             Case: 15-11158    Date Filed: 07/27/2016   Page: 1 of 10


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                No. 15-11158
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:04-cv-20834-WPD



WACHOVIA BANK N.A.,
NATIONAL ASSOCIATION,
f.k.a. First Union National Bank,

                                                              Plaintiffs-Counter
                                                           Defendants-Appellees,

                                     versus

DR. PAUL TIEN, et al.,

                                                 Defendants-Counter Defendants-
                                                              Cross Defendants,

MING TIEN,

                                                  Defendant-Counter Defendant-
                                                Cross Defendant-Cross Claimant-
                                                                     Appellant,


HENRY TIEN,

                                                   Defendant-Counter Defendant-
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                                                Cross Defendant-Cross Claimant-
                                            Counter Claimant-Third Party Plaintiff,

YIFE TIEN,

                                                   Defendant-Counter Defendant-
                                               Cross Defendant-Counter Claimant-
                                                                 Cross Claimant,

MEDICAL EDUCATION INFORMATION OFFICE, INC,
a Florida corporation, et al.,

                                                                        Defendants,

AMERICAN UNIVERSITY OF THE CARIBBEAN,
CAYMAN ISLAND,

                                                Defendant-Third Party Defendant-
                                                    Counter Defendant-Appellee,

AMERICAN UNIVERSITY OF THE CARIBBEAN,
a Montserrat, British West Indies company, et al.,

                                               Defendants-Third Party Defendants,

HON. KURT DE FREITAS,
as Attorney General for and on behalf of the
Turks & Caicos Islands, BWI,

                                                   Defendant-Counter Claimant-
                                                 Cross Claimant-Cross Defendant,

AUC COMPANIES,

                                                   Defendant-Counter Claimant-
                                                                Cross Claimant,

FRANK P. MARSH,

                                       Counter Defendant-Third Party Defendant,
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MEIO DEFENDANTS,

                                                                          Cross Defendant,

OMS COLLECTIONS, LTD.,

                                                                   Third Party Defendant.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                      (July 27, 2016)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

       After three phases of a bench trial on claims arising out of an interpleader,

Ming Tien (“Ming”), proceeding pro se, appeals the district court’s judgment in

favor of American University of the Caribbean (“AUC”), finding that Ming was

liable for the civil theft and conversion of funds belonging to AUC and awarding

$3,798,814.70 in damages against Ming and her son, Henry Tien (“Henry”). 1

Ming raises four issues on appeal. First, she argues that issue preclusion barred

AUC from relitigating factual issues regarding her conduct that were addressed in

prior partial final judgments and orders in this case. Second, she argues that the

district court erred in finding her liable for civil theft without proper factual
       1
        Henry also appealed the judgment, but we previously dismissed his appeal for want of
prosecution.
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findings and legal conclusions. Third, she asserts that the district court erred by

binding her to our ruling in a prior related appeal to which she was not a party.

Fourth, Ming argues that the district court erred in concluding that AUC’s

conversion claim was timely filed due to the delayed discovery doctrine.

      Upon careful review of the record and the parties’ briefs, we affirm as to the

first three issues but vacate the district court’s judgment and remand as to the

fourth issue so that the district court can conduct any additional proceedings, if

necessary, to determine the appropriate award of damages as to the civil theft claim

and enter a new judgment solely on the civil theft claim.

                                           I.

      Collateral estoppel, or issue preclusion, bars the relitigation of an issue that

was litigated and resolved in a prior proceeding. Pleming v. Universal-Rundle

Corp., 142 F.3d 1354, 1359 (11th Cir. 1998). In order to rely on collateral

estoppel, the party raising the doctrine must show that: (1) the present issue is

identical to an issue in a previous proceeding; (2) the issue was actually litigated in

the previous proceeding; (3) resolution of the issue must have been an essential

part of the judgment in the previous proceeding; and (4) the party against whom

the doctrine is being raised must have had a full and fair opportunity to litigate the

issue in the first proceeding. Id. We review a district court’s conclusions




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regarding collateral estoppel de novo. Richardson v. Miller, 101 F.3d 665, 667

(11th Cir. 1996).

