CopyCited 271 times | Published | Court of Appeals for the Eleventh Circuit
...d
have foreseen when they received the complaint over three years ago. The
plaintiff, after being fully compensated under its breach of contract theory,
contests the district court’s dismissal of its statutory worthless check claim, Fla.
Stat. § 68.065....
...complaint contained six counts.6 Count I alleged that the Lamas breached the
Contract. Counts II and III alleged fraud and negligent misrepresentation, but
were dismissed at the pleading stage and are not challenged here. Count IV
alleged a worthless check claim under Fla. Stat. § 68.065 and sought liability
directly against the Lamas under the theory that because Chipstek and Expertek,
the entities that issued the worthless checks, were the alter egos of the Lamas, the
court should pierce the corporate veil. This count is notable because it carries
with it the possibility of treble damages. Fla. Stat. § 68.065(1).7 Count V alleged
a violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”),
Fla....
...urt would
conclude otherwise. Id.
Here, piercing the corporate veil was necessary to hold Oscar Sr. and the
Lamas liable for the worthless checks. Florida’s worthless check statute, Fla. Stat.
34
§ 68.065, punishes the making or drawing of a bad check....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 1996 WL 34030
...check]. Following a motion for entry of final default judgment filed by Kaufman, the trial court entered a final default judgment on December 2, 1994 for $22,693.12, which included statutory treble damages and significant attorney's fees pursuant to section 68.065, Florida Statutes (1993), governing actions to collect on dishonored checks....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 24 U.C.C. Rep. Serv. 2d (West) 980, 1994 Fla. App. LEXIS 9017, 1994 WL 511207
...Milanese sought summary judgment restating the complaint's dishonored check allegations against Jemaros and Serna. In support of its motion, Milanese filed an affidavit of its president stating that Jemaros and Serna issued the dishonored checks. The trial court granted Milanese's motion and pursuant to section 68.065, Florida Statutes (1991) [2] ordered Serna to pay treble the face amount of the checks....
...heck, the signer is not liable on the check if the signature is an authorized signature of the represented person. Serna argues that the newly created statute operates retrospectively [3] to relieve him of personal liability for treble damages under section 68.065....
...We therefore find section
673.4021 confers substantive rights and thus cannot be retrospectively applied to this case. Retrospective application of section
673.4021(3) would eliminate the substantive right and remedy available to Milanese under sections
68.065 and 673.403(2)....
...the checks, unless the immediate parties establish evidence to the contrary, and the transaction meets the statutory requirements. The statute does not abrogate Milanese's substantive right to collect on the checks or to receive treble damages under section 68.065; it reallocates the burden of proof by shifting the presumption in favor of the agent....
...Milanese did not seek recovery for the dishonored checks pursuant to Serna's personal guaranty. The trial court, on a separate count, awarded Milanese damages against Serna, under Serna's personal guarantee, for merchandise for which Jemaros did not remit payment. We affirm that portion of the judgment. [2] Section 68.065 provides, in pertinent part: (1) In any civil action brought for the purpose of collecting a check ......
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2001 Fla. App. LEXIS 14459, 2001 WL 1219492
..., 1997 for $19,000, but the check he was given as payment was dishonored by the bank. The complaint contained claims against all defendants to recover on the check, as well as a claim for treble damages to recover on the dishonored check pursuant to section 68.065, Florida Statutes (1995)....
...The claim against Travelers was based on Fleetwood's $25,000 surety bond. Callahan obtained a summary final judgment against Fleetwood and Zaccagnino on October 21, 1997. The judgment awarded Callahan treble damages in the amount of $60,800, a $950 service charge pursuant to section
68.065, Florida Statutes, and $3,893 in interest pursuant to section
55.03, Florida Statutes....
...velers because no appeal had been taken from the final judgment. Callahan also filed a statement of claim, seeking $104,251.33 in total damages, including the $60,000 he had been awarded as treble damages against Fleetwood and Zaccagnino pursuant to section 68.065, Florida Statutes....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal
...Because the trial court erred in determining that Bay Area had established Sanders’ intent to defraud as-a matter of law and a factual issue remains for resolution, we reverse and remand for further proceedings. Bay Area filed its complaint and later an amended complaint against Sanders alleging a count under section 68.065, Florida Statutes (2015), to recover treble damages on a worthless check and a count in the alternative to recover on a bond Sanders posted, Bay Area alleged that it performed repairs on a truck for Sanders, that Sanders presented a ch...
...In addition, Sanders alleged estoppel and waiver as affirmative defenses based on the fraud Bay Area perpetrated on Sanders. Bay Area did not file a reply or conduct any further discovery but instead filed its motion for summary judgment. Bay Area asserted that under section 68.065 a maker is liable if payment has beén stopped on a check after receipt of goods or services rendered....
...In Gator Boring, this court determined that the movant had failed to show as a matter of law that a claim of lien was fraudulent and that whether the lien was fraudulent within the meaning of the statute was an issue of fact that remained to be determined at trial. Id. at 183-84 . Section 68.065(3)(a) of the worthless check statute allows for treble damages in addition to the amount owing if a maker stops a check with intent to defraud and fails to make payment....
...in cash, to the payee within 30 days after a written demand therefor, as provided in subsection (4), the maker or drawer is liable to the payee, in addition to the amount owing upon such payment instrument, for damages of triple the amount so owing. § 68.065(3)(a) (emphasis added)....
...Zoberg,
680 So.2d 1050, 1052 (Fla. 3d DCA 1996), disapproved of on other grounds by Friedman v. Heart Inst. of Port St. Lucie, Inc.,
863 So.2d 189 (Fla. 2003)). In Madness, which Bay Area and the trial court relied upon, the Fourth District considered section
68.065, Florida Statutes (2001)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 1991 Fla. App. LEXIS 11445, 1991 WL 241190
...Lawrence Zucker, as trustee of the assets of Preferred Associates, Inc., a dissolved Florida corporation, appeals the final judgment entered in favor of Sears Roebuck and Company in Sears' worthless check action against Preferred. In addition to the face amount of the check, Sears was awarded treble damages pursuant to section 68.065(1), Florida Statutes (1989) [1] and prejudgment interest....
