Legal Document: TMS ENTERPRISES OF CENTRAL FLORIDA INC vs. WILBANKS, DEBRA

On May 01, 109 a was filed involving a dispute between Tms Enterprises Of Central Florida Inc, and Wilbanks, Debra, for 3 in the District Court of Flagler County.

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Filing # 159242817 E-Filed 10/14/2022 10:54:23 AM

IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT,
IN AND FOR FLAGLER COUNTY, FLORIDA

TMS ENTERPRISES OF CENTRAL FLORIDA, INC.,
a Florida Corporation,

Plaintiff,
CASE NO.: 2021CA-000530
vs.

DEBRA WILBANKS, individually, and as trustee of
the DLW 9903 E. Fowler Ave Trust and the DLW 3541
Doreen Drive Trust,

Defendant.
/

DEFENDANT’S NOTICE OF FILING CASE LAW CITED
IN DEFENDANT’S MOTION TO DISMISS VERIFIED
COMPLAINT AND ALTERNATIVELY MOTION TO DISMISS OR CHANGE VENUE

Defendant, DEBRA WILBANKS, individually, and as trustee of the DLW 9903 E.

Fowler Ave Trust and the DLW 3541 Doreen Drive Trust, by and through the undersigned

counsel, hereby files the following case law, Florida Rules of Civil Procedure, and Florida

Statutes, which are cited in Defendant’s Motion to Dismiss Verified Complaint and

Alternatively Motion to Dismiss or Change Venue (filed on 12/13/2021):

Case Law

All Pro Sports Camp, Inc. v. Walt Disney Co., 727 So.2d 363 (1999):

Belford Trucking Co. v. Zagar, 243 So.2d 646 (1970);

Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061 (2001);

Bott v. City of Marathon, 949 So.2d 295 (2007);

Chiusolo v. Kennedy, 614 So.2d 491 (1993);

Crawford v. Barker, 64 So.3d 1246 (2011);

Doyle v. Flex, 210 So.2d 493 (1968);

Electronically Received in the Office of the Clerk of the Circuit Court - Flagler County, Florida - 10/14/2022 03:23 PM
Gambolati v. Sarkisian, 622 So.2d 47 (1993);

Kimbrell v. Paige, 448 So.2d 1009 (1984);

10. Livingston v. Spires, 481 So.2d 87 (1986);

11 Llano Financing Group, LLC v. Yespy, 228 So.3d 108 (2017);

12 Maiden v. Carter, 234 So.2d 168 (1970);

13 McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A...., 704 So.2d

214 (1998);
14. Medical Facilities Development, Inc. v. Little Arch Creek..., 675 So.2d 915

(1996);
15 National Collegiate Student Loan Trust 2006-4 v. Meyer, 265 So.3d 715

(2019);
16 Nobe Bay Holdings, LLC v. Garcia, 140 So.3d 693 (2014);

17 Pack v. Wiechert, 285 So.3d 1031 (2019);

18. Patterson v. McNeel, 704 So.2d 1070 (1997);

19 Ramos v. Mast, 789 So.2d 1226 (2001);

20 Rosenthal v. Rosenthal, 199 So.3d 541 (2016);

21 Rupp v. Schon, 608 So.2d 934 (1992);

22 Seminole Tribe of Florida v. State, Dept. of Revenue, 202 So.3d 971 (2016);

23. State Farm Florida Ins. Co. v. Bonham, 886 So.2d 1072 (2004);

24 Strauss v. Allstate Ins. Co., 855 So.2d 167 (2003);

25. Trigeorgis v. Trigeorgis, 240 So.3d 772 (2018);

26. Veal v. Voyager Property and Cas. Ins. Co., 51 So.3d 1246 (2011);

TMS Enterprises of Central Florida, Inc. v. Debra Wilbanks, individually, and as trustee of the DLW 9903
E. Fowler Ave trust and the DLW 3541 Doreen Drive Trust
Case No.: 2021CA-000530
Defendant's Notice of Filing Case Law Cited in Defendant’s Motion to Dismiss
Page 2 of 3
27 Wade v. Clower, 94 Fla. 817 (1927);

