny an award
of prejudgment interest.
Moreover, the Court finds ESI’s arguments against the
awarding of prejudgment interest unpersuasive. ESI first
argues that Apple Glen should not be awarded prejudgment
interest because it has not expended any money to repair or
replace much of the equipment found to be in a deficient
interest should not be awarded because Apple Glen has yet to
incur any out-of-pocket expense for much of the equipment
determined to be in a deficient condition. ESI’s out-ofpocket argument, however, is undercut by Eleventh Circuit and
Supreme Court of Florida precedent. For example, in Venn, 99
F.3d at 1066-67, the Eleventh Circuit rejected an attempt to
carry over the out-of-pocket limitation for tort actions
established in Alarado v. Rice, 614 So. 2d 498, 500 (Fla.
1993), to actions sounding in contract.
Likewise, the Supreme Court of Florida has rejected an
attempt to carry over the out-of-pocket limitation for tort
actions to contract actions. In Lumbermens Mutual Casualty
Co. v. Percefull, an insurance company refused to pay benefits
to a claimant, and the claimant sued for breach of contract.
653 So. 2d 389, 389 (Fla. 1995). The trial court stated in
its final order that the claimant would only be entitled to
prejudgment interest if it had actually paid the claims out
of its own pocket. Id. at 389-90. The intermediate appellate
court reversed and the Supreme Court of Florida affirmed the
appellate court’s decision. Id. at 390. In so doing, the
windfall argument unpersuasive, noting how the claimant used
the prejudgment interest money was inconsequential to whether
prejudgment interest should be awarded. Id.
As the Supreme Court of Florida stated in Lumbermens,
“[t]he trial court should have granted [claimant’s] request
for prejudgment interest on the debt created by [claimant’s]
contract . . . without requiring proof that [claimant] had
incurred any out-of-pocket expenses.” Id. Thus, on the basis
of Venn and Lumbermens, the Court finds ESI’s out-of-pocket
ESI further argues prejudgment interest should not be
awarded to Apple Glen because the amount of ESI’s liability
could not have been determined at the outset. But, “[u]nder
the ‘loss theory,’ . . . neither the merit of the defense nor
the certainty of the amount of loss affects the award of
prejudgment interest. Bosem, 46 So.3d at 45 (emphasis added).
Accordingly, ESI’s second argument as to why prejudgment
interest should not be awarded to Apple Glen is unpersuasive.
Lastly, the Court notes that its Findings of Fact and
Conclusions of Law found Apple Glen “entitled to prejudgment
interest from April 1, 2014.” (Doc. # 86 at 64). For the
reasons above, the Court sees no reason to retreat from that
finding. Having rejected both of ESI’s arguments, and having
determined no equitable reason requires the Court to decline
to award prejudgment interest, the Court determines Apple
Glen is entitled to prejudgment interest.
Prejudgment Interest Rate
“In all cases where interest shall accrue without a
special contract for the rate thereof, the rate is the rate
provided for in s. 55.03.” Fla. Stat. § 687.01. The statutory
rate set by Florida law was 4.75% from April 1, 2014, to March
31, 2016; 4.78% from April 1, 2016, to June 30, 2016; and
4.84% from July 1, 2016, to present. FLORIDA’S CHIEF FINANCIAL
. But where parties contract for a specific interest rate to
apply, that contracted interest rate displaces the statutory
rate. Republic Servs., Inc. v. Calabrese, 939 So. 2d 225, 226
(Fla. 5th DCA 2006).
Apple Glen argues that the default interest rate set
forth in the Lease should apply, whereas ESI argues the
Florida statutory prejudgment interest rate should govern.
After review, the Court agrees that the interest rate provided
for in the Lease applies.