...After careful review of the record, we affirm the judgment except for the *455 award of prejudgment interest related to the statutory treble damages. Sears argues that prejudgment interest on the statutory treble damage award is proper, relying on section 68.065(2), Florida Statutes (1989) which provides, "In the event that a judgment or decree is entered, interest ......
...Accordingly the award of prejudgment interest insofar as it relates to the treble damage award is reversed with instructions to recompute the interest in accordance with this opinion. AFFIRMED in part; REVERSED in part; REMANDED with instructions. DAUKSCH and W. SHARP, JJ., concur. NOTES [1] Section 68.065(1) provides in relevant part: (1) In any civil action brought for the purpose of collecting a check, draft, or order of payment, the payment of which was refused by the drawee because of the lack of funds, credit, or an account, and wh...
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2007 WL 675326
...The written agreement attached to the complaint provided that Sumner Group would be entitled to "reasonable attorney's fees" incurred in the collection of the obligation. The complaint sought attorney's fees under both the worthless check statute, § 68.065, Fla....
...e did not do in this case. This appeal involves pure questions of law, which are reviewed de novo. Knight v. Winn,
910 So.2d 310, 312 (Fla. 4th DCA 2005). By virtue of the default, Sumner Group prevailed on its worthless check claim under Fla. Stat. §
68.065....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1997 WL 362847
...uit. The trial court granted the seller's motion for summary judgment and awarded $120,000 as liquidated damages pursuant to the terms of the contract and $360,000 for treble damages as a result of appellant's tender of a worthless check pursuant to section 68.065, Florida Statutes....
...Because there were no genuine issues of material fact and the matters of record showed that appellee was entitled to prevail as a matter of law, [1] we affirm the entry of summary judgment against both Kehle and Peralta on Count I (breach of contract) and against Kehle as to count II (worthless check). However, since section 68.065 makes no provision for suit against one other than the maker of the check or draft, the summary judgment entered against Peralta as to count II may not stand....
...We find this purported affirmative defense insufficient to defeat the motion for summary judgment. While lack of knowledge is a statutory defense to a criminal charge of passing a worthless check, it is not a defense in the parallel civil worthless check statute. Compare §
832.05, Fla. Stat. (1995)(criminal action), with §
68.065, Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1989 WL 3903
...ed the other counterclaims and reserved jurisdiction to determine the amount of a reasonable attorney fee for Corbin for "legal representation in these proceedings." Both parties sought attorney fees, Corbin based upon his contract and Maulden under section 68.065, Florida Statutes, based upon her successful *1087 defense of the worthless check counterclaim....
...U Law Library with Green on November 7, 1985, but that Green's affidavit makes no mention of any activity on Corbin's case on November 7, 1985. We agree with Maulden that she prevailed on the "worthless check" claim and was therefore entitled, under section 68.065, to recover from Corbin her reasonable attorney fees....
...The trial court's ruling on this claim was apparently based upon an erroneous construction of the statute, since its order recites that Maulden's check was not in fact dishonored because of lack of funds and "there was always sufficient funds to cover the check." Section 68.065 requires only that the party seeking attorney fees *1088 was "the prevailing party" in "any civil action brought for the purpose of collecting a check ..., the payment of which was refused by the drawee because of the lack of funds or...
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2003 Fla. App. LEXIS 4407, 2003 WL 1721937
...*215 Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P., and Robert J. Black, Coral Gables, for appellee. Before GODERICH, GREEN, and FLETCHER, JJ. GREEN, J. Naywin Maung, defendant below, appeals a partial final summary judgment entered on a count brought pursuant to the civil worthless check statute, section 68.065, Florida Statutes (1999), filed against him....
...Maung did not file any opposing affidavit or sworn statement in opposition to this motion. [1] The trial court granted the motion and entered partial final summary judgment in favor of National Stamping in the amount of $81,000 pursuant to the treble damages provision of the worthless check statute. See § 68.065(1), Fla....
...nt owing, in cash, to the payee within 30 days following a written demand therefore,... the maker or drawer shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of triple the amount so owing.... § 68.065(1), Fla....
...for summary judgment that Maung had stopped payment on the check with an intent to defraud. Therefore, setting aside Maung's affirmative defense for the moment, National Stamping never established its entitlement to judgment as a matter of law under section 68.065(1), and the summary judgment was error....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2001 WL 1230550
...[1] We affirm in part, *281 reverse in part, and remand for further proceedings. The actions filed below by the parties sought, in part, to enforce an alleged oral agreement and two written agreements, and to recover the amount of a worthless check plus treble damages, prejudgment interest, and attorney's fees pursuant to section 68.065, Florida Statutes (1995)....
...existed between the parties, and if so, the terms of the oral agreement and whether the parties performed the oral agreement. Elsa cross-appeals contending that the trial court erred by failing to award treble damages and attorney's fees pursuant to section 68.065, Florida Statutes (1995). [7] We agree. Pursuant to section 68.065, if a check is returned for insufficient funds, the payee may bring a civil action against the maker of the check if the maker does not pay the amount of the check in cash to the payee within 30 days following written demand....
...es the value of the worthless check, attorney's fees, and costs. [8] In the instant case, Felipe issued a $34,000 check to Elsa that was returned due to insufficient funds. Thereafter, Elsa sent Felipe a written demand for the $34,000 as required by section 68.065. After the 30-day statutory notice period expired, Elsa filed a civil action pursuant to section 68.065....