28. Zikofsky v. Marketing 10, Inc., 904 So.2d 520 (2005).

Florida Rules of Civil Procedure

29. Fla. R. Civ. P. 1.060;

30 Fla. R. Civ. P. 1.061;

31 Fla. R. Civ. P. 1.140.

Florida Statutes

32 Section 47.122, Florida Statutes.

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that | electronically filed a copy of the foregoing with the Clerk

of the Court, using the ePortal system and a copy will be furnished to Gregory D. Snell,

Esq., Hassell & Snell, P.A., 1616 Concierge Blvd, Suite 100, Daytona Beach, Florida

32117, gsnell@hassell-snell.com, Attorney for Plaintiff, on this 14th day of October, 2022

SOUTHERN ATLANTIC LAW GROUP, PLLC

By: s/Lydia Sturgis Zbrzeznij
Lydia Sturgis Zbrzeznj
Florida Bar No. 98181
Nicholas T. Zbrzeznj
Florida Bar No. 98180
520 6th Street NW
Winter Haven, Florida
Telephone: (863) 656-6672
Facsimile: (863) 301-4500
Email: nick@southernatlanticlaw.com
lydia@southernatlanticlaw.com
kara@southernatlanticlaw.com
mark@southernatlanticlaw.com
ATTORNEYS FOR DEFENDANT

All Pro Sports Camps, Inc., Nicholas Stracick, and Edward
727 So.2d 363 Russell (collectively “All Pro”) timely appeal a final order
District Court of Appeal of Florida, dismissing with prejudice all eight counts of their complaint

Fifth District. against Walt Disney Company, Walt Disney World Company,
Inc., Disney Development Company, and Steve B. Wilson
ALL PRO SPORTS CAMP, INC., etc., et al., Appellants, (collectively “Disney”). All Pro argues that the trial court
v. erred when it dismissed their cause of action for failing to
WALT DISNEY COMPANY, etc., et al., Appellees. state a claim. The basis of the action was whether ideas
expressed in a copyrighted business plan and a concept for
No. 97-1012 a multi-sport theme park, which included an architectural
I model of Sports Island and sketches of certain components
Feb. 26, 1999. of the sports facility, were appropriated by Disney without
All Pro's consent and without compensation. Disney argues
Synopsis these same issues were litigated in federal court, and when the
Financier for proposed multi-sport theme park and facility court entered a partial summary judgment in their favor as to
sued theme park developer, alleging civil theft of trade All Pro's copyright infringement claim, All Pro was estopped
secrets, misappropriation of trade secrets, breach of from litigating the issues in state court. We reverse as to seven
confidential relationship, negligent misrepresentation, fraud counts of the complaint based on our ruling that the federal
and deceit, constructive or equitable fraud, breach of implied judgment did not preclude a separate state lawsuit. All Pro
contract, and civil conspiracy to misappropriate trade secrets. concedes that its claim for civil theft of trade secrets, Count
The Circuit Court, Orange County, Walter G. Komanski, I, was preempted by the partial federal court judgment.
J., dismissed complaint. Financier appealed. The District
Court of Appeal, Thompson, J., held that: (1) federal All Pro submitted to Disney a written proposal and business
judgment dismissing copyright claims did not collaterally plan for a multi-sport theme park and sports facility.
estop financier from asserting claims regarding conceptual The parties understood that the business plan contained
similarity; (2) most claims were not preempted by Copyright confidential information and trade secrets and was not to be
Act; and (3) financier sufficiently alleged novelty to state published or released without All Pro's approval. Eventually,
common law claims. the parties developed a concept for a joint venture in which
Disney would lease the necessary land to All Pro, develop and
Reversed in part. build the project, and supply the hotels, transportation, and
a golf course. All Pro, in turn, would raise the financing for
Griffin, C.J., filed an opinion concurring in part and dissenting the development and construction of the facility, and manage
in part. and operate it. All Pro then submitted *365 to Disney, under
conditions of confidentiality, an architectural model of Sports
Procedural Posture(s): On Appeal. Island and sketches of certain components of the facility.
The parties continued to meet and discuss the financing for
Attorneys and Law Firms
development and construction of the facility, All Pro then
*364 Willie E. Gary of Gary, Williams, Parenti, Finney, developed more detailed business plans for Sports Island,
Lewis, McManus, Watson & Sperando, P.A., Stuart and Edna utilizing Disney computers, printing facilities, and secretarial
L. Caruso and Russell S. Bohn of Caruso, Burlington, Bohn staff.
& Compiani, P.A., West Palm Beach, for Appellants.
All Pro subsequently learned that Disney was planning to
David L. Evans and James R. Lussier of Mateer & Harbert, develop its own multi-sport facility using the business plans
P.A., Orlando, for Appellees. and architectural materials previously submitted by All Pro
to Disney. All Pro alleged that Disney began the actual
Opinion planning and development of its own sports facility and
resort, incorporating elements of education and entertainment
THOMPSON, J.
derived from All Pro's business plans and architectural
materials. All Pro claimed it did not consent to Disney's use

