                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

BEACH COMMUNITY BANK,                  NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D15-5330

DISPOSAL SERVICES, LLC,

     Appellee.
_____________________________/

Opinion filed September 21, 2016.

An appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, for
Appellant.

Bill R. Hutto of Hutto & Bodiford, Panama City, for Appellee.




B.L. THOMAS, J.

      Appellant, Beach Community Bank (Beach), appeals the trial court’s order

granting final summary judgment in favor of Appellee, Disposal Services, LLC

(Disposal), with respect to Beach’s claim of conversion, and the trial court’s denial

of Beach’s motion to amend its complaint to add a cause of action for replevin.

Beach contends that the trial court erred in interpreting section 679.3151, Florida
Statutes, to preclude a claim for conversion where replevin is still an available

remedy.      Beach argues that a claim for conversion is appropriate when the

elements for conversion are satisfied, regardless of whether replevin is an available

remedy. We reverse the trial court’s order granting final summary judgment,

because conversion remains a valid cause of action here. In light of our reversal

of final summary judgment, we decline to address Beach’s argument that the trial

court abused its discretion in denying Beach’s motion to amend.

        Beach is the successor in interest of creditors that made loans to Solid Waste

Haulers of Florida (Debtor), which were secured by 308 roll-off containers

(Containers) worth a total of $400,800. 1 The original creditor properly filed a

UCC-1 with the Florida Secretary of State perfecting its security interest in the

Containers. Through a series of transactions, and without notice to Beach, Debtor

sold the Containers to Disposal; however, Debtor did not apply the sale proceeds to

the loans and subsequently defaulted on its loan obligations to Beach. Following

Disposal’s acquisition of the Containers and Debtor’s default on the loans, Beach

made written demand to Disposal for either repayment of the loans in full or return

of the Containers. When Disposal neither paid Beach nor returned the Containers,

Beach filed a complaint against Disposal alleging that Disposal converted


1
    This court agrees that these Containers are non-fungible goods.
                                            2
the Containers.

      In response, Disposal filed a motion for summary judgment. The trial court

granted the motion, finding that Beach could not sue for conversion as a matter of

law, because the option of replevin was still available as a remedy, as the

Containers are non-fungible goods that could be located and subject to

repossession. In response, Beach moved for rehearing and leave to amend its

complaint to add a cause of action for replevin. Both motions were denied. The

trial court accepted the facts as alleged in Beach’s complaint, but found, as a

matter of law, that Beach could not pursue a cause of action for conversion.

      When reviewing a trial court’s grant of final summary judgment, the

standard of review is de novo. S. Nat’l Track Servs. v. Gilley, 152 So. 3d 13, 16

(Fla. 1st DCA 2014). Furthermore, “[i]t is well settled that when ruling on a

motion for summary judgment, courts must construe the facts in a light most

favorable to the non-moving party.”    Courtney v. Fla. Transformer, Inc., 549 So.

2d 1061, 1065 (Fla. 1st DCA 1989). “Summary judgment is proper if there is no

genuine issue of material fact and if the moving party is entitled to judgment as a

matter of law.” Black Bus. Inv. Fund of Cent. Fla., Inc. v. State, Dep’t of Econ.

Opportunity, 178 So. 3d 931, 933 (Fla. 1st DCA 2015).

      “A conversion claim is based on a ‘positive, overt act or acts of dominion or

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authority over the money or property inconsistent with and adverse to the rights of

the true owner.’” Columbia Bank v. Turbeville, 143 So. 3d 964, 969 (Fla. 1st

DCA 2014) (quoting S.S. Jacobs Co. v. Weyrick, 164 So. 2d 246, 250 (Fla. 1st

DCA 1964)). In Turbeville, this court held that a bank’s allegations were sufficient

to allege conversion when the bank pled that “‘[the defendant] intentionally

engaged in unauthorized conduct when she (a) withdrew funds from the accounts

at issue’ depriving [the victim] of her ‘immediate right to possess the funds’ and

(b) failed to return the funds upon demand.” 143 So. 3d at 969 (emphasis added).

