final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 14-7686 Barbara Areces, Judge.
Miami, LLC and Juan Ramirez, Jr, for appellant.
Firm of Gary M. Singer, P.A., and Daniel M. Herrera and
Andrew J. Pascale (Sunrise), for appellee.
EMAS, C.J., and FERNANDEZ and LOBREE  , JJ.
Orozco ("Orozco") appeals the trial court's
Final Summary Judgment in favor of McCormick 105, LLC
("McCormick"). We reverse.
was the prior owner of real property located at 785 Allendale
Road, Key Biscayne, Florida. The property was rented to a
tenant, and the tenant's employer, FCC Constructions,
Inc., paid the tenant's monthly rent on the first of each
month via a wire transfer directly to Orozco's bank
account, and had done so for several years. Orozco lost the
property to foreclosure and on September 25, 2013, McCormick
bought the subject rental property. A certificate of title
was issued to McCormick on October 25, 2013. This Court
affirmed that foreclosure in 2014 in Orozco v.
McCormick, 150 So.3d 1158 (Fla. 3d DCA 2014).
March 24, 2014, McCormick sued Orozco alleging one count of
civil theft, in violation of Florida's Civil Theft
statute, section 772.11, Florida Statutes (2013), and one
count of conversion. McCormick alleged that after it
purchased the subject rental property, Orozco knowingly
obtained and used the November rental payment of $6, 196.00,
which had been deposited in normal course by the tenant's
employer to Orozco's bank account, knowing that the
property was no longer his and that the rental funds were not
his to keep. McCormick alleges this money belonged to it, and
thus Orozco was in violation of section 772.11. McCormick
asserts it discovered the theft of the rent on November 13,
2013, when it found out Orozco had obtained and used the rent
payment for the property that he no longer owned.
claims that, in compliance with the pre-suit requirements of
section 772.11, on November 21, 2013, it mailed Orozco a
written demand letter for payment of the $6, 196, multiplied
by three, for a total of $18, 588.00, due to treble damages
available under section 772.11. McCormick alleges Orozco was
aware that he was no longer the owner of the real property
and therefore not entitled to the rent because Orozco
participated in the foreclosure action in the trial court and
had actual or constructive knowledge of that action, as he
was represented by legal counsel. Orozco moved to dismiss the
case for lack of subject matter jurisdiction, claiming the
amount in controversy was $6, 196.00, thus less than the $15,
000 required to file suit in circuit court. The trial court
denied Orozco's motion without prejudice, giving Orozco
the chance to amend his motion to dismiss, which he did.
amended motion to dismiss McCormick's complaint, Orozco
raised various issues, including the assertion that he never
received the November 21, 2013 pre-suit notice of intent
letter required under section 772.11(1). The trial court also
denied this motion.
attorney thereafter withdrew from representation in September
2014, and there was no record activity in the case for almost
a year. Orozco filed a petition for bankruptcy, and the case
was stayed for one year. On August 21, 2015, the U.S.
Bankruptcy Court dismissed the bankruptcy case, and the stay
resumption of litigation, McCormick filed its first Motion
for Summary Judgment. Orozco defended pro se and filed an
affidavit, in which he claims that the money that was
transferred by the tenant to Orozco's bank account was
not for the November 2013 rent but was for the October 2013
rent because the tenant was in arrears and owed Orozco
past-due rent. The trial court denied McCormick's motion
for summary judgment.
McCormick filed its second motion for final summary judgment
where it refuted all the amended affirmative defenses. After
all the affidavits were filed and the trial court held a
hearing taking all the facts, evidence, discovery, and
testimony into consideration, it granted McCormick's
motion and entered final judgment on both the civil theft
count and the conversion count in favor of McCormick. Orozco
moved for ...