4-D Buildings, Inc. v. Palmore

BAKER, Judge,

concurring in result.

Although I agree with the majority’s conclusion that the trial court must recalculate the amount of prejudgment interest, I write separately to note that, had the clerk deposited Kennel’s- check into an interest-bearing account, the trial court would not have erred in calculating the prejudgment interest. In the present case, the majority concludes that Kennel’s payment to the clerk was not a proper tender, and therefore did not serve to cut off the accumulation of prejudgment interest, because the Builder was not permitted to withdraw the funds. Thus, the majority concludes that Builder was entitled to receive additional compensation, in the form of prejudgment interest, for the deprivation of the use of its money. However, had the clerk deposited Kennel’s payment into an interest-bearing account, Builder would have received compensation for its lost use of the funds. Under such circumstances, Kennel would not be liable for additional prejudgment interest. Nevertheless, because nothing in the record indicates that the clerk deposited Kennel’s payment into such an account, I am compelled to concur in the result.