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Orozco v. McCormick 105, LLC

Florida Court of Appeals, Third District

July 10, 2019

Eduardo Orozco, Appellant,
v.
McCormick 105, LLC, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 14-7686 Barbara Areces, Judge.

          ADR Miami, LLC and Juan Ramirez, Jr, for appellant.

          Law Firm of Gary M. Singer, P.A., and Daniel M. Herrera and Andrew J. Pascale (Sunrise), for appellee.

          Before EMAS, C.J., and FERNANDEZ and LOBREE [1] , JJ.

          FERNANDEZ, J.

         Eduardo Orozco ("Orozco") appeals the trial court's Final Summary Judgment in favor of McCormick 105, LLC ("McCormick"). We reverse.

         Orozco 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).

         On 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.

         McCormick 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.

         In his 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.

         Orozco's 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 was lifted.

         After 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.

         Thereafter, 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 ...


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