WESTLAW
All Pro Sports Camp, Inc. v. Walt Disney Co., 727 So.2d 363 (1999)
1999 Copr.L.Dec. P 27,875, 24 Fla. L. Weekly D572

of this information without compensation and alleged the ideas for a multi-sports facility, i.e., the business plans and
business plans are subject to copyright laws. the architectural model and sketches, were infringed upon
by Disney. On the other hand, in the state court litigation,
Based on these allegations, All Pro levied the following the central issue is whether the ideas embodied in those
claims against Disney: civil theft of trade secrets materials were wrongfully used by Disney. All Pro argues
(Count I); misappropriation of trade secrets (Count ID); that in determining that Disney's site plans and architectural
breach of confidential relationship (Count III); negligent drawings are not substantially similar to those produced by
misrepresentation (Count IV); fraud and deceit (Count V); All Pro, the federal court neither explicitly nor implicitly
constructive or equitable fraud (Count VI); breach of implied determined any issue related to the original ideas for the
contract (Count VII); civil conspiracy to misappropriate trade facility. Therefore, the federal judgment does not collaterally
secrets (Count VIII). In Counts I and II, All Pro alleged estop All Pro from asserting claims for the protection of the
that the business plans, architectural sketches, and model ideas.
submitted to Disney constituted “valuable trade secrets”
which “taught [Disney], both in graphic and conceptual *366 Collateral estoppel prevents relitigation of issues
terms, expressions of, and methods of physical integration which were actually adjudicated in a prior lawsuit. U.S.
of, elements of sports, education and entertainment not Fidelity & Guar. Co. v. Odoms, 444 So.2d 78 (Fla. 5th DCA
theretofore known to [Disney] nor otherwise known to the 984). It is an affirmative defense which generally must be
public.” Count VIII, civil conspiracy, charged the individual asserted in an answer, but may be raised initially in a motion
defendants with conspiring to misappropriate the business to dismiss if a basis for the defense appears in the complaint.
plans, sketches, and model. See Fla. R. Civ. P. 1.110(d), 1.140(b); Bess v. Eagle Capital,
Inc., 704 So.2d 621 (Fla. 4th DCA 1997) (reversing dismissal
Disney did not answer the complaint, but filed a motion to based on collateral estoppel where complaint did not contain
dismiss asserting that All Pro could not state a claim upon sufficient allegations regarding prior court proceeding to
which relief could be granted. Disney argued that a federal permit proper consideration of defense raised in motion to
lawsuit was previously filed by All Pro against Disney, which dismiss); Byrd v. City of Niceville, 541 So.2d 696 (Fla. Ist
included a federal copyright infringement claim and the same DCA) (holding dismissal based on collateral estoppel and res
claims made in the state case. In the federal case, the district judicata procedurally improper where answer had not been
court entered summary judgment for Disney on the copyright filed and complaint did not reflect basis for either defense),
infringement claim and dismissed the state law claims without rev. denied, 548 So.2d 662 (Fla.1989).
prejudice, declining to exercise supplemental jurisdiction
over them. Disney argued that the federal judgment in its All Pro's complaint contains no allegations regarding the
favor collaterally estopped All Pro from litigating the same prior federal lawsuit. However, the trial court took judicial
issues in the state action. notice of the federal judgment. Res judicata has been held a
proper basis for dismissal where, though the defense was not
All Pro presents three challenges to the dismissal of the evident from the complaint, the court took judicial notice of
complaint. First, All Pro argues that collateral estoppel does the record in prior proceedings. See e.g., City of Clearwater
not apply because the underlying issue in this litigation, v. US. Steel Corp., 469 So.2d 915 (Fla. 2d DCA 1985).
misappropriation of its ideas for a multi-sport facility, was Cf Livingston y. Spires, 481 So.2d 87 (Fla. Ist DCA 1986)
not litigated in the prior federal court proceeding. Second, the (reversing dismissal based on res judicata where complaint
state law claims are not preempted by the Federal Copyright did not show applicability of the defense and noting that
Act. Third, whether All Pro's ideas are novel is a question of defendant failed to ask trial court to take judicial notice
fact improperly determined on a motion to dismiss. of prior proceeding). Independent research revealed no case
law addressing collateral estoppel in such circumstances,
but because the two defenses arise from prior litigation, the
A. Collateral Estoppel holding in U.S. Stee/ should apply where collateral estoppel
All Pro argues that collateral estoppel, like res judicata, is is asserted in a motion to dismiss.
an affirmative defense and is improperly raised in a motion
to dismiss. Even if properly raised, the central issue in its Whether the federal judgment has collateral estoppel effect
federal copyright claim was whether the expressions of its in All Pro's state action depends on whether (1) the issue is

