Inglis v. Wells Fargo Bank, N.A.

Filing 230

OPINION AND ORDER denying plaintiff's 148 Motion for summary judgment; granting defendant's 149 Motion for summary judgment; denying 169 Motion for Leave to Supplement. The Clerk shall terminate any pending motions and objections, enter judgment in favor of Wells Fargo Bank, N.A. and against Richard K. Inglis, as Special Trustee, and close the case. Signed by Judge John E. Steele on 2/16/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD
K.
INGLIS,
as
Special Trustee to the trust
under the will of Rosa B.
Schweiker, dated February 2,
1961,
the
Frederick
W.
Berlinger Revocable Deed of
Trust, dated 10/17/1991, as
amended and restated,
Plaintiff,
v.

Case No: 2:14-cv-677-FtM-29CM

WELLS FARGO BANK N.A.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Dispositive
Motion for Summary Judgment (Doc. #148) and defendant Wells Fargo
Bank, N.A.’s Motion for Final Summary Judgment (Doc. #149) both
filed on November 2, 2016.

The parties have filed statements of

undisputed facts, responses, objections, depositions, and other
exhibits in support of their respective motions.

(Docs. ##147,

150, 159, 160, 161, 162.)
Also before the Court is Plaintiff’s Motion for Leave to
Supplement the Summary Judgment Record or Alternatively, Motion
for Leave to File Notice of Supplemental Authority (Doc. #169)

filed on January 3, 2017.

Defendant filed a Response in opposition

(Doc. #173).
I.
This case involves two family trusts: The trust under the
will of Rosa B. Schweiker, dated February 2, 1961 (the Rosa Trust)
and the Frederick W. Berlinger Revocable Deed of Trust, dated
10/17/1991 (the Frederick Trust) (collectively the Trusts).
#125-1.)

(Doc.

Defendant Wells Fargo Bank N.A. (Wells Fargo) is a former

corporate co-trustee of the Trusts.

(Doc. #125, ¶ 16.)

Plaintiff

Richard K. Inglis is a state-court-appointed Special Trustee of
the Trusts (the Special Trustee).

(Doc. #125-2; Doc. #150-1.)

A. The 2011 Federal Case
On or about July 21, 2011 the beneficiaries 1 filed a lawsuit
in state court in Collier County, Florida against Wells Fargo.
The case was removed by Wells Fargo to the Fort Myers Division of
the Middle District of Florida on August 19, 2011.

See Berlinger

v. Wells Fargo Bank, N.A., Case Number 2:11-cv-00459-FTM-29CM (The
2011 Case).

The beneficiaries alleged claims of breach of trust

and breach of fiduciary duties, and sought injunctive relief,
against Wells Fargo as former co-trustee of the Trusts for conduct

1

Stacey Sue Berlinger, Brian Bruce Berlinger, and Heather
Anne
Berlinger
are
beneficiaries
to
the
Trusts
(the
beneficiaries).

- 2 -

occurring from December, 2007 through the end of 2008.

On November

2, 2011, the beneficiaries filed a First Amended Complaint which
added a Civil Theft count against Wells Fargo.
Doc. #25.)

(The 2011 case,

The beneficiaries’ September 24, 2013 Second Amended

Complaint (Id., Doc. #93) also included a claim for civil theft
against Wells Fargo (Count III).

The civil theft claims asserted

the same essential facts alleged in the current case.
On September 9, 2014, the Court granted Wells Fargo motion to
dismiss the civil theft claim, finding the beneficiaries did not
have standing to bring the civil theft claim and that the count
failed to state a claim.

The dismissal was specifically stated

to be “without prejudice.”

(Id., Doc. #220.)

The Special Trustee

was not a party to the 2011 case, which proceeded without a civil
theft claim.

Judgment (Id., Doc. #574) was entered in favor of

Wells Fargo on March 3, 2016, and the appeal remains pending.
B. The Current Federal Case
On October 15, 2014, the Special Trustee filed a one-count
civil theft Complaint (Doc. #1-1) against Wells Fargo in state
court in Palm Beach County, Florida.

That case was removed by

Wells Fargo to the United States District Court for the Southern
District of Florida, which subsequently transferred it to the
Middle District of Florida.

Plaintiff is now proceeding on a

Corrected First Amended Complaint (the Amended Complaint) (Doc.

- 3 -

#155), which alleges the following in support of a single civil
theft count:
On or about August 8, 2011, the Trusts’ assets had a value of
$6,464,723.96.

