Kosterlitz v. The S/V Knotta KLU et al
Filing
84
ORDER denying 75 Motion for Partial Summary Judgment. Signed by Judge John E. Steele on 1/17/2019. (FWH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL KOSTERLITZ,
Plaintiff,
v.
Case No:
2:18-cv-482-FtM-29MRM
THE S/V KNOTTA KLU, her
engines, tackle, apparel,
equipment and appurtenances,
in rem and ROBERT E. LIBBEY,
JR.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on the plaintiff’s Motion
for Partial Summary Judgment (Doc. #75) filed on December 3, 2018.
Defendant filed a Response (Doc. #77) on December 21, 2018, and
plaintiff filed a Reply to the Response (Doc. #81) on January 4,
2019.
The central issue in this case is who owns the Knotta Klu, a
40-foot catamaran.
After a failed attempt to repossess the vessel
from defendant Robert Libbey, Jr., plaintiff Michael Kosterlitz
initiated this action on March 9, 2018, by asserting a petitory
and possessory claim in admiralty, as well as claims for malicious
prosecution, civil theft, conversion, and false arrest.
pp. 7-14.)
(Doc. #1,
In response, Libbey filed a countercomplaint asserting
his own petitory and possessory action, as well as raising claims
of
conversion
Kosterlitz
and
now
unjust
moves
for
enrichment.
summary
(Doc.
judgment
#15,
on
pp.
his
8-11.)
malicious
prosecution, civil theft, and false arrest claims, as well as
Libbey’s affirmative defenses.
(Doc. #75.)
For the reasons that
follow, the motion is denied and the affirmative defenses are
stricken.
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine dispute as to any material
fact and the movant 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
find for the nonmoving party.”
Hickson Corp. v. N. Crossarm Co.,
Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citation omitted).
A
fact is “material” if it may affect the outcome of the suit under
governing law.
248 (1986).
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
“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, 357 F.3d at 1260 (quoting 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
nonmoving party.
Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir.
2
2010).
Further,
“[i]f
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, 129697 (11th Cir. 1983)).
“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 of material fact, then
the court should not grant summary judgment.”
Allen v. Bd. of
Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007).
II.
A. Factual History 1
Kosterlitz purchased the Knotta Klu in 2012.
pp. 17-18.)
(Doc. #77-2,
To do so, he borrowed $125,000 from non-party Ned
Christensen, executing a promissory note on Christensen’s behalf.
(Doc. #77-1, pp. 11-15.)
The note, which was signed by Kosterlitz
in October 2012, contained a balloon payment at the end of five
years.
(Id. p. 15.)
1
Many of the material facts in this case are in dispute. The
factual history outlined herein contains either the few undisputed
facts, or the facts read in the light most favorable to Libbey as
the nonmoving party.
However, facts accepted at the summary
judgment stage of the proceedings may not be the “actual” facts of
the case. See Priester v. City of Riviera Beach, Fla., 208 F.3d
919, 925 n.3 (11th Cir. 2000).
3
In 2015, Kosterlitz and Libbey, who were friends, began
negotiating for the sale of the Knotta Klu.
Doc. #15, ¶¶ 10-11.)
(Doc. #1, ¶¶ 10-11;
In August 2015, Kosterlitz signed a State of
Florida “Notice of Sale and/or Bill of Sale for a Motor Vehicle,
Mobile Home, Off-Highway Vehicle or Vessel” form. (Doc. #15, pp.
13; Doc. #30-1, pp. 12-13.)
The form lists Kosterlitz as the
seller, Libbey as the buyer, and the selling price of the Knotta
Klu as “TRADE FOR F27 TRIMARAN.” 2
(Doc. #15, p. 13.)
Around this
time the parties also entered into a “Sells Agreement,” conveying
the Knotta Klu, it’s equipment, and its motor from Kosterlitz to
Libbey for $17,500. 3
(Doc. #77-3, p. 41.)