...uly believed that Elsa would never cash the check, then the check is basically a worthless piece of paper, and would not be any *284 sort of "asset." Moreover, the fact that the check was post-dated does not relieve Felipe from civil liability under section 68.065....
...Credit Union, 134 Cal.App.2d 316, 329, 285 P.2d 737, 739 (1955)("An essential characteristic of a check is that it be payable on demand"). Further, the fact that Felipe intended, but was not able to fund the post-dated check with the proceeds from the sale of Lot 4, does not relieve him from liability under section 68.065....
...... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully or authorized. [7] Section 68.065(1) provides, in pertinent part: In any civil action brought for the purpose of collecting a check, draft, or order of payment, the payment of which was refused by the drawee because of the lack of funds, credit, or an account, ......
...addition to the amount owing upon such check, draft, or order, for damages of triple the amount so owing.... The maker or drawer shall also be liable for any court costs and reasonable attorney fees incurred by the payee in taking the action.... [8] Section 68.065 provides an exception to awarding treble damages, but that exception is not applicable in the instant case. See § 68.065(6), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2008 WL 2064661
...We are not much impressed with Rogers' assertion that Nasr International Trading Co., Inc. v. Rahul International Inc.,
675 So.2d 704 (Fla. 3d DCA 1996), provides insight and support for his argument. There, the terms of the civil worthless check statute, section
68.065(1), were under consideration. Section
68.065(1) specifically provides that "the maker or drawer shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of triple the amount so owing." Applying the statute, the Third District Cou...
...Rogers admits that unlike the worthless check statute, the civil theft statute does not contain the express language calling for the actual damages plus triple that amount. However, he argues that the analogy is "sound." We disagree. We believe that the holding in Nasr and the provisions of section 68.065(1) belie the argument espoused by Rogers because the inclusion of the particular language in the worthless check statute clearly reveals that the Legislature knows how to make provision for an award of actual damages in addition to treble damages when it enacts a statute....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2001 WL 76755
...motion to dismiss based on inconvenient forum pursuant to Florida Rule of Civil Procedure 1.061(a). [1] Finding no abuse of discretion, we affirm. Ira Mex filed suit against Southeastern seeking damages, attorney's fees, and other relief pursuant to section 68.065, Florida Statutes (1999), which provides for actions to collect worthless checks....
...The complaint alleged that Southeastern executed and delivered a check to Ira Mex in the amount of $41,008; that Ira Mex deposited the check into its bank account, and that when the check was presented to the drawee bank, it was refused due to a stop payment order issued by Southeastern. Ira Mex asserted that it had sent the section 68.065(3) notice, but the check had not been paid....
...performed the work in question. Appellant responded that the case was not one for breach of contract, but a statutory cause of action for a worthless check to which the only defense was a defense to treble damages for economic hardship, pursuant to section 68.065(6), Florida Statutes (1999)....
...transferee forum must apply the state law which would have been applied by the transferor court. See Sargent v. Genesco, Inc.,
492 F.2d 750, 758 (5th Cir. 1974) (quoting Van Dusen v. Barrack,
376 U.S. 612, 639,
84 S.Ct. 805,
11 L.Ed.2d 945 (1964)). Section
68.065 provides a statutory remedy for wrongful conduct causing a check's failure to clear; in such situations the damage suffered by the payee occurs in the locale where the check is cashed....
...ply Montana law of vicarious liability where an auto accident occurred in Montana); Great Western Bank v. Southeastern Bank, 234 Ga.App. 420, 507 S.E.2d 191, 194 (1998). Second, even assuming that Georgia's bad check statute [2] is more limited than section 68.065 regarding stop payment orders, this does not mean that Georgia is not an "adequate alternate forum" within the meaning of rule 1.061(a)(1)....
...forum, after considering the presumption against disturbing appellant's initial forum choice. Many of the witnesses who resided in Georgia were relevant on the issue of whether Southeastern stopped payment on the check "with intent to defraud" under section 68.065(1)....
CopyCited 3 times | Published | United States Bankruptcy Court, S.D. Florida. | 1990 Bankr. LEXIS 249
...The statute provides for criminal prosecution based upon the issuance of a worthless check. The exception relied upon by the debtor applies exclusively to criminal prosecution. Recovery of civil damages based on the issuance of a worthless check may be made by a payee pursuant to Florida Statue, § 68.065, which provides for no such exception....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2005 WL 3411797
...Finally, contrary to appellant's argument, we find sufficient direct and circumstantial evidence of Valliappan's participation with his wife in the conspiracy to defraud Cruz. Affirmed. GUNTHER and HAZOURI, JJ., concur. NOTES [1] At some point after the postdated check was returned, Cruz's attorney demanded $180,000 under section 68.065, Florida Statutes (2004), regarding bad checks. Even if the attorney's letter were deemed to be a demand for usurious interest, and not an attempt to preserve rights under section 68.065, the demand did not transform the transaction into a usurious one....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 12408, 2010 WL 3324440
...Counts IV through VII allege that between February and March 2006, USA Direct issued four cheeks to the plaintiff in the amounts of $4020, $7350, $4806, and $3630; upon presentation of the checks, the drawee bank refused payment; and thereafter, pursuant to section 68.065, Florida Statutes (2006), the plaintiff made written demand on defendant USA Direct....
...ment to the complaint. Although we are reversing the final summary judgment, including the award of damages, prejudgment interest, attorney’s fees, and costs, we address another issue raised by Diaz as it is likely to reoccur on remand. Relying on section 68.065(6), Diaz argued that the trial court erred by entering a treble damage award against her where her answer raised a genuine issue of material fact — whether USA Direct’s failure to satisfy the dishonored checks was due to economic hardship. Section 68.065(6) reads as follows: If the court or jury determines that the failure of the maker or drawer to satisfy the dishonored check was due to economic hardship, the court or jury has the discretion to waive all or part of the statutory damages....
