ADR Miami, LLC and Juan Ramirez, Jr, for appellant. Law Firm of Gary M. Singer, P.A., and Daniel M. Herrera and Andrew J. Pascale (Sunrise), for appellee.
Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 14-7686 An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces, Judge. ADR Miami, LLC and Juan Ramirez, Jr, for appellant. Law Firm of Gary M. Singer, P.A., and Daniel M. Herrera and Andrew J. Pascale (Sunrise), for appellee. Before EMAS, C.J., and FERNANDEZ and LOBREE, JJ. FERNANDEZ, J.
Did not participate in oral argument. --------
Eduardo Orozco ("Orozco") appeals the trial court's Final Summary Judgment in favor of McCormick 105, LLC ("McCormick"). We reverse.
Orozco was the prior owner of real property located at 785 Allendale Road, Key Biscayne, Florida. The property was rented to a tenant, and the tenant's employer, FCC Constructions, Inc., paid the tenant's monthly rent on the first of each month via a wire transfer directly to Orozco's bank account, and had done so for several years. Orozco lost the property to foreclosure and on September 25, 2013, McCormick bought the subject rental property. A certificate of title was issued to McCormick on October 25, 2013. This Court affirmed that foreclosure in 2014 in Orozco v. McCormick, 150 So. 3d 1158 (Fla. 3d DCA 2014).
On March 24, 2014, McCormick sued Orozco alleging one count of civil theft, in violation of Florida's Civil Theft statute, section 772.11, Florida Statutes (2013), and one count of conversion. McCormick alleged that after it purchased the subject rental property, Orozco knowingly obtained and used the November rental payment of $6,196.00, which had been deposited in normal course by the tenant's employer to Orozco's bank account, knowing that the property was no longer his and that the rental funds were not his to keep. McCormick alleges this money belonged to it, and thus Orozco was in violation of section 772.11. McCormick asserts it discovered the theft of the rent on November 13, 2013, when it found out Orozco had obtained and used the rent payment for the property that he no longer owned.
McCormick claims that, in compliance with the pre-suit requirements of section 772.11, on November 21, 2013, it mailed Orozco a written demand letter for payment of the $6,196, multiplied by three, for a total of $18,588.00, due to treble damages available under section 772.11. McCormick alleges Orozco was aware that he was no longer the owner of the real property and therefore not entitled to the rent because Orozco participated in the foreclosure action in the trial court and had actual or constructive knowledge of that action, as he was represented by legal counsel. Orozco moved to dismiss the case for lack of subject matter jurisdiction, claiming the amount in controversy was $6,196.00, thus less than the $15,000 required to file suit in circuit court. The trial court denied Orozco's motion without prejudice, giving Orozco the chance to amend his motion to dismiss, which he did.
In his amended motion to dismiss McCormick's complaint, Orozco raised various issues, including the assertion that he never received the November 21, 2013 pre-suit notice of intent letter required under section 772.11(1). The trial court also denied this motion.
Orozco's attorney thereafter withdrew from representation in September 2014, and there was no record activity in the case for almost a year. Orozco filed a petition for bankruptcy, and the case was stayed for one year. On August 21, 2015, the U.S. Bankruptcy Court dismissed the bankruptcy case, and the stay was lifted.
After resumption of litigation, McCormick filed its first Motion for Summary Judgment. Orozco defended pro se and filed an affidavit, in which he claims that the money that was transferred by the tenant to Orozco's bank account was not for the November 2013 rent but was for the October 2013 rent because the tenant was in arrears and owed Orozco past-due rent. The trial court denied McCormick's motion for summary judgment.
Thereafter, McCormick filed its second motion for final summary judgment where it refuted all the amended affirmative defenses. After all the affidavits were filed and the trial court held a hearing taking all the facts, evidence, discovery, and testimony into consideration, it granted McCormick's motion and entered final judgment on both the civil theft count and the conversion count in favor of McCormick. Orozco moved for reconsideration and additionally filed a motion to vacate final judgment. Both motions were denied, and this appeal followed.
Orozco contends that McCormick presented no proof that Orozco had the specific intent to commit a theft at the time of, or prior to, the commission of the act of taking because no evidence was submitted to the trial court that Orozco knew a wire transfer went into his bank account on November 1, 2013, and that he did not learn of that transfer until much later. He further contends that McCormick was not entitled to summary judgment on the conversion count because there are genuine issues of material fact in that Orozco clearly alleged by affidavit that the rent paid in November 2013 was in fact past due rent.
The standard of review on orders granting final summary judgment is de novo. Siegel v. Tower Hill Signature Ins. Co., 225 So. 3d 974, 976 (Fla. 3d DCA 2017). "[A]ny doubt concerning the existence of a disputed issue of material fact must be resolved against the moving party." Davis v. Baez, 208 So. 3d 747, 750-51 (Fla. 3d DCA 2016).
Section 772.11(1), Florida Statutes (2013), the civil theft statute, provides that:
Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney's fees and court costs in the trial and appellate courts.
The elements of theft under section 812.014, Florida Statutes (2013) are knowingly obtaining or using or endeavoring to obtain or to use, the property of another with the intent to either temporarily or permanently deprive that person of his or her right to the property or a benefit from the property, or appropriate the property to the defendant's own use or to the use of a person not entitled to the use of the property.
With respect to the conversion count, the plaintiff must show that the defendant exercised a positive, overt act or acts of dominion or authority over the money or property in question, which was inconsistent with and adverse to the rights of the true owner. Belford Trucking Co. v. Zagar, 243 So. 2d 646, 648 (Fla. 4th DCA 1970). "Civil conversion may be demonstrated by a plaintiff's demand and a defendant's refusal." Goodrich v. Malowney, 157 So. 2d 829, 832 (Fla. 2d DCA 1963) ("The purpose of proving a demand for property by a plaintiff and a refusal by a defendant to return it in an action for conversion is to show the conversion. The generally accepted rule is that demand and refusal are unnecessary where the act complained of amounts to a conversion regardless of whether a demand is made."). The plaintiff must demonstrate this by a preponderance of the evidence. S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139 So. 3d 869 (Fla. 2014).
McCormick's motion for summary judgment was improvidently granted because there is a genuine issue of material fact with respect to whether or not the tenant owed Orozco any past-due rents. Orozco's affidavit creates a genuine issue of material fact on this issue. Under the statute, before summary judgment can be granted, a plaintiff must prove by undisputed clear and convincing evidence the elements of civil theft. Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 987 (Fla. 1st DCA 1991). Orozco states in an affidavit that he believed he was entitled to the payment because the payment was for back-rent owed to him. Thus, there was a genuine issue of material fact with regards to the issue of credibility on whether the payment made was for back-rent. A trial court is not permitted to weigh credibility of a witness or party in connection with a motion for summary judgment. Hernandez v. United Auto. Ins., 730 So. 2d 344, 345 (Fla. 3d DCA 1999) (citing Pita v. State St. Bank and Tr. Co., 666 So. 2d 268, 268 (Fla. 3d DCA 1996).
A conflict in the evidence exists as to whether the money Orozco received was for back-rent. This conflict creates a genuine issue of material fact, making summary judgment improper. Accordingly, we reverse the trial court's Final Summary Judgment and remand the case to the trial court.
Reversed and remanded for further proceedings consistent with this opinion.