DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TAMMY CAMPBELL,
Appellant,
v.
JERRY A. RIGGS SR.,
and ATTORNEYS’ TITLE INSURANCE FUND, INC.,
Appellees.
No. 4D19-2327
[January 6, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas Richard Lopane, Judge; L.T. Case No. CACE
06-009174.
Claudia Pastorius of Claudia T. Pastorius, P.A., Melbourne, for
appellant.
Samuel D. Lopez of Samuel D. Lopez, P.A., Southwest Ranches, for
appellee Jerry A. Riggs Sr.
LEVINE, C.J.
A former employee appeals a final summary judgment in favor of her
former employer on his civil theft claim. We find that disputed issues of
material fact exist, and as such, we reverse and remand for further
proceedings.
Attorneys’ Title Insurance Fund, Inc., filed an amended complaint
against attorney Jerry Riggs Sr. alleging that while acting as closing agent
for the sale of real property in Miami, Riggs failed to satisfy the bank’s lien
with funds from the closing. As a result, the property was sold at a
foreclosure sale. The individuals who had purchased the property filed a
claim with Attorneys’ Title Insurance Fund, who then paid a $124,055.38
judgment held by the bank. Riggs was subsequently suspended from the
practice of law.
Riggs filed an answer and affirmative defenses, alleging that the failure
to pay the bank lien was in fact due to the theft of funds by his employee,
Tammy Campbell. Riggs subsequently filed a lawsuit against Campbell,
which was consolidated with Attorneys’ Title Insurance Fund’s lawsuit
against Riggs. Attorneys’ Title Insurance Fund and Riggs resolved their
lawsuit in a joint stipulation, and Riggs’s lawsuit against Campbell
remained pending.
Riggs’s amended complaint against Campbell alleged that she stole
$84,071.40 from his trust account by disguising the funds as proceeds
from the refinancing of her home. Riggs alleged that Campbell forged his
signature on checks and a wire transfer and used the stolen funds to make
mortgage payments on her residence. A second amended complaint
alleged that Campbell sold her residence and purchased a new property,
which she transferred to a relative. The second amended complaint added
the relative as a defendant and sought an equitable lien on the relative’s
property.
Campbell filed an answer denying the allegations and raising several
affirmative defenses, including unclean hands because Riggs had been
disbarred and the supreme court found him responsible for missing funds
from the trust account; failure to mitigate damages because any missing
trust account funds was due to Riggs’s own accounting errors,
malfeasance, and/or misconduct; and ratification because Riggs ratified
and approved all withdrawals made by Campbell. In response to requests
for discovery, Campbell stated that she lacked personal knowledge
regarding the sale of the Miami property, as she was not involved in the
closing.
Riggs moved for summary judgment, submitting numerous documents,
including his trust account bank statements, copies of the allegedly forged
checks, a chart of transactions of checks and wire transfers from his trust
account that were allegedly forged, affidavits from himself, a probable
cause affidavit from a detective, and sworn statements given to the
detective, among other documents. Riggs did not submit any documents
indicating that Campbell was ever charged with any crimes.
Campbell filed a response, arguing that unresolved issues of fact
remained because she did not commit any crimes. Campbell relied on and
attached the disciplinary order, wherein the supreme court found that
Riggs committed professional misconduct and suspended him from the
practice of law for three years. The referee found that Riggs failed to satisfy
the mortgage on the Miami property while acting as closing agent. Riggs
transferred and commingled funds between multiple accounts and paid
personal expenses from his trust accounts. The referee did not find that
Campbell was responsible for the missing funds. Riggs handled the
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refinancing of Campbell’s home approximately one month after the closing
on the Miami property. Riggs did not file an incident report with the police
until two months after the Bar filed the disciplinary complaint and over
eighteen months after the Miami closing funds disappeared. The referee
concluded that Riggs failed to adequately supervise Campbell and failed to
properly maintain his trust account.
The trial court entered final summary judgment in favor of Riggs,
awarding him $84,071.04, treble damages of $33,581.88, and an equitable
lien on real property owned by Campbell’s relative.
The standard of review for summary judgment is de novo. Volusia Cty.
v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000).
“Summary judgment is proper if there is no genuine issue of material
fact and if the moving party is entitled to a judgment as a matter of law.”
Id. “[T]he burden of proving the absence of a genuine issue of material fact
is upon the moving party.” Holl v. Talcott,
191 So. 2d 40, 43 (Fla. 1966).
“[O]nce there is a motion for summary judgment that is supported by
affidavit or other factual showing, the burden shifts to the opposing party
to show by appropriate means that genuine and material issues do remain
to be tried.”
