Rhodes v. O. Turner & Co., LLC
117 So. 3d 872
| Fla. Dist. Ct. App. | 2013Background
- Rhodes obtained a default final judgment against Turner LLC, Othel Turner, and Rainer for civil theft, fraud, and breach of fiduciary duty.
- The trial court later vacated the default judgment on grounds the complaint failed to state a cause of action on all counts, ruling the judgment void.
- Rhodes alleges Turner LLC liquidated her IRA into an escrow account, incurring fees and taxes she claims were not explained.
- Turner allegedly admitted the funds were escrowed and later claimed the funds were a loan to Turner LLC, prompting Rhodes to pursue civil theft remedies under Florida law.
- Rhodes filed police complaints and then suit under section 772.11, Florida Statutes (2012), asserting conversion of her funds and related fraud and fiduciary duty breaches.
- The appellate court must determine whether the complaint stated a cognizable civil theft claim and whether the other counts were properly plead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the civil theft claim state a cause of action? | Rhodes states personal involvement by Turner and misappropriation of funds. | Turner argues no criminal intent or personal theft pleaded; complaint insufficient. | Civil theft stated a cause of action. |
| Do the fraud allegations meet the particularity standard? | Rhodes pleads fraud with reliance and misrepresentation. | Defendants contend lack of who, when, and context of false statements. | Fraud claim fails to state a claim. |
| Is there a fiduciary duty claim against Turner? | Rhodes alleges fiduciary duties arising from contract and misrepresentation. | Turner's conduct is alleged in conclusory terms without specific involvement. | Breach of fiduciary duty claim fails as to Turner. |
Key Cases Cited
- Gersh v. Cofman, 769 So.2d 407 (Fla. 4th DCA 2000) (civil theft requires theft elements and criminal intent)
- Moynet v. Courtois, 8 So.3d 377 (Fla. 3d DCA 2009) (absence of criminal intent defeats civil theft claim)
- Neuteleers v. Patio Homeowners Ass’n, Inc., 114 So.3d 299 (Fla. 4th DCA 2013) (failure to state a cause of action can void a default judgment)
- Lee & Sakahara Assocs. AIA, Inc. v. Boykin Mgmt. Co., 678 So.2d 394 (Fla. 4th DCA 1996) (proper pleading required to state a cause of action)
- Becerra v. Equity Imports, Inc., 551 So.2d 486 (Fla. 3d DCA 1989) (fatal pleading deficiency not curable by default judgment)
- Opti, Inc. v. Sales Eng’g Concepts, Inc., 701 So.2d 1234 (Fla. 4th DCA 1997) (default final judgment reversed when complaint lacks state claims)
- Eagletech Communs., Inc. v. Bryn Mawr Inv. Group, Inc., 79 So.3d 855 (Fla. 4th DCA 2012) (fraud must be pled with particularity including who, what, when, and context)