The agreement contains
the signatures of both Kosterlitz and Libbey but is not notarized.
(Id.)
Libbey also gave possession of his trimaran to Kosterlitz
2
The record contains two versions of this form. The first
version, which was provided with the complaint, is undated and
unsigned by Libbey.
(Doc. #1-3, p. 19.)
The second version,
obtained by Kosterlitz from the State of Florida during discovery,
is signed by Libbey and dated August 14, 2015. (Doc. #75-1, p.
42.) Kosterlitz argues this proves Libbey forged the document,
(Doc. #75, p. 19), while Libbey states the unsigned version was
simply a previous version before it was submitted to the State of
Florida, (Doc. #27-1, p. 9.)
3
The agreement is dated August 14, 2015, (Doc. #77-3, p. 41),
but Libbey states the agreement was actually entered into in either
October or November of that year, (Doc. #75-6, pp. 368-69.) Per
Libbey, the parties backdated the agreement to the date they had
come to an oral agreement, which was the same date Libbey had
provided an initial $5,000 payment. (Doc. #75-6, p. 369.)
4
and began making payments either to or on behalf of Kosterlitz. 4
(Doc. #1, ¶¶ 11, 12, 15; Doc. #15, ¶ 12, p. 8.)
The Knotta Klu
was moved from Kosterlitz’ home in Pinellas County to Libbey’s
home in Fort Myers.
(Doc. #77-2, pp. 28-30.)
In 2017, Libbey hired Jan Painter, an employee with All Yacht
Registries, Inc.
(Doc. #75-5, pp. 302, 304.)
Painter informed
Libbey that the vessel could not be registered with the United
States Coast Guard because Kosterlitz’ signature on the Sells
Agreement was not notarized.
(Id. p. 314-15.)
Painter submitted
a request for deletion from the Coast Guard registration regarding
the Knotta Klu, relying on the Sells Agreement to show that Libbey
was the legal owner of the vessel.
Guard
notified
Painter
that
the
(Id. pp. 319-20.)
vessel
was
The Coast
deleted
documentation in December 2016 due to a failure to renew.
325; Doc. #27-1, p. 14.)
from
(Id. p.
The last owner of record was Kosterlitz
and the last certificate of documentation was issued in 2014.
(Doc. #27-1, p. 14.)
Painter informed Libbey that he could use
the State of Florida bill of sale and the Coast Guard evidence of
4
Per Libbey, giving Kosterlitz possession of the trimaran
and assuming the obligations of the Christensen promissory note
were part of the agreement for the Knotta Klu. (Doc. #15, pp. 78.) While Kosterlitz disputes that the two men ever came to an
agreement, he acknowledges Libbey made approximately $35,000 to
him in payments. (Doc. #1, ¶ 15.) Libbey states the amount was
closer to $41,000. (Doc. #15, p. 5, 8.)
5
deletion to register the vessel in Florida. 5
(Doc. #75-5, pp. 315,
331, 339.)
In September 2017, Libbey applied for a State of Florida
certificate of title for the Knotta Klu.
(Doc. #75-1, p, 38.)
The application notes that Libbey acquired the vessel via trade in
August 2015.
(Id.)
Libbey also supplied the evidence of deletion
from the Coast Guard, the State of Florida bill of sale listing
the selling price as “TRADE FOR F27 TRIMARAN,” and a signed
affidavit attesting that the Knotta Klu was an “EVEN TRADE” for
the trimaran. 6
(Id. pp. 40, 42, 44.)
On September 21, 2017, the
State of Florida issued a certificate of title to Libbey for the
Knotta Klu.
(Doc. #15, p. 15.)
On December 26, 2017, Kosterlitz went to Libbey’s residence
in Fort Myers and removed the vessel.
p. 8.)
(Doc. #1, ¶ 19; Doc. #15,
Libbey contacted the Coast Guard, who in turn contacted
the Lee County Sheriff’s Office.
(Doc. #75-2, p. 119.)
