FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Putnam County, Patti A.
William H. Davie, II, of The Davie Law Firm, P.A., Green Cove
Springs, for Appellants.
P. Rowe, Caron Speas and Ralph Rowe, of Speas & Rowe,
PLLC, Palatka, for Appellee.
Rooter Supply & Service, Inc. (Doctor Rooter) and Thomas
J. Wall appeal the trial court's final order granting
summary judgment in favor of Laura McVay. We reverse.
Rooter is a plumbing company that was owned by Thomas Wall
and Laura McVay while they were married. They divorced in
October 2012, at which time Thomas was given full ownership
of the company. As a part of their divorce proceedings,
Thomas and Laura executed a Consent Final Judgment. The
Consent Final Judgment included a release of all claims that
Thomas and Laura had or could have had against each other.
the divorce was final, Thomas allegedly discovered that Laura
had taken approximately $116, 000 from Doctor Rooter between
2007 and 2011 while she was the office manager. In 2013, Doctor
Rooter and Thomas sued Laura for conversion, embezzlement,
breach of fiduciary duty, and civil theft. In Laura's
answer to the complaint, she cited numerous affirmative
defenses, based mostly on the Consent Final Judgment entered
in the dissolution case. Of relevance are Laura's first,
second, third, fourth, fifth, and tenth affirmative defenses.
first affirmative defense, Laura claimed "that the
causes of action alleged in the Amended Complaint were
released and waived by the Plaintiffs when the parties hereto
executed the Consent Final Judgment of Dissolution of
Marriage." In her second affirmative defense, Laura
claimed that res judicata barred this action because the
civil theft claims should have been brought in the
dissolution case. Laura's third and fourth affirmative
defenses alleged that the civil theft case actually involved
the dissipation of marital assets and, as such, it should
have been brought in family court. She, therefore, argued
that the civil court lacked jurisdiction to consider the
civil theft matter and that Thomas and Doctor Rooter lacked
standing to bring the case. Laura's fifth affirmative
defense alleged that the civil theft claims were waived
because they were compulsory counterclaims in the dissolution
case and they were not raised in the answer. Finally, in her
tenth affirmative defense, Laura contended that the civil
theft case could not proceed because, as a co-owner of Doctor
Rooter, she could not be liable for stealing from herself.
moved for summary judgment, arguing that the release language
was dispositive and that Thomas and Doctor Rooter's
claims were barred by the doctrine of res judicata. After a
hearing, the trial court agreed and granted summary judgment
in Laura's favor on the affirmative defenses outlined
Final Order, the court specifically found that Thomas and
Laura were the only owners or equity holders in Doctor Rooter
and that they treated Doctor Rooter as a marital asset during
the dissolution proceedings. The court also found that Thomas
and Laura mutually released any claims they had or could have
had against each other as part of the consideration for the
Consent Final Judgment, and thus, Thomas was precluded from
bringing the action. Additionally, the court found that res
judicata prevented the causes of action set forth in the
amended complaint because they were previously decided in the
dissolution matter and the dissolution of marriage statute is
the exclusive remedy available to Thomas in this case because
Laura was alleged to have dissipated marital assets. As such,
the court found that it did not have jurisdiction over the
matter. Also, based on the trial court's finding that the
dissolution statutes controlled, it concluded that Doctor
Rooter and Thomas lacked standing to bring the cause of
action for civil theft.
court's order granting summary judgment is reviewed de
novo. Suker v. White Fam. Ltd. P'ship, 193 So.3d
1028, 1029 (Fla. 4th DCA 2016) (quoting Burton v. MDC PGA
Plaza Corp., 78 So.3d 732, 733 (Fla. 4th DCA 2012)). In
reviewing a court's decision to enter summary judgment,
an appellate court "must consider all record evidence in
a light most favorable to the non-moving party. If material
facts are at issue and the slightest doubt exists, summary
judgment must be reversed." Mills v. State Farm Mut.
Auto. Ins. Co., 27 So.3d 95, 96 (Fla. 1st DCA 2009)
(citing Hancock v. Dep't of Corr., 585 So.2d
1068 (Fla. 1st DCA 1991)).
Rooter and Thomas raise four issues on appeal, three of which
have merit.First, they argue that the trial court
erred in finding that the assets of Doctor Rooter, a duly
formed corporation, are actually assets directly owned by its
shareholders, Thomas and Laura, and, thus, any assets Laura
allegedly took from Doctor Rooter were marital assets. They
further argue that the trial court's mischaracterization
of the theft as a dissipation of marital assets caused it to
erroneously conclude that exclusive jurisdiction belonged in
family court and that Doctor Rooter and Thomas did not have
standing to bring the claim. Next, they argue that the trial
court erred in holding that Doctor Rooter was bound by the
release in the divorce proceeding when it was not a party to
the proceeding, and therefore, res judicata and waiver did
not bar the claims. Finally, Doctor Rooter and Thomas argue
that questions of fact remain regarding the intent and
understanding of Thomas and Laura when they executed the
Consent Final Judgment that preclude entry of summary
judgment. We will address each in turn.
Court has previously explained, a "stockholder's
interest in a corporation is limited to the legal rights
flowing from the ownership of capital stock. Those rights do
not include a pro-rata interest in corporate assets."
Anson v. Anson, 772 So.2d 52, 54 (Fla. 5th DCA
2000). In fact, the corporation is a separate, legally
recognized entity that holds title to its assets.
Id. Although a corporation that is owned by both
spouses is a marital asset, see Thibault v.
Thibault, 668 So.2d 237, 238 (Fla. 1st DCA 1996), the
corporation's earnings are not marital assets. Instead,