       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 21, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                          Nos. 3D17-575 and 3D17-433
                          Lower Tribunal No. 16-27643
                               ________________


         Florida Recovery Adjusters, LLC and Oscar Valdes,
                                   Appellants,

                                        vs.

                           Pretium Homes, LLC,
                                    Appellee.


      Appeals from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.

      Roniel Rodriguez, IV, for appellants.

      The Barthet Firm, Paul D. Breitner and Jessica A. Goldfarb, for appellee.


Before FERNANDEZ, LUCK and LINDSEY, JJ.

      FERNANDEZ, J.

      In these consolidated appeals, defendants, Florida Recovery Adjusters, LLC

(FRA) and Oscar Valdes (Valdes) (collectively, the appellants) appeal two final
default judgments entered ex-parte by the trial court against them and in favor of

plaintiff, Pretium Homes, LLC (Pretium). We affirm the March 17, 2017 ex parte

Final Default Judgment in Garnishment as to Chase Bank. With regard to the

January 25, 2017 ex parte Final Default Judgment, we affirm its entry as to the

breach of contract count and the unjust enrichment count. However, we reverse

that portion of the judgment as to the civil theft count because we find that the trial

court abused its discretion in awarding unliquidated treble damages to Pretium

based on Pretium’s erroneously alleged civil theft claim and remand the case for a

trial on damages solely as to Pretium’s surviving counts.

      Pretium, a Florida limited liability company, entered into a contract for

insurance with a non-party insurance agency, National Real Estate Group

(National), which provides its services through a third-party, Affinity Loss

Management Services (Affinity). On December 15, 2015, after suffering water

damage to its property, Pretium entered into an insurance adjustment agreement

(Agreement) with FRA, a Florida limited liability company, through its agent,

Valdes. Pursuant to the Agreement, FRA was to provide services related to the

insurance adjustment for Pretium’s loss. The Agreement contained the following

clauses: (1) an assignment clause that reserved “20% of the initial amount

recovered” to FRA; (2) a payment clause where Pretium agreed to instruct

National to name “Florida Recovery Adjusters as a payee of all insurance



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settlement proceeds”; and (3) an attorneys’ fees clause that entitled the prevailing

party “to recover its court costs and reasonable attorney’s fees, including fees and

costs in all appellate or bankruptcy [sic].”

      Thereafter, FRA submitted a claim on behalf of Pretium that was approved

and settled for $21,265.55.      On May 25, 2016, Affinity issued a check for

$18,000.00, that was payable to “Pretium Homes/Florida Recovery Adjusters” and

delivered it to FRA. Upon receipt of the payment from Affinity on June 9, 2016,

FRA deposited the check to its account but did not return the remaining balance to

Pretium.    Subsequently, based on section 772.11(1), Florida Statutes (2014),

Pretium alleged a civil theft claim and made three written demands that requested

treble damages in the amount of $54,000.00 – three times the check amount of

$18,000.00 that was deposited into FRA’s account – plus attorneys’ fees. FRA and

Valdes did not reply.

      Pretium sued FRA and Valdes for (1) civil theft, (2) breach of contract (only

against FRA), and (3) unjust enrichment on October 25, 2016, and personally

served them on December 8, 2016. On December 29, 2016, Pretium moved for

entry of default against the appellants as a result of their failure to respond to the

summons or otherwise defend the case. The trial court entered an order of default

on January 18, 2017. Thereafter, on January 25, 2017, the trial court entered its

Final Default Judgment based on Pretium’s ex-parte motion and supporting



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affidavits. The trial court accepted Pretium’s affidavits for (1) interest calculations

on the alleged principal liquidated balance of $18,000.00, (2) claim demonstration,

(3) attorneys’ fees and costs, and (4) reasonable attorneys’ fees, and subsequently

awarded the treble damages amount of $54,000.00 and the accrued interest amount

of $548.80 plus attorneys’ fees, as pled by Pretium. On January 26, 2017, Pretium

served copies of the trial court’s Final Default Judgment to the appellants. The

appellants did not respond. On February 7, 2017, the trial court issued a Writ of

Garnishment (Writ) against the appellants’ bank, Chase Bank, as requested by

Pretium.   The Writ was served on Chase Bank the following day, and the

appellants were served with copies of the Writ on February 10, 2017.

      The appellants claimed that they became aware of the suit upon the

garnishment of their accounts on February 10, 2017, and thus, they appeared in the

proceedings for the first time by filing several emergency motions on February 14,

2017, specifically: (1) Verified Motion to Set Aside Default and Verified Motion

to Vacate Default Final Judgment Dated January 25, 2017, (2) Supplemental

Response to Motion to Vacate; and (3) Verified Emergency Motion to Dissolve

Writ of Garnishment. The trial court deferred ruling on emergency motions (1)

and (2) pending an evidentiary hearing, but denied emergency motion (3). The

appellants then appealed to this Court the trial court’s Final Default Judgment.




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      On February 17, 2017, Chase Bank filed its Answer to Writ of Garnishment

(Answer) and confirmed its possession of the appellants’ assets. Pretium served

copies of the Answer to the appellants and provided notice that a motion to

dissolve or object must be filed within 20 days. The appellants, however, did not

take any action. On March 14, 2017, the trial court issued the second final default

judgment as requested by Pretium’s proposed ex-parte Final Judgment in

Garnishment as to Chase Bank because the appellants failed to respond within the

deadline. The appellants also appealed to this Court the trial court’s Final Default

Judgment in Garnishment.

