        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT


                          PETER TOROCSIK,
                              Appellant,

                                   v.

 HSBC BANK USA, NATIONAL ASSOCIATION, a Nationally Associated
       Corporation; and MATTHEW WEAVER, an individual,
                           Appellees.

                            No. 4D13-2569

                            [May 27, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard Harrison, Senior Judge; L.T. Case No.
502011CA006974XXXXMB.

   Peter Torocsik, West Palm Beach, pro se.

  George G. Kurschner of Karyo & Kurschner, P.A., Boca Raton, for
appellee Matthew Weaver.

  Daniel J. Barsky of Shutts & Bowen, LLP, West Palm Beach, for
appellee HSBC Bank USA, N.A.

CIKLIN, J.

   Peter Torocsik appeals the order denying his motion for summary
judgment and entering summary judgment for HSBC, et al. (“the Bank”),
on Torocsik’s suit for damages related to a dishonored cashier’s check.
We reverse.

   In 2008, Torocsik was the seller of his restaurant and entered into a
stock purchase agreement contract with Matthew Weaver and Yanni
Agelopoulos, the buyers of the restaurant. The contract provided that at
the closing, Torocsik (“the seller”) was to provide specified corporate
documents to Weaver and Agelopoulos (“the buyers”) and that the buyers
were to make various payments toward a total purchase price of
$100,000. The contract provided for a closing date of May 27, 2008, and
the closing was to take place in the office of the buyers’ attorney. The
closing was made contingent on “the parties[’] approval of employment
contracts . . . and the Purchasers and Sellers agreeing upon the terms of
an operating agreement.” The closing never took place although at least
one payment of $30,000 was made by one of the buyers to the seller.

   Subsequent to the failed closing date, the seller brought suit against
the Bank, seeking money damages for wrongful dishonor of the subject
cashier’s check. The seller alleged as follows. Pursuant to the contract,
one of the buyers, Weaver, agreed to partially pay the seller $30,000.
The Bank issued a cashier’s check to Weaver (with the seller as payee), in
the amount of $30,000 which was voluntarily delivered to the seller on
May 19, 2008. That day, the seller deposited the check into his
Wachovia bank account. On May 20, Weaver executed an affidavit which
identified the cashier’s check he had delivered to the seller as “stolen.”
With that information, the Bank then demanded Wachovia return the
funds.    That same day, Wachovia froze the seller’s account after
withdrawing the $30,000 that the seller had deposited the day before.
The Bank informed the seller that it had stopped payment based on “the
stolen check affidavit” from Weaver. The affidavit stated that the Bank
issued the buyer a U.S. Dollar Draft in the amount of $30,000, payable
to the seller, and that the check was “stolen.” Weaver did not elaborate
on the details of the alleged theft.

   As a defense to the seller’s suit, the Bank asserted in its answer that
Weaver tendered the check as a good-faith deposit and that the sale of
the business was never consummated.

    The seller and the Bank filed cross-motions for summary judgment.
The Bank argued summary judgment was required because the seller
had no right to retain the $30,000 payment. In support of its motion,
the Bank submitted portions of transcripts of the seller’s deposition
testimony. In the depositions, the seller testified that after the subject
$30,000 cashier’s check was delivered to him, the buyers asked the seller
to return the money after the buyers spoke to restaurant employees, who
“scared [the buyers] away” by telling them that the restaurant was not
profitable. The seller informed the buyers that the check was already
deposited. The seller additionally informed the buyers that he would not
return the money because the buyers refused to return corporate papers
he had given to them in return for their check.

   The trial court denied the seller’s motion for summary judgment but
granted summary judgment in favor of the Bank. In ruling for the Bank,
the trial court found that under the unambiguous terms of the contract,
the seller was not entitled to cash the check when he deposited it in his

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Wachovia account. The court also found that the Bank was permitted to
refuse payment because the check was stolen.

    The standard of review is de novo. Chhabra v. Morales, 906 So. 2d
1261, 1262 (Fla. 4th DCA 2005) (citation omitted). To the extent the
seller challenges the court’s denial of his motion for summary judgment,
this court has no jurisdiction to review such an order, even where a final
summary judgment for the opposing party has been entered. See Sheres
v. Genender, 965 So. 2d 1268, 1270 (Fla. 4th DCA 2007) (recognizing
that rules of appellate procedure do not provide for appeal of an order
denying a motion for summary judgment, but do permit jurisdiction over
appeal of portion of the order granting summary judgment and entering
partial summary judgment). As such, this opinion is limited to the
portion of the order entering summary judgment for the Bank.

  The seller’s action for damages against the Bank was based on section
673.4111, Florida Statutes (2008), which provides in pertinent part:

      (1) In this section, the term “obligated bank” means:

      (a) The acceptor of a certified check; or

      (b) The issuer of a cashier’s check or teller’s check bought
          from the issuer.

      (2) If the obligated bank wrongfully refuses to pay a cashier’s
          check or certified check, wrongfully stops payment of a
          teller’s check, or wrongfully refuses to pay a dishonored
          teller’s check, the person asserting the right to enforce the
          check is entitled to compensation for expenses and loss of
          interest resulting from the nonpayment and may recover
          consequential damages if the obligated bank refuses to
          pay after receiving notice of particular circumstances
          giving rise to the damages.

