Rosen v. Marlin, Nos. 84-2650

CourtCourt of Appeal of Florida (US)
Writing for the CourtBARKDULL
Citation11 Fla. L. Weekly 623,486 So.2d 623
Parties11 Fla. L. Weekly 623 Murray ROSEN, Appellant, v. Kenneth MARLIN, Appellee.
Decision Date11 March 1986
Docket NumberNos. 84-2650,85-641

Page 623

486 So.2d 623
11 Fla. L. Weekly 623
Murray ROSEN, Appellant,
v.
Kenneth MARLIN, Appellee.
Nos. 84-2650, 85-641.
District Court of Appeal of Florida,
Third District.
March 11, 1986.
Rehearing Denied April 23, 1986.

Page 624

Lapidus, Stettin & Frankel and Robert Frankel, Miami, for appellant.

Buchbinder & Elegant and Harris Buchbinder and Carolina A. Echarte, Miami, for appellee.

Before BARKDULL, HUBBARD and FERGUSON, JJ.

BARKDULL, Judge.

The appellant, Rosen, appeals two final judgments (entered nonjury) rendered in an action based on breach of contract, civil theft, and conversion. The first judgment in favor of plaintiff-appellee, Marlin, awarded him certain sums and denied defendant's counterclaim for partition. The second judgment awarded appellee attorney's fees.

The two parties became partners in a joint venture to develop a shopping center. Rosen put up money (not to exceed $780,000) and Marlin put up a leasehold estate and was responsible for rezoning, development, leasing, and managing the center. Approximately two years after completion a purchaser was found for the shopping center. As a condition to the closing, the parties had to provide fee simple title to the purchaser. The joint venture acquired such title 1 (from the then fee owners, the McKenzies) and sold the center for $3,000,000, with approximately $1,450,000 being paid in cash and the balance secured by a purchase money note and mortgage. The proceeds from this sale were transferred to Rosen. He paid the monthly obligation to the vendors of the property and sent one-half of the balance to Marlin. Thereafter, several accountants reviewed Rosen's books to determine an amount owing to Marlin. 2 Nobody could agree on this sum. Marlin made numerous trips to New York to confer with Rosen about discrepancies. Finally Marlin filed suit, alleging breach of contract and fraud. An amended complaint added a count seeking treble damages for theft of the purchase money note payments. 3 Rosen began to deposit these payments into the registry of the court. The trial judge awarded Marlin $138,704.82, then trebled that amount, together with interest thereon, and dismissed Rosen's counterclaim for partition. He subsequently awarded Marlin $80,000 in attorney's fees. These appeals followed.

We hold that recovery of damages for breach of contract will not support a trebling of such damages pursuant to the provisions of Sec. 812.035(7), Florida Statutes (Supp.1984), that such trebling is only warranted when there is no contractual relationship between the parties. Section 812.035(7) 4 is clearly a departure from common

Page 625

law which proscribes a penalty 5 which did not exist at common law and should be strictly construed and limited in its application. Nell v. State, 277 So.2d 1 (Fla.1973).

The evidence was unrefuted that before the lawsuit was filed, Marlin and Rosen disagreed on the amount owed. During the course of the lawsuit, Marlin claimed that he was owed approximately $193,000 in principal, not including management fees. In the final judgment, the court found that Marlin was owed $138,704.82 pursuant to the contract. A dispute between two persons over the amount of money that one person is owed does not become a crime of theft which is actionable under Section 812.035(7), Florida Statutes (Supp.1984). A claim for breach of contract to pay money which is not specifically identifiable cannot be the subject of conversion or theft allowing for the assessment of treble damages. Capital Bank v. G & J Investments Corporation, 468 So.2d 534 (Fla. 3d DCA 1985); Plotch v. Gregory, 463 So.2d 432 (Fla. 4th DCA 1985); Belford Trucking Co., Inc. v. Zagar, 243 So.2d 646 (Fla. 4th DCA 1971); Advanced Surgical Technologies, Inc. v. Automated Industries, Inc., 777 F.2d 1504 (11th Cir.1985). Neither the statute nor case law construing the statute provide for the assessment of treble damages for compensatory damages arising from a breach of contract to pay money. While fraud was pled, no finding of fraud was made. Under Florida law, a necessary element for establishing the crime of theft is that the defendant had, prior to the commission of the act, an intent to commit a theft. Hurd v. State, 440 So.2d 691 (Fla. 1st DCA 1983); State v. Dunmann, 427 So.2d 166 (Fla.1983); Section 812.014, Florida Statutes (1983).