(Id. ¶ 13.)

On or about that date Wells Fargo was

removed as corporate trustee of the Trusts and the “Office of
Trustee” requested Wells Fargo transfer the Trusts’ assets to a
new trustee.

(Id. ¶ 17.)

The Office of Trustee was entitled to

immediate possession of the Trusts’ assets, and yet fifty (50)
days passed with no transfer of the Trusts’ assets.
19.)

(Id. ¶¶ 18-

During the fifty (50) day period, the Office of Trustee

attempted to contact Wells Fargo regarding the location of the
Trusts’ assets, but Wells Fargo never responded.

(Id. ¶ 22.)

Wells Fargo intentionally retained and failed to transfer the
Trusts’ assets and intentionally concealed the location of the
Trusts’ assets.

(Id. ¶¶ 20-23.)

By delaying the transfer of

Trusts’ assets, Wells Fargo received management fees and prevented
the Trustee from exercising any action within his power.
30.)

(Id. ¶

The Office of Trustee provided a pre-suit notice pursuant

to Fla. Stat. § 772.11 on September 27, 2011, but Wells Fargo
failed to return the Trusts’ assets by November 2, 2011.
25-29.)

(Id. ¶¶

Wells Fargo had the felonious intent to steal the Trusts’

assets by temporarily depriving the Office of Trustee of the right
to and benefit of the Trusts’ assets.

- 4 -

(Id. ¶ 30.)

The Special

Trustee seeks treble damages in the amount of $19,394,171.88 and
reasonable attorney fees and costs.

(Id. at p. 7.)

II.
Before

addressing

the

merits

of

the

respective

summary

judgment motions, the Court will first consider plaintiff’s Motion
for

Leave

to

Supplement

the

Summary

Judgment

Record

or

Alternatively, Motion for Leave to File Notice of Supplemental
Authority (Doc. #169).

For the reasons set forth below, the motion

is denied.
The Special Trustee seeks to supplement the summary judgment
record with an email from Dechert LLP and a series of emails from
Kyle Groft which allegedly show Wells Fargo used money from the
Trusts to pay its own legal fees.

(Id. ¶ 1.)

The Special Trustee

asserts that Wells Fargo told the Trusts that the Trusts had to
pay an $8,610.50 bill to a law firm that represented only Wells
Fargo, and the Trusts did so.

Plaintiff asserts that “[b]y

perpetrating this fraud, Wells Fargo permanently deprived the
Berlinger Trusts of $8,610.50 by theft by making the Berlinger
Trusts pay for a debt it did not incur, or had an obligation to
pay.”

(Doc. #169, ¶ 6.)

Wells Fargo responds that the record clearly establishes that
the Trusts did not pay this bill, which was paid by Wells Fargo
from its own assets.

Wells Fargo further argues that the Court

- 5 -

should deny the motion because it is untimely and no excusable
neglect has been shown by the Trusts.
Rule 6(b)(1) of the Federal Rules of Civil Procedure provides
that, “[w]hen an act may or must be done within a specified time,
the court may, for good cause, extend the time:

. . .

B) on

motion made after the time has expired if the party failed to act
because of excusable neglect.”

Fed. R. Civ. P. 6(b)(1)(B).

Rule

6(b) confers discretion on the district court to accept untimely
filings, but any post-deadline extension request must show that
the failure to meet the deadline “was the result of excusable
neglect.”

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 896 (1990).

See also Farina v. Mission Inv. Trust, 615 F.2d 1068, 1076 (5th
Cir. 1980) 2 (“[A]bsent an affirmative showing by the non-moving
party of excusable neglect according to Rule 6(b) a court does not
abuse

its

discretion

affidavits.”).
[principle],

when

it

refuses

to

accept

out-of-time

Excusable neglect is “at bottom an equitable
taking

account

of

surrounding the party’s omission.”

all

relevant

Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993).

2

circumstances

“These include

All cases decided by the United States Court of Appeals for
the Fifth Circuit before September 30, 1981 are binding precedent
in the Eleventh Circuit.
Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981).

- 6 -

... the danger of prejudice to the [non-movant], the length of
delay and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.”
Id.
The Special Trustee’s motion does not provide sufficient
factual information to establish excusable neglect.

Plaintiff’s

motion was filed three months after the close of discovery and
nearly two months after the parties’ summary judgment motions were
fully briefed.