The Lease defines “Default Rate” as “an annual rate of
interest equal to (i) the highest rate of interest which may
be lawfully charged on amounts past due with respect to the
Loan or (ii), if no Loan is then in effect, fifteen percent
(15%) . . . .” (PX-4 at ¶ 1). During the relevant time period,
Apple Glen, as borrower, was subject to an 18% interest rate
on any amounts past due under its loan from USAmeribank, a
non-party to this action. (Doc. # 100-1 at 7, ¶ 5). In
amounts, costs, expenses, liabilities and obligations which
Tenant is required to pay pursuant to the terms of this Lease
other than Basic Rent.” (PX-4 at ¶ 1). “Basic Rent” was set
as the “minimum annual rent” in “an annual amount equal to .
. . $1,749,384.00 . . . .” (Id. at ¶¶ 1, 4). The Lease also
obligated ESI to
at all times, at Tenant’s sole cost and expense,
put, keep and maintain the Leased Premises . . .
and the Equipment in a first class condition and
order of repair, except for ordinary wear and tear,
replacements of every kind and nature . . . which
may be required to be made upon or in connection
with the Leased Premises in order to keep and
maintain the Leased Premises in the order and
condition required . . . .
(Id. at ¶ 12(a)). Moreover, the Lease required ESI to “replace
with other operational equipment or parts . . . any of the
Equipment . . . which shall have become worn out or unusable
for the purpose for which it is intended, or been lost,
stolen, damaged or destroyed . . . .” (Id. at ¶ 12(d)).
Under the terms of the Lease, ESI was required to “put,
keep and maintain the Leased Premises . . . and the Equipment
in a first class condition and order of repair.” (Id. at ¶
12(a)). ESI was also obligated to replace equipment that had
destroyed. (Id. at ¶ 12(d)). After a bench trial, the Court
concluded that ESI had breached these duties and that Apple
Glen suffered damages in the amount of $4,654,688.65. Because
the Court’s quantification of damages owed to Apple Glen rests
on the obligations ESI assumed under the Lease, the amount
required to pay pursuant to the terms of this Lease other
than Basic Rent” (PX-4 at ¶ 1)——and the Default Rate of 18%
Notably, this Court’s interpretation of the Lease is
consistent with that of the court in Apple Glen v. MerckMedco Managed Care, L.L.C., No. 09-27647-G (Fla. 13th Cir.
Ct. Mar. 28, 2014). In Apple Glen, the tenant contracted to
replace the roof of the Leased Premises with a one-ply system;
however, Apple Glen took the position that a two-ply system
condition. (Doc. # 100-2 at 2). Because tenant would not
purchase the two-ply system, Apple Glen paid the difference
between the one-ply and two-play systems, and thereafter
brought a breach of contract action. (Id.). The court found
Apple Glen entitled to the roof replacement costs, plus
interest at the Default Rate, i.e., 18%, as set forth in the
Lease. (Id. at 5).
“‘In a diversity case [courts] follow the state law
governing the award of [prejudgment] interest.’” SEB, 476
F.3d at 1320 (quoting Royster Co. v. Union Carbide Corp., 737
original). Both parties agree that Florida law applies in
this case. And, under Florida law, “prejudgment interest
Further, “Florida law does not allow for a gap in the award
(citing Bel–Bel Int’l Corp. v. Cmty. Bank of Homestead, 162
F.3d 1101, 1110-11 (11th Cir. 1998)).
diversity cases, federal law governs postjudgment interest.
G.M. Brod & Co., Inc. v. U.S. Home Corp., 759 F.2d 1526, 1542
(11th Cir. 1985) (noting district court correctly applied the
federal interest statute in a diversity case). The applicable
federal statute provides “[i]nterest shall be allowed on any
money judgment in a civil case recovered in a district court.
. . . Such interest shall be calculated from the date of the
entry of the judgment . . . .” 28 U.S.C. § 1961(a). Such
“postjudgment interest compensates the successful plaintiff
for being deprived of compensation for the loss from the time
between the ‘ascertainment of the damage’ and the payment by
the defendant.” Johansen v. Combustion Eng’g, Inc., 170 F.3d
1320, 1339 (11th Cir. 1999) (citing Kaiser Aluminum & Chem.
Corp. v. Bonjorno, 494 U.S. 827, 835-36 (1990)).