Sergeant
Tim Galloway of LCSO met with Libbey and took a sworn recorded
statement.
(Id.; Doc. #77-8, p. 59-82.)
Libbey informed Sergeant
Galloway that he was the registered owner of the Knotta Klu and
5
At some point, Kosterlitz called Painter and told her he
had never signed a bill of sale for the Knotta Klu. (Doc. #75-5,
pp. 333-35.) As Painter had a copy of the signed bill of sale,
she did not believe him. (Id. pp. 334-35.)
6
Libbey provided the version of the bill of sale that had
his signature and was dated August 14, 2015. (Doc. #75-1, p. 42.)
6
showed Sergeant Galloway the Sells Agreement.
119; Doc. #77-8, pp. 62, 64.)
(Doc. #75-2, p.
He also told Sergeant Galloway that
all the signatures on the documentation were genuine and Libbey
had never forged Kosterlitz’ signature.
(Doc. #77-8, p. 73.)
Sergeant Galloway compared Kosterlitz’ signature on the agreement
to the signature on his driver’s license and believed they matched.
(Doc. #75-2, pp. 68, 135.)
Libbey informed Sergeant Galloway that
he wished to prosecute and signed an affidavit to that effect.
(Id. pp. 82, 152.)
The same day it was removed, the Knotta Klu was returned to
Libbey’s residence, (Doc. #1, ¶ 4; Doc. #15, p. 1), and Kosterlitz
was
arrested
for
grand
theft,
(Doc.
#75-2,
pp.
83,
127-30.)
However, an assistant state attorney for the 20th Judicial Circuit
subsequently determined the charge was legally insufficient to
prosecute.
(Doc. #75-2, p. 116; Doc. #75-4, pp. 254-55.)
Since
being returned, the Knotta Klu has remained birthed at Libbey’s
residence.
(Doc. #1, ¶ 4.)
B. Procedural History
In
March
2018,
Kosterlitz
filed
a
Verified
Complaint
asserting a petitory and possessory right to the Knotta Klu, as
well as claims against Libbey for malicious prosecution, civil
theft, conversion, and false arrest.
(Doc. #1, pp. 7-14.)
In
response, Libbey filed a Verified Countercomplaint asserting his
own petitory and possessory right to the vessel, in addition to
7
raising
claims
enrichment.
against
(Doc.
Kosterlitz
#15,
pp.
for
8-11.)
conversion
Libbey
also
and
unjust
raised
two
affirmative defenses based on Kosterlitz conveying title of the
Knotta Klu and accepting Libbey’s cash, trimaran, and assumption
of the promissory note.
(Id. p. 5.)
In April 2018, Kosterlitz filed a Motion for Judgment on the
Pleadings or Alternatively Summary Judgment as to the two petitory
and possessory actions, as well as Libbey’s conversion claim.
(Doc. #18.)
The Court denied the motion after finding there were
genuine disputes of material fact as to (1) whether Kosterlitz and
Libbey entered into a contractual agreement to convey the Knotta
Klu and (2) the validity of Libbey’s State of Florida certificate
of title for the vessel. 7
(Doc. #74, pp. 10-13.)
On December 3, 2018, Kosterlitz filed the instant motion
seeking partial summary judgment.
(Doc. #75.)
He argues that
regardless of whether there are material facts in dispute as to
whether he and Libbey had an enforceable contract for the Knotta
Klu, Libbey is liable as a matter of law for malicious prosecution,
civil theft, and false arrest.
(Id. p. 2.)
He also argues that
he is entitled to summary judgment on Libbey’s two affirmative
7
In his Verified Complaint, Kosterlitz asserts that the Sells
Agreement and the State of Florida bill of sale are “false
documents, manufactured by Libbey in an attempt to falsely claim
title.” (Doc. #1, ¶ 32.)
8
defenses.
(Id.
pp.
17-20.)
Kosterlitz’
arguments
will
be
addressed in turn.
III.
