United States District Court, M.D. Florida, Fort Myers Division
CONTINENTAL 332 FUND, LLC, CONTINENTAL 298 FUND LLC, CONTINENTAL 306 FUND LLC, CONTINENTAL 326 FUND LLC, CONTINENTAL 347 FUND LLC, CONTINENTAL 355 FUND LLC, CONTINENTAL 342 FUND LLC, CONTINENTAL 245 FUND LLC and KMM CONSTRUCTION OF FLORIDA, LLC, Plaintiffs,
DAVID ALBERTELLI, ALBERTELLI CONSTRUCTION INC., WESTCORE CONSTRUCTION, LLC, NATIONAL FRAMING, LLC, MFDC, LLC, TEAM CCR, LLC, BROOK KOZLOWSKI, JOHN SALAT, KEVIN BURKE, KERRY HELTZEL, AMY BUTLER, U.S. CONSTRUCTION TRUST, FOUNDATION MANAGEMENT, LLC, KMM CONSTRUCTION, LLC, GEORGE ALBERTELLI, GREGORY HILZ and GREAT AMERICAN INSURANCE COMPANY, Defendants.
OPINION AND ORDER 
SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
the Court are Plaintiffs Continental 332 Fund LLC (Six Mile
Fund) and Continental 326 Fund LLC (Rochester Fund)'s
Motion for Summary Judgment on Count IV - Civil Theft (Fla.
Stat. 772.11) - Against Defendants, Albertelli Construction,
Inc. (ACI), George Albertelli, and David Albertelli (Doc.
321), Defendants' responses (Doc. 351; Doc. 354),
Defendant George Albertelli's Cross-Motion for Summary
Judgment on Count IV (Doc. 362), and the Funds' response
case is a web of disputes arising from apartment construction
projects around the country, but this Order involves just one
of the many claims asserted. In Count 4 of their Fourth
Amended Complaint, the Six Mile Fund and the Rochester Fund
accuse ACI, George Albertelli, and David Albertelli of civil
theft in violation of Fla. Stat. § 772.11. (Doc. 218).
Six Mile Fund is the owner and developer of the Springs at
Six Mile Cypress (Six Mile Project) in Fort Myers, Florida,
and the Rochester Fund is the owner and developer of the
Springs at South Broadway (Rochester Project) in Rochester,
Minnesota. (Doc. 218 at 11). The Funds hired ACI as general
contractor for the projects. ACI is a Florida corporation
owned by George and David Albertelli. (Doc. 218 at 12).
Continental Properties owns and manages Six Mile Fund,
Rochester Fund, and the other plaintiffs.
civil theft claim stems from several checks the Funds sent to
ACI in December 2016 for amounts totaling $1, 314, 519.53.
(Doc. 321 at 5). Each check was issued jointly to ACI and a
subcontractor, then sent to ACI so it could endorse the check
and forward it to the subcontractor. (Doc. 321 at 3). This
practice is common in the construction Thus, the fact that a
hyperlink ceases to work or directs the user to some other
site does not affect the opinion of the Court. industry, and
the parties had used it to pay subcontractors before. (Doc.
321 at 3). But ACI did not forward the checks at issue to the
subcontractors. Instead, ACI sent FedEx envelopes to the
subcontractors without the checks and gave the tracking
numbers to the Funds, and David Albertelli endorsed the
checks and deposited them into ACI's account with
CenterState Bank. (Doc. 321 at 4). According to the Funds,
David Albertelli's deposit of the checks amounted to
civil theft in violation of Fla. Stat. § 772.11. But ACI
and the Albertellis claim they had a right to apply the
payments to outstanding debts Continental Properties and
Plaintiffs owed ACI for work it did on the Six Mile Project
and other construction jobs. (Doc. 351-1 at 4).
judgment is appropriate only when the Court is satisfied that
“there is no genuine issue as to any material
fact” and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). A genuine issue of
material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). To defeat summary judgment, the
non-movant must “go beyond the pleadings, and present
affirmative evidence to show that a genuine issue of material
facts exists.” Porter v. Ray, 461 F.3d 1315,
1320 (11th Cir. 2006).
reviewing a motion for summary judgment, the Court views the
evidence and all reasonable inferences drawn from it in the
light most favorable to the non-movant. See Battle v. Bd.
of Regents, 468 F.3d 755, 759 (11th Cir. 2006). But
“[a] court need not permit a case to go to a
jury…when the inferences that are drawn from the
evidence, and upon which the non-movant relies, are
‘implausible.'” Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996)
The Funds' Motion for Summary Judgment
a case for civil theft in Florida, a plaintiff must prove
that the defendant (1) knowingly (2) obtained or used, or
tried to obtain or use, the plaintiff's property with (3)
felonious intent to, (4) either temporarily or permanently,
(5a) deprive the plaintiff of its right to or benefit from
the property or (5b) appropriate the property to the
defendant's own use or to the use of anyone not entitled
to the property. Wachovia Bank N.A. v. Tien, 658
Fed.Appx. 471, 747-75 (11th Cir. 2016); Fla. Stat. §
812.014. ACI and David Albertelli attack the second and third
elements. (Doc. 351). George Albertelli adopts those
arguments and claims he lacked the requisite knowledge. (Doc.
Court begins with the “felonious intent” element.
“Felonious intent is the intent to deprive another of
its property, which may be shown by circumstantial
evidence.” Wachovia Bank, 658 Fed.Appx. at
775. The Funds first argue that Defendants admitted to having
felonious intent in the pleadings. In Paragraph 196 of the
Fourth Amended Complaint, Plaintiffs allege,
On or about December 5 and 6, 2016, David Albertelli indorsed
nineteen Joint Checks that were intended to be paid to
subcontractors and intentionally and wrongfully deposited
those Joint Checks into ACI's account at CenterState
Bank, without any of the second signatures from
(Doc. 218 at 45). The Funds contend that Defendants cannot
dispute felonious intent because they admitted that David
Albertelli “intentionally and wrongfully”
deposited the checks. But the Funds mischaracterize
Defendants' answers. ACI and David ...