While plaintiff asserts the documents were just

received by plaintiff on January 3, 2017 (Doc. #169 ¶ 2), Wells
Fargo asserts that most had previously been provided in discovery
and the Special Trustee failed to pursue the topic in depositions
or to schedule a deposition with the appropriate witness.
Furthermore, the documents the Special Trustee seeks to have
considered simply do not relate to the civil theft claim as alleged
in the Amended Complaint.

Rather than tending to demonstrate the

intent of the delay in the surrender of Trusts assets, the evidence
purports

to

establish

a

separate

fraud

scheme

altogether.

Additionally, the only substantive case relied upon, Brigham
v. Brigham, 934 So. 2d 544 (Fla. 3d DCA 2006), addressed a Florida
statute which stated that when “the duty of the trustee and his
individual interest . . . conflict in the exercise of a trust

- 7 -

power, the power may be exercised only by court authorization,”
citing Fla. Stat. § 737.403(2).

(Doc. #169, ¶ 4).

The Florida

Legislature repealed this statute in 2008, prior to the operative
events in this case.

See Fla. Stat. § 737.403(2), repealed by

Laws 2006, c. 2006–217, § 48, eff. July 1, 2007; Laws 2008, c.
2008–5, § 16, eff. July 1, 2008.
The Court finds plaintiff has failed to show excusable neglect
to supplement the record with the particular documents at issue.
Even if such excusable neglect was present, the motion would be
denied because the documents do not pertain to the theory of civil
theft set forth in the Amended Complaint.

Further, the newly

cited case law has no relevance to the allegations in this case,
and relies on a statute which no longer exists.

Accordingly,

plaintiff’s Motion for Leave to Supplement the Summary Judgment
Record

or

Alternatively,

Motion

for

Leave

to

file

notice

of

Court

is

Supplemental Authority (Doc. #169) is DENIED.
III.
Summary

judgment

is

appropriate

only

when

the

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

- 8 -

find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.
2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)
(finding summary judgment “may be inappropriate where the parties
agree on the basic facts, but disagree about the factual inferences
that should be drawn from these facts”)).

“If a reasonable fact

finder evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine issue

- 9 -

of

material

judgment.”

fact,

then

the

court

should

not

grant

summary

Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th

Cir. 2007).
IV.
A. Florida Civil Theft Legal Principles
Under Florida law, a cause of action for civil theft “derives
from two statutory sources: the criminal section setting forth the
elements of theft, and the civil section granting private parties
a cause of action for a violation of the criminal section.”

Ames

v. Provident Life and Accident Ins. Co., 942 F. Supp. 551, 560
(S.D. Fla. 1994), aff’d, 86 F.3d 1168 (11th Cir. 1996).

The

Florida civil theft legal principles were recently summarized by
the Eleventh Circuit as follows:
To establish a Florida state law claim for
civil theft, a plaintiff must prove, by clear
and convincing evidence, that it was injured
as a result of a violation of Florida’s
criminal theft statute.
See Fla. Stat. §
772.11 (providing civil remedy for theft);
United Techs. Corp. v. Mazer, 556 F.3d 1260,
1270 (11th Cir. 2009). The plaintiff must
prove that the defendant: (1) knowingly (2)
obtained or used, or endeavored to obtain or
use, the plaintiff's property with (3)
felonious intent (4) either temporarily or
permanently to (a) deprive the plaintiff of
its right to or benefit from the property or
(b)
appropriate
the
property
to
the
defendant's own use or to the use of anyone
not entitled to the property. United Techs.
Corp., 556 F.3d at 1270; see also Fla. Stat.
§ 812.014(1) (theft statute). Felonious intent

- 10 -

is the intent to deprive another of its
property, which may be shown by circumstantial
evidence. Aspen Invs. Corp. v. Holzworth, 587
So. 2d 1374, 1376 (Fla. Dist. Ct. App. 1991).
Wachovia Bank N.A. v. Tien, 658 F. App’x 471, 474–75 (11th Cir.
2016).

“[A] party who has the burden of proof by clear and

convincing evidence must persuade the jury that his or her claim
is highly probable.”

Tambourine Comercio Internacional SA v.

Solowsky, 312 F. App’x 263, 275–76 (11th Cir. 2009).
B. Material Undisputed Facts
The undisputed facts show that on August 17, 2011, 3

Wells

Fargo received a letter requesting a full transfer of assets held
in the Rosa Trust.

