L & F Partners, Ltd. v. Miceli

• Decision Date: 04 May 1990
• Docket Number: No. 89-00426,89-00426
• Citation: 561 So.2d 1227
• Parties: 15 Fla. L. Weekly D1223 L & F PARTNERS, LTD., Gerald L. Coen, and David F. Sweeney, Appellants, v. Michael J. MICELI, Appellee.
• Court: Florida District Court of Appeals

Page 1227

561 So.2d 1227

15 Fla. L. Weekly D1223

L & F PARTNERS, LTD., Gerald L. Coen, and David F. Sweeney, Appellants, v. Michael J. MICELI, Appellee.

No. 89-00426.

District Court of Appeal of Florida,

Second District.

May 4, 1990.

Rehearing Denied June 11, 1990.

Robert G. Hines, Naples, for appellants.

Lawrence A. Farese and Cathy S. Reiman of Cummings & Lockwood, Naples, for appellee.

PARKER, Judge.

This case is before this court a second time after we relinquished jurisdiction in an earlier opinion ¹ to permit the parties to obtain an appealable final order. In this appeal, Michael J. Miceli, the plaintiff in the trial court, cross-appeals an amendment to final judgment entered after the trial court granted a motion for partial summary judgment on counts III and IV of Miceli's complaint in favor of L & F Partners, Ltd., Gerald L. Coen, and David F. Sweeney, the defendants in the trial court.

Miceli brought both counts III and IV pursuant to section 68.065, Florida Statutes (1987). ² Miceli stated in an affidavit that he delivered to defendants by certified mail, return receipt requested, the statutory written demands to pay the dishonored checks and that the defendants refused to claim the letters. The defendants do not controvert these facts. Although the record is unclear, the parties concede that the basis for the trial court's ruling on partial summary judgment in favor of the defendants was that Miceli did not have signed receipts from the defendants evidencing receipt of the written demands.

This appears to be a case of first impression in Florida. Miceli mailed the statutory notices to the defendants at the addresses which the contracts state that notices should be sent. It is an unreasonable interpretation of the statute to prevent a person from prevailing on a claim brought pursuant to section 68.065 because of the other person's refusal to claim the notice. To allow that interpretation to stand would defeat any legitimate worthless check claim where a defendant refused to sign the postal receipt. The statute does not require a signed return receipt. The words, "evidenced by return receipt," are not intended to require a signed receipt but only to define the type of service which must be used under this provision, i.e., some type of personal delivery beyond the regular mail service.

We reverse the final judgment entered against Miceli and in favor of the defendants as to counts III and IV of Miceli's complaint and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

CAMPBELL, C.J., and RYDER, J., concur.

1 See L & F Partners, Ltd. v. Miceli, 555 So.2d 1283 (Fla. 2d DCA 1990).

2 Section 68.065 provides, in relevant part:

Actions to collect worthless checks, drafts, or orders of payment; attorney's fees and collection costs.--

(1) In any civil action brought for the purpose of collecting a check, draft, or order of payment, the payment of which was refused by the drawee because of the lack of funds, credit, or an account, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days following a written demand therefor, as provided in subsection (3), the maker...