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

CHARLES E. HAWTHORNE,               NOT FINAL UNTIL TIME EXPIRES TO
JR.,                                FILE MOTION FOR REHEARING AND
                                    DISPOSITION THEREOF IF FILED
      Appellant/Cross-Appellee,
                                    CASE NO. 1D15-2759
v.

DOUGLAS S. LYONS AND
MARSHA L. LYONS,

     Appellees/Cross-
Appellants.


_____________________________/

Opinion filed June 13, 2016.

An appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

Steven E. Sellers and Laurie T. Dodson of Dudley, Sellers & Healy, P.L.,
Tallahassee, for Appellant/Cross-Appellee.

Marsha L. Lyons of Lyons & Farrar, P.A., Tallahassee, for Appellees/Cross-
Appellants.

PER CURIAM.

      Charles E. Hawthorne, Jr. challenges the trial court’s entry of summary

judgment in favor of Douglas and Marsha Lyons on multiple grounds. The Lyonses

also challenge the entry of the summary judgment order on cross-appeal. Because
we reverse the order granting summary judgment, we decline to address the issues

raised on cross-appeal.

      This litigation arises from a failed partnership between Hawthorne and the

Lyonses. The parties jointly owned a rental property until, without the Lyonses’

knowledge, Hawthorne encumbered the property with a home equity loan and

subsequently allowed the property to go into foreclosure. As a result of the

foreclosure, the Lyonses filed a complaint against Hawthorne alleging a claim for

civil theft, among other causes of actions. Hawthorne filed an answer denying the

material allegations in the complaint; however, due to his failure to respond to

numerous discovery requests, the trial court ultimately deemed admitted all of the

factual allegations contained in the complaint.     The Lyonses relied on these

admissions when they moved for summary judgment. After a hearing on the motion,

at which Hawthorne failed to appear, the trial court entered summary judgment on

the claim of civil theft. Hawthorne asserts that multiple errors occurred below,

including that the trial court erred in entering summary judgment in favor of the

Lyonses.

      We review the trial court’s decision to grant summary judgment de

novo. Mills v. State Farm Mut. Auto. Ins. Co., 27 So. 3d 95, 96 (Fla. 1st DCA 2009).

The party moving for summary judgment must conclusively show the absence of a

genuine issue of material fact and the court must draw every possible inference in

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favor of the non-moving party. Villanueva v. Reynolds, Smith & Hills, Inc., 159 So.

3d 200, 203 (Fla. 5th DCA 2015). The party moving for summary judgment bears

the initial burden of demonstrating by competent evidence the non-existence of any

question of material fact. Palm Beach Pain Mgmt., Inc. v. Carroll, 7 So. 3d 1144,

1145 (Fla. 4th DCA 2009). It is only when the moving party has satisfied this burden

that the burden shifts to the non-moving party to come forward with evidence to the

contrary. Id.

       “To prevail on an action for civil theft, the plaintiff must prove that the

defendant (1) knowingly; (2) obtained or used, or endeavored to obtain or use, the

plaintiff's property; (3) with felonious intent; (4) to deprive plaintiff of its right to or

a benefit from the property or appropriate the property to the defendant’s own use

or to the use of a person not entitled to the use of the property.” Howard v. Murray,

184 So. 3d 1155, 1168 n.24 (Fla. 1st DCA 2015). Here, the factual allegations

contained in the complaint that were deemed admitted were insufficient to establish

all of the elements of civil theft. The complaint did not contain an allegation that

the Lyonses and Hawthorne had agreed that the rental payments would be used to

pay the mortgage on the rental property nor that Hawthorne acted knowingly or with

criminal intent when he failed to use the rental payments to pay the mortgage.

Accordingly, because there was insufficient evidence to support a finding of civil

theft, the trial court erred when it entered the order granting summary judgment in

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favor of the Lyonses. We reverse this order, but we decline to address the other

issues raised on appeal and cross-appeal because, in light of the reversal of the

summary judgment, they are unnecessary to the determination of this appeal.

      REVERSED and REMANDED.

ROWE, MAKAR, and BILBREY, JJ., CONCUR.




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