Florida Recovery Adjusters v. Pretium Homes , 261 So. 3d 664 ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed November 21, 2018.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D17-575 and 3D17-433
Lower Tribunal No. 16-27643
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Florida Recovery Adjusters, LLC and Oscar Valdes,
Appellants,
vs.
Pretium Homes, LLC,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Roniel Rodriguez, IV, for appellants.
The Barthet Firm, Paul D. Breitner and Jessica A. Goldfarb, for appellee.
Before FERNANDEZ, LUCK and LINDSEY, JJ.
FERNANDEZ, J.
In these consolidated appeals, defendants, Florida Recovery Adjusters, LLC
(FRA) and Oscar Valdes (Valdes) (collectively, the appellants) appeal two final
default judgments entered ex-parte by the trial court against them and in favor of
plaintiff, Pretium Homes, LLC (Pretium). We affirm the March 17, 2017 ex parte
Final Default Judgment in Garnishment as to Chase Bank. With regard to the
January 25, 2017 ex parte Final Default Judgment, we affirm its entry as to the
breach of contract count and the unjust enrichment count. However, we reverse
that portion of the judgment as to the civil theft count because we find that the trial
court abused its discretion in awarding unliquidated treble damages to Pretium
based on Pretium’s erroneously alleged civil theft claim and remand the case for a
trial on damages solely as to Pretium’s surviving counts.
Pretium, a Florida limited liability company, entered into a contract for
insurance with a non-party insurance agency, National Real Estate Group
(National), which provides its services through a third-party, Affinity Loss
Management Services (Affinity). On December 15, 2015, after suffering water
damage to its property, Pretium entered into an insurance adjustment agreement
(Agreement) with FRA, a Florida limited liability company, through its agent,
Valdes. Pursuant to the Agreement, FRA was to provide services related to the
insurance adjustment for Pretium’s loss. The Agreement contained the following
clauses: (1) an assignment clause that reserved “20% of the initial amount
recovered” to FRA; (2) a payment clause where Pretium agreed to instruct
National to name “Florida Recovery Adjusters as a payee of all insurance
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settlement proceeds”; and (3) an attorneys’ fees clause that entitled the prevailing
party “to recover its court costs and reasonable attorney’s fees, including fees and
costs in all appellate or bankruptcy [sic].”
Thereafter, FRA submitted a claim on behalf of Pretium that was approved
and settled for $21,265.55. On May 25, 2016, Affinity issued a check for
$18,000.00, that was payable to “Pretium Homes/Florida Recovery Adjusters” and
delivered it to FRA. Upon receipt of the payment from Affinity on June 9, 2016,
FRA deposited the check to its account but did not return the remaining balance to
Pretium. Subsequently, based on section 772.11(1), Florida Statutes (2014),
Pretium alleged a civil theft claim and made three written demands that requested
treble damages in the amount of $54,000.00 – three times the check amount of
$18,000.00 that was deposited into FRA’s account – plus attorneys’ fees. FRA and
Valdes did not reply.
Pretium sued FRA and Valdes for (1) civil theft, (2) breach of contract (only
against FRA), and (3) unjust enrichment on October 25, 2016, and personally
served them on December 8, 2016. On December 29, 2016, Pretium moved for
entry of default against the appellants as a result of their failure to respond to the
summons or otherwise defend the case. The trial court entered an order of default
on January 18, 2017. Thereafter, on January 25, 2017, the trial court entered its
Final Default Judgment based on Pretium’s ex-parte motion and supporting
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affidavits. The trial court accepted Pretium’s affidavits for (1) interest calculations
on the alleged principal liquidated balance of $18,000.00, (2) claim demonstration,
(3) attorneys’ fees and costs, and (4) reasonable attorneys’ fees, and subsequently
awarded the treble damages amount of $54,000.00 and the accrued interest amount
of $548.80 plus attorneys’ fees, as pled by Pretium. On January 26, 2017, Pretium
served copies of the trial court’s Final Default Judgment to the appellants. The
appellants did not respond. On February 7, 2017, the trial court issued a Writ of
Garnishment (Writ) against the appellants’ bank, Chase Bank, as requested by
Pretium. The Writ was served on Chase Bank the following day, and the
appellants were served with copies of the Writ on February 10, 2017.
The appellants claimed that they became aware of the suit upon the
garnishment of their accounts on February 10, 2017, and thus, they appeared in the
proceedings for the first time by filing several emergency motions on February 14,
2017, specifically: (1) Verified Motion to Set Aside Default and Verified Motion
to Vacate Default Final Judgment Dated January 25, 2017, (2) Supplemental
Response to Motion to Vacate; and (3) Verified Emergency Motion to Dissolve
Writ of Garnishment. The trial court deferred ruling on emergency motions (1)
and (2) pending an evidentiary hearing, but denied emergency motion (3). The
appellants then appealed to this Court the trial court’s Final Default Judgment.
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On February 17, 2017, Chase Bank filed its Answer to Writ of Garnishment
(Answer) and confirmed its possession of the appellants’ assets. Pretium served
copies of the Answer to the appellants and provided notice that a motion to
dissolve or object must be filed within 20 days. The appellants, however, did not
take any action. On March 14, 2017, the trial court issued the second final default
judgment as requested by Pretium’s proposed ex-parte Final Judgment in
Garnishment as to Chase Bank because the appellants failed to respond within the
deadline. The appellants also appealed to this Court the trial court’s Final Default
Judgment in Garnishment.