(Doc. #147-4.)

On August 24, 2011, Wells

Fargo received a request to transfer assets from the Frederick
Trust.

(Doc. #147-5.)

SunTrust Bank was to be the new corporate

trustee for both Trusts.
Between August 25, 2011 and September 2, 2011, Wells Fargo
compiled documents and completed the checklist to transfer the

3

Although plaintiff’s motion seeks to expand the relevant
time frame to March 25, 2011, this is a material departure from
the allegations contained in the Amended Complaint (Doc. #155).
Despite previously seeking leave to amend his Complaint (Doc. #86),
which was granted in part and denied in part
(Doc. #140),
plaintiff did not attempt to modify the timeline alleged in the
original Complaint and may not do so now.
The Court will only
consider the claims of liability that plaintiff actually pled in
the operative complaint.
See Wu v. Thomas, 996 F.2d 271, 275
(11th Cir. 1993).

- 11 -

accounts and effectuate Wells Fargo’s removal as trustee.
## 147-6, 147-7.)

(Docs.

The checklist completed on September 2, 2011,

indicates Wells Fargo was aware of pending litigation involving
the Trusts.

(Docs. ## 147-6, 147-7.)

On September 12, 2011, the Trusts were assigned to David Mull,
a

Trust

Administrator

with

Wells

Fargo,

who

stated

it

takes

approximately two weeks for his group to complete their review.
(Doc. #147-10; Doc. #161-13, pp. 2-6.)

The beneficiaries signed

a

granting

Stipulation

on

September

13,

2011,

Wells

Fargo

a

commercially reasonable amount of time to transfer the remaining
Trusts’ assets (Doc. #147-17; the 2011 case, Doc. #10).
The

beneficiaries

apparently

thought

commercially reasonable amount of time.

two

weeks

was

a

Wells Fargo received a

civil theft demand letter from the beneficiaries on September 27,
2011.

(Doc. #147-19.)

On September 29, 2011, David Mull sent an

email stating Wells Fargo was being sued on a related account and
that it needed “to transfer the property in this account as quickly
as possible.”

(Doc. #147-12.)

All of the Trusts’ assets had been transferred from Wells
Fargo by October 27, 2011, except for approximately $73,214.29
which required liquidation.

(Doc. #150-1 pp. 37-38; Docs. ## 150-

6, 150-7, 150-8.)

During the time Wells Fargo was in the process

of

Trusts’

transferring

assets,

- 12 -

plaintiff

was

aware

of

communications between Wells Fargo and SunTrust regarding some
issues with transferring certain assets.

(Doc. #150-1, p. 46.)

After receiving the proper authorizations, Wells Fargo liquidated
and transferred the remaining assets to SunTrust by November 1,
2011.

(Doc. #150-1, pp. 141, 159.)

Thus, within 75 days for the

Rosa Trust and 68 days for the Frederick Trust, Wells Fargo had
transferred all trust assets to the new corporate trustee.
C. Application of Law to Undisputed Facts
As would be expected with cross-motions for summary judgment,
each party asserts that the undisputed material facts justify
judgment in their favor.

The Court addresses the various issues

raised in the motions.
(1)

Conversion of Property

Wells Fargo asserts that the record establishes there was no
conversion of the Trusts’ property, and hence there can be no civil
theft established as a matter of law.

(Doc. #149, pp. 6-10.)

The

Court is not convinced that the dicta in Gasparini v. Pordomingo,
972 So. 2d 1053, 1054 (Fla. 3d DCA 2008) establishes that a
plaintiff must prove both the elements of conversion and the
traditional

elements

normally

stated

4

for

civil

theft.

4

The plaintiff must prove that the defendant: (1) knowingly
(2) obtained or used, or endeavored to obtain or use, the
plaintiff's property with (3) felonious intent (4) either
temporarily or permanently to (a) deprive the plaintiff of its

- 13 -

Accordingly, this basis for summary judgment by Wells Fargo is
denied.
(2)

Injury to Plaintiff

Both parties agree that plaintiff must show by clear and
convincing evidence that he was injured by the civil theft in order
to have a viable cause of action.

See United Techs. Corp. v.

Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009)(To establish a Florida
state law claim for civil theft, a plaintiff must prove, by clear
and convincing evidence, that it was injured as a result of a
violation of Florida’s criminal theft statute.).

The parties

disagree whether the record establishes plaintiff has done so.
The record clearly establishes that there are no monetary
damages

to

plaintiff.