A. Count Two – Malicious Prosecution
Count Two of Kosterlitz’ Verified Complaint alleges Libbey
engaged in malicious prosecution.
(Doc. #1, pp. 11-12.)
To
prevail on a claim of malicious prosecution under Florida law, a
plaintiff must establish the following elements:
(1) an original criminal or civil judicial proceeding
against
the
present
plaintiff
was
commenced
or
continued; (2) the present defendant was the legal cause
of the original proceeding against the present plaintiff
as the defendant in the original proceeding; (3) the
termination of the original proceeding constituted a
bona fide termination of that proceeding in favor of the
present plaintiff; (4) there was an absence of probable
cause for the original proceeding; (5) there was malice
on the part of the present defendant; and (6) the
plaintiff suffered damage as a result of the original
proceeding.
Debrincat v. Fischer, 217 So. 3d 68, 70 (Fla. 2017) (citing Alamo
Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)).
Kosterlitz’ motion argues there are no material facts in
dispute and he is therefore entitled to summary judgment on this
claim.
(Doc. #75, pp. 10-12.)
The Court disagrees.
Assuming
without deciding that Kosterlitz has established all the other
elements of the claim, the Court finds there are disputed material
facts precluding a determination regarding the probable cause and
malice elements.
9
Viewing the evidence in a light must favorable to the nonmovant, Kosterlitz signed the Sells Agreement and the State of
Florida bill of sale to convey ownership of the Knotta Klu to
Libbey. 8
Libbey provided his trimaran to Kosterlitz and paid a
substantial amount of money over the next two years either directly
to Kosterlitz or on his behalf.
Libbey used the bill of sale to
obtain a certificate of title from the State of Florida, and later
relied upon the Sells Agreement to demonstrate ownership when
Kosterlitz removed the Knotta Klu from Libbey’s residence. Viewing
these facts in Libbey’s favor, the Court finds a reasonable trier
of fact could find probable cause for the criminal action initiated
against Kosterlitz as a result of his attempt to repossess the
Knotta Klu.
The Court also finds there is a disputed issue of material
fact as to whether Libbey acted with malice.
Kosterlitz argues
the malice element is satisfied based on two emails Libbey sent
8
While Kosterlitz claims the Sells Agreement is fraudulent,
Libbey testified at a deposition that Kosterlitz was the one who
created the document and that he watched Kosterlitz sign it. (Doc.
#77-4, p. 42.) Regarding the bill of sale, Kosterlitz admits that
he signed the form and gave it to Libbey, but states it was blank
at the time. (Doc. #30-1, pp. 12-13.) Kosterlitz said he did so
only because Libbey requested to hold proof of authority to operate
the Knotta Klu when he moved it from Kosterlitz’ home. (Id. p.
13.)
Kosterlitz suggests Libbey filled in the rest of the
information on the form. (Id.) Libbey denies that the document
is fraudulent and states the form was filled in when he,
Kosterlitz, and Kosterlitz’ wife were all together. (Doc. #15, p.
3; Doc. #75-6, pp. 360-61.)
10
after Kosterlitz was arrested.
(Doc. #75, pp. 11-12.)
However,
whether these emails are sufficient to establish malice is a
question for the trier of fact.
See Gause v. First Bank of
Marianna, 457 So. 2d 582, 584 (Fla. 1st DCA 1984) (“Malice becomes
a jury question once a lack of probable cause is found.”); Azrikan
v.
O’Brien,
173
So.
2d
711,
713
(Fla.
3d
DCA
1965)
(“The
determination of the existence or lack of malice is within the
province
of
the
established.
jury
after
lack
of
probable
cause
has
been
They and they alone are entitled to find whether it
existed or not.”).
Therefore, summary judgment for this claim is
inappropriate.
B. Count Three – Civil Theft
Count Three of the Verified Complaint alleges Libbey engaged
in civil theft under section 772.11, Florida Statutes, by stealing
the Knotta Klu.