...Imperial Food Distribs., Inc.,
798 So.2d 803, 804 (Fla. 4th DCA 2001) (holding that the “judge or jury, as trier of fact,” must determine if failure to pay dishonored check was due to economic hardship); C & S Computers, Inc. v. Bodensiek,
662 So.2d 1383, 1384 (Fla. 4th DCA 1995) (“[Wjhen section
68.065(6) ......
...speaks of the court’s authority to waive all or part of the statutory damages due to economic hardship, the term statutory damages refers to those damages which were created by statute, i.e., the treble damages.”); Krontz v. Feiler,
553 So.2d 1302, 1303 (Fla. 3d DCA 1989) (noting that section
68.065 has a provision “which allows the trier of fact to waive all or part of the statutory damages in case of economic hardship”)....
CopyCited 1 times | Published | United States Bankruptcy Court, M.D. Florida | 20 Fla. L. Weekly Fed. B 47, 2006 Bankr. LEXIS 2529, 47 Bankr. Ct. Dec. (CRR) 55, 2006 WL 2848592
...The claim in Count II is for the Enforcement of an Oral Promise to Pay and contends the Defendant borrowed $200,000 from the Debtor with an oral promise to repay that has not been fulfilled. The claim in Count ill is for Liability on a Worthless instrument, brought pursuant to Section 68.065 of the Florida Statutes....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 15031, 2001 WL 1267232
PER CURIAM. Appellant, F & A Dairy Products, Inc. (F & A), as payee of a check written by appellee, Palm Coast Veal Corporation (Palm Coast), sued Palm Coast under section 68.065(1), Florida Statutes (1999)....
...F & A’s cause of action was tried to the court and judgment was entered for F & A for the amount of the check plus treble damages. Palm Coast filed a motion for rehearing arguing that the payment of the treble damages was an economic hardship which the trial court had the discretion to waive under section 68.065(6), Florida Statutes (1999). After Palm Coast presented its argument at the hearing thereon, the trial court granted the motion for rehearing and waived the treble damage award. Section 68.065(1), Florida Statutes, provides: If the court or jury determines that the failure of the maker or drawer to satisfy the dishonored check was due to *804 economic hardship, the court or jury has the discretion to waive all or part of the statutory damages....
...The third district discussed the application of this subsection in Krontz v. Feiler,
553 So.2d 1302 (Fla. 3d DCA 1989): The statute does have a provision, not applicable here, which allows the trier of fact to waive all or part of the statutory of damages in case of economic hardship. §
68.065(5) [now (6) ], Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 2249, 2009 WL 632087
...the default final judgment except as to the Kruegers’ claims for attorney’s fees and costs. The Kruegers filed a complaint against Paul and Marlene Ponton. Pertinent to this appeal, the Kruegers sought treble damages for a bad check pursuant to section 68.065 of the Florida Statutes (2004)....
...o recover treble damages, since the Krueg-ers were not the payees of the check. Krueger countered that they were the third-party beneficiaries under the real estate contract and, therefore, they were entitled to make a claim for treble damages under section 68.065 of the Florida Statutes....
...efault and Default Judgment is granted in part and denied in part as follows: 1. The final judgment is set aside pursuant to Fla. R. Civ. P. 1.540(b)(4), as it is a void judgment. The judgment awarded treble damages and attorney’s fees pursuant to § 68.065, Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 1996 Fla. App. LEXIS 6765, 1996 WL 347011
PER CURIAM. We find no merit in the points raised on appeal. On the cross-appeal, however, section 68.065(1), Florida Statutes (1991), requires an award of three times the $16,634.60 bad check issued by Nasr International Trading Co., Inc....
CopyCited 1 times | Published | United States Bankruptcy Court, S.D. Florida. | 11 Fla. L. Weekly Fed. B 50, 1997 Bankr. LEXIS 1042
...It is clear, based on this exhibit and the testimony at trial, that the check, though initially returned, was honored only 3 days later. Despite this, Mr. Handy alleges that he is due the amount of the check plus treble damages pursuant to Florida Statute § 68.065. Even if Florida Statute § 68.065 applied to Mr....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 1743, 1985 Fla. App. LEXIS 17485
...s refused; and (3) he then delivered the check to plaintiff. The trial court granted the renewed motion for summary final judgment on count II against both I.S.O. and Fischer. Attorney's fees were awarded to plaintiff pursuant to sections
57.105 and
68.065, Florida Statutes (1983)....
...ntiff in payment of an antecedent obligation; (4) the court could not logically hold both Fischer and I.S.O. jointly liable on the check; and (5) the award of attorney's fees under section
57.105 was unjust and erroneous, and the award of fees under section
68.065 cannot be determined until there is a finding that Fischer is liable on the contract and check....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 1989 WL 149624
...treble damages [1] to plaintiffs on account of a worthless check. We affirm. Appellees, who were plaintiffs below, brought suit against Krontz in a commercial *1303 dispute relating to a business lease. One count of the complaint made a claim under section 68.065, Florida Statutes (Supp. 1986), alleging that Krontz' check for $1,500 had been returned for insufficient funds. Simultaneously with the filing of the complaint, plaintiffs delivered the statutory thirty-day notice required by subsection 68.065(3)....
...to that count, and the statutory claim was later carried forward in plaintiffs' amended complaint. Eventually the trial judge granted summary judgment on the statutory count, and awarded treble damages, interest, and the statutory fee provided by subsection 68.065(2)....
...pired. That is so because the statutory notice specifically states, "Unless this amount is paid in full within the 30-day period, the holder of the check or instrument may file a civil action against you for three times the amount of the check ...." § 68.065(3), Fla....
...nt of the check. In rejecting that argument we are guided by the terms of the statute. The statute does have a provision, not applicable here, which allows the trier of fact to waive all or part of the statutory damages in case of economic hardship. § 68.065(5), Fla....
