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120200053739 RECORDED IN THE RECORDS OF JEFFREY R. SMITH, CLERK OF CIRCUIT COURT INDIAN RIVER CO FL
BK: 3337 PG: 775, 9/11/2020 2:19 PM
Filing # 113214980 E-Filed 09/11/2020 11:26:35 AM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
RICHARD O. SHIREY, Case No.: 312019CA000251
Plaintiff, Judge Janet C. Croom
vs.
STACIE BROWNE SHIREY,
Defendant.
/
ORDER GRANTING SUMMARY JUDGEMENT IN COUNTS 1, Il, Ill, AND V;
AND DISMISSING COUNT IV WITH PREJUDICE
THIS CAUSE, having come before the Court on the Defendant’s Motion to Dismiss
Plaintiffs Fourth Amended Complaint, the Court having reviewed said complaint and
being otherwise fully advised in the premises, it is therefore
ORDERED and ADJUDGED as follows:
COUNTI
4
“Foreign law is a fact to be pleaded and proved; and when the contrary is
not alleged, the law of the sister state will be assumed to be the same as Florida law.”
Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998).
2 No party briefed the Court on North Carolina law in their pleadings or at bar.
3. In Florida, “[w]here no specific transaction or agreement exists between the
spouses, the dissolution of marriage statute, specifically, subsection 61.075(1), provides
the exclusive remedy where one's spouse has intentionally dissipated marital property
during the marriage.” Beers v. Beers, 724 So. 2d 109, 117 (Fla. 5th DCA 1998). See also
Abitbol v. Benarroch, 273 So. 3d 147, 153 (Fla. 3d DCA 2019).
Page 1 of 6
BK: 3337 PG: 776
4 Count | of the Plaintiffs Complaint fails to state a cause of action because
of the relationship of the parties at the time the subject real property and chattels were
purchased was that of a married couple.
5. The real property located at 25 Park Avenue, Vero Beach, Florida 32960
was acquired in the name of the parties as Husband and Wife on April 29, 2016.
6 The parties remained married until May 13, 2016.
7 This Court lacks subject matter jurisdiction to determine the marital or non-
marital nature of assets acquired during the parties’ marriage or to determine legal or
equitable claims thereto, and no such determination or order is shown to have been made
by any attachment to the Compiaint.
8 In Count |, summary judgement is GRANTED in favor of Defendant.
9. Plaintiff shall take nothing, and Defendant shall go hence without day.
COUNTII
10. “The elements of a cause of action for unjust enrichment are: (1) plaintiff
has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant
voluntarily accepts and retains the benefit conferred; and (3) the circumstances are
such that it would be inequitable for the defendant to retain the benefit without
paying the value thereof to the plaintiff.” Hillman Const. Corp. v. Wainer, 636 So. 2d
576, 577 (Fla. 4th DCA 1994) (Emphasis added).
11. The real property located at 25 Park Avenue, Vero Beach, Florida 32960
was acquired in the name of the parties as Husband and Wife on April 29, 2016.
12. The parties were married until May 13, 2016.
Page 2 of 6
BK: 3337 PG: 777
13. Plaintiff claims that Defendant was unjustly enriched because she took title
to the real property as a tenant by the entireties during the course of her marriage without
paying an equal share of the purchase price and maintenance costs for the property.
14. However, it is not inequitable for one spouse to retain the benefits conferred
on them by the other spouse during their marriage. To hold otherwise would turn the entire
foundation of the marital relationship on its head.
15. In Count Il, summary judgement is GRANTED in favor of Defendant.
16. Plaintiff shall take nothing, and Defendant shall go hence without day.
COUNTIII
17. In a case for civil theft, “injury can only be established if it is shown that the
victim has a legally recognized property interest in the items stolen.” Balcor Prop. Mgmt.,
Inc. v. Ahronovitz, 634 So. 2d 277, 279 (Fla. 4th DCA 1994). Further, the property interest
must be “an interest in the property upon which another person is not privileged to infringe
without consent.” /d. at 280 (Quoting § 812.012(5)).
18. Plaintiff claims that Defendant “knowingly obtained and used the Plaintiffs
boat with the felonious intent to permanently deprive him of the right to the Property.”
19. Although Plaintiff had been in negotiations with the seller, he had not
acquired ownership of the boat. According to Plaintiff, he feared that another buyer would
acquire the boat before he could. Based on Plaintiffs allegations, the boat could not be
stolen from him because he never owned it.