(Doc. #1, pp. 12-13.)
Section 772.11 provides:
Any person who proves by clear and convincing evidence
that he or she has been injured in any fashion by reason
of
any
violation
of ss.
812.012-812.037 or s.
825.103(1) has a cause of action for threefold the
actual damages sustained and, in any such action, is
entitled to minimum damages in the amount of $200, and
reasonable attorney’s fees and court costs in the trial
and appellate courts.
§ 772.11(1), Fla. Stat.
As such, section 772.11 provides an award
of civil damages where a plaintiff establishes, by clear and
convincing evidence, he has been injured by a violation of certain
provisions of Chapter 812 of the Florida Statutes, which pertain
11
to theft, robbery, and related crimes.
Kosterlitz’ Verified
Complaint alleges Libbey’s theft of the Knotta Klu was a violation
of Florida’s theft statute, section 812.014(1).
Pursuant to that
statute:
A person commits theft if he or she knowingly obtains or
uses, or endeavors to obtain or to use, the property of
another
with
intent
to,
either
temporarily
or
permanently:
(a)
Deprive the other person of a right to the property
or a benefit from the property.
(b)
Appropriate the property to his or her own use or
to the use of any person not entitled to the use of
the property.
§ 812.014(1), Fla. Stat.
Accordingly, Kosterlitz must establish
all of these elements by clear and convincing evidence to be
entitled to summary judgment on the civil theft claim.
See Gersh
v. Cofman, 769 So. 2d 407, 409 (Fla. 4th DCA 2000) (“In order to
establish an action for civil theft, the claimant must prove the
statutory
elements
of
theft,
as
well
as
criminal
intent.”).
Furthermore, where the property at issue is also the subject of a
contract
between
the
parties,
a
civil
theft
claim
requires
additional proof of “an intricate sophisticated scheme of deceit
and theft.”
McMahan v. Barker, 2008 WL 68595, *7 (M.D. Fla. Jan.
4, 2008) (quoting Gersh, 769 So. 2d at 409).
The crux of Kosterlitz’ argument for the civil theft claim is
his assertion that Libbey fraudulently obtained a certificate of
deletion from the Coast Guard.
(Doc. #75, p. 12.)
12
Kosterlitz
argues that because the certificate of deletion was fraudulent,
the State of Florida certificate of title Libbey obtained using
the
certificate
of
deletion
was
also
fraudulent.
(Id.)
Accordingly, Kosterlitz asserts that Libbey did not have legal
title to the Knotta Klu and used the false title to divest
Kosterlitz of possession.
(Id. pp. 15-16.)
The Court rejects Kosterlitz’ argument for several reasons.
First, the evidence in the record indicates that the Knotta Klu
was deleted from the Coast Guard’s registration due to a failure
to renew rather than any fraudulent action by Libbey. The evidence
of deletion sent from the Coast Guard to Painter states the vessel
was deleted from documentation in December 2016, and the reason
for deletion was listed as “COD Expired (Failed to Renew).”
#27-1, p. 14.)
(Doc.
If the evidence of deletion was not fraudulently
obtained by Libbey, then he could not have used such evidence to
fraudulently obtain the State of Florida certificate of title.
Accordingly, Kosterlitz’ argument for summary judgment on this
claim must be denied. 9
9
Kosterlitz argues that pursuant to federal regulations, a
vessel is not automatically deleted from registration when an owner
fails to renew the documentation, but rather is only “subject to
deletion.” (Doc. #75, p. 12); see also 46 C.F.R. § 67.171(a)(10)
(noting that a certificate of documentation is invalid and a vessel
is subject to deletion from registration when, inter alia, an owner
fails to renew). Nonetheless, the record here indicates the Coast
Guard deleted the vessel from registration in December 2016 due to
Kosterlitz’ failure to renew. Whether that action was appropriate
13
Furthermore, even if the Court accepted Kosterlitz’ argument,
summary judgment would still be inappropriate for this claim.