A co-owner of a joint bank account cannot be guilty of the theft of funds taken from the account since the co-owner is in lawful possession of the joint property, Hinkle v. State, 355 So.2d 465 (Fla. 3d DCA 1978) cert. dism., 359 So.2d 1220 (Fla.1978). Here, both parties were signatory to the joint venture bank accounts. They both had the right to control the funds. The closing proceeds were paid to Rosen. The closing expenses were paid by Rosen. All remaining monies were taken by Rosen with Marlin's consent and knowledge. Accountants analyzed the books to determine the expenses of the venture, the contributions of the defendant, and the amount necessary to equalize the draws. It took forty hours of accounting time to determine the exact figures. There was no theft of any money as a matter of law. Hinkle v. State, supra. Under the undisputed facts, there was no theft. Crawford v. State, 453 So.2d 1139 (Fla. 2d DCA 1984); Adams v. State, 443 So.2d 1003 (Fla. 2d DCA 1983); Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980); Ricard v. State, 181 So.2d 677 (Fla.3d DCA 1966). The trial court found that Rosen's refusal to pay monies determined to be due and owing in accordance with the partnership agreement constituted conversion and theft. As a matter of law, no conversion occurred. In Belford Trucking Co., Inc. v. Zagar, supra, the court held:

"[A] mere obligation to pay money may not be enforced by a conversion action (citations omitted); an action in tort is inappropriate where the basis of the suit is contract, either express or implied."

A debt which may be discharged by the payment of money in general cannot form the basis of a claim for conversion. Capital Bank v. G & J Investment Corporation, supra; Schimmel v. Merrill Lynch Pierce Fenner & Smith, Inc., 464 So.2d 602 (Fla.3d DCA 1985); Plotch v. Gregory, supra; Douglas v. Braman Porsche Audi, Inc., 451 So.2d 1038 (Fla.3d DCA 1984).

This is not a case where a party intentionally received a specifically identifiable sum of money knowing that he had no right to take it and who refused to give it back as was the case in Senfeld v. Bank of Nova Scotia Trust Company Cayman,

Page 626

Ltd., 450 So.2d 1157 (Fla.3d DCA 1984). This is not a case where a party refused to pay over to the demanding party a specific fund capable of separate identification required to be deposited into a special account as was the case in Aero International Corp. v. Florida National Bank of Miami, 437 So.2d 156 (Fla.3d DCA 1983) pet. for rev. den., 449 So.2d 264...

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90 practice notes
  • Comptech Intern., Inc. v. Milam Commerce Park, Ltd., No. 96-1056
    • United States
    • Court of Appeal of Florida (US)
    • May 20, 1998
    ...money owed under a contract does not constitute civil theft. The line of cases originates with this court's decision in Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA 1986), and rests on the idea that a civil theft occurs only if there has been an outright taking of property. See id. at 625-26......
  • Ginsberg v. Lennar Florida Holdings, Inc., No. 94-363
    • United States
    • Court of Appeal of Florida (US)
    • October 5, 1994
    ...will not support an award of treble damages under Florida's RICO law), review denied, 518 So.2d 1275 (Fla.1987); Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA) review denied 494 So.2d 1151 (Fla.1986) (where damages sought in tort are same as damages sought in contract tort damages are not rec......
  • In re Beitzell & Co., Inc., Bankruptcy No. 90-00211. Adv. No. 90-0091.
    • United States
    • United States Bankruptcy Courts. District of Columbia Circuit
    • November 9, 1993
    ...damages in tort unless it alleges and proves the existence of additional damages attributable solely to the tort. Rosen v. Marlin, 486 So.2d 623, 626 (Fla.Dist.Ct.App.1986) (where compensatory damages requested in tort count are identical to those in contract count, damages for tort are not......
  • Messer v. E.F. Hutton & Co., No. 86-3602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 7, 1987
    ..."[p]unitive damages are not recoverable for breach of contract, notwithstanding the oppressive nature of the breach." Rosen v. Marlin, 486 So.2d 623, 626 (Fla.App.), review denied, 494 So.2d 1151 (Fla.1986). Accordingly we affirm the district court on this point as G. ATTORNEY'S FEES AND PR......
  • Request a trial to view additional results
91 cases
  • Comptech Intern., Inc. v. Milam Commerce Park, Ltd., No. 96-1056
    • United States
    • Court of Appeal of Florida (US)
    • May 20, 1998
    ...money owed under a contract does not constitute civil theft. The line of cases originates with this court's decision in Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA 1986), and rests on the idea that a civil theft occurs only if there has been an outright taking of property. See id. at 625-26......
  • Ginsberg v. Lennar Florida Holdings, Inc., No. 94-363
    • United States
    • Court of Appeal of Florida (US)
    • October 5, 1994
    ...will not support an award of treble damages under Florida's RICO law), review denied, 518 So.2d 1275 (Fla.1987); Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA) review denied 494 So.2d 1151 (Fla.1986) (where damages sought in tort are same as damages sought in contract tort damages are not rec......
  • In re Beitzell & Co., Inc., Bankruptcy No. 90-00211. Adv. No. 90-0091.
    • United States
    • United States Bankruptcy Courts. District of Columbia Circuit
    • November 9, 1993
    ...damages in tort unless it alleges and proves the existence of additional damages attributable solely to the tort. Rosen v. Marlin, 486 So.2d 623, 626 (Fla.Dist.Ct.App.1986) (where compensatory damages requested in tort count are identical to those in contract count, damages for tort are not......
  • Messer v. E.F. Hutton & Co., No. 86-3602
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 7, 1987
    ..."[p]unitive damages are not recoverable for breach of contract, notwithstanding the oppressive nature of the breach." Rosen v. Marlin, 486 So.2d 623, 626 (Fla.App.), review denied, 494 So.2d 1151 (Fla.1986). Accordingly we affirm the district court on this point as G. ATTORNEY'S FEES AND PR......
  • Request a trial to view additional results

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