The

entire

$6.4

million-plus

which

constituted all the assets of the Trusts were transferred to
SunTrust, the new corporate trustee, on or before November 1, 2011.
The Special Trustee testified in deposition he was not aware of
any pecuniary damages suffered by the plaintiff, the Trusts, or
the beneficiaries.

(Doc.

#150-1,

pp.

65-69.)

The

material

undisputed facts establish that Wells Fargo’s delay of 68 and 75
days in transferring the Trusts’ assets to the new corporate

right to or benefit from the property or (b) appropriate the
property to the defendant’s own use or to the use of anyone not
entitled to the property. United Techs. Corp., 556 F.3d at 1270.

- 14 -

trustee did not cause any monetary injury to plaintiff.

Thus,

there is no factual basis for the Special Trustee’s request for
$19 million-plus in treble damages.
The Special Trustee does assert two types of injuries which
he argues was caused by Wells Fargo’s delay in transferring Trusts
assets:
Wells

Deprivation of the Trusts’ right to bring a claim against

Fargo

for

actions

undertaken

in

2007,

and

incurring

management fees to Wells Fargo during the period of delay.

The

Court discusses each.
The Special Trustee argues that Wells Fargo intentionally
delayed the transfer of the Trusts’ assets because “of Wells
Fargo’s belief that, as trustee, only it could bring a cause of
action

against

themselves

for

making

allegedly

improper

distributions in late 2007, so if it waited to transfer the assets
until the [four-year] statute of limitations expired in 2011, it
would have a defense to its alleged wrongdoing.

This would deprive

the Berlinger Trusts of a potential claim for damages.”
#148, pp. 1-2.)

(Doc.

The record does not support such an “injury.”

The beneficiaries had already filed suit for such claims
before the alleged delay by Wells Fargo.

The beneficiaries filed

what became the 2011 Federal Case against Wells Fargo in July,
2011 for the conduct which occurred in late 2007 and 2008.

The

delay alleged in the current Amended Complaint began on August,

- 15 -

17, 2011, when Wells Fargo received termination notice for the
Rosa Trust.

Obviously, even if there was intentional delay, it

did not cause the Trusts or the beneficiaries to lose a cause of
action against Wells Fargo, since such a complaint had already
been filed.

The Special Trustee concedes as much, noting that

Wells Fargo was “ultimately unsuccessful” in this scheme (Doc.
#148, p. 8.)

A civil theft cause of action requires an actual

injury, not just an inchoate intent to injure.
Finally, plaintiff argues that injury resulted because the
Trusts were permanently deprived of $41,307.80 in management fees
from April 2011 to September 2011 (Doc. #148, p. 9.)

The only

relevant time period is August 17, 2011 through November 1, 2011,
and the amount of management fees for that time period is not
identified by the parties.

In any event, the Special Trustee

conceded in deposition there is no mention or claim for these
management fees alleged in plaintiff’s Amended Complaint.
The Court finds that the material undisputed facts in this
case establish that there were no “injuries” to plaintiff caused
by the conduct of Wells Fargo in the transfer of the Trusts’ assets
after being notified of its termination as corporate trustee.
These facts establish that plaintiff is unable to prove by clear
and

convincing

evidence

that

Wells

- 16 -

Fargo

caused

any

injury

resulting from the civil theft conduct alleged in the Amended
Complaint.
(3)

Felonious Intent

The material undisputed facts establish that there was no
felonious intent by Wells Fargo with regard to the alleged delay
in transferring Trusts’ assets upon its removal as corporate
trustee.

Even when the evidence is viewed from the perspective

of the Special Trustee, there is no clear and convincing evidence
of a felonious intent in connection with a civil theft.
Florida law provides that a trustee who is removed has, among
other rights, “a reasonable time” to deliver trust property to
another entitled to the property.

Fla. Stat. § 736.0707(2).

On

September 13, 2011, the beneficiaries stipulated that Wells Fargo
had a “commercially reasonable time” to transfer the Trusts’
assets.

The vast majority of the assets were transferred to

SunTrust by October 6, 2011, and the remainder by November 1, 2011.
While the Special Trustee relies heavily on the theory that Wells
Fargo’s delay was intended to allow the statute of limitations to
expire, the undisputed facts simply do not support such a theory,
as discussed earlier.
Fargo’s

delays

were

No reasonable jury could find that Wells
“indicative

of

its

felonious

intent

to

permanently deprive the plaintiff of an immediate benefit,” as
plaintiff argues.