As
previously noted, to prove a civil theft under section 772.11,
Kosterlitz must establish facts sufficient to show by clear and
convincing evidence “both the statutory elements of theft and
criminal intent.”
McMahan, 2008 WL 68595, *7.
Even if the other
elements had been demonstrated, the Court finds that whether Libbey
acted with criminal intent is a question for the trier of fact.
See Williams v. Obstfeld, 314 F.3d 1270, 1277 (11th Cir. 2002)
(“In general, the existence of knowledge or intent is a question
of
fact
for
the
factfinder,
to
be
determined
after
trial.”
(citation omitted); State v. Franchi, 746 So. 2d 1126, 1128 (Fla.
4th DCA 1999) (noting that criminal intent “is generally a jury
question that usually cannot be ascertained by direct evidence but
only
inferred
from
circumstances”).
the
acts
Therefore,
of
the
parties
Kosterlitz’
judgment on the civil theft claim is denied.
161
So.
3d
491,
493
(Fla.
5th
DCA
and
request
surrounding
for
summary
See Baggett v. Clark,
2014)
(“Baggett
may
not
ultimately prevail on this issue, but a question of fact for the
is immaterial to Kosterlitz’ argument that Libbey fraudulently
obtained the deletion.
14
jury exists with respect to Baggett’s intent, which precludes
summary judgment.”). 10
C. Count Five – False Arrest
Count Five of the Verified Complaint asserts a claim of false
arrest.
(Doc. #1, pp. 13-14.)
Kosterlitz alleges Libbey made a
false criminal complaint and, therefore, “personally and actively
participated in, and procured, the criminal arrest of Kosterlitz.”
(Id. p. 14.)
Under Florida law, false arrest is defined as “the unlawful
restraint of a person against his will.”
Ratunuman v. Sanchez,
2010 WL 11602270, *4 (S.D. Fla. May 5, 2010) (quoting Rivers v.
Dillars Dep’t Store, Inc., 698 So. 2d 1328, 1331 (Fla. 1st DCA
1997)).
Those who proximately cause the false arrest, either
directly or by indirect procurement, can be held liable.
Id.
(citing Pokornv v. First Fed. Sav. & Loan Ass’n of Largo, 382 So.
2d 678, 681 (Fla. 1980)).
A private citizen may not be held liable
10
There are some instances in which summary judgment is
appropriate despite the issue of intent. See Williams, 314 F.3d
at 1277 (noting summary judgment is proper, despite the question
of knowledge or intent, “if the party opposing summary judgment
fails to indicate that he can produce the requisite quantum of
evidence to enable him to reach the jury with his claim” (citation
omitted)). However, given that the evidence, viewed in a light
must favorable to Libbey, suggests Kosterlitz agreed to convey the
Knotta Klu, gave up possession of the vessel, and accepted Libbey’s
trimaran and payments in exchange, the Court finds this case does
not present “one of the rare instances in which, despite the
question of knowledge or intent, summary judgment is appropriate.”
Id.
15
for false arrest “where he neither actually detained nor instigated
the other’s arrest by law enforcement officers.”
Id. (quoting
Pokornv, 382 So. 2d at 681). Therefore, allegations of instigation
are sufficient to hold a private citizen liable for false arrest,
and
instigation
involves
“persuading
enforcement officers to make an arrest.”
or
influencing
law
Id.
Merely providing
information to the police about the commission of a crime or
accusing a person of committing a crime in good faith does not
qualify as “instigation.” Id. (citing Pokornv, 382 So. 2d at 682).
In moving for summary judgment on this claim, Kosterlitz
argues Libbey made false representations to Sergeant Galloway to
cause Kosterlitz’ arrest, and he did so “with the intent of using
the arrest to induce Kosterlitz to capitulate to Libbey’s false
claims
of
title.”
(Doc.
#75,
p.
16.)