On appeal, the appellants claim that the January 25, 2017 Final Default
Judgment is defective and void as a matter of law because it improperly awards
unliquidated damages and attorneys’ fees. The appellants claim that the damages
award is predicated on a facially deficient statutory notice demanding unliquidated
damages in addition to the statutory damages. Also, the appellants appeal the
March 14, 2017 Final Default Judgment, claiming that the trial court violated their
due process rights by withholding their opportunity to defend. We review the
appeal of a trial court’s final default judgment under a gross abuse of discretion
standard. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662, 665 (Fla.
3d DCA 2007). First, we affirm the trial court’s January 25, 2017 ex parte Final
Default Judgment as to the breach of contract claim against FRA and the unjust
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enrichment claim against FRA and Valdes. This default final judgment was
correctly entered due to appellants’ failure to timely respond to Pretium’s
complaint. See Rule 1.500(a), Fla. R. Civ. P. We also affirm the March 17, 2017
Final Default Judgment in garnishment as to Chase Bank, correctly entered on
Pretium’s motion for garnishment after final judgment. See § 77.01, Fla. Stat.
(2017).
Turning next to Pretium’s civil theft count against the appellants, pursuant to
Florida Statute section 812.014(1), a theft is committed when a non-owner
“knowingly obtains or uses, or endeavors to obtain or to use, the property of
another.” Pretium’s civil theft allegation thus fails under the plain language of the
Agreement that Pretium agreed to “irrevocably and unconditionally assign” its
funds to the appellants and instruct National “to make payment directly to Florida
Recovery Adjusters for the full amount due to Florida Recovery Adjusters.”
Because FRA was named as a valid payee of the check, the appellants did not
obtain or use the property of another, but of their own. The appellants had the
right to deposit the check that named FRA as a co-payee with Pretium.
In addition, the Florida Civil Theft Statute, section 772.11(1), Florida
Statutes (2014), provides that the person claiming a civil theft claim “must make a
written demand for $200 or the treble damage amount of the person liable for
damages.” Here, Pretium mailed three demand letters to the appellants; however, it
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failed to meet the statutory requirement. Pretium’s demand letters were facially
deficient because they requested more than the maximum treble damages amount
of $43,200.00, three times the recovered amount after the 20% assignment, plus
attorneys’ fees. Taking every allegation in the complaint as true, Pretium would
never have been entitled to the treble damages amount of $54,000.00 liquidated in
the ex-parte default judgment. Thus, Pretium’s civil theft allegation claiming that
the appellants stole Pretium’s property and interfered with its right to property fails
because Pretium waived its exclusive rights to the check by entering into the
Agreement.
Furthermore, we agree with the appellants’ claim that Pretium’s complaint
was not well-pleaded. The Agreement, which was submitted by Pretium with the
complaint, negated its civil theft allegation. In addition to Pretium’s failure to
comply with sections 772.11(1) and 812.014(1), Pretium’s complaint directly
contradicted the Agreement’s assignment clause by indicating an incorrect amount
as its statutory damages. The complaint stated the total recovered amount of
$18,000.00 as the basis for its treble damages; however, such amount is wrong
under the Agreement. Furthermore, the record’s clear indication of Pretium’s
endorsement of the check over to FRA conflicts with the allegation that the
appellants stole the funds.
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Florida Rule of Civil Procedure 1.130(b) provides that “any exhibit attached
to a pleading shall be considered a part thereof for all purposes.” Any exhibits
attached to a complaint are controlling when there is a conflict between the
complaint and the exhibits. Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d
490, 494 (Fla. 3d DCA 1994). Accordingly, we evaluate the inconsistency
between Pretium’s civil theft allegation and the accompanying exhibits by focusing
on the latter. Upon such review, the civil theft claim is insufficient because it
failed to properly incorporate the Agreement, and the exhibit of the deposited
check demonstrates that Pretium relayed the check over to FRA through its
endorsement. Thus, the contractual dispute, not an act of theft, gave rise to the
claim. See Walker III v. Figarola, 50 So. 3d 188, 190 (Fla. 3d DCA 2011).
The trial court’s award of treble damages is void because this is not a prima
facie civil theft case. Because Pretium’s statutory claim for civil theft was invalid,
the trial court’s award of treble damages was not supported by competent
substantial evidence.
In sum, the trial court abused its discretion in granting unliquidated treble
damages on an erroneously alleged civil theft claim. We thus vacate that portion
of the January 25, 2017 Final Default Judgment that awards damages based on the
invalid civil theft claim, as well as costs and fees that flowed from that claim, and
remand for further proceedings on damages arising only from the properly pled
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claims for breach of contract and unjust enrichment. We affirm the January 25,
2017 ex parte Final Default Judgment as to the breach of contract and unjust
enrichment claims, and we affirm the March 14, 2017 ex parte Final Default
Judgment.
Affirmed in part; reversed in part; remanded for further proceedings
consistent with this opinion.
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