20. Plaintiff cannot cure this defect through repleading.
21. In Count III, summary judgement is GRANTED in favor of Defendant.
22. Plaintiff shall take nothing, and Defendant shall go hence without day.
Page 3 of 6
BK: 3337 PG: 778
COUNT IV
23. In order for a claim of fraud in the inducement to withstand a motion to
dismiss, it must allege fraud with the requisite particularity by Fla. R. Civ. P. 1.120(b),
including who made the false statement, the substance of the false statement, the
timeframe in which it was made, and the context in which the statement was made.
Bankers Mutual Capital Corp. v. U.S. Fidelity and Guaranty Company, 784 So.2d 485,
490 (Fla. 4th DCA 2001).
24. Plaintiff alleges generally in Paragraphs 49 and 50 of his Complaint that
Defendant made “false statements.” However, neither the substance of the statements,
when the statements were made, nor the context of the statements are specified by
Plaintiff. Therefore, the claim must be dismissed.
25. Also, the allegations of Paragraphs 48 and 52 are repugnant. See,
Trawick’s, Florida Practice and Procedure, § 6:7(2019-2020 edition) (“Repugnancy
occurs when allegations within a single cause of action or defense are inconsistent and
thus neutralize each other. The resulting pleading is a nullity. This may occur in the
pleading or between it and an attached exhibit.”) (citing Hoopes v. Crane, 47 So. 992 (Fla.
1908); Shelton v. Eisemann, 79 So. 75 (Fla. 1918); Harry Pepper & Associates, Inc. v.
Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971); and Peacock v. General Motors
Acceptance Corp., 432 So. 2d 142 (Fla. 1st DCA 1983)).
26. In Paragraph 48, Plaintiff alleges that Defendant unilaterally changed the
bill of sale on the boat to title the same in her name. Yet, in Paragraph 52, Plaintiff
indicates that he intended to have the boat titled in Defendant's name because of
nonspecific assertions allegedly made by Defendant.
Page 4 of 6
BK: 3337 PG: 779
27. Because the allegations are not well pleaded, it is impossible for Defendant
to make out what exactly she is being accused of except titling the boat in her name as
Plaintiff alleged in Paragraph 52 was part of the parties’ agreement.
28. Plaintiff is on his FOURTH amended complaint and has been given specific
notice of the deficiencies in Count IV on multiple occasions.
29. The Court finds that Plaintiff is, and will be, unable or unwilling to replead
Count IV to state a cause of action; therefore, Plaintiff is denied the right to amend.
30. Count IV is DISMISSED WITH PREJUDICE.
31. Plaintiff shall take nothing, and Defendant shall go hence without day.
COUNT V
32. Initially, Plaintiff has failed to send a Shelby demand to Defendant. Shelby
Mutual Insurance Co. of Shelby, Ohio v. Crain Press, Inc., 481 So. 2d 501, 503 (Fla. 2d
DCA 1985), review denied 491 So. 2d 278 (Fla. 1986).
33. Failure to make such a demand is fatal.
34. Moreover, “[i]n Florida, an action for conversion is regarded as a possessory
action and the plaintiff must have a present or immediate right of possession of the
property in question.” Page v. Matthews, 386 So. 2d 815, 816 (Fla. 5th DCA 1980). A
“mere obligation to pay money may not be enforced by conversion action; and an action
in tort is inappropriate where the basis of the suit is contract, either express or implied.
Plotch v. Gregory, 463 So. 2d 432, 436 (Fla. 4th DCA 1985) (Internal citations and
quotations omitted).
35. Plaintiff claims that he asked Defendant to “pick the boat up for him because
he could not get to Florida, and there were other interested purchasers.”
Page 5 of 6
BK: 3337 PG: 780
36. Although Plaintiff had been in negotiations with the seller, he had not
acquired ownership of the boat. According to Plaintiff, he feared that another buyer would
acquire the boat before he could. Based on Plaintiffs allegations, the boat could not be
converted because he never had a present or immediate right of possession of the
property in question.
37. Further, to the extent that the Plaintiff contends that it was the money behind
the alleged agreement that was converted, the claim must still fail, Defendant had no
obligation to retain the funds sent by Plaintiff intact. Therefore, those funds cannot form
the basis of a claim for conversion. Belford Trucking Co. v. Zagar, 243 So. 2d 646, 648
(Fla. 4th DCA 1970) (“To be a proper subject of conversion each coin or bill need not be
earmarked, but there must be an obligation to keep intact or deliver the specific money in
question, so that such money can be identified.”).
38. Plaintiff cannot cure these defects through repleading.
39. In Count V, summary judgement is GRANTED in favor of Defendant.
40. Plaintiff shall take nothing, and Defendant shall go hence without day.
DONE AND ORDERED at Vero Beach, Indian River County, [onda this
day of September 2020.