(Doc. #148, p. 7.) Plaintiff’s assertion that

- 17 -

Wells Fargo only transferred the Trusts’ assets “in response to
the threat of litigation” is unsupported by the record.

Despite

the allegations contained in the Amended Complaint, the record
shows that Wells Fargo maintained communication with SunTrust
during the transfers (Doc. #150-1, pp. 46, 52, 54) and Wells Fargo
never tried to conceal the Trusts’ assets (id. at p. 54) or use
the Trusts’ assets for its own purpose.

To the contrary, the

record shows that Wells Fargo began the process for transferring
the Trusts’ assets upon receipt of the requests made on August 17,
2011 and August 24, 2011.
The undisputed material facts in the record establish that
Wells Fargo did not have the necessary felonious intent with regard
to the Trusts assets.

No reasonable jury could find that plaintiff

has established this element by clear and convincing evidence.
(4)

Ownership of Trust Assets

Wells Fargo argues that plaintiff was not the Trustee during
the time of the alleged civil theft in 2011, and therefore was not
the “owner” of the Trust assets and therefore cannot bring a civil
theft claim.

Wells Fargo relies primarily on Balcor Prop. Mgmt.,

Inc. v. Ahronovitz, 634 So. 2d 277, 279 (Fla. 4th DCA 1994), which
held that a civil theft injury “can only be established if it is
shown that the victim has a legally recognized property interest
in the items stolen.”

This is not the same as saying plaintiff

- 18 -

must own the Trusts or their assets.

The Court finds that the

Special Trustee has a sufficient legally recognized property in
the Trusts to allow him to bring the civil theft claim.
(5)

Statutory Pre-Suit Written Demand

Florida’s civil theft statute requires that “[b]efore filing
an action for damages under this section, the person claiming
injury must make a written demand for $200 or the treble damage
amount of the person liable for damages under this section.”

Fla.

Stat.

that

§

772.11

(emphasis

added).

Wells

Fargo

contends

plaintiff failed to satisfy the statutory condition precedent to
bring his claim.

(Doc. #149 at pp. 13-16.)

The demand letter attached to plaintiff’s Amended Complaint
states it was written on behalf of the beneficiaries, not any
trustee of either Trust.

(Doc. #155, pp. 35-38.)

Specifically,

the letter states, “should Wells Fargo Bank comply with this
demand, the [b]eneficiaries . . . will provide Wells Fargo with a
written

release

from

further

civil

liability”

and

“the

[b]eneficiaries [are] seeking to recover the amount of treble
damages. . . .”

(Id.)

In this case, it is the Special Trustee,

not the beneficiaries, claiming injury on behalf of the Trusts.
Assuming this fails to strictly comply with the requirement of
Florida Statute § 772.11, the Court finds no prejudice to Wells
Fargo from the non-compliance.

Given the procedural background

- 19 -

in this case, the Court concludes that this failure to strictly
comply with the pre-suit notice requirement was harmless and as
such, it does not entitle Wells Fargo to summary judgment on this
claim.

See Deman Data Sys., LLC v. Schessel, No. 8:12-CV-2580-T-

24, 2014 WL 6751195, at *23 (M.D. Fla. Dec. 1, 2014).
Viewing the facts in the light most favorable to the Special
Trustee, no reasonable jury could find that plaintiff has shown by
clear and convincing evidence that he suffered any injuries or
that Wells Fargo acted with felonious intent.

Therefore, the

Court grants summary judgment in favor of Wells Fargo and denies
summary judgment to the Special Trustee.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Plaintiff’s

Dispositive

Motion

for

Summary

Judgment

(Doc. #148) is DENIED.
2.

Wells

Fargo

Bank,

N.A.’s

Motion

for

Final

Summary

Judgment (Doc. #149) is GRANTED.
3.

Plaintiff’s Motion for Leave to Supplement the Summary

Judgment Record or Alternatively, Motion for Leave to file notice
of Supplemental Authority (Doc. #169) is DENIED.
4.

The Clerk of Court shall terminate any pending motions

and objections, enter judgment accordingly in favor of Wells Fargo

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Bank, N.A. and against Richard K. Inglis, as Special Trustee, and
close this case.
DONE and ORDERED at Fort Myers, Florida, this
of February, 2017.

Copies:
Counsel of Record

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16th

day