UTC Industries, Inc. v. Presidential Financial Corp., 976 So.

2d 92 (2008)
33 Fla. L. Weekly D610
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 1
976 So.2d 92
District Court of Appeal of Florida,
Third District.
UTC INDUSTRIES, INC., et al., Appellants,
v.
PRESIDENTIAL FINANCIAL
CORP., et al., Appellees.
Nos. 3D07-1071, 3D07-473. | Feb. 27, 2008.
Synopsis
Background: Debtor under promissory note filed third
party complaint against assignee of note, alleging fraud,
and brought a separate action for civil conspiracy against
assignee. The Circuit Court, Miami-Dade County, Victoria S.
Sigler, J., dismissed both the third-party complaint and the
separate action, and debtor appealed.
Holdings: The District Court of Appeal held that:
[1] third party complaint failed to allege a claim for
indemnity, contribution, or subrogation, but
[2] separate complaint sufficiently alleged a claim for civil
conspiracy.
Affirmed in part, reversed in part, and remanded with
instructions.
West Headnotes (3)
[1] Parties
Persons Who May Be Brought In, and
Grounds in General
Third party complaint by debtor against assignee
of promissory note, alleging that assignee
engaged in fraud and improperly disposed
of debtor's assets, failed to assert a claim
for indemnity, contribution, or subrogation, as
required by rule governing third party claims.
West's F.S.A. RCP Rule 1.180(a).
1 Cases that cite this headnote
[2] Conspiracy
Pleading
Debtor under promissory note sufficiently
alleged a claim for civil conspiracy against
assignee of note; debtor alleged that assignee
entered into an agreement with assignor of
note to defraud debtor, that parties improperly
valued and transferred assets to assignor without
competitive bidding or proper compensation in
furtherance of the conspiracy, and that debtor
suffered damages resulting from these acts.
5 Cases that cite this headnote
[3] Conspiracy
Nature and Elements in General
A civil conspiracy requires: (1) an agreement
between two or more parties; (2) to do an
unlawful act or to do a lawful act by unlawful
means; (3) the doing of some overt act in
pursuance of the conspiracy; and (4) damage to
plaintiff as a result of the acts done under the
conspiracy.
6 Cases that cite this headnote
Attorneys and Law Firms
*93 Richard J. Burton, Aventura and Peter J. Solnick, for
appellants.
Sivyer Barlow & Watson, Neal A. Sivyer and Edward J.
Kuchinski, Tampa, for appellees.
Before GERSTEN, C.J., and SUAREZ and ROTHENBERG,
JJ.
Opinion
PER CURIAM.
UTC Industries, Inc., Jerome Uffner, Marc Uffner,
and Judith Uffner (collectively “Uffner”) appeal the
dismissal of their complaint against Presidential Financial
Corporation and Presidential Financial Corporation of Florida
UTC Industries, Inc. v. Presidential Financial Corp., 976 So.2d 92 (2008)
33 Fla. L. Weekly D610
© 2014 Thomson Reuters. No claim to original U.S. Government Works. 2
(“Presidential”). We affirm in part, reverse in part, and
remand with instructions.
Uffner was in business with UTC Fabrics, LLC, Lawrence
C. Schreiber, Inc., d/b/a Confetti, Lawrence Schreiber, Jo
Schreiber, Alan Schreiber, and Paul Schreiber (collectively
“Schreiber”). Schreiber sued Uffner claiming breach of
a promissory note, theft, and conversion, and sought an
injunction. In answering the complaint, Uffner acknowledged
the existence of a promissory note and security agreement in
favor of Schreiber. According to Uffner, however, the note
was subsequently assigned to Presidential in consideration for
a loan made to Schreiber, and Presidential thereafter released
Uffner from any obligation. Uffner also alleged the property
and accounts they took belonged to Uffner.
Uffner filed a third party complaint against Presidential
for conspiracy to defraud. Uffner alleged that Presidential
conspired with Schreiber to wrongfully foreclose on the
promissory note and to fraudulently transfer Uffner's assets.
Specifically, Uffner alleged that its assets were disposed of
in a commercially unreasonable manner because the property
was not properly valued, was offered without competitive
bidding only to Schreiber, and was transferred to Schreiber
without proper consideration.
The trial court dismissed the third party complaint for failure
to allege a claim for indemnity, contribution, or subrogation.
Uffner then filed a separate action against Presidential.
Presidential moved to dismiss this action on the ground that
the conspiracy claim could not stand without allegations of an
underlying tort or wrong. The trial court also dismissed the
separate action.
On appeal, Presidential contends that both the third
party complaint and the separate complaint were properly
dismissed. Uffner, however, asserts that their separate
complaint sufficiently alleges an underlying tort or wrong to
support the conspiracy claim against Presidential. We agree
with Uffner.
[1] Turning first to the third party complaint, we affirm the
trial court's dismissal. Before a party may allege any *94
other cause of action against a third party defendant, he or
she must first assert a claim for indemnity, contribution, or
subrogation. Fla. R. Civ. P. 1.180(a); Leggiere v. Merrill
Lynch Realty/Fla., Inc., 544 So.2d 240 (Fla. 2d DCA 1989).
Here, the facts do not give rise to a claim of indemnity,
contribution, or subrogation against Presidential. Therefore,
the trial court properly dismissed the third party complaint
against Presidential.
[2] [3] Turning to the separate action, we determine that
the trial court erred in dismissing the complaint. “A civil
conspiracy requires: (a) an agreement between two or more
parties, (b) to do an unlawful act or to do a lawful act by
unlawful means, (c) the doing of some overt act in pursuance
of the conspiracy, and (d) damage to plaintiff as a result of the
acts done under the conspiracy.” Raimi v. Furlong, 702 So.2d
1273, 1284 (Fla. 3d DCA 1997).
In the conspiracy claim, Uffner alleges Presidential entered
into an agreement with Schreiber to defraud Uffner. The
improper valuation and asset transfer to Schreiber, without
competitive bidding or proper compensation, was the
underlying tort or wrong. The overt act in furtherance of the
conspiracy was transferring Uffner's inventory and customer
lists to Schreiber. Uffner also alleged damages resulting
from these acts. Therefore, the complaint pleads a claim of
conspiracy to defraud against Presidential that is sufficient to
overcome dismissal.
Accordingly, we affirm the order dismissing the third party
complaint, and reverse the order dismissing the complaint
filed in the separate action. Because the claims against the
various parties are intertwined, the trial court might consider
consolidating the two cases.
Affirmed in part, reversed in part, and remanded with
instructions.
Parallel Citations
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