Id. “[T]he burden of proving the existence of such issues is
not shifted to the opposing party until the movant has successfully met
his burden.”
Id. at 43-44.
“[A] party moving for summary judgment must conclusively show the
absence of any genuine issue of material fact and obligates the trial court
to draw every reasonable inference in favor of the non-moving party.”
Knight Energy Servs., Inc. v. Amoco Oil Co.,
660 So. 2d 786, 788 (Fla. 4th
DCA 1995). A summary judgment proceeding is not a trial by affidavit or
deposition. McCauley v. E. S.S. Lines, Inc.,
211 So. 2d 72, 74 (Fla. 4th DCA
1968). “Summary judgment may not be used as a substitute for trial. If
the affidavits and other evidence raise any doubt as to any issue of material
fact then a summary judgment may not be entered.” E. Qualcom Corp. v.
Glob. Commerce Ctr. Ass’n,
59 So. 3d 347, 350-51 (Fla. 4th DCA 2011)
(citation omitted). See also Dennis v. Kline,
120 So. 3d 11, 20 (Fla. 4th
DCA 2013) (“If the record reflects the existence of any genuine issue of
material fact, or the possibility of any issue, or if the record raises even the
slightest doubt that an issue might exist, summary judgment is
improper.”) (citation omitted).
The trial court found that Riggs was entitled to summary judgment,
apparently determining that Riggs proved Campbell had committed a theft
of funds from Riggs’s trust account. However, in order to prevail in a civil
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theft action,
the plaintiff must prove that the defendant (1) knowingly; (2)
obtained or used, or endeavored to obtain or use, the
plaintiff’s property; (3) with felonious intent; (4) to deprive
plaintiff of its right to 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.
Hawthorne v. Lyons,
192 So. 3d 1279, 1280 (Fla. 1st DCA 2016) (citation
omitted). See also § 812.014(1), Fla. Stat. (2006). “[B]efore summary
judgment can be granted, a plaintiff must prove by undisputed clear and
convincing evidence the elements of civil theft.” Orozco v. McCormick 105,
LLC,
276 So. 3d 932, 935 (Fla. 3d DCA 2019). “Summary judgment would
be inappropriate in a civil theft action because of the necessity of finding
intent, which should normally be resolved by the finder of fact.” Am. Int’l
Realty, Inc. v. Se. First Nat’l Bank of Miami,
468 So. 2d 383, 384 n.5 (Fla.
3d DCA 1985).
We find the trial court erred in granting summary judgment because
material issues of fact exist including, but not limited to, whether
Campbell stole funds from the trust account, whether Campbell acted with
felonious intent, and whether Campbell forged checks and a wire transfer.
Riggs’s chart of transactions that were allegedly forged is not clear and
convincing evidence that Campbell committed a theft. Riggs’s affidavit
that Campbell forged checks did not rebut the presumption of the validity
of the checks. See §§ 673.3081(1), 673.1041, Fla. Stat. (2006). The
disciplinary opinion did not determine that Campbell was responsible for
the missing funds. In fact, the refinancing of Campbell’s home occurred
over a month after the closing on the Miami property. The majority of the
allegedly stolen funds were withdrawn after the Miami closing. Further,
Riggs did not file a police report until nearly two years after the Miami
closing. Additionally, Riggs did not disprove Campbell’s affirmative
defenses or show they were legally insufficient. See Alejandre v. Deutsche
Bank Trust Co. Ams.,
44 So. 3d 1288, 1289 (Fla. 4th DCA 2010) (citation
omitted). 1
1 Although we reverse and remand for further proceedings, we nevertheless
address the remaining issue to offer guidance to the trial court. Campbell argues
that the trial court granted relief not pled because it imposed an equitable lien
on real property in her relative’s name. Contrary to Campbell’s contention, the
second amended complaint requested an equitable lien on the relative’s property.
Campbell also claims a violation of her relative’s due process rights. We find
Campbell lacks standing to raise this claim because she does not have an interest
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In summary, because material issues of facts remain in dispute, we
reverse the final summary judgment and remand for further proceedings.
Reversed and remanded for further proceedings.
MAY and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
in the property on which the lien was imposed. Centerstate Bank Cent. Fla., N.A.
v. Krause,
87 So. 3d 25, 28 (Fla. 5th DCA 2012).
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