...computation of the final judgment, we do not disturb the amount awarded. Affirmed. NOTES [1] The terms of the statute are somewhat unusual, in that the treble damage award is in addition to, and not inclusive of, the amount owed on the unpaid check. § 68.065(1), (3), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...ritorious
defenses, and moved diligently to vacate the default, we reverse.
A & E Truck Service, LLC (A & E) brought a three-count action
against AMS for failure to pay for truck repairs. Count one alleged
a worthless instrument claim under section 68.065, Florida
Statutes (2019).1 On that count, A & E sought treble damages,
attorney's fees and a service charge as permitted by statute, and
costs.
A process server served an AMS sales associate with the
summons and complaint in May 2020.2 After AMS failed to answer,
A & E moved for a clerk's default....
...AMS also proved that it has meritorious defenses. The trial
court entered a default final judgment on a worthless instrument
claim without A & E ever having alleged in its complaint that AMS
intended to defraud A & E. But a plaintiff can only obtain damages
under section 68.065(3)(a) of the Florida Statutes if the "maker ....
CopyPublished | United States Bankruptcy Court, M.D. Florida
...TMBI sent demand letters and sued Nerdapalooza, Thew, the Debtor and others in state court. TMBI obtained a default judgment against Nerdapalooza in state court for the amount of the bounced check plus treble damages, for a total of $150,000 (plus fees and costs), as permitted under Section 68.065, Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 12506, 1995 WL 699823
STEVENSON, Judge. In this appeal we must decide whether the face amount of a worthless check is a part of the statutory damages which may be waived on the basis of economic hardship pursuant to section 68.065(6), Florida Statutes (1993)....
...rdship. Relying on the statutory provision which allows for waiver of statutory damages in the event of economic hardship, the trial court concluded that it had authority to waive the face amount of the check. On that point, we disagree and reverse. Section 68.065(1), Florida Statutes (1993), provides in pertinent part that: In any civil action brought for the purpose of collecting a check, draft, or order of payment ......
...hat the word damages in the statute refers to the trebling of the face amount of the check and the minimum $50. The face amount of the check is recognized as the maker’s liability, but not as an element of damage created by the statute. Thus, when section 68.065(6), Florida Statutes (1993), speaks of the court’s authority to waive all or part of the statutory damages due to economic hardship, the term statutory damages refers to those damages which were created by statute, i.e., the treble damages. The obligation to pay the face amount of the check already rests with the maker and does not arise only by operation of the statute. *1385 We believe that, among other possible reasons, section 68.065(1) provides for a $50 minimum statutory damages award as a safeguard to make it worth the payee’s while to litigate a worthless check where the face amount of the check itself is nominal....
...rdly justifies the parking fees for the payees’ trip to the courthouse. Under the statute’s required minimum award, the payee would be entitled to at least a judgment of $50.00, unless the trial court waives the damages due to economic hardship. § 68.065(6). Our conclusion that the face amount of the check should not be considered an element of “statutory damages” is also buttressed by section 68.065(3), Florida Statutes (1993), which details the written “form of notice” requirements that must be given to the payor before a payee can seek to recover under section 68.065(1)....
...It is perhaps for that reason that the trial court never addressed the defenses in the final order. Accordingly, on remand, the trial court is directed to consider all defenses previously raised by appellee/cross appellant. REVERSED and REMANDED. DELL and KLEIN, JJ., concur. . Section 68.065(6) provides that "If the court or jury determines that the failure of the maker or drawer to satisfy the dishonored check was due to economic hardship, the court or juiy has the discretion to waive all or part of the statutory damages....
CopyPublished | Florida 4th District Court of Appeal
issuance of a worthless check, pursuant to section
68.065 of the Florida Statutes; (ii) to pierce the
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 3037, 1990 WL 57817
...nted a motion for partial summary judgment on counts III and IV of Mice-li’s complaint in favor of L & F Partners, Ltd., Gerald L. Coen, and David F. Sweeney, the defendants in the trial court. Miceli brought both counts III and IV pursuant to section 68.065, Florida Statutes (1987)....
...Miceli mailed the statutory notices to the defendants at the addresses *1229 which the contracts state that notices should be sent. It is an unreasonable interpretation of the statute to prevent a person from prevailing on a claim brought pursuant to section 68.065 because of the other person’s refusal to claim the notice....
...II and IV of Miceli’s complaint and remand this case for further proceedings consistent with this opinion. Reversed and remanded. CAMPBELL, C.J., and RYDER, J., concur. . See L & F Partners, Ltd. v. Miceli,
555 So.2d 1283 (Fla. 2d DCA 1990). . Section
68.065 provides, in relevant part: Actions to collect worthless checks, drafts, or orders of payment; attorney’s fees and collection costs.— (1) In any civil action brought for the purpose of collecting a check, draft, or order of payment...
...st you for three times the amount of the check, but in no case less than $50 or more than $2500, in addition to the payment of the check plus any court costs, reasonable attorney fees, and any bank fees incurred by the payee in taking the action.” § 68.065(1)-(3), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal
...Concluding that appellants
showed excusable neglect, a meritorious defense, and due diligence, we
reverse.
Appellee, a dental practice, filed the underlying case against appellants,
a husband and wife, for a worthless check in the amount of $8,283,
pursuant to section 68.065, Florida Statutes (2021)....
...attend the case management conference. We conclude that excusable
neglect has been shown.
3
While the trial court found no meritorious defense, we disagree.
Appellee alleged a cause of action for a worthless check based on section
68.065, Florida Statutes (2021). Section 68.065 provides that that a party
can bring an action for payment of a check under certain conditions and
obtain triple damages of the amount owing “where the maker or drawer
stops payment on the instrument with intent to defraud.” § 68.065(3)(a),
Fla....