      (3) Expenses or consequential damages under subsection (2)
          are not recoverable if the refusal of the obligated bank to
          pay occurs because:


      (a) The bank suspends payments;




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      (b) The obligated bank asserts a claim or defense of the bank
          that it has reasonable grounds to believe is available
          against the person entitled to enforce the instrument;

      (c) The obligated bank has a reasonable doubt whether the
          person demanding payment is the person entitled to
          enforce the instrument; or

      (d) Payment is prohibited by law.

   In concluding that summary judgment for the Bank was warranted,
the trial court relied in part on Warren Fin., Inc. v. Barnett Bank of
Jacksonville, N.A., 552 So. 2d 194 (Fla. 1989). However, application of
the holding of that case to the facts of this case is a non-sequitur; it does
not support summary judgment for the Bank.

    Warren involved a financing agreement. Redan, the named payee on a
cashier’s check, endorsed it over to Warren, a party with whom it had
entered into a financing agreement. After Warren deposited the check, it
failed to follow through on an alleged agreement to advance funds to
Redan. Redan then persuaded the purchaser of the check to request the
issuing bank to stop payment based on fraud. After the bank complied,
Warren sued the bank for wrongfully dishonoring the check.

   On appeal, the Florida Supreme Court held that the issuing bank
wrongfully dishonored the check under these circumstances. Id. at 201.
In response to a question certified to it by the district court, the supreme
court held that an obligated bank may raise limited defenses when it
dishonors a cashier’s check:

      [W]e hold that upon presentment for payment by a holder, a
      bank may only assert its real and personal defenses in order
      to refuse payment on a cashier’s check issued by the bank.
      It may not, however, rely on a third party’s defenses to refuse
      payment.      The only inquiry a bank may make upon
      presentment of a cashier’s check is whether or not the payee
      or endorsee is in fact a legitimate holder, i.e., whether the
      cashier’s check is being presented by a thief or one who
      simply found a lost check, or whether the check has been
      materially altered.

Id. at 201 (footnote omitted).



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   The Florida Supreme Court rejected the argument that an obligated
bank should be able to rely on a third party’s claim to the cashier’s
check:

      We disagree . . . for several reasons. Banks should not be
      placed in a position that requires them to determine the
      respective rights of parties to a cashier’s check prior to
      paying the holder of the check. The actual dispute in this
      case pertains to the underlying transaction between Redan
      and Warren, i.e., whether Warren defrauded Redan into
      transferring the cashier’s checks to Warren. The issuance of
      a cashier’s check is a distinct and separate transaction from
      that underlying dispute. Comment 5 to section 3-306 [of the
      Uniform Commercial Code] addresses this point and states
      in part:

        The contract of the obligor is to pay the holder of the
        instrument, and the claims of other persons against the
        holder are generally not his concern. He is not required
        to set up such a claim as a defense, since he usually
        will have no satisfactory evidence of his own on the
        issue; and the provision that he may not do so is
        intended as much for his protection as for that of the
        holder . . . . The provision includes all claims for
        rescission of a negotiation, whether based on
        incapacity, fraud, duress, mistake, illegality, breach of
        trust or duty or any other reason.

Id. at 198-99.

   Here, the trial court erroneously interpreted Warren as allowing the
Bank to stop payment based on a third party’s defense of theft. This was
error for two reasons.

   First, the trial court’s finding of theft was not supported by the
summary judgment submissions. The trial court found that the seller’s
action of depositing the check (nine days) before the closing date
amounted to conversion because the contract called for payment literally
to be made on May 27: “The Contract is clear and unambiguous and
confirms that [the seller] was not entitled to negotiate or cash the Check
when he deposited it in his Wachovia bank account. . . . In depositing
and cashing the check before he was entitled to do so under the
Contract, [the seller] converted and stole the Check.” In point of fact, the
contract said nothing about what the seller was permitted to do with the

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cashier’s check. The contract provided only that the buyers were to pay
the seller by cashier’s check in the total amount of $60,000 on the
closing date of May 27, 2008. The contract did not address the scenario
where, as here, one of the buyers provided the seller with a check in
advance of the closing date. Additionally, Weaver’s affidavit did not
explain the circumstances surrounding the alleged theft of the check.
The record established that Weaver did, in fact, intend to deliver the
$30,000 check to the seller. The record also reflects that the buyers
wanted to back out of the contract after speaking to restaurant
employees.

    Second, the Bank dishonored the check based on a barebones claim
of Weaver that the $30,000 cashier’s check had been stolen, even though
it was made payable to the seller and deposited into his account. Under
these circumstances, while the unadorned claim in the affidavit alleging
a theft may have supplied the Bank with grounds to conduct an inquiry,
it did not permit it to prevent payment to the seller of the restaurant.
Again, as stated by the Florida Supreme Court in Warren, the Bank’s
issuance of the cashier’s check was a distinct and separate transaction
from the contract for sale and purchase of the restaurant. Essentially,
the Bank dishonored the check based on a defense available only to the
purchaser of the check, Weaver, rather than on the Bank’s own defenses
to the claim of wrongful dishonor of the cashier’s check. Warren makes
it clear that this is not permitted. See id. at 201 (holding that an
obligated bank may not rely on third party’s defenses in dishonoring a
check). For the foregoing reasons, we reverse.

  Reversed and remanded for further proceedings.

STEVENSON and TAYLOR, JJ., concur.

                          *          *      *

  Not final until disposition of timely filed motion for rehearing.




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