Florida/Georgia Personal Injury & Workers Compensation

...[9] Because the Court limits application of Section 727(a)(5) to those wrongful acts proscribed within Section 727, the Court need not and does not reach the question of whether the acts complained of herein would constitute a misdemeanor under Fla. Stat. Section 818.01.

...Schwartz, to obtain collection of the amounts due on the contract. The plaintiff was contacted in reference to the arrearages and she tendered the return of the chattel. But, notwithstanding the offer to return, Schwartz caused criminal proceedings to be instituted against her alleging violation of § 818.01, Fla....

...Littman, an officer of Park Lane, advised the bank that it had been resold for $850, subject to the bank's lien. The bank was unable to locate either the alleged purchaser or the fork lift. The bank then filed suit seeking damages for violation of sections 818.01 and 818.03, Florida Statutes (1979)....

...aring and the appeals reinstated. Three main issues are raised by this appeal. I The first issue appellants raise is that the court below erred in entering summary judgment predicated on alleged violations of Chapter 818, Florida Statutes (1979), as section 818.01, which declares it a misdemeanor to dispose of property subject to a lien without consent of the vendor, directly conflicts with and has been impliedly repealed by section 679.311, Florida Statutes (1979) [1] of the Uniform Commercial Code, *638 which allows for transfer of a debtor's rights in collateral notwithstanding a prohibition in the security agreement. Appellants further allege that neither section 818.01 [2] nor 818.03 [3] , on which this action is founded, apply to a successor in interest to the original debtor; that there was no evidence in the instant case establishing the necessary elements set forth in the statutes; and that genuine issues of material fact exist precluding summary judgment. Appellants' contention that section 818.01 is inconsistent with and was therefore repealed by enactment of section 679.311 of the UCC is based on a comment in Florida Statutes Annotated and an unpublished Florida Attorney General Opinion, No. 071-6, suggesting that such a conflict may exist. At the outset we observe that this court has previously held that a violation of penal statutes 818.01 and 818.03, Florida Statutes, may give rise to a civil cause of action for compensatory and punitive damages as well as criminal penalties....

...-Nebraska Corp. v. Cummings, Inc., 595 S.W.2d 922 (Tex.Civ.App. 1980) (secured creditor may sue the debtor's buyer for conversion of the collateral). We think it clear that to the extent of any conflict, the specific statutory provisions of sections 818.01 and 818.03 must prevail over the general terms of section 679.311. Additionally, both section 818.01 and 818.03 were amended following adoption of the UCC and after the unpublished Attorney General Opinion upon which appellants rely, demonstrating that the legislature found no conflict between the provisions. [4] Accordingly, we find no genuine conflict exists between UCC provision 679.311 and sections 818.01 and 818.03 so as to preclude application of the latter in the instant case. Appellants' contention that neither section 818.01 nor 818.03 apply to a successor in interest to the original debtor is likewise without merit. Both sections specifically refer to "whoever" throughout, clearly not limiting their application to an original debtor under a security agreement. Compare sections 818.01 and 818.03 with section 817.562 which makes it actionable fraud to sell or otherwise dispose of secured property, but limits the scope thereof to those persons "having executed a security *640 agreement creating a security interest in personal property." Section 817.562(2), Florida Statutes (1981)....

...fendant in Rosenberg was the original debtor. Contrary to appellants' assertion, there is no indication in Rosenberg that the defendant was the original debtor, nor that the decision is so limited. Therefore, its holding that a violation of sections 818.01 and 818.03 is a tort for which compensatory and punitive damages may be awarded applies to the instant case. Although Rosenberg predates the adoption of the UCC in Florida, as stated above, we find no conflict between section 679.311 and sections 818.01 and 818.03 precluding maintenance of the present action. Appellants further contend that even if sections 818.01 and 818.03 have not been repealed and do apply to third party purchasers, the evidence below simply does not support their application in the present case, and in any event, genuine issues of material fact remain for resolution....

...We agree with appellants' contention that the record fails to support application of section 818.03 in this case. There is no evidence that the fork lift was at any time removed beyond the county limits — a necessary prerequisite to a violation of that section. However, the elements necessary to support a violation under section 818.01 were proven by the pleadings, affidavits, admissions, and answers to interrogatories below....