      Ming’s argument that the district court’s findings of fact from the third

phase of litigation in this case (“Phase III”) are precluded because they differ from

its findings in previous phases fails, because she cannot establish the first and

second requirements of collateral estoppel. See Pleming, 142 F.3d at 1359. Phase

III considered an entirely different issue than prior phases of the litigation: liability

and damages for the misappropriation of certain additional funds comprised

primarily of stock shares belonging to the various corporate entities involved in

this case (the “Additional Funds”), which were converted in 2005, well after the

actions underlying the first phase (“Phase I”) that took place prior to and during

2003. Moreover, any issues regarding the Additional Funds were not actually

litigated during Phase I because the existence of the Additional Funds first came to

light in the Phase I bench trial itself. Therefore, issue preclusion is inapplicable

because the district court’s Phase III findings of fact did not constitute relitigation

of issues that had previously been decided in Phase I.

                                           II.

      We review a district court’s conclusions of law de novo and its factual

findings, including its weighing of the evidence and witness credibility

determinations, under the highly deferential clear error standard. Fischer v. S/Y


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NERAIDA, 508 F.3d 586, 592 (11th Cir. 2007). Where the evidence in a case is

primarily testimonial, the appellant bears a heavy burden in establishing the clear

error standard of review, because “the district court has the advantage of observing

the witnesses and evaluating their credibility firsthand.” Id. (quotation omitted).

      A district court is required to make specific findings of fact and conclusions

of law after a bench trial. See Fed. R. Civ. P. 52(a)(1). However, “‘the judge need

only make brief, definite, pertinent findings and conclusions upon the contested

matters; there is no necessity for over-elaboration of detail or particularization of

facts.’” Stock Equip. Co., a Unit of Gen. Signal Corp. v. Tenn. Valley Auth., 906

F.2d 583, 592 (11th Cir. 1990) (quoting Fed. R. Civ. P. 52 advisory committee’s

note to 1946 amendment). We will not reverse or remand if the district court

sufficiently states its findings of fact and conclusions of law to allow for a

meaningful review. Barber v. Int’l Bhd. of Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers & Helpers, Dist. Lodge No. 57, 778 F.2d 750, 755 (11th Cir.

1985).

      To establish a Florida state law claim for civil theft, a plaintiff must prove,

by clear and convincing evidence, that it was injured as a result of a violation of

Florida’s criminal theft statute. See Fla. Stat. § 772.11 (providing civil remedy for

theft); United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009). The

plaintiff must prove that the defendant: (1) knowingly (2) obtained or used, or


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endeavored to obtain or use, the plaintiff’s property with (3) felonious intent

(4) either temporarily or permanently to (a) deprive the plaintiff of its right to or

benefit from the property or (b) appropriate the property to the defendant’s own

use or to the use of anyone not entitled to the property. United Techs. Corp., 556

F.3d at 1270; see also Fla. Stat. § 812.014(1) (theft statute). Felonious intent is the

intent to deprive another of its property, which may be shown by circumstantial

evidence. Aspen Invs. Corp. v. Holzworth, 587 So. 2d 1374, 1376 (Fla. Dist. Ct.

App. 1991).

      Although the district court’s six-page findings of fact and conclusions of law

were brief, no detailed analysis of case law was required because the court was

applying the plain meaning of Florida’s civil theft statute. Furthermore, the district

court made sufficient findings of fact, based upon the Phase III pleadings and

evidence, the bench trials in the prior two phases of litigation, and its determination

of the witnesses’ credibility in the Phase III trial, to support its determination that

Ming had the requisite felonious intent and was liable for civil theft by clear and

convincing evidence. Fischer, 508 F.3d at 592 (noting the district court’s

advantage in evaluating and observing witness credibility). It is evident that the

district court found that AUC had proven each element and concluded that Ming

had knowingly obtained AUC’s property with felonious intent. The evidence in

the record supports the district court’s findings of fact and conclusions of law.