CopyPublished | Florida 3rd District Court of Appeal | 83 U.C.C. Rep. Serv. 2d (West) 306, 2014 WL 1230504, 2014 Fla. App. LEXIS 4411
...t he was signing in a representative capacity. All three checks were dishonored for insufficient funds. In February 2013, Moumina filed a one count complaint seeking treble damages from both Big Bang and Ojeda for issuing the worthless checks. 1 See § 68.065(3)(a), Fla....
...No claim to collect on the note or to enforce Ojeda’s personal guarantee was alleged. After Big Bang and Ojeda failed to respond to the complaint, judgment was entered against both Big Bang and Ojeda for the amount of the three checks plus triple that amount as provided by section 68.065....
...Four months later, both Big Bang and Ojeda sought to set aside the judgment, their 1.540 motion claiming the judgment was void. The motion was denied. We find no merit in that claim as to Big Bang. Moumina stated a valid cause of action pursuant to section 68.065(3)(a), as to it....
...Accordingly we affirm the order denying the Rule 1.540 motion as to Big Bang, but reverse that order as to Ojeda. Affirmed in part, reversed in part. 2 . Before bringing suit, Moumina provided the notice required to Big Bang and Ojeda as required by section 68.065 of the Florida Statutes alerting them that they had thirty days in which to make good on the checks. See § 68.065(4), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 3316, 2004 WL 515539
PER CURIAM. Pursuant to section
68.065(1), Florida Statutes (2001), appellant Velecta Paramount brought an action against appellee Michael Gilbert, in his individual capacity. Section
68.065(1) applies in “any civil action brought for the purpose of collecting a check.” Appellant’s “civil action” to collect the check was based on section
673.4011(1), Florida Statutes (2001), which creates liability “on an instrument.” The check at issue is an instrument....
...See §
673.1041(5)-(6), Fla. Stat. (2001). In this case, section
673.4021(3), Florida Statutes (2001) operates to relieve Gilbert of personal liability on the check. See Serna v. Milanese, Inc.,
643 So.2d 36, 38 (Fla. 3d DCA 1994). If Gilbert is not liable on the check, section
68.065(1) does not create a separate cause of action which can be the basis of liability....
CopyPublished | Florida 3rd District Court of Appeal | 2004 Fla. App. LEXIS 2818, 2004 WL 444532
...See Shindler v. State Wide Recovery & Research Corp.,
330 So.2d 807, 808 (Fla. 3d DCA 1976); §
47.011, Fla. Stat. (2001). The plaintiff argues that the result should be otherwise because the plaintiff made demand under the worthless check statute, section
68.065, Florida Statutes (2001). The plaintiff argues that once demand is made under the statute, the demanded sum is payable where the plaintiff resides. See §
68.065(3), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...Because the trial court properly
found Apeiron tendered to U.S. Security an amount of money equal to the
sum of the worthless check, the service charge, court costs and incurred
bank fees “before the hearing,” in satisfaction of the worthless check count,
we affirm. See § 68.065(6), Fla....
...Turnberry Isle S. Condo.
Ass’n,
250 So. 3d 835, 837 (Fla. 3d DCA 2018) (“An order granting
entitlement to attorney’s fees but not determining the amount of fees or costs
1
While we express no opinion on the arguments raised on the issue, we note
that section
68.065(6) expressly provides: “Other provisions notwithstanding,
the maker or drawer is liable to the payee for all attorney fees and collection
costs incurred by payee as a result of the payee’s claim.”...
CopyPublished | Florida 5th District Court of Appeal | 2014 WL 2968834, 2014 Fla. App. LEXIS 10241
...ped payment on the $7,860 check. Baggett’s rationale for stopping payment was that he believed that the losses that were going to result from Clark’s breach would exceed the amount of the check. Clark then brought an action against Baggett under section 68.065, Florida Statutes, seeking damages for the stop payment, including treble damages....
...The standard of review for an order granting summary judgment is de novo. Id. We find no error in the court’s ruling regarding Baggett’s claim of setoff. See Krontz v. Feiler,
553 So.2d 1302 (Fla. 3d DCA 1989) (holding that setoff is not an available defense to a section
68.065 action)....
...hat he suffered as a result of Clark’s breach were merely speculative at the time he stopped payment on the check. We agree with Baggett, however, that the trial court erred in entering summary judgment on the intent to defraud element required by section 68.065, Florida Statutes. The statute at issue provides that “where the maker or drawer stops payment on the instrument with intent to defraud, ... the maker or drawer is liable to the payee ... for damages of triple the amount so owing.” § 68.065(3)(a), Fla....
...e. Baggett may not ultimately prevail on this issue, but a question of fact for the jury exists with respect to Baggett’s intent, which precludes summary judgment. Accordingly, we reverse. REVERSED AND REMANDED. SAWAYA and ORFINGER, JJ., concur. . § 68.065, Fla....
CopyPublished | Supreme Court of Florida | 25 Fla. L. Weekly Supp. 570, 2000 Fla. LEXIS 1458, 2000 WL 963832
...If Tenant makes a rent payment with a worthless check, Landlord can require Tenant □ to pay all future payments by □ money order, cashier’s check, or official bank check or □ cash or other (specify)_, and □ to pay bad cheek fees in the amount of $_(not to exceed the amount prescribed by Florida Statutes section 68.065)....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 100, 2015 WL 72260
...ng fees awarded under
1
In the final judgment, the trial court ruled that Mr. Wood was entitled to an
award of attorney's fees and reserved jurisdiction to determine the amount of a
reasonable attorney's fee and costs.
section 68.065, Florida Statutes (2011), because there was no presentment and
dishonor of the checks at issue.
Mr....
...Wood was an employee of Infrax. A portion of the judgment amount
comprises wages and unreimbursed business expenses due from Infrax to Mr. Wood.