      Generally, before a conversion can occur when a party was previously in

rightful possession of another’s property, the following three factors must be

present: first, the party in possession must be informed that continued possession

of the property is no longer permitted; second, the rightful owner must demand the

return of the property; and third, the party holding the property must fail to comply

with the demand. Black Bus. Inv. Fund, 178 So. 3d at 937.2 In the context of

secured transactions, once default has occurred, a secured creditor has the right to

possess the collateral and is authorized to take possession of the collateral.

Spellman v. Indep. Bankers’ Bank of Fla., 161 So. 3d 505, 508 (Fla. 5th DCA



2
 We do not address whether Disposal was previously in rightful possession of
Beach’s property.
                                    4
2014). See also Bel-Bel Int’l Corp. v. Cmty. Bank of Homestead, 162 F.3d 1101,

1108 (11th Cir. 1998) (holding that, under Florida law, a lienholder is considered

to be the “owner” of property for the purposes of conversion if he has the present

right to possession). In Spellman, a trustee appealed a summary judgment on a

claim for conversion.      The trustee pledged stock certificates to the Bank as

collateral for securing a loan. After default, the bank sued the trust for a monetary

judgment. The trustee objected on the grounds that the bank should be required to

sell or otherwise dispose of the collateral and then pursue a deficiency judgment

against the trust. Spellman, 161 So. 3d at 507. The court rejected the trustee’s

argument, interpreting section 679.601, Florida Statutes, as neither dictating nor

proscribing the election of a particular remedy. The court held that a secured

creditor with present rights to possession could repossess collateral while

concurrently pursuing a monetary judgment to recover the full amount due and

then dispose of the collateral. Id. at 508. 3

      Here, the following six facts were pled by Beach in its complaint and not

refuted in Disposal’s motion for summary judgment:            (1) Debtor borrowed

$400,800, giving the Containers as security for the loan; (2) Beach, as the



3
 However, a secured creditor “can obtain only one satisfaction of the debt.” 68A
Am. Jur. 2d Secured Transactions § 445 (2016).
                                       5
successor in interest of the creditor that made the loan, has a valid and enforceable

lien in the Containers; (3) without Beach’s authorization, Debtor sold the

Containers to Disposal; (4) some time after the unauthorized sale, Debtor defaulted

on its loan; (5) after becoming aware of the sale of the Containers, Beach

demanded that Disposal either turn over the Containers or pay the balance of the

loan in full; and finally (6) Disposal failed to comply with Beach’s demand. Taken

as true, these allegations are sufficient to plead an actionable claim for conversion.

      Regardless of whether Disposal acquired rightful possession of the

Containers when it purchased them from Debtor, once the Debtor defaulted on its

loan obligations, Beach gained the right to possess the Containers as collateral

securing the debt. Once Beach informed Disposal that Beach was a creditor with

rights to possess the Containers and demanded their return, Disposal had the

opportunity to comply with the proper demand. By refusing to comply with

Beach’s lawful demand, Disposal took an overt action inconsistent with Beach’s

possessory rights, thereby completing the necessary elements for a claim of

conversion.

      When an unauthorized disposition of collateral occurs, a secured party has

numerous cumulative remedies at its disposal; it is not forced to elect a single

remedy. See Taylor Rental Corp. v. J.I. Case Co., 749 F.2d 1526, 1529 (11th Cir.

                                          6
1985).   Furthermore, merely because Disposal still has the Containers in its

possession and can return them to Beach does not preclude Beach from pursuing

conversion. See Seibel v. Soc’y Lease, Inc., 969 F. Supp. 713, 719 (M.D. Fla.

1997) (holding that debtor’s petition alleging that repossession agency wrongfully

took their truck and had control over it for period of time stated cause of action

under Florida law for conversion, even though agency did not permanently deprive

debtors of their truck and returned it in the same condition as it was at the time of

repossession); Mayo v. Allen, 973 So. 2d 1257, 1258 (Fla. 1st DCA 2008) (noting

the well-settled principle that “conversion is an unauthorized act which deprives

another of his property permanently or for an indefinite time”).         Here, once

Disposal failed to comply with Beach’s demand to either return the Containers or

repay the balance of the loan, the alleged act of conversion was complete. Thus,

we reverse the trial court’s order granting final summary judgment.

      REVERSED and REMANDED.

WETHERELL and WINSOR, JJ., CONCUR.




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