AGNES BARTSCH, Appellant, v. JOHN COSTELLO, Appellee.
No. 4D14-1620
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
[June 17, 2015]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No. 2013CA568BTXXXX.
John Costello, Boca Raton, pro se.
WARNER, J.
Appellant challenges a final judgment in favor of appellee, an unclaimed property recovery specialist, who assisted appellant‘s stepdaughter in obtaining funds held by the state as unclaimed prоperty, which were rightfully due to appellant. Appellant claims that the trial court erred in not applying strict liability and in denying her claim for declaratory judgment. We disagree and affirm.
Agnes Bartsch, appellant, and James Bartsch (“the decedent“) married in 1996. They had a daughter several years later. The decedent also had a daughter from a prior marriage, appellant‘s stepdaughter. The decedent died in 2002, and his death certificate listed him as divorced, even though he was still married to appellant. Appellant was aware of the error but did not have the death certificate corrected.
Thomas Costello contacted the stepdaughter about eight years later, notifying her of funds in her father‘s name that appeared on the unclaimed property list held by the state. He entered into an agreement with her to assist her in claiming the property. Thereafter, and with
About six months after the order was entered, appellant moved to vacate the order of summary administration on the ground that it was fraudulеntly obtained, since the stepdaughter had failed to disclose the existence of the decedent‘s other heirs: appellant and her daughter. The probate court vacated the order and ordered the appropriate distribution: 50% to appellant, 25% to the stepdaughter, and 25% to appellant‘s dаughter. It ordered the stepdaughter and Costello “to deposit forthwith all monies [they had] received in this matter into the court registry.” The court also entered a judgment against the stepdaughter for $18,571.53, the amount it found she had wrongfully obtained from the decedent‘s estate. Costello returned his commission to the court registry.
Appellant then filed a civil action against Costello claiming common law negligence and requesting declaratory judgment. The court later granted the parties’ joint motion to substitute appellee John Costello, Thomas’ son, as defendant. It appears that the father and son run an unclaimed property recovery business together.
Appellant brought the following claims. First, appellant claimed that appellee was negligent in researching the ownership of the decedent‘s account, because their marriage license and their child‘s birth certificate were both public records. She claimed that appellee was jointly and severally liable with the stepdaughter under the Florida Disposition of Unclaimed Property Act (“the Act“), which she argued “impose[d] a duty of care on all those who assist another person to receive unclaimed property” and imposed strict liability for the unclaimed property impropеrly appropriated by unauthorized persons. She alleged that she and her daughter were within the class of persons protected by the Act.
The count for declaratory relief alleged that “a controversy exists as to the proper interpretation of the Act, specifically the provision in
The appellee answered and denied any nеgligence, arguing that he relied on the death certificate which listed the decedent as divorced, as well as statements to that effect from other family members. The case proceeded to a non-jury trial, but a transcript has not been provided. We therefore must rely on the trial court‘s final judgment for the detеrmination of the facts.
The court entered a judgment for appellee. In the judgment, the court found no negligence on the part of appellee in that the death certificate had listed the decedent‘s marital status as divorced, and this information was provided by “the decedent‘s own father, . . . who would presumаbly know whether or not his son was married.” Appellee also received information from other relatives. The court further rejected appellant‘s claim that
In moving for rehearing, appellee argued she was not contending that
The appellant contends that the trial court erred by failing to apply a strict liability standard to appellee‘s conduct, pursuant tо the Florida Disposition of Unclaimed Property Act, Chapter 717 of the Florida Statutes. We review the issue of the meaning of a statute de novo. See generally Osborne v. Dumoulin, 55 So. 3d 577, 581 (Fla. 2011).
A negligence claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that duty; (3) a causal connection betweеn the breach and injury to plaintiff; and (4) loss or damage to plaintiff. Clay Elec. Co-Op., Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003) (quoting Prosser & Keaton on the Law of Torts 164-65 (W. Page Keeton ed., 5th ed. 1984)). We deal with the first element in this case. In finding no negligence on the part of appellee, the trial court applied a reasonable man standard as the duty of care. The appellеe claims that the court should have applied a strict liability standard.
