Seymour v. Adams

• Decision Date: 24 June 1994
• Docket Number: No. 93-1961,93-1961
• Citation: 638 So.2d 1044
• Parties: 19 Fla. L. Weekly D1358 Michael J. SEYMOUR d/b/a Seymour Construction, Appellant, v. John P. ADAMS and Ann D. Adams, Appellees.
• Court: Florida District Court of Appeals

Page 1044

638 So.2d 1044

19 Fla. L. Weekly D1358

Michael J. SEYMOUR d/b/a Seymour Construction, Appellant, v. John P. ADAMS and Ann D. Adams, Appellees.

No. 93-1961.

District Court of Appeal of Florida Fifth District.

June 24, 1994.

William N. Asma, of Asma & Wright, P.A., Winter Garden, for appellant.

J. Davis Connor, of Peterson, Myers, Craig, Crews, Brandon & Puterbaugh, P.A., Winter Haven, for appellees.

GRIFFIN, Judge.

Michael J. Seymour ("Seymour") and Seymour Construction Corp. ("Seymour Construction") appeal the summary final judgment entered in favor of John P. Adams and Ann D. Adams, defendants below (collectively the "Adamses"), on claims arising out of an eviction of Seymour by the Adamses.

Seymour was the lessee of a home located in Clermont, Florida which he used as offices for Seymour Construction. ¹ The property was owned by the Adamses, who were Seymour's landlords under a "Land Lease" executed June 7, 1991. ² Seymour defaulted on the rents due under the lease, and the Adamses filed an action for eviction against him on February 15, 1991. A summary final judgment of eviction was entered against Seymour on March 22, 1991. The final judgment also found Seymour liable for unpaid rents in the amount of $8,600, and provided that "the lease which is the subject of the above-entitled legal action is terminated...." This judgment was apparently not appealed.

The Adamses obtained a writ of possession from the clerk on March 22, 1991, which was executed by the Lake County Sheriff's Department on March 26, 1991. Utilizing the writ, the Adamses changed the locks and retook possession of the building. The Sheriff did not remove Seymour's personalty at the time of the eviction, but instead obtained a release from the Adamses which provided as follows That the Landlord elects to take possession of said personal property pursuant to F.S. 715.10 through F.S. 715.11 DISPOSITION OF PERSONAL PROPERTY LANDLORD AND TENANT ACT, Florida Statutes, and hereby releases and holds harmless the Sheriff of Lake County, from any liability from anyone whomsoever when acting pursuant to this said "Request" and agrees to pay any damages, costs and reasonable attorney's fees if the Sheriff of Lake County, Florida is sued when acting pursuant to this "Request."

Upon learning of his eviction, Seymour asked the Adamses to give him access to the building so that he could retrieve his personal property, which was still located on the premises. However, the Adamses refused, claiming they were entitled to retain the personalty as security for Seymour's unpaid rent. Seymour then made a written demand for possession of his personalty by letter dated June 11, 1991, in which he noted that "[t]here was never a distress writ issued by the Court assuring the landlord's lien." However, the Adamses again refused to turn over the personalty and, instead, obtained a writ of execution commanding the Sheriff of Lake County to levy on Seymour's property. The writ was docketed in Lake County on June 21, 1991 but was evidently not executed. Sometime thereafter, the Adamses moved most of Seymour's personalty into a storage shed owned by them.

The Adamses' judgment for unpaid rent was satisfied in full in February 1992. ³ Following payment, Seymour again asked the Adamses to return his property. They again refused, but this time justified their retention of the property on the ground that Seymour owed them money for storage fees. They also asserted that the property had, in any event, been "abandoned" by Seymour.

Seymour and Seymour Construction, which allegedly owned some of the property which had been left on the premises, then filed the instant action against the Adamses for (1) conversion; (2) damages for destruction of the property; (3) civil theft; and (4) replevin. Seymour's amended complaint added a fifth count for fraud and misrepresentation in the inducement of the original lease. Affirmative defenses raised by the Adamses were: (1) that they were entitled to retain the property by virtue of the final judgment and the writ of execution dated June 21, 1991; (2) that they were entitled to retain the property as security for storage charges which were owed on the property; (3) that Seymour had abandoned the property; (4) that the final judgment evicting Seymour was res judicata; and (5) that Seymour had waived and/or was estopped to assert any claims concerning the property.

The Adamses eventually moved for summary judgment on all counts of the complaint, and Seymour filed a cross-motion on his claims for civil theft and conversion. In his motion, Seymour maintained that the Adamses had wrongfully retained his property, given their failure to obtain a distress writ under Chapter 83 of the Florida Statutes. Seymour also raised the fact that the writ of execution had not been obtained until almost three months after entry of the final judgment and that the final judgment had been satisfied in full in February 1992.

