Continental 332 Fund, LLC v. Kozlowski, 2:17-cv-00041

Plaintiffs Continental 332 Fund LLC (Six Mile Fund) and Continental 326 Fund LLC (Rochester Fund) hired Albertelli Construction, Inc. (ACI) as general contractor for two projects; ACI is owned by George and David Albertelli.
In December 2016 the Funds issued 19 joint-payee checks totaling $1,314,519.53 made out to ACI and various subcontractors; the checks were sent to ACI to be endorsed and forwarded to subcontractors.
Instead of forwarding the checks, ACI mailed empty FedEx envelopes to subcontractors, gave tracking numbers to the Funds, and David Albertelli endorsed and deposited the checks into ACI’s bank account.
The Funds sued for civil theft under Fla. Stat. § 772.11, alleging ACI and the Albertellis knowingly and feloniously converted the Funds’ property.
Defendants contend they believed ACI had prior legal claims to the funds (unpaid amounts owed to ACI), so the deposits were an application of funds to outstanding debts, not theft.
The competing factual issue centers on defendants’ intent and knowledge at the time of deposit; the Court considered admissibility of a settlement-email and circumstantial bank records showing post-deposit transfers to George Albertelli.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants had the "felonious intent" required for civil theft when depositing joint checks	Funds: deposit and conduct (sending empty FedEx envelopes) shows intent to deprive and appropriate funds	ACI/David: believed ACI had a prior claim to the funds; affidavit asserts honest belief they were owed payment	Denied summary judgment for plaintiffs—courts cannot resolve credibility/intent at summary judgment where defendant presents affidavit creating a fact issue
Whether an email from George Albertelli can be used to prove intent	Funds: email indicates George intended to keep proceeds	Defendants: email was part of settlement negotiations and inadmissible under Fed. R. Evid. 408	Court excluded probative use of the email to prove liability under Rule 408; it cannot establish felonious intent
Whether George Albertelli had contemporaneous knowledge/intent to commit theft	Funds: circumstantial bank activity (large checks and payments after deposits) supports inference of knowledge/intent	George: claims he only learned of deposits two weeks later and lacked contemporaneous intent	Denied cross-motion—bank records raise a triable issue of fact for the jury on George’s knowledge/intent

Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard) (explains genuine issue for trial)
Porter v. Ray, 461 F.3d 1315 (11th Cir.) (nonmovant must present evidence to create genuine issue)
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739 (11th Cir.) (courts need not accept implausible inferences)
Williams v. Obstfeld, 314 F.3d 1270 (11th Cir.) (intent is generally a jury question; summary judgment inappropriate if evidence can support inference)
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (credibility determinations are for the factfinder)
Wachovia Bank N.A. v. Tien, [citation="658 F. App'x 471"] (11th Cir.) (elements of civil theft and discussion of felonious intent)
Leggett v. State, 237 So. 3d 1144 (Fla. Dist. Ct. App.) (theft requires specific intent at time of taking)