We recently discussed the various roles a statute may play in a negligence case:
While negligence has its roots in common law, legislative enactments play an important role in shaping standards of conduct. W. Page Keeton et al., Handbook on the Law of Torts § 35 (3d ed. 1964). Proof that a defendant violated a statute—including a criminal statute—can be categorized in a negligence case in one of three ways, depending on the statute‘s purpose:
(1) violation of a strict liability statute designed to protect a particular class of persons who are unable to protect themselves, constituting negligence per se; (2) violation of a statute establishing a duty to take precautions to protect a particular class of persons from a particular type of injury, also constituting negligence per se; (3) violation of any other kind of statute, constituting mere prima facie evidence of negligence.
Kohl v. Kohl, 149 So. 3d 127, 132 (Fla. 4th DCA 2014) (emphasis added) (quoting Chevron U.S.A., Inc. v Forbes, 783 So. 2d 1215, 1219 (Fla. 4th DCA 2001)). “[T]he strict liability classification is a narrow one, and this is a ‘group of unusual and exceptional statutes.‘” Eckelbarger v. Frank, 732 So. 2d 433, 435 (Fla. 2d DCA 1999) (quoting Tamiami Gun Shop v. Klein, 116 So. 2d 421, 423 (Fla. 1959)) (finding that violation of ordinance requiring self-closing gate around swimming pool was not strict liability, but negligence per se). Normally, they “are the type designed tо protect a particular class of persons from their inability to protect themselves[.]” deJesus v. Seaboard Coast Line R. Co., 281 So. 2d 198, 201 (Fla. 1973). Some examples are the “dog bite” statutes, statutes forbidding the sale of guns to minors, and child labor acts. See Thomas D. Sawaya, 6 Fla. Prac., Personal Injury & Wrongful Death Actions § 24:11 (2014-15 ed.); Amy G. Gore, 38 Fla. Jur. 2d Negligence § 93 (2015 ed.).
(1)(a) No person shall receive unclaimed property that the person is not entitled to receive. Any person who receives, or assists another person to receive, unclaimed property that the person is not entitled to rеceive is strictly, jointly, personally, and severally liable for the unclaimed property and shall immediately return the property, or the reasonable value of the property if the property has been damaged or disposed of, to the department plus interest at the rate set in accordance with s. 55.03(1). Assisting another person to receive unclaimed property includes executing a claim form on the person‘s behalf.
. . .
(2) The department may maintain a civil or administrative action:
(a) To recover unclaimed property that was paid or remitted to a person who was not entitled to the unclaimed property or to offset amounts owed to the department against amounts owed to an owner representative;
(b) Against a person who assists another person in receiving, or attempting to receive, unclaimed property that the person is not entitled to receive; or
(c) Against a person who attempts to receive unclaimed property that the person is not entitled to receive.
The fact that the statute does not provide for a statutory cause of action for a private person, however, does not foreclose the adoption of a statutory duty of care as the governing standard in a сommon law negligence claim. Restatement (Second) of Torts notes that, where a statute does not provide for civil liability, “the initial question is whether the legislation or regulation is to be given any effect in a civil suit. Since the legislation has not so provided, the court is under no compulsion to accept it as defining any standard of conduct for purposes of a tort action.” RESTATEMENT (SECOND) OF TORTS § 286, Comment d; see also Kohl, 149 So. 3d at 134 (“One way that common law negligence evolves with changes in society is that it incorporates contemporary standards of conduct evidenced by legislative enactments.“).
We are not required to adopt the strict liаbility standard of conduct in this case, because the legislature actually declared that the statute was not intended to be the basis of a private cause of action. The enacting legislation for
Furthermore, although appellant may fall within one class of persons the statute was designed to protect1, that class is not made up of persons with an “inability to
The fact that such claimants can generally protect themselves, as well as the Legislature‘s indication that it did not intend this Act to create a private cause of action, convince us that
The appellant also sought a declaratory judgment. The trial cоurt did not specifically rule on this count, other than to deny it. The trial court ruled correctly, because appellant did not have standing to pursue the
Department‘s interest in seeking return of the monies to the state treasury, the relief she sought. The elements of a declaratory judgment claim are:
[T]here is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is deрendent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest [sic] are аll before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.
Olive v. Maas, 811 So. 2d 644, 657-58 (Fla. 2012) (quoting Martinez v. Scanlan, 582 So. 2d 1167, 1170-71 (Fla. 1991)) (emphasis added; original emphasis omitted). Appellant is not entitled to the return of the money, which must be sought by thе Department. See
The final judgment of the trial court is affirmed.
GROSS and FORST, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.