WESTLAW
All Pro Sports Camp, Inc. v. Walt Disney Co., 727 So.2d 363 (1999)
1999 Copr.L.Dec. P 27,875, 24 Fla. L. Weekly D572

identical to the one involved in the federal action, (2) the a state law claim must require proof of an “extra element”
issue was actually litigated in the prior suit, (3) determination in lieu of or in addition to the acts stated above. Id. “A state
of the issue was a critical and necessary part of the federal law claim is not preempted if the “extra element’ changes
judgment, and (4) All Pro had a full and fair opportunity to the ‘nature of the action so that it is qualitatively different
litigate the issue in the prior suit. Baxas Howell Mobley, Inc. v. from a copyright infringement claim.’ ” /d. (quoting \/ayver
BP Oil Co., 630 So.2d 207 (Fla. 3d DCA 1993). All Pro's state v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1535
complaint alleged that Disney's site plan includes elements, (S.D.N.Y.1985)) (emphasis in original). Under the “extra
geometric forms, and terminology which are identical to those element” test, state law claims of unfair competition based
used by All Pro in its plans for Sports Island. The complaint on trade secrets or breach of confidential relationship and
further alleged that Disney's project is substantially similar fiduciary duty survive preemption. Jd. at 717. See Bateman
in its conceptual expression to All Pro's business plan and y. Mnemonics, Inc., 79 F.3d 1532, 1549 (11th Cir. 1996) (“We
architectural materials. have no doubt that the Florida trade secret statute at issue
satisfies the ‘extra element’ test generally employed by courts
The federal district court expressly determined that the in performing copyright preemption analysis.”). In Garrido v.
business plans, sketches, and model are expressions of Burger King Corp., 558 So.2d 79, 82 (Fla. 3d DCA 1990), the
ideas and that those expressions are not substantially similar only Florida case on this subject, the court held that claims for
to Disney's site plans. Consequently, under the federal theft and conversion of ideas do not require proof of elements
requirements for collateral estoppel enumerated in BP Oil, which are qualitatively different from those required to prove
All Pro is estopped from relitigating the issue of substantial copyright infringement. Thus, such claims are preempted. On
similarity of expression between its plans, etc., and Disney's the other hand, the court held, claims for breach of implied
project. However, the fact that Disney's visual representations contract, and fraudulent misrepresentation do require proof of
are dissimilar to those produced by All Pro does not estop additional elements. /d. at 83.
All Pro from litigating the issue of conceptual similarity.
Likewise, All Pro is not estopped from claiming conceptual Applying the holdings in the cases above, All Pro's claims
similarity in hotel accommodations merely because the for misappropriation of trade secrets, breach of implied
federal court found that plans for Sports Island combined contract, and breach of confidential relationship are not
hotel accommodations with the sports facility, while plans for preempted by the Copyright Act. Altai; Bateman. Further, the
Disney's sports resort represented a grouping of individually- remaining claims—negligent misrepresentation, fraud and
themed hotel buildings separate from the International Sports deceit, constructive or equitable fraud, civil conspiracy—all
Center. require proof of “extra elements” in lieu of or in addition to the
acts which constitute copyright infringement. Accordingly,
they are not preempted by federal copyright law.
B. Preemption of State Law Claims
Conceding that the civil theft claim is preempted by the
Federal Copyright Act, 17 U.S.C. § 101 ef seqg., All Pro argues C. Novelty of Ideas
that the remaining state law claims are not preempted. Disney All Pro argues that whether its ideas are novel is a question
argues that All Pro's complaint is “replete with references” of fact and is therefore an improper basis for dismissal
to the copyrighted plans, sketches, and model, and thus, the with prejudice. Disney claims that, as a matter of law, All
remaining claims are preempted. Further, as a result of the Pro's allegations failed to demonstrate novelty, an element
preemption, the prior federal judgment has a res judicata required for all the asserted claims. Disney argues the visual
effect on the state law claims. representations of Sports Island and Disney's sports complex,
which were judicially noticed, and the “existence of multi-
The Copyright Act “preempts only those state law rights purpose sport complexes,” which is “widely-known” and
that ‘may be abridged by an act which, in and of itself, can be judicially noticed, demonstrate the lack of novelty
would infringe one of the exclusive rights' provided *367 in All Pro's ideas. Therefore, Disney argues, dismissal with
by federal copyright law.” Computer Associates Int'l., Inc. v. prejudice was correct.
Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992) (quoting Harper
& Row Publishers, Inc. v. Nation Enters., 723 F.2d 195, 200 In Garrido v. Burger King, supra, the court adopted novelty
(2d Cir.1983), rev'd on other grounds, 471 U.S. 539, 105 as an element of state common law claims based on the
S.Ct. 2218, 85 L.Ed.2d 588 (1985)). To escape preemption, conveyance of an idea. Garrido, 558 So.2d at 84. See Hudson