09/4/2020 14:25:59
signed by JANET CARNEY CROOM 9111/2020 1:25:59 rene
Janet C. Croom
Circuit Court Judge
cc. Kevin M. Rollin, Esq.; - Kevin@NapierRollinLaw.com
Aaron V. Johnson, Esq. - Adohnson@VeroLaw.com
Page 6 of 6
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120200053739 RECORDED IN THE RECORDS OF JEFFREY R. SMITH, CLERK OF CIRCUIT COURT INDIAN RIVER CO FL BK: 3337 PG: 775, 9/11/2020 2:19 PM Filing # 113214980 E-Filed 09/11/2020 11:26:35 AM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA RICHARD O. SHIREY, Case No.: 312019CA000251 Plaintiff, Judge Janet C. Croom vs. STACIE BROWNE SHIREY, Defendant. / ORDER GRANTING SUMMARY JUDGEMENT IN COUNTS 1, Il, Ill, AND V; AND DISMISSING COUNT IV WITH PREJUDICE THIS CAUSE, having come before the Court on the Defendant’s Motion to Dismiss Plaintiffs Fourth Amended Complaint, the Court having reviewed said complaint and being otherwise fully advised in the premises, it is therefore ORDERED and ADJUDGED as follows: COUNTI 4 “Foreign law is a fact to be pleaded and proved; and when the contrary is not alleged, the law of the sister state will be assumed to be the same as Florida law.” Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998). 2 No party briefed the Court on North Carolina law in their pleadings or at bar. 3. In Florida, “[w]here no specific transaction or agreement exists between the spouses, the dissolution of marriage statute, specifically, subsection 61.075(1), provides the exclusive remedy where one's spouse has intentionally dissipated marital property during the marriage.” Beers v. Beers, 724 So. 2d 109, 117 (Fla. 5th DCA 1998). See also Abitbol v. Benarroch, 273 So. 3d 147, 153 (Fla. 3d DCA 2019). Page 1 of 6 BK: 3337 PG: 776 4 Count | of the Plaintiffs Complaint fails to state a cause of action because of the relationship of the parties at the time the subject real property and chattels were purchased was that of a married couple. 5. The real property located at 25 Park Avenue, Vero Beach, Florida 32960 was acquired in the name of the parties as Husband and Wife on April 29, 2016. 6 The parties remained married until May 13, 2016. 7 This Court lacks subject matter jurisdiction to determine the marital or non- marital nature of assets acquired during the parties’ marriage or to determine legal or equitable claims thereto, and no such determination or order is shown to have been made by any attachment to the Compiaint. 8 In Count |, summary judgement is GRANTED in favor of Defendant. 9. Plaintiff shall take nothing, and Defendant shall go hence without day. COUNTII 10. “The elements of a cause of action for unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” Hillman Const. Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. 4th DCA 1994) (Emphasis added). 11. The real property located at 25 Park Avenue, Vero Beach, Florida 32960 was acquired in the name of the parties as Husband and Wife on April 29, 2016. 12. The parties were married until May 13, 2016. Page 2 of 6 BK: 3337 PG: 777 13. Plaintiff claims that Defendant was unjustly enriched because she took title to the real property as a tenant by the entireties during the course of her marriage without paying an equal share of the purchase price and maintenance costs for the property. 14. However, it is not inequitable for one spouse to retain the benefits conferred on them by the other spouse during their marriage. To hold otherwise would turn the entire foundation of the marital relationship on its head. 15. In Count Il, summary judgement is GRANTED in favor of Defendant. 16. Plaintiff shall take nothing, and Defendant shall go hence without day. COUNTIII 17. In a case for civil theft, “injury can only be established if it is shown that the victim has a legally recognized property interest in the items stolen.” Balcor Prop. Mgmt., Inc. v. Ahronovitz, 634 So. 2d 277, 279 (Fla. 4th DCA 1994). Further, the property interest must be “an interest in the property upon which another person is not privileged to infringe without consent.” /d. at 280 (Quoting § 812.012(5)). 18. Plaintiff claims that Defendant “knowingly obtained and used the Plaintiffs boat with the felonious intent to permanently deprive him of the right to the Property.” 19. Although Plaintiff had been in negotiations with the seller, he had not acquired ownership of the boat. According to Plaintiff, he feared that another buyer would acquire the boat before he could. Based on Plaintiffs allegations, the boat could not be stolen from him because he never owned it. 20. Plaintiff cannot cure this defect through repleading. 21. In Count III, summary judgement is GRANTED in favor of Defendant. 