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Bayuk v. Prisiajniouk

United States District Court, M.D. Florida, Tampa Division

December 30, 2019

KATERYNA BAYUK, Plaintiff/Counter Defendant,
v.
JOANNA PRISIAJNIOUK, Defendant/Counter Plaintiff.

          ORDER

          SEAN P. FLYNN UNITED STATES MAGISTRATE JUDGE

         This cause is before the Court upon Defendant/Counter Plaintiff's (“Prisiajniouk”) Motion for Summary Judgment on Defendant's Counterclaim (“Motion”) (Doc. 48), and Plaintiff/Counter Defendant's (“Bayuk”) response in opposition (Doc. 51). In addition, the Court, sua sponte, will consider whether summary judgment should be entered for Bayuk (Doc. 57). Upon consideration, Prisiajniouk's Motion is denied, and partial summary judgment is entered in favor of Bayuk.

         BACKGROUND

         This case arises out of a family dispute between Bayuk (stepmother) and Prisiajniouk (stepdaughter) over various items of property left for disposition after the death of Orest Bayuk (Bayuk's spouse and Prisiajniouk's father). Bayuk and Orest Bayuk married in May 2002 after executing a Prenuptial Agreement on April 16, 2002 (“the Prenuptial Agreement”). The purpose of the Prenuptial Agreement was to “forestall possible family disputes and to insure marital tranquility” (Doc. 25-1). Unfortunately, it did not have the desired effect. The Prenuptial Agreement is governed by the laws of the State of Florida and addresses the disposition of property acquired before and after the marriage (Doc. 25-1 at 6). In addition to the Prenuptial Agreement, on September 21, 2006, Orest Bayuk created the “Orest Bayuk Revocable Trust” (the “Orest Bayuk Trust”), appointing himself as the trustee, and appointing Bayuk as the successor trustee in case of his death or incapacity (Doc. 51-1). The same day, Orest Bayuk and Bayuk, transferred the ownership of a condominium located in Sarasota, Florida, and identified as “Unit 512, Building 17, Phase V, PINE HOLLOW, ” to the Orest Bayuk Trust (Doc. 51-2). It is undisputed that Bayuk is the only beneficiary of the Orest Bayuk Trust.

         Orest Bayuk died on January 15, 2017. On October 27, 2017, Bayuk sued Prisiajniouk for civil theft, conversion, and unjust enrichment in State court over a CD account established by Orest Bayuk with a Delaware bank (Doc. 2). On January 19, 2018, Prisiajniouk removed the case to this Court and filed an answer to the Complaint. Along with her Answer, Prisiajniouk filed a Counterclaim for civil theft against Bayuk, arguing that Bayuk failed to return various items of property that according to the Prenuptial Agreement, belonged to Prisiajniouk as Orest Bayuk's sole heir (Docs. 1 & 25). The parties filed cross-motions for summary judgment as to Bayuk's Complaint (Docs. 37 & 40), and concerning the Counterclaim, Prisiajniouk moved to seek summary judgment on her Counterclaim (Doc. 48). On September 26, 2019, the Court granted summary judgment for Prisiajniouk as to Bayuk's Complaint (Doc. 54). Thereafter, the Court notified the parties of its sua sponte consideration of summary judgment for Bayuk as to the Counterclaim (“Court's Notice”) (Doc. 57). Prisiajniouk filed her response on November 19, 2019 (Doc. 58).

         STANDARD

         Summary judgment is appropriate if all the pleadings, discovery, affidavits, and disclosure materials on file show that there is no genuine disputed issue of material fact, and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a) and (c). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could decide an issue of material fact for the non-moving party. Anderson, 477 U.S. at 248. In determining whether a genuine dispute of material fact exists, the court must read the evidence and draw all factual inferences in the light most favorable to the non-moving party and it must resolve any reasonable doubts in the non-movant's favor. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). “The determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.” Anderson, 477 U.S. at 255.

         When a party properly supports a motion for summary judgment, the nonmoving party then must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. It is not enough for the nonmoving party to “merely assert[ ] that the jury might, and legally could, disbelieve” the moving party's evidence. Id. Instead, the nonmoving party must present “affirmative evidence” that would allow a reasonable jury to rule for him. Id. at 257.

         DISCUSSION

         To maintain a claim for civil theft, Prisiajniouk must show an injury resulting from a violation of one or more provisions of the Florida “criminal theft statute.” United Technologies Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009). To do this, Prisiajniouk must demonstrate that Bayuk (1) knowingly obtained or used, or endeavored to obtain or use, (2) Prisiajniouk's property (3) with the “felonious intent” either temporarily or permanently to: (a) deprive Prisiajniouk of her right to or a benefit from the property or (b) appropriate the property to Bayuk's own use or to the use of any person not entitled to the property. See Id. (citing Fla. Stat. §§ 772.11 and 812.014(1)). To establish “felonious intent, ” Prisiajniouk must demonstrate that Bayuk had actual knowledge that she engaged in the act of theft. See Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1327 (11th Cir. 2006) (“[T]heft is a specific intent crime, requiring actual knowledge on the part of the defendant.”). Prisiajniouk must establish all elements of her civil theft claim by “clear and convincing evidence.” Id. That is, Prisiajniouk must advance evidence “such that a reasonable jury might find that the elements [of the claim] had been shown with convincing clarity .” Anthony Distributors, Inc. v. Miller Brewin g Co ., 941 F.Supp. 1567, 1575 (M.D. Fla. 1996). Upon review of the record, the Court concludes that Prisiajniouk has failed to meet her burden and partial summary judgment should be entered in favor of Bayuk.

         I. Knowingly Obtained or Used

         Prisiajniouk alleges that Bayuk knowingly exercised possession and dominium over assets that belong to Prisiajniouk according to the Prenuptial Agreement signed between the spouses (see Doc. 25 at 11). The property in dispute is as follows:

• a JPMorgan Chase Bank Account ending in 2117 (the “JPMorgan Account”);
• a Liberty Savings Bank CD ending in 4434 (the “Liberty CD”);
• a Liberty Savings Bank Account ending in 7062 (the “Liberty Bank Account”);
• twenty paintings currently located in Bayuk's ...

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