WESTLAW
All Pro Sports Camp, Inc. v. Walt Disney Co., 727 So.2d 363 (1999)
1999 Copr.L.Dec. P 27,875, 24 Fla. L. Weekly D572

color sketches of Sports Island and Disney's sports complex
Hotels Corp. v. Choice Hotels, Int'l, 995 F.2d 1173 (2d
Cir.1993). All Pro does not challenge application of the
do not show that All Pro's ideas for the facility are not
novel. All Pro's complaint alleged that its trade secrets
Garrido standard to the common law claims involved in
this case. The misappropriation claim, however, is statutory,
taught Disney “integration of, elements of sport, education
and entertainment not theretofore known to [Disney] nor
and Florida's Uniform Trade Secrets Act displaces tort law
otherwise known to the public.” The visual representations
regarding trade secret misappropriation. § 688.008(1), Fla.
show only the placement of buildings and playing fields.
Stat. (1993). Section 688.002, Florida Statutes, defines a
“trade secret” as: Similarly, the asserted widespread existence of multi-purpose
sports complexes fails to conclusively demonstrate that All
(4) information, including a formula, pattern, compilation, Pro's concept for Sports Island is not novel. Arguably, it is
program, device, method, technique, or process that: also common knowledge. if not common sense, that all sports
complexes are not alike. Thus, the concept behind Sports
(a) Derives independent economic value, actual or Island may not, in fact, be “generally known to other
potential, from not being generally known to, and not being persons who can obtain economic value from its disclosure
readily ascertainable by proper means by, other persons or use.”
who can obtain economic value from its disclosure or use,
and Accordingly, we reverse the order of dismissal as it pertains
to Counts II through VIIL
(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
REVERSED as to Counts II through VIIL
§ 688.002(4), Fla. Stat. (1993). The statute does not address
novelty, and no Florida case law compares the statutory
language to the novelty requirement. 2 W. SHARP, J., concurs.

