Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd.

• Decision Date: 01 May 1984
• Docket Number: No. 83-854,83-854
• Citation: 450 So.2d 1157
• Court: Florida District Court of Appeals
• Parties: Norman SENFELD, Appellant, v. The BANK OF NOVA SCOTIA TRUST COMPANY (CAYMAN) LIMITED, Appellee.

Page 1157

450 So.2d 1157

Norman SENFELD, Appellant, v. The BANK OF NOVA SCOTIA TRUST COMPANY (CAYMAN) LIMITED, Appellee.

No. 83-854.

District Court of Appeal of Florida Third District.

May 1, 1984.

Robert A. Shupack and William T. Coleman, Hollywood, for appellant.

Arky, Freed, Stearns, Watson & Greer and Bradford Swing, Miami, for appellee.

Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

A jury returned a verdict finding by a preponderance of the evidence that Norman Senfeld wrongfully deprived the appellee, The Bank of Nova Scotia Trust Company (Cayman) Limited, of $10,000 that belonged in the Trust Company's possession and, additionally, that Senfeld knowingly obtained or used this money with an intent to deprive the Trust Company of a right to or benefit from it, or with an intent to appropriate it to his own use. Based upon the latter finding, which in effect determined that Senfeld had violated Florida's Anti-Fencing Act, more commonly called the theft statute, see §§ 812.012, et seq., Fla.Stat. (1983), the trial court, pursuant to Section 812.035(7), tripled the damages found by the jury and entered judgment against Senfeld for $30,000. ¹ Senfeld appeals contending, as he did below, that (1) the Trust Company's counts for conversion, replevin and theft, having been filed more than five years after Senfeld's receipt of the $10,000 in question in 1975, were barred by the applicable statutes of limitations; (2) the theft statute, authorizing the tripling of actual damages, was enacted in 1977 and cannot be retroactively applied to a taking which occurred in 1975; (3) the Trust Company's claim under the theft statute was required to be proved beyond a reasonable doubt; and (4) it was the jury's, not the trial court's, function to triple the damages. ² We reject Senfeld's contentions and affirm.

I.

Norman Senfeld was the President of Maccabee, a corporation whose account was managed by the appellee. In September 1975, Senfeld requested the appellee to send $10,000 to him in Miami and to debit his Maccabee account. On September 4, 1975, the appellee cabled Pan American Bank in Miami to pay the money to Senfeld and indicated that Bank of Nova Scotia, New York would cover this payment. On September 5, 1975, Pan American gave Senfeld a cashier's check and, without authority or instruction, debited the account of Bank of Nova Scotia, Toronto to cover the payment. Unaware of Pan American's anomalous act, the appellee, as originally intended, cabled its New York affiliate to cover the $10,000. When New York sent the money to Pan American, the latter bank (already whole by virtue of having debited Toronto) thought it was to pay $10,000 more to Senfeld, and on September 22, 1975, turned over another $10,000 in cash to Senfeld. At this point, Senfeld was up $10,000 and Bank of Nova Scotia, Toronto was out $10,000. In November 1978, Toronto finally solved the mystery of its $10,000 shortage, and on December 1, 1978, notified the appellee. The appellee immediately paid Toronto the money and began an investigation. In May of 1979, now assured that Senfeld owed it the money, the appellee wrote to Senfeld demanding that he return the money. ³ When Senfeld failed to respond to the demand that he return the $10,000, the appellee, in January 1981, instituted a suit for conversion, replevin and damages pursuant to the theft statute.

II.

A.