Regarding
the
representations, Kosterlitz states that “Libbey falsely told the
arresting officer that Libbey had paid $17,500 for the vessel” and
“owned
the
vessel
via
a
state
registration.”
(Id.
p.
17.)
Kosterlitz also argues Libbey did not have legal title for the
Knotta Klu “because the only ‘title’ he had was obtained through
undisputed perjury.”
(Id.)
Accordingly, Kosterlitz argues there
was no probable cause for the arrest and Libbey’s misrepresentation
of ownership makes him liable for false arrest. 11
11
(Id.)
In arguing there was no probable cause for the arrest,
Kosterlitz again accuses Libbey of falsifying the ownership
16
As with the previous claims, the Court finds there are genuine
disputes
of
judgment.
material
fact
which
preclude
granting
summary
Kosterlitz’ argument is premised upon his assertions
that Libbey (1) made false representations to Sergeant Galloway to
induce Kosterlitz’ arrest and (2) did not have legal title to the
Knotta Klu.
Regarding the first assertion, Kosterlitz argues
Libbey lied when he told Sergeant Galloway he paid $17,500 for the
Knotta Klu and owned the vessel.
However, the record contains the
Sells Agreement, purportedly signed by Kosterlitz and conveying
the Knotta Klu to Libbey for $17,500, as well as the State of
Florida certificate of title, listing Libbey as the registered
owner of the vessel.
The parties also agree that Libbey made at
least $35,000 in payments to or on behalf of Kosterlitz.
This
evidence, viewed in a light most favorable to Libbey, contradicts
Kosterlitz’
argument
that
Libbey
made
misrepresentations
to
Sergeant Galloway. 12
documentation.
(Doc. #75, p. 16.)
However, the Court has
previously determined the validity of the documents is a disputed
issue of material fact. (Doc. #74, p. 13, n.4.)
12
In arguing Libbey’s misrepresentations to Sergeant Galloway
caused the arrest, Kosterlitz mainly relies on Sergeant Galloway’s
deposition testimony. (Doc. #75, pp. 3-7, 17.) Sergeant Galloway
testified that had he known Libbey used the State of Florida bill
of sale (listing the selling price as “TRADE FOR F27 TRIMARAN”) to
obtain a title rather than the Sells Agreement Libbey had shown
him, Sergeant Galloway probably would not have physically arrested
Kosterlitz at the time.
(Doc. #75-2, pp. 79-80.)
Instead,
Sergeant Galloway would have requested a warrant from the state
attorney’s office, allowing the office to further investigate the
17
Regarding the validity of Libbey’s certificate of title,
Kosterlitz appears to be arguing that the title was legally invalid
because Libbey used the bill of sale (which lists the selling price
as “TRADE FOR F27 TRIMARAN”) instead of the Sells Agreement (which
lists the selling price as $17,500) to obtain the title. According
to Kosterlitz, because Libbey obtained the title through perjury,
the title is legally invalid.
(Doc. #75, pp. 16-17.)
However,
even assuming Libbey falsified the selling price when he applied
for the title, Libbey has supplied sufficient evidence to create
a disputed issue of material fact as to whether he had a valid
ownership interest in the Knotta Klu.
Viewing the evidence in a
light most favorable to Libbey, Kosterlitz signed an agreement to
convey the Knotta Klu to Libbey, gave possession of the vessel to
Libbey, accepted Libbey’s trimaran and payments in exchange for
the vessel, and signed a bill of sale listing Libbey as the
purchaser.
As it is undisputed Kosterlitz removed the vessel from
Libbey’s residence without permission, the Court finds there is a
genuine dispute of material fact as to whether Libbey instigated
an unlawful arrest of Kosterlitz.
See Harder v. Edwards, 174 So.
3d 524, 530 (Fla. 4th DCA 2015) (“To so ‘instigate’ an arrest, the
matter and decide how to proceed. (Id. p. 80.) Viewing the facts
in a light most favorable to Libbey, the Court finds this does not
prove Libbey lied to Sergeant Galloway, but rather suggests Libbey
may have misrepresented the vessel’s selling price when he applied
for a title.