*368 Whether an idea is novel, or not generally known, GRIFFIN, C.J., concurs in part, dissents in part, with opinion.
is a factual question. See Garrido, 558 So.2d at 84 (stating
that novelty issue requires factual inquiries and declining GRIFFIN, C.J., concurring in part; dissenting in part.
to affirm summary judgment where plaintiff did not have Iconcur with the analysis of the majority but only as to Counts
opportunity to rebut claim that ideas were not novel); eins IL and V, which, if better pleaded, could perhaps state causes
v. Sporleder, 569 N.W.2d 16, 20 (S.D.1997) (stating that the of action not barred by the prior federal judgment. On the
two subsections in UTSA definition of trade secret involve other hand, if no better pleading of facts, rather than mere
questions of fact); Amoco Production Co. v. Laird, 622 N.E.2d onclusions, is possible, dismissal of the entire case would
912, 916 (Ind.1993) (noting that determination of trade secret eventually be proper. In my view, the other counts assert
is “heavily fact-specific.”). But cf: Hudson Hotels, 995 F.2d at no cognizable claims in the context of this case, and further
1178 (opining that novelty is mixed question of law and fact). pleading would likely serve no purpose.

We hold that the court prematurely determined that All Pro
can never state a cause of action. Even if consideration All Citations
of the documents filed in the federal proceeding were
727 So.2d 363, 1999 Copr.L.Dec. P 27.875, 24 Fla. L. Weekly
appropriate in this instance—Disney cites no authority to
D572
that effect and independent research discovered none—the

Footnotes

WESTLAW
All Pro Sports Camp, Inc. v. Walt Disney Co., 727 So.2d 363 (1999)
1999 Copr.L.Dec. P 27,875, 24 Fla. L. Weekly D572

1 The order of dismissal does not indicate whether the trial court based its decision on collateral estoppel or
preemption. The order states only that it appears All Pro “can never state a cause of action upon which relief
can be granted based upon these facts.”

However, some UTSA cases from other states hold that a trade secret must exhibit some novelty to
derive economic value from not being generally known. See e.g., Noah v. Enesco Corp., 911 F.Supp. 299
(N.D.IIl.1995); Leo Publications, Inc. v. Reid, 265 Ga. 561, 458 S.E.2d 651 (1995); Murray v. Bank One, 99
Ohio App.3d 89, 649 N.E.2d 1307 (1994); Boeing Co. v. Sierracin Corp., 108 Wash.2d 38, 738 P.2d 665,
674 (1987).

End of Document 022 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW ©2022 Thomson Reuters. No claim to original U.S. Government Works
Belford Trucking Co. v. Zagar, 243 So.2d 646 (1970)

as agreed, and paid certain expenses for operation of the
243 So.2d 646 truck. Defendant trucking company received all the proceeds
District Court of Appeal of Florida, Fourth District. from the truck's operation and charged to plaintiff's account
advances and expenditures for items properly chargeable to
BELFORD TRUCKING CO., Inc., Appellant, him under the terms of the agreement. The agreement was
v. terminated when defendant's accounts showed that plaintiff
John Rudolph ZAGAR, Appellee. had overdrawn his account by receiving more advances and
incurring more expenses than the share of profits he was
No. 70—331 entitled to receive.
|
Dec. 30, 1970. Subsequently, plaintiff instituted this conversion action,
alleging that defendant had wrongfully deprived or converted
I
Rehearing Denied Feb. 25, 1971. to its own use legal currency rightfully belonging to plaintiff.
The jury returned a verdict for $6,000 in favor of plaintiff,
Synopsis rejecting defendant's counterclaim for the overdrawn account.
Action for conversion of currency. The Circuit Court, Orange Judgment for the plaintiff was entered. This appeal followed.
County, Richard H. Cooper, J., entered judgment for plaintiff,
*648 The primary thrust of this appeal is whether the
and defendant appealed. The District Court of Appeal, Cross,
evidence supported an action for conversion.
C.J., held that where neither pleadings nor proof revealed
precise nature of money sought to be recovered and it
The modem action of conversion arose out of the common
appeared that plaintiff was seeking to enforce obligation law action of trover where lost goods had been found and
under which he agreed to purchase tractor from defendant and
converted to the finder's own use. Pearl Assur. Co. v. National
to use it in hauling freight for defendant, money sought lacked
Ins. Agency, 1943, 150 Pa.Super. 265, 28 A.2d 334, reh., 151
specificity required to make it proper subject of conversion. Pa.Super. 146, 30 A.2d 333. Trover was expanded into other
areas by the use of fictions to treat items as ‘lost’ and “found.”
Reversed and remanded with directions. W. Prosser, Torts 79 (1964). Today, conversion is defined
as an act of dominion wrongfully asserted over another's
Procedural Posture(s): On Appeal. property inconsistent with his ownership of it. Goodrich v.

