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LLC v. Albertelli

United States District Court, M.D. Florida, Fort Myers Division

June 11, 2019

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,
v.
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 [1]

          SHERIPOLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.

         Before 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 (Doc. 373).

         Background

         This 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.

         The 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).

         Legal Standard

         Summary 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).

         In 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) (citations omitted).

         Discussion

         A. The Funds' Motion for Summary Judgment

         To make 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. 354).

         The 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 subcontractors.

(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 ...


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