The major portion of the judgment amount represents treble damages and processing
fees awarded under section 68.065 for checks delivered by Infrax to Mr....
...Wood never presented the checks to the
bank upon which they were drawn for payment; thus the checks were not dishonored.
See §§
673.5011;
673.5021, Fla. Stat. (2011). It follows that Mr. Wood was not entitled
to claim treble damages or processing fees on the checks in accordance with section
68.065. See Schneider v. Slichter,
917 So. 2d 299, 301 (Fla. 4th DCA 2005) (Gunther,
J., dissenting) ("A civil action pursuant to section
68.065, Florida Statutes requires proof
that: (a) a check was made and delivered to the plaintiff and (b) the 'payment was
refused by the drawee bank because of the lack of funds.' "); Tepper v....
CopyPublished | Court of Appeals for the Eleventh Circuit
...d
have foreseen when they received the complaint over three years ago. The
plaintiff, after being fully compensated under its breach of contract theory,
contests the district court’s dismissal of its statutory worthless check claim, Fla.
Stat. § 68.065....
...complaint contained six counts.6 Count I alleged that the Lamas breached the
Contract. Counts II and III alleged fraud and negligent misrepresentation, but
were dismissed at the pleading stage and are not challenged here. Count IV
alleged a worthless check claim under Fla. Stat. § 68.065 and sought liability
directly against the Lamas under the theory that because Chipstek and Expertek,
the entities that issued the worthless checks, were the alter egos of the Lamas, the
court should pierce the corporate veil. This count is notable because it carries
with it the possibility of treble damages. Fla. Stat. § 68.065(1).7 Count V alleged
a violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”),
Fla....
...urt would
conclude otherwise. Id.
Here, piercing the corporate veil was necessary to hold Oscar Sr. and the
Lamas liable for the worthless checks. Florida’s worthless check statute, Fla. Stat.
34
§ 68.065, punishes the making or drawing of a bad check....
CopyPublished | Florida 3rd District Court of Appeal
...ProntoCash gave Autoboutique the cash. Later, the
checks were returned for insufficient funds and turned out to be fraudulent.
When Autoboutique failed to work out a resolution with ProntoCash,
ProntoCash sued Autoboutique to collect payment on two worthless checks
pursuant to section 68.065, Florida Statutes, and for violation of the duty of
good faith under the Uniform Commercial Code.
On February 20, 2020, ProntoCash filed notices of lis pendens against
several vehicles owned by Autoboutique....
CopyPublished | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 20063, 2005 WL 3478175
...To the contrary of the foregoing, Richard Slichter swore that he presented the personal checks at a branch of the drawee bank on December 23, 1999, but the bank refused to cash the checks due to insufficient funds. In moving for summary judgment on the section 68.065, Florida Statutes, bad check claim, the appellees, plaintiffs below, filed the affidavits of Richard Slichter and his friend, both attesting to the fact that they attempted to cash the checks on the morning of December 23, 1999....
CopyPublished | Florida 4th District Court of Appeal
...Appellee is a subcontractor who
had been retained by appellants to perform certain work.
In the county court, the subcontractor filed a three-count complaint
against appellants. Each count was based on a separate worthless check
delivered by appellants for work done. The complaint sought relief under
section 68.065, Florida Statutes (2018)....
... The subcontractor voluntarily dismissed one count of the complaint.
The trial court ruled in appellants’ favor on a second count. On the third
count, the trial court awarded the subcontractor $1,500 in damages and
$4,500 in treble damages, pursuant to section 68.065(3)(a).
Appellants moved for an award of attorney’s fees and costs pursuant to
section 68.065, arguing that they were the prevailing party on two of the
three counts of the complaint. The trial judge denied the motion for fees.
One reason that affirmance is proper is that section 68.065 does not
authorize an award of fees to defendant makers or drawers of dishonored
checks who ultimately prevail on a statutory claim. Section 68.065(3)(a)
provides, among other things, that “[t]he maker or drawer [of a bad check]
is also liable for any court costs and reasonable attorney fees incurred by
the payee in taking the action.” § 68.065(3)(a), Fla. Stat. (2018). Similarly,
section 68.065(6), in describing a pretrial disposition of a case, says that
“the maker or drawer is liable to the payee for all attorney fees and
collection costs incurred by payee as a result of the payee’s claim.” §
68.065(6), Fla....
...by
the payee of a bad check, not by its maker or drawer. Appellants were the
makers or drawers of checks upon which the lawsuit was based, not the
payees. There was no statutory basis for an award of attorney’s fees to
them.
The predecessor of section 68.065, Florida Statutes, provided for
attorney’s fees to the prevailing party in a statutory civil action:
In any civil action brought for the purpose of collecting a
check, draft, or order of payment, the payment of which was...
...recover from the non-prevailing party the prevailing
party’s reasonable attorney fees and costs of collection.
Ch. 79-345, § 2, Laws of Fla. (codified at §
832.07, Fla. Stat. (1979))
(emphasis added).
However, under the 1986 amendments to both section
68.065 and
section
832.07, only the maker or drawer of a check is made liable for
court costs and reasonable attorney fees incurred by the payee in taking
the recovering action. The reciprocal prevailing party attorney’s fees
2
provision was completely removed in 1986, and this change has remained
in force to the present day. See Ch. 86-89, § 1, Laws of Fla. (codified at §
68.065, Fla....
...86-89, § 2, Laws of Fla. (codified at §
832.07(1)(a), Fla. Stat. (1986)) (“[The maker or drawer] may be additionally
liable in a civil action for triple the amount of the check, . . . court costs,
[and] reasonable attorney fees . . . as provided in s.
68.065.”).