The parties disagree as to when prejudgment interest
particular, Apple Glen argues postjudgment interest should
not begin to accrue until the entry of a final, appealable
order; thus, Apple Glen argues postjudgment interest should
begin to accrue when——i.e., prejudgment interest should not
stop accruing until——the Court enters the amended judgment.
In contrast, ESI argues postjudgment interest should begin to
prevailing party’s entitlement to an award was entered; thus,
ESI argues postjudgment interest began to accrue when the
Court entered its original judgment on March 11, 2016. After
review, the Court determines that prejudgment interest ceased
accruing on March 11, 2016, (the date the Court entered its
original judgment) and postjudgment interest began to accrue
on March 12, 2016.
Although Apple Glen correctly cites Dishman v. UNUM Life
Insurance Company of America, 269 F.3d 974, 990-91 (9th Cir.
2001), as holding that the term “judgment” as used in 28
U.S.C. § 1961 means a final, appealable order, the Eleventh
Circuit has not adopted Dishman, nor has it addressed the
exact issue that the Court faces. But, the Third and Sixth
Circuits have taken contrary positions to Dishman. Skretvedt
v. E.I. DuPont De Nemours, 372 F.3d 193, 217 (3d Cir. 2004)
(“while postjudgment interest can begin to accrue on a nonfinal judgment . . ., the phrase ‘any money judgment’ in §
1961(a) ‘requires that the judgment at issue award a fixed
amount of fees to the prevailing party in order to trigger
Skalka v. Fernald Envt’l Restoration Mgmt. Corp., 178 F.3d
414, 429 (6th Cir. 1999) (“the better rule is for plaintiffs
to be entitled to post-judgment interest from the date of
entry of the initial, partial judgment . . ., even though
consistent with the text of § 1961 and the common meaning of
the word ‘judgment’”).
Furthermore, as Apple Glen concedes, the plain language
of § 1961 does not define “judgment” as a final, appealable
order. Rather the term “judgment” as used in the third
sentence of § 1961 refers to the term “money judgment” and
“an analysis of the language of § 1961(a) leads to the
conclusion that a ‘money judgment’ is the judgment that
unconditionally entitles the prevailing party to,” Associated
Gen. Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482, 494
(6th Cir. 2001), the award.
Notably, in a recent case, the Eleventh Circuit cited
decisional authority. See Mock v. Bell Helicopter Textron,
Inc., 456 Fed. Appx. 799, 803 (11th Cir. 2012). In Mock, the
damages and then three years later entered an order awarding
a sum certain in attorney’s fees. Id. at 800. The district
court, however, failed to award interest on costs and fees
from the date of the judgment awarding damages. Id. The
plaintiff appealed and the Eleventh Circuit reversed. Id. at
803. In so doing, the Eleventh Circuit reasoned that it was
the judgment on the merits, which ascertained liability, that
constituted the judgment for purposes of § 1961.
Association of Retarded Citizens v. McDaniel, 855 F.2d 794
(11th Cir. 1988), persuasive. In McDaniel, the district court
entered an order awarding a sum certain in costs, but later
amended its order and the award of costs. Id. at 795. In its
order amending the award of costs, the district court declared
that the cost award was to bear interest from the date of
prompting the district court to strike the portion of its
order allowing for interest on costs. Id. On appeal, the
Eleventh Circuit concluded that when a district court awards
judgment. Id. at 799. The court went on to state that even
when “an award of costs is modified by the district court,
interest on the revised award should run from the date of the
original award because that is the date on which the correct
internal quotation marks omitted).
liability and thus was the trigger for postjudgment interest
under § 1961, the Court’s judgment dated March 11, 2016,
ascertained liability in this case. Indeed, from March 11,
2016, Apple Glen was entitled to a damages award under the
quantified the damages due to Apple Glen and set the date
from which prejudgment interest began to accrue. Even though
the Court must now amend its judgment in order to reflect the
applicable prejudgment interest rate, under the rationale of
McDaniel, that does not affect the trigger point for purposes
of § 1961.