      On appeal, the appellants claim that the January 25, 2017 Final Default

Judgment is defective and void as a matter of law because it improperly awards

unliquidated damages and attorneys’ fees. The appellants claim that the damages

award is predicated on a facially deficient statutory notice demanding unliquidated

damages in addition to the statutory damages. Also, the appellants appeal the

March 14, 2017 Final Default Judgment, claiming that the trial court violated their

due process rights by withholding their opportunity to defend. We review the

appeal of a trial court’s final default judgment under a gross abuse of discretion

standard. Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So. 2d 662, 665 (Fla.

3d DCA 2007). First, we affirm the trial court’s January 25, 2017 ex parte Final

Default Judgment as to the breach of contract claim against FRA and the unjust



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enrichment claim against FRA and Valdes.         This default final judgment was

correctly entered due to appellants’ failure to timely respond to Pretium’s

complaint. See Rule 1.500(a), Fla. R. Civ. P. We also affirm the March 17, 2017

Final Default Judgment in garnishment as to Chase Bank, correctly entered on

Pretium’s motion for garnishment after final judgment. See § 77.01, Fla. Stat.

(2017).

      Turning next to Pretium’s civil theft count against the appellants, pursuant to

Florida Statute section 812.014(1), a theft is committed when a non-owner

“knowingly obtains or uses, or endeavors to obtain or to use, the property of

another.” Pretium’s civil theft allegation thus fails under the plain language of the

Agreement that Pretium agreed to “irrevocably and unconditionally assign” its

funds to the appellants and instruct National “to make payment directly to Florida

Recovery Adjusters for the full amount due to Florida Recovery Adjusters.”

Because FRA was named as a valid payee of the check, the appellants did not

obtain or use the property of another, but of their own. The appellants had the

right to deposit the check that named FRA as a co-payee with Pretium.

      In addition, the Florida Civil Theft Statute, section 772.11(1), Florida

Statutes (2014), provides that the person claiming a civil theft claim “must make a

written demand for $200 or the treble damage amount of the person liable for

damages.” Here, Pretium mailed three demand letters to the appellants; however, it



                                         6
failed to meet the statutory requirement. Pretium’s demand letters were facially

deficient because they requested more than the maximum treble damages amount

of $43,200.00, three times the recovered amount after the 20% assignment, plus

attorneys’ fees. Taking every allegation in the complaint as true, Pretium would

never have been entitled to the treble damages amount of $54,000.00 liquidated in

the ex-parte default judgment. Thus, Pretium’s civil theft allegation claiming that

the appellants stole Pretium’s property and interfered with its right to property fails

because Pretium waived its exclusive rights to the check by entering into the

Agreement.

      Furthermore, we agree with the appellants’ claim that Pretium’s complaint

was not well-pleaded. The Agreement, which was submitted by Pretium with the

complaint, negated its civil theft allegation. In addition to Pretium’s failure to

comply with sections 772.11(1) and 812.014(1), Pretium’s complaint directly

contradicted the Agreement’s assignment clause by indicating an incorrect amount

as its statutory damages. The complaint stated the total recovered amount of

$18,000.00 as the basis for its treble damages; however, such amount is wrong

under the Agreement. Furthermore, the record’s clear indication of Pretium’s

endorsement of the check over to FRA conflicts with the allegation that the

appellants stole the funds.




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      Florida Rule of Civil Procedure 1.130(b) provides that “any exhibit attached

to a pleading shall be considered a part thereof for all purposes.” Any exhibits

attached to a complaint are controlling when there is a conflict between the

complaint and the exhibits. Ginsberg v. Lennar Fla. Holdings, Inc., 645 So. 2d

490, 494 (Fla. 3d DCA 1994).         Accordingly, we evaluate the inconsistency

between Pretium’s civil theft allegation and the accompanying exhibits by focusing

on the latter. Upon such review, the civil theft claim is insufficient because it

failed to properly incorporate the Agreement, and the exhibit of the deposited

check demonstrates that Pretium relayed the check over to FRA through its

endorsement. Thus, the contractual dispute, not an act of theft, gave rise to the

claim. See Walker III v. Figarola, 50 So. 3d 188, 190 (Fla. 3d DCA 2011).

      The trial court’s award of treble damages is void because this is not a prima

facie civil theft case. Because Pretium’s statutory claim for civil theft was invalid,

the trial court’s award of treble damages was not supported by competent

substantial evidence.

      In sum, the trial court abused its discretion in granting unliquidated treble

damages on an erroneously alleged civil theft claim. We thus vacate that portion

of the January 25, 2017 Final Default Judgment that awards damages based on the

invalid civil theft claim, as well as costs and fees that flowed from that claim, and

remand for further proceedings on damages arising only from the properly pled



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claims for breach of contract and unjust enrichment. We affirm the January 25,

2017 ex parte Final Default Judgment as to the breach of contract and unjust

enrichment claims, and we affirm the March 14, 2017 ex parte Final Default

Judgment.

      Affirmed in part; reversed in part; remanded for further proceedings

consistent with this opinion.




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