...Moreover, the statute itself provides that failure of the purchaser of secured property to produce or deliver said property upon demand of the secured creditor after the debt has become enforceable or the vendee has substantially defaulted shall be prima facie evidence of "concealing, selling or disposing," of such property. § 818.01(2), Fla....

...As appellants sold the fork lift without the written consent of the bank, failed to produce it in response to the bank's demand, and raised no genuine issues of material fact in their affidavits opposing the summary judgment, the necessary elements of section 818.01 were established and judgment was properly entered for the bank as a matter of law....

...substantially defaulted in the performance of such retained title contract. [3] Removing such property beyond the limits of county. — Whoever shall knowingly and without the written consent of the person having such a lien thereon, as mentioned in s. 818.01, buy, take, receive or remove or cause to be removed beyond the limits of the county, any personal property subject to such lien from the owner or any person in possession thereof, and whoever shall willfully conceal such property or obstru...

...der in prosecuting his rights against any of such property, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. [4] We also note that subsequent to adoption of the UCC, the First District applied section 818.01 in a criminal setting in Helmig v. State, 330 So.2d 246 (Fla.1st DCA 1976). [5] Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla.3d DCA 1964), holding that a civil suit could be maintained based on a violation of section 818.01 and 818.03, was limited to a determination of whether the complaint therein stated a cause of action, and did not decide what evidence would be sufficient to sustain the action, or the proper amount of damages in a successful suit....

...Appellant-plaintiff appeals from the dismissal of her complaint by the Circuit Court for failure to state a cause of action. Appellant, in her complaint, sought to recover compensatory and punitive damages *679 from the appellee for its violation of §§ 818.01 and 818.03, Fla....

...The present right to possession is an indispensable element of the tort of conversion. [2] Accordingly, the appellant's complaint may only stand if she has a right of recovery by virtue of being the person who was injured by appellee's violation of the penal statutes, §§ 818.01 and 818.03 Fla....

...We are simply passing upon the sufficiency of the allegations of the complaint. This is not to say that appellee may not have a perfectly valid defense to appellant's claim to damages. [5] Accordingly, the judgment appealed is reversed and remanded for proceedings consistent herewith. Reversed and remanded. NOTES [1] "818.01 Disposing of personal property under lien, etc....

...ubstantially defaulted in the performance of such retained title contract. "818.03. Removing such property beyond the limits of county. Whoever shall knowingly and without the written consent of the person having such a lien thereon, as mentioned in § 818.01, buy, take, receive or remove or cause to be removed beyond the limits of the county, any personal property subject to such lien from the owner or any person in possession thereof, and whoever shall willfully conceal such property or obstru...

...towards such transaction which would necessarily stigmatize it as an accessory after the fact to the fraud inhering therein." [64 Cal. App. 230, 221 P. 703.] The analogy is even more apparent when it is considered that, under the law of this state, Section 818.01, Florida Statutes 1953, F.S.A., it is a criminal offense to dispose of property held under a conditional sale contract without first obtaining the consent of the conditional vendor....

...McMackin passed Kastner's offer along to Barnett, which then sold the license for $105,000 to Hickory Point. Flanigan's filed suit against Barnett asserting a landlord's lien on the liquor license for Level 3's past-due rent. See § 83.08, Fla. Stat. (1977). Flanigan's sought damages under section 818.01, Florida Statutes (1977), which prohibits sale of encumbered property without written consent of the lienholder. The trial court ruled that Flanigan's held a landlord's lien on the license, that section 818.01 was applicable, but that Flanigan's was estopped from asserting its claim....

...The district court agreed that Flanigan's was estopped from asserting its landlord's lien because Kastner had failed to raise that claim with McMackin in their telephone conversation prior to sale of the license to Hickory Point. The court further ruled that Barnett was not liable under section 818.01 because that section's consent requirement was superseded by the Uniform Commercial Code's notice provision under section 679.504, Florida Statutes (1977). The court acknowledged conflict with Hanus and Littman, wherein the courts found liability under section 818.01....

...mises leased. § 83.08, Fla. Stat. (1977). Chapter 818, Florida Statutes (1977), governs the sale of mortgaged personal property and makes it a crime to dispose of personal property encumbered by a lien without the written consent of the lienholder: 818.01 Disposing of personal property under lien, etc....