Both parties filed a number of depositions and affidavits in support of their respective motions, and the court held a hearing. ⁴ In a written order dated July 19, 1993, the lower tribunal denied Seymour's motion for summary judgment and then, by written order dated July 23, 1993, the court entered summary final judgment in favor of the Adamses on all counts of the complaint. We reverse the final summary judgment against Seymour on his claims for civil theft, conversion and replevin, but otherwise affirm the trial court's ruling.

Seymour correctly contends that the Adamses were not entitled to final summary judgment on the claim for conversion since they retained his property without a valid right of possession. The essence of the tort of conversion is the exercise of wrongful dominion or control over property to the detriment of the rights of the actual owner. United American Bank of Central Florida, Inc. v. Seligman, 599 So.2d 1014, 1017 (Fla. 5th DCA), review denied, Pierce v. United American Bank of Central Florida, Inc., 613 So.2d 7 (Fla.1992). Thus, conversion may occur where a person wrongfully refuses to relinquish property to which another has the right of possession. Senfeld v. Bank of Nova Scotia Trust Co. (Cayman), Ltd., 450 So.2d 1157 (Fla. 3d DCA 1984). The tort may be established despite evidence that the defendant took or retained property based upon the mistaken belief that he had a right to possession, since malice is not an essential element of the action. City of Cars, Inc. v. Simms, 526 So.2d 119 (Fla. 5th DCA), review denied, 534 So.2d 401 (Fla.1988); Ciamar Marcy, Inc. v. Monteiro Da Costa, 508 So.2d 1282 (Fla. 3d DCA 1987).

The Adamses' retention of Seymour's personalty following the eviction cannot be justified on the basis of the landlord's lien for unpaid rent established by section 83.08, Florida Statutes (1991), ⁵ since the establishment of such a lien against property does not confer a right to possess the property against the owner. Van Hoose v. Robbins, 165 So.2d 209, 210 (Fla. 2d DCA 1964) ("a lien or claim of lien, without more, does not necessarily denote right to possession"). In Van Hoose, the court pointed out that:

Distress for rent is a common law remedy and one of the rare cases in which the law allowed 'a man to be his own avenger, or to minister redress to himself.' 3 Cooley's Blackstone 3d Ed. 5. This common law remedy of distress for rent, existing without statute and creating a lien upon seizure of the tenant's property, has been superseded in most jurisdictions, as in Florida, by a statutory remedy.

Id. at 212 (quoting City Building Corp. v. Farish, 292 F.2d 620 (5th Cir.1961)). The Van Hoose court concluded that:

Fla.Stat. Sec. 83.08, F.S.A. does not provide or confirm in the landlord a self-executing possessory lien; and that the promulgation of statutory distress under said Chapter 83, viewed in the light of Fla.Stat. Sec. 2.01, F.S.A., effectively superseded common law distress--at least in cases where abandonment by the tenant is not clearly evident.

Id. at 212 (citation omitted) (emphasis in original).

We agree with the Van Hoose court that the statutory lien alone does not confer a right of possession. The statutory distress procedure has supplanted the common law distress procedure, which gave the landlord the right to seize the personalty and hold it until it was redeemed by payment of the rent claim. ⁶ Compliance with the distress statute is the means by which a statutory landlord's lien is enforced. The statute sets forth a clear and straightforward remedy for a landlord who is owed rent to obtain the value of chattel subject to the landlord's lien in satisfaction of the rent claim. Secs. 83.08-.18, Fla.Stat. (1993).

For a similar reason the Adamses had no right to retain the property based on the docketing of the writ of execution in Lake County on June 21, 1991. At most, the docketing of the writ of execution caused the Adamses' judgment lien to attach to the personalty and establish its priority. See, e.g., Jacksonville Bulls Football, Ltd. v. Blatt, 535 So.2d 626, 630 (Fla. 3d DCA 1988). This act may be significant in terms of priority over other lienholders, but it did not create any property rights in the personalty beyond the right to have the property of the judgment debtor levied on by the sheriff and sold at an execution sale. Love v. Williams, 4 Fla. 126 (1851). Seymour was entitled to possession of the property until the sheriff levied on it.

Nor did the lease confer any right of possession of the personalty upon the Adamses. Paragraph 22(b) ⁷ of the lease, which is principally relied upon by the Adamses, creates no rights in the Adamses beyond the right to remove Seymour's personalty from the real property and to recoup storage fees incurred in caring for the personal property for the tenant's account. No reasonable reading of that lease provision would support the Adamses' contention that it creates a right to retain Seymour's personalty...