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Although the district court may have violated the technical requirements of Rule

52, it provided adequate findings of fact and conclusions of law to allow for

meaningful review, and therefore, remand or reversal is not required. See Barber,

778 F.2d at 755.

                                          III.

      The district court did not err in quoting the procedural history we set forth in

our opinion in a prior related appeal. Our discussion of the extensive procedural

history of this case, quoted by the district court, was only to provide factual

context. The district court’s quotation of the factual background did not “bind”

Ming or prejudice her in any way, and Ming does not note any error in the quoted

procedural history.

                                          IV.

      We review a district court’s interpretation and application of a statute of

limitations de novo. Ctr. For Biological Diversity v. Hamilton, 453 F.3d 1331,

1334 (11th Cir. 2006). We will not consider an argument or issue, particularly one

that is “fact-bound,” that is raised for the first time on appeal and was not raised

before the district court. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1331 (11th Cir. 2004). Because our ability to entertain an argument raised for the

first time on appeal is not a jurisdictional issue, we may choose to consider the

argument in special circumstances: (1) if the argument involves a pure question of


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law, and the refusal to consider it would result in a miscarriage of justice; (2) if the

appellant had no opportunity to raise the argument below; (3) if there are interests

of substantial justice at stake; (4) if the proper resolution is beyond any doubt; or

(5) if the issue presents significant questions of general impact or of great public

concern. Id. at 1332.

      A cause of action for conversion under Florida law is subject to a four-year

statute of limitations. See Fla. Stat. § 95.11(3); Bove v. PBW Stock Exch., Inc., 382

So. 2d 450, 452-53 (Fla. Dist. Ct. App. 1980). Florida recognizes a “delayed

discovery” doctrine, in certain circumstances, which delays the accrual of a cause

of action until the party knows or reasonably should know of the act that supplies

the cause of action. Raie v. Cheminova, Inc., 336 F.3d 1278, 1280 (11th Cir.

2003). However, the delayed discovery doctrine does not apply to conversion

claims. Davis v. Monahan, 832 So. 2d 708, 709 (Fla. 2002). Therefore, the statute

of limitations for a conversion claim begins to run when the conversion occurs,

unless the conversion was fraudulently concealed. See Bove, 382 So. 2d at 452-53.

Fraudulent concealment tolls the statute of limitations when the defendant willfully

concealed the cause of action using fraudulent means. Raie, 336 F.3d at 1282 n.1.



      Here, AUC’s conversion claim, initially filed on July 31, 2009, was untimely

if the statute of limitations started running when the conversions occurred between


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February 11, 2005, and July 5, 2005. The district court’s determination that the

statute of limitations had not run because of the delayed discovery doctrine was

error because that doctrine does not apply to conversion claims. See Davis, 832

So. 2d at 709. Although AUC urges us nevertheless to hold that the statute of

limitations did not begin to run at the time of the conversion because the

conversion was fraudulently concealed, it did not raise that argument below.

Because none of the five special circumstances that would warrant considering an

argument not raised before the district court for the first time on appeal exist here,

and because the fraudulent concealment issue is fact-sensitive and should be

addressed in the first instance by the district court, we decline to consider this

argument. See Access Now, Inc., 385 F.3d at 1331-32.

      Although the district court’s damages award may be able to be supported by

the civil theft claim alone, it is impossible for us to make this determination from

the record, because the district court did not specify how the damages award was

apportioned between the civil theft and conversion theories, or whether it was

apportioned at all. Therefore, we vacate the judgment and remand for the district

court to conduct additional proceedings it may find appropriate, including

proceedings to determine the appropriate award of damages as to the civil theft

claim and/or whether fraudulent concealment occurred.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.


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