...or transfer, such property with intent to defeat, hinder or delay the enforcement of such lien, or the recovery of such property by the vendor, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. § 818.01, Florida Statutes (1977)....

...usually kept on the premises." § 83.08(2), Fla. Stat. (1985). Id. at 1297 (citation omitted). Applying Walling to the present case, no landlord's lien ever attached to the liquor license and thus there was no disposition of encumbered property in violation of section 818.01....

...t in the liquor license. [2] As noted above, the district court based its decision on the theory of estoppel and on its belief that the UCC's notice provision contained in section 679.504, Florida Statutes (1977), preempts the consent requirement in section 818.01, Florida Statutes (1977)....

...Flanigan's Enterprises, Inc. appeals from a final judgment which held it was estopped to seek damages against Barnett Bank of Naples and Barnett cross-appeals from the trial court's initial determination that it could have been held liable to Flanigan's pursuant to section 818.01, Florida Statutes (1983)....

...es under the Uniform Commercial Code and Chapter 561, Florida Statutes, to foreclose on the license and sell it to a third party. We affirm for two reasons: the record adequately supports the trial court's finding of estoppel, and we also think that section 818.01 provides no basis to assert civil liability against Barnett....

...claim to have a prior statutory lien on the license. Had this claim been timely *1201 asserted, Barnett would not have sold the license to Hickory Point and the loss of Flanigan's lien following the sale could have been avoided. II. APPLICABILITY OF SECTION 818.01. Section 818.01 is a very old statute, having first appeared in 1893....

...tained by the vendor, without the written consent of the person holding such lien, or retaining such title ... Admittedly, Barnett did not obtain Flanigan's consent to its sale of the license to Hickory Point. Barnett argues in its cross-appeal that section 818.01 applies only to tangible personal property, and not to intangible personal property, such as a liquor license....

...le such as a liquor license cannot be seen or handled and it has no substance, body or location. It is similar to those bundles of rights that make up a franchise, a copyright or an annuity. See C.J.S. Property § 15 (1983). However, the language of section 818.01 is not expressly limited to tangible, as opposed to intangible, personal property....

...eaning of those used in legislation. Baskerville-Donovan Enter., Inc. v. Pensacola Exec. House Condo. Assoc., 581 So.2d 1301 (Fla. 1991); Shelby Mutual Ins. Co. of Shelby, Ohio v. Smith, 556 So.2d 393 (Fla. 1990). Although all of the cases involving section 818.01, which we have found or which have been cited to us, concerned tangible personal property, [2] we cannot conclude that intangible or other kinds of personal property, such as instruments and chattel paper, [3] were intended to be excluded. See Hayes v. Jones, 147 Fla. 238, 2 So.2d 588 (Fla. 1941). Barnett also argues that section 818.01 should not be applied in the context of sales of collateral by either inferior or superior lienholders where such sales are permitted by the panoply of remedies afforded by the U.C.C., [4] or other laws. [5] Other appellate courts of this state have rejected this argument. In Ford Motor Credit Co. v. Hanus , the fourth district held that a purchaser of a truck at a sheriff's sale (the levying judgment creditor) was liable under section 818.01 to the secured creditor whose lien was duly noted on the title, *1202 when a third party to whom the creditor resold the truck vanished and absconded with the collateral....

...ull amount of the superior lien, even though the sale was expressly subject to the superior lien, when the purchasing creditor resold the forklift to a third party who vanished and absconded with the collateral. The Littman court expressly held that section 818.01 had not been impliedly repealed by section 679.311 or any other remedy provision encompassed in the U.C.C....

...For example, section 679.504 provides that after default, a secured creditor has the right to sell or dispose of the collateral, provided the conditions of the statute are met. One of the conditions is not obtaining the written consent of any other party who has a security interest as Littman holds section 818.01 still requires....

...be given reasonable notice of the intended sale or disposition. Thereafter, the selling secured party may protect its interest by buying the collateral at the public or private sale. It appears to us that section 679.504(3) cannot be reconciled with section 818.01 in the context of sales of collateral by secured creditors....

...re it could sell the collateral to a third party. In sum, we think the U.C.C. and other similar statutes which govern in a comprehensive way the disposition of collateral by secured parties, have impliedly repealed any written consent requirement of section 818.01, whether the complaining party holds an inferior or superior lien....

