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Sanders Farm of Ocala, Inc. v. Bay Area Truck Sales, Inc.

Florida Court of Appeals, Second District

December 27, 2017

SANDERS FARM OF OCALA, INC., a Florida corporation, Appellant,
v.
BAY AREA TRUCK SALES, INC., a Florida corporation, d/b/a KENWORTH OF CENTRAL FLORIDA, Appellee.

          NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Hillsborough County; Elizabeth G. Rice, Judge.

          Aaron W. Proulx of Smoak, Chistolini & Barnett, PLLC, Tampa, for Appellant.

          Suzanne Youmans Labrit, B.C.S., Brett Renton, and Ryan C. Reinert of Shutts & Bowen, LLP, Tampa, For Appellee.

          SILBERMAN, Judge.

         Sanders Farm of Ocala, Inc. (Sanders), appeals a final summary judgment in favor of Bay Area Truck Sales, Inc. (Bay Area), in Bay Area's action on a worthless check. Because the trial court erred in determining that Bay Area had established Sanders' intent to defraud as a matter of law and a factual issue remains for resolution, we reverse and remand for further proceedings.

         Bay Area filed its complaint and later an amended complaint against Sanders alleging a count under section 68.065, Florida Statutes (2015), to recover treble damages on a worthless check and a count in the alternative to recover on a bond Sanders posted. Bay Area alleged that it performed repairs on a truck for Sanders, that Sanders presented a check to induce Bay Area to release the truck, that Bay Area released the truck, and that Sanders then stopped payment on the check with the intent to defraud Bay Area. In the amended complaint, Bay Area added that Sanders' act of stopping payment constituted a false statement knowingly made to induce Bay Area to release the truck in reliance on the check as payment.

         Sanders filed an answer and affirmative defenses and denied the allegations as to fraud and an intent to defraud. Sanders raised several affirmative defenses, including that Bay Area committed fraud on Sanders by misrepresenting the type of work to be done and increasing the bill from $413 to $4655.46. Sanders also asserted that it placed the disputed funds in the registry of the court and that Bay Area's sole remedy was to recover those funds if it could prove its case. In addition, Sanders alleged estoppel and waiver as affirmative defenses based on the fraud Bay Area perpetrated on Sanders.

         Bay Area did not file a reply or conduct any further discovery but instead filed its motion for summary judgment. Bay Area asserted that under section 68.065 a maker is liable if payment has been stopped on a check after receipt of goods or services rendered. It argued that the intent to defraud is evident from such conduct, relying on its interpretation of dicta in Madness, L.P. v. DiTocco Konstruction, Inc., 873 So.2d 427 (Fla. 4th DCA 2004). Because Sanders stopped payment after Bay Area performed services and released the truck, Bay Area argued that it was entitled to summary judgment on the worthless check charge as a matter of law.

         Bay Area and Sanders each filed an affidavit for the trial court to consider. The affidavit of Kerk Sanders, the principal of Sanders, asserted that at the time he wrote the check he did not believe he had any rights although Bay Area "had violated state law by failing to provide [him] the appropriate notifications and had performed work far in excess of that which [he] had originally authorized." He wrote the check under protest and so advised Bay Area. After learning from his attorney that he could bond off the obligation, he stopped payment on the check and posted a bond. He added that at no time did he intend to defraud Bay Area but rather that Bay Area had intended to defraud him. He also stated that by posting the bond he showed that he was not intending to defraud anyone; instead, he was "willing to pay the fair amount that this court determines based upon the facts in question."

         At the hearing on the motion for summary judgment, the trial court agreed with Bay Area's argument, based on Madness, that Bay Area had established intent to defraud as a matter of law. In interpreting Madness, the trial court stated that "if you present the check, you get the object, and then you stop payment, boom, intent to defraud."

         The appellate standard of review for a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000); Gator Boring & Trenching, Inc. v. Westra Const. Corp., 210 So.3d 175, 181 (Fla. 2d DCA 2016). On a summary judgment motion, the movant must establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Volusia County, 760 So.2d at 130; Gator Boring, 210 So.3d at 181. And, "[i]f the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Gator Boring, 210 So.3d at 182 (alteration in original) (quoting Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So.3d 120, 122 (Fla. 2d DCA 2015)). In Gator Boring, this court determined that the movant had failed to show as a matter of law that a claim of lien was fraudulent and that whether the lien was fraudulent within the meaning of the statute was an issue of fact that remained to be determined at trial. Id. at 183-84.

         Section 68.065(3)(a) of the worthless check statute allows for treble damages in addition to the amount owing if a maker stops a check with intent to defraud and fails to make payment. The statute provides in pertinent part as follows:

In any civil action brought for the purpose of collecting a payment instrument, the payment of which is refused by the drawee because of lack of funds, lack of credit, or lack of an account, or where the maker or drawer stops payment on the instrument with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days after a written demand therefor, as provided in subsection (4), the maker or drawer is liable to ...

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