Attorneys and Law Firms
Malowney, Fla.App.1963, 157 So.2d 829.
What constitutes ‘property’ which may be the subject of
*647 Phillip G. Newcomm, of Shutts & Bowen, Miami, for
conversion has been the subject of considerable discussion,
appellant.
especially where the property alleged to have been converted
Albert Yurko, Orlando, for appellee. consists of money or intangibles.

Opinion There is nothing in the nature of money as personal property
which makes it an improper subject of conversion so long as
CROSS, Chief Judge. it consists of specific money capable of identification. Russell
vy. The Praetorians, 1947, 248 Ala. 576, 28 So.2d 786. To be
Appellant-defendant, Belford Trucking Company, Inc.,
a proper subject of conversion each coin or bill need not be
appeals a final judgment entered on a jury verdict in favor
earmarked, but there must be an obligation to keep intact or
of appellee-plaintiff, John Rudolph Zagar, in an action for
deliver the specific money in question, so that such money
conversion of $6,000 United States currency. We reverse.
can be identified. Shahood v. Cavin, 1957, 154 Cal.App.2d
Plaintiff, a truck driver, entered into an agreement whereby 745,316 P.2d 700. Money is capable of identification where it
he was to drive a truck-tractor for defendant, a commercial is delivered at one time, by one act and in one mass, or where
carrier, and receive a percentage of the freight charges as the deposit is special and the identical money is to be kept for
compensation. The parties operated under the agreement the party making the deposit, or where wrongful possession
for a number of months, during which time plaintiff made of such property is obtained. Hazelton v. Locke, 1908, 104

a down payment on the tractor, made monthly payments Me. 164, 71 A. 661. An example is where a specific sum of
money is to be held in constructive trust until the occurrence

WESTLAW
Belford Trucking Co. v. Zagar, 243 So.2d 646 (1970)

glance it appears that plaintiff sought to recover his share of
of a specified event. Markel v. Transamerica Title Insurance
the $6,422.92 conceded to have been received by defendant
Company, 1968, 103 Ariz. 353, 442 P.2d 97.
as freight charges on the tractor's operation, but other portions
Accordingly, Florida courts have held money to be a proper of the record indicate that plaintiff sought recovery of $2,000
subject of conversion where a sum of money sealed in an paid on the purchase price of the tractor and $4,000 expenses
addressed envelope was misdelivered, (Southern Express in the operation of the truck-tractor. Obviously, the money
Company v. Van Meter, 1880, 17 Fla. 783), and where a *649 sought lacks the specificity required to make it a proper
specified sum of money ina deposit bag was never credited to subject of conversion.
the depositor's account (Armored Car Serv., Inc. v. First Nat.
In essence, plaintiff sought not damages for conversion of a
Bank of Miami, Fla.App.1959, 114 So.2d 431).
specific, identifiable, stated sum of United States currency,
The requirement that the money be identified as a specific but to enforce an obligation to pay money.
chattel does not permit as a subject of conversion an
indebtedness which may be discharged by the payment of
Since the evidence does not support an action for conversion,
money generally. Hull y. Freedman, Tex.Civ.App.1964, 383
we have searched the record to see if we could sustain the
judgment on any other theory consistent with the pleadings
S.W.2d 236. Therefore, where the parties have an open
account, and the defendant is not required to pay the plaintiff
and proof. However, we have been unable to find support for
the judgment on any theory for recovery in the record before
identical moneys which he collected, there can be no action
in tort for conversion. Garras v. Bekiares, 1946, 315 Mich. us.
141, 23 N.W.2d 239. A mere obligation to pay money may
Accordingly, the judgment is reversed and the cause
not be enforced by a conversion action. Dawkins vy. National
remanded with directions to enter a judgment for the
Liberty Life Insurance Co., D.C.S.C.1967, 263 F.Supp. 119;
defendant on the plaintiff's second amended complaint.
89 C.J.S. Trover & Conversion s 23; and an action in tort is
inappropriate where the basis of the suit is a contract, either Reversed and remanded, with directions.
express or implied. Seekamp v. Small, 1951, 39 Wash.2d 578,
237 P.2d 489.
McCAIN, J., and SACK, MARTIN, Associate Judge, concur.
Turning to the case at bar, it is readily apparent that the basis of
All Citations
the dispute is a determination of the rights and the obligations
of the parties under the agreement. 243 So.2d 646
Neither the pleadings nor the proof reveal the precise nature
of the $6,000 in legal tender sought to be recovered. At first