..., or that Barnett's exercise of its rights to dispose of the collateral after default was wrongful. Compare, e.g., Black, Starr & Frost v. Prestige Finance (Debtor wrongfully sold personal property free from secured creditor's lien held liable under section 818.01). Section 818.01 may have some remaining impact in cases involving wrongful disposition of collateral by debtors and/or secured creditors seeking to destroy or evade the rights of other secured creditors, where the provisions of section 679.504 (or a like statute governing disposition of specific kinds of collateral) are not followed. However, as in this case, where the statute allowing disposition and sale of collateral by a secured creditor is followed, section 818.01 affords no basis for civil or criminal liability against a secured creditor who disposes of collateral, purchases it at the sale, and later sells it to a third party, simply because written consent from another secured creditor or lienor was not obtained....

...priated the rents and proceeds from the property. Ormond Beach later declared bankruptcy. We affirm the dismissal with prejudice of counts 17 through 22, which allege that appellees, in misappropriating the rents from the property, violated sections 818.01 and 818.03, Florida Statutes (1991). Section 818.01, Florida Statutes, provides that it is a crime for a person to pledge, mortgage, sell or otherwise dispose of his or her personal property, which is subject to a written or statutory lien or a conditional sales contract retaining title...

...To hold otherwise would enable the debtor "to evade the obligations of a validly executed security agreement by the simple expedient of an alteration of its business structure." West Coast Food Sales, Inc., at 709. There is another policy consideration which weighs heavily in favor of Mid-State. Under § 818.01, Florida Statutes (1985), it is a misdemeanor of the first degree to sell or otherwise dispose of any personal property subject to a written lien without the written consent of the lienholder....

under lien to Royal Trust, in violation of section 818.-01, Florida Statutes.1 Von Zamft’s counterclaim

...Robert L. Shevin, Atty. Gen., and A.S. Johnston, Asst. Atty. Gen., for appellee. PER CURIAM. This is an appeal from judgment and sentence of appellant for selling personal property subject to a lien, without the consent of the lienholder, in violation of § 818.01, F.S., and transferring a motor vehicle without delivery of title, in violation of § 319.34, F.S....

...Section 715.04 does not purport to relieve a pawnbroker from all liability it might otherwise incur to third parties by virtue of obligations not in conflict with chapter 715. Here, the initial liability, not in issue, was predicated on the creditor’s rights under chapter 679, the U.C.C. — Secured Transactions, and section 818.01, Florida Statutes, which concerns disposing of personal property under lien....

...e to absolve a pawnbroker of liability to a third party where the pawnbroker may have notice of the third party’s interest. We note that appellee filed no cross appeal questioning the initial judgment’s finding of liability under chapter 679 and section 818.01....

...complaint against Bernard Hanus and Ocean City Lumber Company, alleging that Hanus had defaulted under a retail installment contract for the sale of a 1983 Ford Ranger Pickup Truck. The complaint further alleged that Ocean City had violated Sections 818.01 1 and 818.05, 2 Florida Statutes (1983), by disposing of the vehicle to a third party without the written consent of FMCC....

...ORDER This court’s order of January 15, 1986, granting appellant’s attorney’s fees is hereby withdrawn; Appellant’s motion for attorney’s fees filed August 28, 1985 is denied. ORDERED that Appellee’s February 28, 1986 motion for rehearing is denied. . Section 818.01(1) provides: Whoever shall pledge, mortgage, sell, or otherwise dispose of any personal property to him belonging, or which shall be in his possession, and which shall be subject to any written lien, or which shall be subject to any st...

...During the term of the lease but while the monthly payments were current, Justice moved out of the premises. Harry and Shelby Justice, the owners and officers of Justice, sold the equipment to a third person. Oaks sued Justice and its officers for fraud, conversion and for violation of sections 818.01 and 818.03, Florida Statutes, for removing and disposing of the equipment upon which a landlord hen existed....

...g the lease by early termination, and that they were selling property subject to a landlord hen. See Littman v. Commercial Bank & Trust Co., 425 So.2d 636 (Fla. 3d DCA 1983), which held that the bank had satisfactorily estabhshed the elements of section 818.01 by showing that the defendant sold the hen-encumbered property to a third party without the consent of the bank and consequently failed to produce the property when it was demanded by the bank....