Furthermore, the Court notes that Apple Glen’s reliance
on SEB, 476 F.3d 1317, is unpersuasive given the marked
procedural differences. In SEB, a jury returned a verdict and
the district court entered a judgment thereon, which included
an award of prejudgment interest for the period between the
date of the verdict and the date of the judgment. Id. at 1318.
On the first appeal, the Eleventh Circuit affirmed the jury
entered an amended judgment consistent with the Eleventh
Circuit’s mandate, but determined that prejudgment interest
would accrue from its original judgment rather than the
amended judgment. Id. at 1319.
On a second appeal, the Eleventh Circuit was confronted
with two questions: “first, under Federal Rule of Appellate
Procedure 37, when postjudgment interest began to accrue; and
Rule 37 governs the award of postjudgment interest
by a district court after an appeal. See Fed. R.App.
P. 37. When the appellate court affirms “a money
judgment in a civil case,” postjudgment interest
“is payable from the date when the district court's
[original] judgment was entered,” unless the law
provides otherwise. Fed. R.App. P. 37(a). When the
appellate court “modifies or reverses a judgment
with a direction that money judgment be entered in
the district court, the mandate [the appellate
court issues] must contain instructions about the
allowance of interest.” Fed. R.App. P. 37(b). “If
the mandate is silent about interest, . . . the
district court on remand has no choice but to begin
postjudgment interest with entry of the postremand
judgment.” 20A James Wm. Moore et al., Moore's
Federal Practice § 337.12 (3d ed.2006); accord
16A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3983 (3d ed.1999).
original money judgment and was silent as to interest. Id. at
1319-20. Importantly, the court’s holding in SEB was based on
the plain language of Rule 37. The court also determined that
Florida law did not allow for a gap period between pre- and
postjudgment interest, and thus prejudgment interest ran
until the amended judgment. Id. at 1320-21.
In contrast to SEB, Rule 37 simply is not applicable to
the instant action. The Eleventh Circuit has not affirmed,
modified, or reversed the Court’s original money judgment.
And that is a paramount differentiation because Rule 37
carries with it the default rule that postjudgment interest
accrues from the date of the amended judgment. Thus, with
Rule 37 not in play neither is its companion default rule. In
light of this procedural difference, SEB is not controlling
or instructive here.
In sum, the Court determines that the judgment dated
March 11, 2016, demarcates the point at which prejudgment
interest ceases to accrue and postjudgment interest begins to
accrue. That judgment found Apple Glen entitled to damages,
quantified those damages, and determined when prejudgment
interest would begin to accrue. In other words, the Court’s
March 11, 2016, judgment is a money judgment that meaningfully
interest under § 1961. Cf. Johansen, 170 F.3d at 1339 (noting
that “[w]here the judgment is not supported by the evidence
and is vacated and damages are determined at a new trial, the
damages were not ‘ascertained’ in any meaningful way until
the entry of the second judgment”).
The annual interest rate is calculated by multiplying
the judgment amount by the Default Rate; thus, the formula is
$4,654,688.65x.18, which equals $837,843.96. To calculate the
per diem interest rate, the annual interest rate is divided
by 365; thus, the formula is $837,843.96/365, which equals
$2,295.46. A total number of 710 days elapsed between April
1, 2014, and the Court’s March 11, 2016, judgment. Therefore,
the total prejudgment interest that has accrued is calculated
by $2,295.46x710, which equals $1,629,776.60. Adding the
accrued interest to the judgment amount results in a grand
total of $6,284,465.25.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Apple Glen Investors, L.P.’s Renewed Motion to
Determine Amount of Prejudgment Interest and for Entry
of Final Judgment (Doc. # 100) is GRANTED as provided
The Clerk is directed to enter an amended judgment in
favor of Plaintiff Apple Glen Investors, L.P. in a sum
of $6,284,465.25 (representing $4,654,688.65 in damages
and $1,629,776.60 in prejudgment interest), which shall
accrue postjudgment interest at the federal statutory
rate as prescribed by 28 U.S.C. § 1961, for which sum
let execution issue.
This case was previously closed, and it shall remain so.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of September, 2016.
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