22. Plaintiff shall take nothing, and Defendant shall go hence without day. Page 3 of 6 BK: 3337 PG: 778 COUNT IV 23. In order for a claim of fraud in the inducement to withstand a motion to dismiss, it must allege fraud with the requisite particularity by Fla. R. Civ. P. 1.120(b), including who made the false statement, the substance of the false statement, the timeframe in which it was made, and the context in which the statement was made. Bankers Mutual Capital Corp. v. U.S. Fidelity and Guaranty Company, 784 So.2d 485, 490 (Fla. 4th DCA 2001). 24. Plaintiff alleges generally in Paragraphs 49 and 50 of his Complaint that Defendant made “false statements.” However, neither the substance of the statements, when the statements were made, nor the context of the statements are specified by Plaintiff. Therefore, the claim must be dismissed. 25. Also, the allegations of Paragraphs 48 and 52 are repugnant. See, Trawick’s, Florida Practice and Procedure, § 6:7(2019-2020 edition) (“Repugnancy occurs when allegations within a single cause of action or defense are inconsistent and thus neutralize each other. The resulting pleading is a nullity. This may occur in the pleading or between it and an attached exhibit.”) (citing Hoopes v. Crane, 47 So. 992 (Fla. 1908); Shelton v. Eisemann, 79 So. 75 (Fla. 1918); Harry Pepper & Associates, Inc. v. Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971); and Peacock v. General Motors Acceptance Corp., 432 So. 2d 142 (Fla. 1st DCA 1983)). 26. In Paragraph 48, Plaintiff alleges that Defendant unilaterally changed the bill of sale on the boat to title the same in her name. Yet, in Paragraph 52, Plaintiff indicates that he intended to have the boat titled in Defendant's name because of nonspecific assertions allegedly made by Defendant. Page 4 of 6 BK: 3337 PG: 779 27. Because the allegations are not well pleaded, it is impossible for Defendant to make out what exactly she is being accused of except titling the boat in her name as Plaintiff alleged in Paragraph 52 was part of the parties’ agreement. 28. Plaintiff is on his FOURTH amended complaint and has been given specific notice of the deficiencies in Count IV on multiple occasions. 29. The Court finds that Plaintiff is, and will be, unable or unwilling to replead Count IV to state a cause of action; therefore, Plaintiff is denied the right to amend. 30. Count IV is DISMISSED WITH PREJUDICE. 31. Plaintiff shall take nothing, and Defendant shall go hence without day. COUNT V 32. Initially, Plaintiff has failed to send a Shelby demand to Defendant. Shelby Mutual Insurance Co. of Shelby, Ohio v. Crain Press, Inc., 481 So. 2d 501, 503 (Fla. 2d DCA 1985), review denied 491 So. 2d 278 (Fla. 1986). 33. Failure to make such a demand is fatal. 34. Moreover, “[i]n Florida, an action for conversion is regarded as a possessory action and the plaintiff must have a present or immediate right of possession of the property in question.” Page v. Matthews, 386 So. 2d 815, 816 (Fla. 5th DCA 1980). A “mere obligation to pay money may not be enforced by conversion action; and an action in tort is inappropriate where the basis of the suit is contract, either express or implied. Plotch v. Gregory, 463 So. 2d 432, 436 (Fla. 4th DCA 1985) (Internal citations and quotations omitted). 35. Plaintiff claims that he asked Defendant to “pick the boat up for him because he could not get to Florida, and there were other interested purchasers.” Page 5 of 6 BK: 3337 PG: 780 36. Although Plaintiff had been in negotiations with the seller, he had not acquired ownership of the boat. According to Plaintiff, he feared that another buyer would acquire the boat before he could. Based on Plaintiffs allegations, the boat could not be converted because he never had a present or immediate right of possession of the property in question. 37. Further, to the extent that the Plaintiff contends that it was the money behind the alleged agreement that was converted, the claim must still fail, Defendant had no obligation to retain the funds sent by Plaintiff intact. Therefore, those funds cannot form the basis of a claim for conversion. Belford Trucking Co. v. Zagar, 243 So. 2d 646, 648 (Fla. 4th DCA 1970) (“To be a proper subject of conversion each coin or bill need not be earmarked, but there must be an obligation to keep intact or deliver the specific money in question, so that such money can be identified.”). 38. Plaintiff cannot cure these defects through repleading. 39. In Count V, summary judgement is GRANTED in favor of Defendant. 40. Plaintiff shall take nothing, and Defendant shall go hence without day. DONE AND ORDERED at Vero Beach, Indian River County, [onda this day of September 2020. 09/4/2020 14:25:59 signed by JANET CARNEY CROOM 9111/2020 1:25:59 rene Janet C. Croom Circuit Court Judge cc. Kevin M. Rollin, Esq.; - Kevin@NapierRollinLaw.com Aaron V. Johnson, Esq. - Adohnson@VeroLaw.com Page 6 of 6