DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

AVP DESTINY, LLC, a Florida limited liability company, ANTHONY V. 

PUGLIESE, III, individually, ANTHONY V. PUGLIESE, INC. d/b/a THE 

PUGLIESE COMPANY and JOSEPH REAMER,

Appellants/Cross-Appellees,

v.

FD DESTINY, LLC, ELISABETH and JONATHAN DELUCA

as Co-Personal Representatives of the Estate of

FREDERICK A. DELUCA, LAND COMPANY OF OSCEOLA COUNTY, 

LLC, FD DESTINY CREDIT, LLC, and

DOCTORS’ ASSOCIATES, INC. f/k/a SUBWAY,

Appellees/Cross-Appellants.

No. 4D17-2439

[April 10, 2019]

Appeal and cross-appeal from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case 

Nos. 502009CA040295XXXXAG and 502009CA029903XXXXMB.

Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm 

Beach Gardens, John F. Mariani of Kammerer Mariani PLLC, West Palm 

Beach, and Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, for 

appellants/cross-appellees.

Christopher N. Bellows and Rodolfo Sorondo, Jr. of Holland & Knight 

LLP, Miami, Richard C. Hutchison of Holland & Knight LLP, West Palm 

Beach, and John R. Chapman of Holland & Knight LLP, Fort Lauderdale, 

for appellees/cross-appellants.

DAMOORGIAN, J.

AVP Destiny, LLC, Anthony V. Pugliese, III, individually, Anthony V. 

Pugliese, Inc. d/b/a The Pugliese Company, and Joseph Reamer 

(collectively the “Pugliese Parties”) appeal the final judgment entered in 

favor of FD Destiny, LLC, Elisabeth and Jonathan DeLuca as Co-Personal 

Representatives of the Estate of Frederick A. DeLuca, and Land Company 

of Osceola County, LLC (collectively the “FD Parties”) following a five-week 

jury trial. On appeal, the Pugliese Parties argue that the trial court erred 
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in: 1) denying their motion for directed verdict; 2) denying their motion to 

set aside a previously entered judgment; 3) denying their motion to amend 

the pleadings to conform to the evidence; 4) excluding certain evidence; 

and 5) instructing the jury on the FD Parties’ affirmative defenses. We 

affirm on these arguments without further comment. The FD Parties 

cross-appeal the final judgment, arguing that the court erroneously 

calculated its damages. We affirm on this issue for the reasons discussed 

below.

This appeal arises from the failed development of a large parcel of 

property. For reasons not relevant to the issue being addressed in this 

opinion, the FD Parties sued the Pugliese Parties for civil theft. The jury 

ultimately awarded the FD Parties $2.9 million in compensatory damages 

on that count. Pursuant to the civil theft statute, section 772.11, Florida 

Statutes, the court trebled that amount. It then added prejudgment 

interest on the $2.9 million awarded by the jury to the trebled sum. The 

FD Parties challenge this computation on appeal, arguing that the court 

should have added the prejudgment interest to the $2.9 million and then 

trebled that combined sum. In other words, they argue that the 

prejudgment interest should have been included as an element of damages 

and trebled. We disagree.

It is well established that “because the purpose of prejudgment interest 

is restitution, rather than retribution, the prejudgment interest should 

only be awarded on the actual amount stolen and not on the treble 

damages.” Vining v. Martyn, 660 So. 2d 1081, 1082 (Fla. 4th DCA 1995); 

accord Sebastiano v. Sclafani, 984 So. 2d 673, 673 (Fla. 4th DCA 2008); 

R & B Holding Co. v. Christopher Advert. Grp., Inc., 994 So. 2d 329, 334 

(Fla. 3d DCA 2008). Therefore, it stands to reason that if prejudgment 

interest cannot be awarded on the amount as trebled under the civil theft 

statute, it likewise cannot be added to the actual amount stolen and then 

trebled. Whether the prejudgment interest is added to the actual amount 

stolen and then trebled or whether the actual amount stolen is trebled and 

then prejudgment interest added, the result is the same: the prejudgment 

interest is impermissibly trebled.

The FD Parties nonetheless argue that their proposed method for 

computing damages is correct pursuant to O’Donnell v. Arcoiries, Inc., 561 

So. 2d 344 (Fla. 4th DCA 1990). Specifically, they rely on a single sentence 

in that case wherein this Court held that “the trial court properly 

computed treble damages by including prejudgment interest as an element 

of damages.” Id. at 345. This Court, however, has declined to interpret 

O’Donnell as authorizing prejudgment interest on the treble damages:
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Although this court in O’Donnell . . . stated that “the trial court 

properly computed treble damages by including prejudgment 

interest as an element of damages,” this single sentence does 

not make clear whether this court was authorizing 

prejudgment interest on the treble damages or the 

compensatory portion of the award. Thus, we do not read 

O’Donnell as restricting our opinion at bar.

Vining, 660 So. 2d at 1082.

Based on the foregoing, we affirm the final judgment in all respects.

Affirmed.

CONNER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.