03-0614 URIBE V. CORREA

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State: Florida

Court: Florida Third District Court

Docket No: 03-0614 URIBE V. CORREA

Case Date: 12/17/2003

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2003

RAMIRO URIBE, Appellant, vs. JUAN GUILLERMO CORREA, Appellee.

** ** ** ** ** CASE NO. 3D03-614 LOWER TRIBUNAL NO. 02-3684

Opinion filed December 17, 2003. An appeal from the Circuit Court for Miami-Dade County, Florida, Ellen L. Leesfield, Judge. Richard J. Burton, for appellant. Pablo E. Lense, for appellee. Before COPE and LEVY, JJ., and NESBITT, Senior Judge. NESBITT, Senior Judge. We reverse the summary judgment entered by the trial court finding Appellant Uribe liable for two worthless checks and

imposing treble damages under Section 68.065 Florida Statutes (2002), and remand this matter for a trial on the merits of both the worthless check claim and the counterclaim. Stating the facts in the light most favorable to appellant, the record shows that Correa and Uribe were 51% and 49%

shareholders in a small business which marketed spices.

In the

summer of 2001 it was decided that Correa would sell his 49% of the business to Uribe for $10,000. Uribe issued two post-dated checks

for $5,000 each to Correa, who was told not to deposit the checks until the transaction was complete. The next day the national

sales manager of the spice company held an emergency meeting with Uribe and Correa and advised that their business as a distributor was being terminated, that he'd previously told this to Correa, and that the termination was due to Correa's improper business

practices including failure to service customers. This termination effectively ended the business as a going concern. Immediately

after the meeting, Uribe, according to his affidavit, told Correa not to deposit the checks and asked him why he hadn't told Uribe of the prior talks with the national distributor and why he'd tried to cheat Uribe. the company. Uribe told Correa he would not buy his interest in Correa nevertheless thereafter deposited the checks,

which were returned for insufficient funds. Correa provided statutory notice as to each check under Section 68.065, Florida Statutes. thereafter paid, Correa filed suit. 2 When the checks were not Uribe raised equitable

defenses to the worthless check claim and filed a counterclaim for fraud, alleging that Correa's misrepresentations about the status of the company fraudulently induced him to write the checks. The trial court entered summary judgment in favor of Correa for the face amount and treble damages on each of the $5,000 checks (a total of $40,000, plus interest). The trial court found that

the plaintiff met the facial statutory requirements of Section 68.065, noting that there is no exception to the statute for "postdated checks." The trial court entered a final judgment for Correa which stated that execution should issue, and reserved jurisdiction for purposes of addressing Uribe's counterclaim. We reverse.

First, we note that given the nature of the claims raised in the main claim and the counterclaim, the final judgment was issued prematurely and should not have been issued until the conclusion of the entire case.1 Moreover, in essence, this is a case where the maker has stopped payment on a check rather than a simple insufficient funds case. In instances of stopped payments the statutory liability for treble damages is only triggered if there is an "intent to

defraud." sworn

Section 68.065(1), Florida Statutes (2002). of fraud, that the transaction

Given the had been

allegations

The trial court's decision to bifurcate is subject to an abuse of discretion standard of review. Roseman v. Town Square Ass'n, Inc., 810 So.2d 516 (Fla. 4th DCA 2001), rev. denied 832 So.2d 105 (Fla. 2001). 3

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terminated as a result of Correa's dishonest conduct and the failure to honor a directive not to deposit the checks2, there were certainly disputed issues of material fact as to the circumstances surrounding judgment. this transaction sufficient to preclude summary

See also Zaleski v. Woessner, 659 So. 2d 716 (Fla. 5th

DCA 1995)(factual dispute as to whether two dishonored checks had been validly delivered precluded summary judgment). Finally, we note that the defense of equitable estoppel applies to a case like this. Otherwise, a party could institute a

fraud and receive treble damages under the worthless check statute, where the only damages available to the victim of the fraud would be the claim for the underlying amount of the check. Thus, the

architect of the fraud would still make a profit on the fraud. See,e.g., Florida Dep't of Health and Rehabilitative Servs. v.

S.A.P., 835 So. 2d 1091, 1096 (Fla. 2003)("Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal

Further, it is not entirely clear from the record and the check copies, but Uribe maintains that Correa deposited one or both of the checks before the postdate on the checks. Correa argues that we have held in Alvarez v. Alvarez, 800 So. 2d 280 (Fla. 3d DCA 2001), that the statute applies to a postdated check. However, in Alvarez, the postdated check was deposited after the postdate. Thus, the check had become payable in accordance with its terms. This is not the case where a postdated check is given with the understanding that it will not be deposited until the date of the check, and the recipient then breaks the promise and prematurely deposits the check. Such inequitable conduct would not support the collection of treble damages under the statute. 4

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position.") We do not express any opinion on the ultimate disposition of the factual issues revealed by the record. We simply hold that the issues preclude summary judgment and require resolution of all of the claims before the court. Reversed and remanded for further proceedings consistent herewith.

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