It is well settled that a conversion is an unauthorized act which deprives another of his property ⁴ permanently or for an indefinite time. See Star Fruit Co. v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858 (1948). See also West Yellow Pine Co. v. Stephens, 80 Fla. 298, 304, 86 So. 241, 243 (1920) ("[T]he essential elements of a conversion is [sic], a wrongful deprivation of property to the owner, and neither manucaption nor asportation is an essential element thereof."); Quitman Naval Stores Co. v. Conway, 63 Fla. 253, 58 So. 840 (1912); King v. Saucier, 356 So.2d 930 (Fla. 2d DCA 1978); Charter Air Center, Inc. v. Miller, 348 So.2d 614 (Fla. 2d DCA), cert. denied, 354 So.2d 983 (Fla.1977); International Mail Order, Inc. v. Capital National Bank of Miami, 192 So.2d 287 (Fla. 3d DCA 1966); Goodrich v. Malowney, 157 So.2d 829 (Fla. 2d DCA 1963); General Finance Corp. of Jacksonville v. Sexton, 155 So.2d 159 (Fla. 1st DCA 1963); Armored Car Service, Inc. v. First National Bank of Miami, 114 So.2d 431 (Fla. 3d DCA 1959). Where a person having a right to possession of property makes demand for its return and the property is not relinquished, a conversion has occurred. But while a demand and refusal constitute evidence that a conversion has occurred, it is unnecessary to prove a demand and refusal where the conversion can be otherwise shown. Anderson v. Agnew, 38 Fla. 30, 20 So. 766 (1896). See also Watts v. Hendry, 13 Fla. 523 (1869-71); Robinson v. Hartridge, 13 Fla. 501 (1869-71); Mabie v. Tutan, 245 So.2d 872 (Fla. 3d DCA 1971); Goodrich v. Malowney, 157 So.2d at 832 ("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."). Thus, the essence of conversion is not the possession of property by the wrongdoer, but rather such possession in conjunction with a present intent on the part of the wrongdoer to deprive the person entitled to possession of the property, which intent may be, but is not always, shown by demand and refusal. ⁵

In the present case, the jury would have been justified in finding from the evidence that although Senfeld came into possession of the money in 1975, his intent to deprive the Trust Company of the property was not formed until 1979, when the Trust Company's demand for the return of the property went unanswered. Since the special verdict form submitted to the jury with Senfeld's acquiescence did not require the jury to state when the conversion occurred, the verdict may be upheld against the attack that the action for conversion or theft was limitations barred by simply presuming that the jury found the conversion occurred in 1979. ⁶ See Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).

But even if, arguendo, the evidence indisputably showed that the conversion occurred in 1975, there is yet another theory to justify the jury's implicit finding that the Trust Company's action for conversion was not limitations barred. Over Senfeld's objection, the jury was charged that the statute of limitations would begin running from the time the wrongful act was discovered or should have been discovered. By finding for the Trust Company, the jury could have found that discovery occurred or should have occurred within four years of the filing of suit. Senfeld contended below and contends here that the Trust Company's ignorance of the existence of the conversion did not postpone the running of the statute of limitations and that, as a matter of law, the Trust Company's time for filing suit for conversion expired in September 1979, four years after Senfeld received the money. We reject this argument as well.

While it is true that "mere ignorance of the facts which constitute the cause of action will not postpone the operation of the statute of limitations," Franklin Insurance Co. v. Tharpe, 131 Fla. 213, 214, 179 So. 406, 407 (1938), it is equally true that where the plaintiff's ignorance is blameless, the cause of action will not arise until the plaintiff knows or is chargeable with knowledge of an invasion of his legal right, Miami Beach First National Bank v. Edgerly, 121 So.2d 417 (Fla.1960) (action against bank for payment on a forged endorsement does not arise until maker receives, or by exercise of reasonable business care would have received, notice that endorsement forged); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954) (medical malpractice action does not arise until notice of consequences or negligent act); see Franklin Insurance Co. v. Tharpe, 179 So. 406.

Senfeld suggests, however, that this discovery rule (that is, that the plaintiff knew or should have known of his cause of action) is limited to those actions, such as products liability or fraud, where the statute of limitations expressly provides that the period within which the action must be brought runs from the time of discovery or constructive discovery, § 95.031(2), Fla.Stat. (1983), and that all other actions, including conversion, run from the time the cause of action accrues, that is, "when the last element constituting the cause of action occurs," § 95.031(1), Fla.Stat. (1983).

Concededly, the court in Houston v. Florida-Georgia Television Co., 192 So.2d 540 (Fla. 1st DCA 1966), applied the rule of expressio unius, exclusio alterius (the application of which is here urged by Senfeld) in deciding that a cause of action for invasion of privacy ran from the time the invasion occurred, not when the plaintiff first discovered the invasion. Finding discovery language in the statute of limitations relating to fraud (§ 95.11(5)(d), Fla.Stat. (1965)), but finding no such language in the statute of limitations pertaining to an invasion of privacy action (§ 95.11(4), Fla.Stat. (1965)), the court in Houston concluded that absent a specific postponement provision, one would not be read into the statute of limitations as a whole. While Houston certainly supports Senfeld's position, reliance upon it as authority is unjustified in light of City of Miami v. Brooks, 70 So.2d 306, and Miami Beach First National Bank v. Edgerly, 121 So.2d 417, and, a fortiori, in light of the later decisions of Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969), and Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA), cert. denied, 360 So.2d 1247 (Fla.1978). In both Brooks and Edgerly, the Florida Supreme...