Ice v. the Cosmopolitan Residences on South Beach
237 So. 3d 408
| Fla. Dist. Ct. App. | 2017Background
- Ice purchased a condominium at an association foreclosure sale in 2010; a pending mortgage foreclosure against the prior owner remained.
- In early 2012 the mortgage lender obtained final judgment and certificate of title; on April 10, 2012 Ice found a writ of possession giving 24 hours to vacate.
- Deputies removed Ice’s remaining belongings on April 12, 2012 and, at the Association manager’s instruction, placed the property in the building’s parking garage.
- Ice alleges the Association deactivated his access card, refused him entry, and its manager and security personnel solicited certain items in exchange for access or possession; Ice demanded return but recovered none.
- Ice sued the Association (and Bank of America, later dismissed) asserting counts including bailment (Count I) and conversion (Count II); the trial court dismissed with prejudice and denied rehearing.
- The district court reviews dismissal de novo, accepts plaintiff’s allegations as true, and affirms dismissal of bailment but reverses dismissal of the conversion claim and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether allegations state a bailment/bailor duty (Count I) | Ice: Association took control and had duty to safeguard property | Association: Deputies (not Association) had exclusive temporary possession; no independent possession by association | Affirmed dismissal — no sufficient allegation that Association obtained independent exclusive possession |
| Whether allegations state conversion (Count II) | Ice: Association and agents exercised wrongful dominion, refused return, solicited items, and prevented access | Association: Actions akin to landlord/eviction context; statute and precedent absolve association | Reversed dismissal — complaint sufficiently alleges conversion; claim survives pleading stage |
| Applicability of landlord‑tenant statute (§83.62(2)) as a defense | Ice: He was unit owner; statute inapplicable | Association: Statute exculpates landlord/agent for property loss after removal | Statute inapplicable here — statutory scheme governs rental eviction and removal to property line and does not address association directing storage on premises or agent conduct |
Key Cases Cited
- Charles v. Foreclosure Placement Ctr., 988 So. 2d 1157 (Fla. 3d DCA 2008) (standard of review for dismissal; accept complaint allegations as true)
- United Auto Ins. Co. v. Law Offices of Michael I. Libman, 46 So. 3d 1101 (Fla. 3d DCA 2010) (construe reasonable inferences in plaintiff’s favor)
- S&W Air Vac Sys., Inc. v. Dep’t of Revenue, 697 So. 2d 1313 (Fla. 5th DCA 1997) (possession analysis for bailment-related claims)
- Envases Venezolanos, S.A. v. Collazo, 559 So. 2d 651 (Fla. 3d DCA 1990) (conversion defined as wrongful dominion and control)
- John Hall Elec. Contracting, Inc. v. Allstate Const., Inc., 917 So. 2d 310 (Fla. 5th DCA 2005) (conversion elements reaffirmed)
- McCready v. Booth, 398 So. 2d 1000 (Fla. 5th DCA 1981) (landlord not liable for loss after lawful eviction absent intentional interference)
- Greene v. Times Publ’g Co., 130 So. 3d 724 (Fla. 3d DCA 2014) (dismissal stage does not predict outcome at summary judgment or trial)