Walker v. Figarola
2011 Fla. App. LEXIS 3175
| Fla. Dist. Ct. App. | 2011Background
- Walkers loaned Figarola $25,000 and he promised to repay within three weeks, but has not repaid.
- Walkers amended and then second amended complaint to plead civil theft and conversion instead of breach of contract.
- Trial court granted Figarola’s motion for judgment on the pleadings; standard of review is de novo.
- Florida law holds a simple monetary debt generally cannot support conversion or civil theft, with limited exceptions.
- The alleged facts show no escrow/trust arrangement or obligation to keep or identify the money, so no conversion or civil theft.
- Damages sought mirror breach of contract; plaintiffs could have sued for breach within four years and cannot convert to tort to avoid contract limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a simple debt support conversion or civil theft? | Walkers argue there was misappropriation of funds constituting conversion/civil theft. | Figarola contends simple debt cannot form such tort claims absent escrow/identification. | No; simple debt cannot support conversion or civil theft. |
| Must there be an escrow or trust to support conversion? | Walkers rely on absence of consent to use funds as support for tort claim. | Figarola argues there was no escrow/identifiable funds, so no conversion. | No; lack of escrow/identification defeats conversion claim. |
| May misrepresentations about performance of a contract create an independent tort? | Walkers allege misrepresentations to avoid contract limits. | Figarola asserts misrepresentations do not create a tort when they relate to contract performance. | No; misrepresentation about contract performance does not create independent tort. |
| Are civil theft/conversion claims permissible where damages mirror breach of contract? | Walkers recast contract breach as tort to circumvent statute of limitations. | Ginsberg principle bars tort claims that merely mirror contract damages. | No; damages duplicative of contract claims preclude tort claims. |
Key Cases Cited
- Gasparini v. Pordomingo, 972 So.2d 1053 (Fla. 3d DCA 2008) (simple debt cannot generally support conversion or civil theft)
- Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994) (plaintiff may not circumvent contract by tort action)
- Hotels of Key Largo v. RHI Hotels, Inc., 694 So.2d 74 (Fla. 3d DCA 1997) (misrepresentations relating to contract performance do not give independent tort)
- McKinzie By & Through McKinzie v. Hollywood, Inc., 421 So.2d 606 (Fla. 4th DCA 1982) (judgment on the pleadings requires clear entitlement as a matter of law)
- Martinez v. Fla. Power & Light Co., 863 So.2d 1204 (Fla.2003) (de novo review applies on judgment on pleadings)