Cases treating section
68.065 as a prevailing party attorney’s fee
statute are likely referring to the pre-1986 version of the statute. See, e.g.,
Maulden v. Corbin,
537 So. 2d 1085 (Fla. 1st DCA 1989). As noted above,
the current version of section
68.065 does not contain a reciprocal
prevailing party attorney’s fees provision.
I am aware of no statute that would override the specific language of
section
68.065....
CopyPublished | Florida 3rd District Court of Appeal | 2003 Fla. App. LEXIS 19201, 2003 WL 22956429
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....
...why he’d tried to cheat Uribe. Uribe told Correa he would not buy his interest in the company. 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....
...s. 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 Ur-ibe’s counterclaim....
...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 pay *885 ments the statutory liability for treble damages is only triggered if there is an “intent to defraud.” Section 68.065(1), Florida Statutes (2002)....
CopyPublished | Florida 5th District Court of Appeal | 2014 WL 3871235, 2014 Fla. App. LEXIS 12146
...s’ claim. 1 Section
95.11 sets out the applicable time limitations for actions other than the recovery of real property. In her motion for summary judgment, Mills asserted that Sarras’ action was founded upon the statutory liability specified in section
68.065, Florida Statutes (2007) and, thus, the four-year limitation period set forth in section
95.11(3)(f) applied....
...re]] (2) WITHIN FIVE YEARS.— (b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.... We agree with Sarras because, contrary to Mills’ contention, the action brought by Sarras was not founded on section 68.065. *511 Section 68.065(1), Florida Statutes (2007), 2 provides that in any civil action brought for the purpose of collecting a check, the payment of which was refused by the drawee because of the lack of funds, the maker can be found liable for treble damag...
...nt of the check where the maker fails to pay the amount owing, in cash, to the payee within thirty days following a written demand therefor. However, the right to bring an action to collect on a worthless check existed prior to the 1979 enactment of section
68.065. Indeed, in 1968, the Florida Supreme Court approved a form complaint for an action to collect on a worthless check. See Fla. R. Civ. P. Form 1.942; 3 In re Florida Rules of Civil Procedure,
211 So.2d 174, 188 (Fla.1968). Section
68.065 does not create an exclusive means to bring an action on a worthless check; rather it authorizes an award of treble damages and reasonable attorney’s fees in worthless check actions where certain additional elements have been proved....
...everse the final summary judgment entered below. 4 REVERSED and REMANDED. PALMER, J., concurs. BERGER, J., dissents, with opinion. . Mills raised other defenses below; however, these defenses were not the subject of her motion for summary judgment. .Section 68.065(1), Florida Statutes (2007), states: In any civil action brought for the purpose of collecting a check, draft, or order of payment, the payment of which was refused by the drawee because of the lack of funds, credit, or an account, or...
...See In re Rules of Civil Procedure,
391 So.2d 165, 187 (Fla.1980); In re Amendments to the Florida Rules of Civil Procedure,
604 So.2d 1110, 1196 (Fla.1992); In re Amendments to the Florida Rules of Civil Procedure,
773 So.2d 1098, 1144 (Fla.2000). . Sarras’ complaint did not seek treble damages, nor did it reference section
68.065. Regardless, the four-year statute of limitations period set forth in section
95.11(3)(f) would bar any claim by Sarras to recover treble damages and reasonable attorney’s fees under section
68.065.
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 12212, 2011 WL 3300213
...e sublease agreement. With respect to counts II and III (the counts alleging dishonored checks), Hutson averred that the checks did not clear due to insufficient funds as a direct result of the economic hardship caused by Plantation MRI’s actions. Section 68.065(6), Florida Statutes, provides that “[i]f the court or jury determines that the failure of the maker or drawer to satisfy the dishonored check was due to economic hardship, the court or jury has the discretion to waive all or part of...
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 7997, 1994 WL 419638
PETERSON, Judge. When Fred and Sally Diulus’ check for $8000 was dishonored, the payee, Simon Hanley, forwarded a letter by certified mail to the Diuluses, notifying them that, pursuant to section 68.065, Florida Statutes, they had seven days after receiving the letter to tender full payment of the dishonored check or be held liable in a civil action for triple the amount of the check together with the amount of the check. The Diuluses were unable to pay and the Hanleys filed suit against them. The suit resulted in a summary final judgment being entered in the Hanleys’ favor for triple the amount of the check plus various costs on the basis of section 68.065. We reverse. Hanley’s letter to the Diuluses was flawed in that, while he tracked the language of section 68.065 with precision, he changed the prescribed period to tender payment in full to avoid the statutory action from 30 days to seven days. § 68.065(3), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 1765, 1986 Fla. App. LEXIS 9264
...not, we think that the peculiar wording of our statute is such as to preclude its recovery. Purvis,
61 Fla. at 716 ,
54 So. at 863. As his second contention, Medina argues that the trial court erred in not awarding him attorney’s fees pursuant to section
68.065, Florida Statutes (1981). This contention is without merit. By its terms, section
68.065 applies only where payment of a check has been refused “because of the lack of funds or credit.” Because there is no other statutory basis for an award, or an agreement between the parties providing for it, the trial court properly denied Medina attorney’s fees....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 5487, 2004 WL 840254
...act existed, and the contractor counterclaimed for damages for breach of contract and triple damages for fraudulently stopping payment on a check. The jury found that a contract did exist and awarded damages for lost profits as well as damages under section 68.065, Florida Statutes (2001), in the amount of the check, which were tripled. Section 68.065, Florida Statutes (2001), provides: (1) In any civil action brought for the purpose of collecting a check .......
CopyPublished | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 216, 2010 Fla. LEXIS 568, 2010 WL 1488111
...If Tenant makes a rent payment with a worthless check, Landlord can require Tenant □ to pay all future payments by □ money order, cashier’s check or official bank check or □ cash or other (specify), and to □ pay bad check fees in the amount of $-(not to exceed the amount prescribed by Section 68.065, Florida Stat- 5....