End of Document 022 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW
Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061 (2001)
26 Fla. L. Weekly S473

We have jurisdiction pursuant to article V. section 3(b)(3) of
790 So.2d 1061 the Florida Constitution. For the reasons expressed in this
Supreme Court of Florida. opinion, we approve the result below.

Richard BLUMBERG, Petitioner, Blumberg and Peat, Marwick are in conflict regarding when a
v. cause of action for negligence/malpractice accrues. The facts
USAA CASUALTY INSURANCE of Blumberg are as follows:
COMPANY, Respondent. Blumberg's residence was insured for a number of years
through St. Paul Insurance Company (“St. Paul”). In
No. $C95740.
December 1989, he bought a new home and contacted
I
Bruner, his insurance agent, to request that St. Paul insure
July 12, 2001.
the new property. St. Paul, however, would not insure beach
Synopsis front property. Nevertheless, St. Paul continued to insure
Insured brought action against agent for negligent failure to the old residence, which Blumberg rented out. Bruner
procure coverage. The Seventeenth Judicial Circuit Court, reduced the insurance coverage at the old property to reflect
Broward County, George A. Brescher, J., entered summary the transferof Blumberg's possessions to the new home and
judgment in favor of agent. Insured appealed. The District the premiums were accordingly reduced.
Court of Appeal, Warner, J.. 729 So.2d 460. affirmed. On
Blumberg had an interest in a sports card store, which
review, the Supreme Court, Harding, J., held that: (1) insured's
proved to be unsuccessful. The store was closed in
cause action against agent for negligent failure to procure
November 1991, and the inventory of cards, allegedly
insurance accrued, and statute of limitations began to run,
worth over $100,000, was turned over to Blumberg. He
when the proceeding against the insurer became final, but (2)
stored the cards in his old residence, which was still insured
claim of coverage in suit against insurer judicially estopped
by St. Paul. As soon as the cards were brought to the
insured from claiming a lack of coverage in action against
old home, Blumberg called Bruner to verify that he had
agent.
insurance coverage for the cards at that home. He also
contacted the insurer of his new home who advised him that
Approved on different grounds.
he could obtain coverage under his new policy for the cards
if not covered under his existing policy. However, *1063
Pariente, J., dissented and filed opinion in which Shaw and
Bruner contacted Blumberg on November 9, 1991, and
Anstead, JJ., concurred.

Case Info

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FRANCE, CHRISTOPHER A Track Judge’s New Case

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Document Filed Date

December 29, 2038

Case Filing Date

May 01, 109

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Parties

SNELL, GREGORY DEAN Attorney for the Plaintiff
TMS ENTERPRISES OF CENTRAL FLORIDA INC Plaintiff
WILBANKS, DEBRA Defendant
Lydia Zbrzeznj Attorneys for Defendants
Nicholas Zbrzeznj Attorneys for Defendants
Dennis Bayer Attorney
Terence Perkins Attorney
Grady Crosby Attorney
Samuel Crosby Attorney
Christopher Carlyle Attorneys for Plaintiffs
Gregory D'Incelli Attorneys for Plaintiffs
Gerald Rachelson Attorney

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