18
defendant
must
have
taken
an
active
role
in
encouraging
or
procuring the wrongful arrest.” (emphasis added)); Ratunuman, 2010
WL 11602270 at *4 (noting that a citizen does not instigate an
arrest by “accusing a person of committing a crime in good faith”).
Therefore, Kosterlitz’ request for summary judgment on this claim
is denied.
D. Affirmative Defenses
Kosterlitz’
final
argument
in
his
motion
is
that
he
is
entitled to summary judgment on Libbey’s affirmative defenses
because, inter alia, neither is actually an affirmative defense. 13
(Doc. #75, pp. 18-20.)
“An affirmative defense is generally a
defense that, if established, requires judgment for the defendant
even if the plaintiff can prove his case by a preponderance of the
evidence.”
Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th
Cir. 1999).
Therefore, “an affirmative defense is established
only when a defendant admits the essential facts of a complaint
and sets up other facts in justification or avoidance.”
Galle v.
Nationstar Mortg., LLC, 2017 WL 881810, *2 (M.D. Fla. Mar. 6, 2017)
(citation omitted).
In contrast, “[a] defense which points out a
defect in the plaintiff’s prima facie case is not an affirmative
defense.”
In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th
Cir. 1988).
13
“Partial summary judgment may be used to dispose of
Libbey’s Response fails to address Kosterlitz’ arguments.
19
affirmative defenses.”
Silcox v. Hunter, 2018 WL 3633251, *13
(M.D. Fla. July 31, 2018) (citation omitted).
As
noted
previously,
Libbey
has
raised
two
affirmative
defenses based on Kosterlitz (1) conveying title of the Knotta Klu
and (2) accepting Libbey’s cash, trimaran, and assumption of the
promissory note.
The Court agrees with Kosterlitz that neither of
these defenses qualify as an affirmative defense.
Libbey’s claim
that Kosterlitz conveyed title of the Knotta Klu appears to be a
defense to Kosterlitz’ possessory and petitory claim, as well as
Kosterlitz’ claim of civil theft.
This defense goes to the issue
of Kosterlitz’ ownership of the vessel, which the Court considers
an argument regarding Kosterlitz’ prima facie case.
Rather than
admitting to the essential facts of these claims, Libbey is denying
liability based, at least in part, on Kosterlitz conveying the
title.
Such a defense is not an affirmative defense.
See Silcox,
2018 WL 3633251, *13 (noting that denial of liability defenses are
not affirmative defenses).
Similarly, the Court finds Libbey’s
second defense that Kosterlitz accepted Libbey’s cash, trimaran,
and
assumption
defense.
of
the
promissory
note
is
not
an
affirmative
Libbey appears to be making such an argument to prove
Kosterlitz did in fact agree to convey the Knotta Klu.
As with
the previous defense, the Court finds this an argument regarding
ownership of the vessel and not an affirmative defense to any of
20
Kosterlitz’ claims.
Accordingly, the defense does not qualify as
an affirmative defense.
While Kosterlitz seeks summary judgment on Libbey’s defenses,
the Court will instead strike them as affirmative defenses but
allow Libbey to raise them at trial if appropriate.
See Silcox,
2018 WL 3633251, *13 (“Although Plaintiff seeks summary judgment
on these ‘affirmative defenses’ to narrow the issues for trial,
Plaintiff is not asking the Court to determine these issues on the
merits based on an absence of a genuine issue of material fact.
Instead, the Court strikes the denial defenses as affirmative
defenses; they are issues that [the defendant] may raise at trial
if appropriate.”).
Accordingly, it is now
ORDERED:
1. Plaintiff’s Motion for Partial Summary Judgment (Doc. #75)
is DENIED.
2. Defendant’s
first
and
second
affirmative
defenses
are
STRICKEN.
DONE AND ORDERED at Fort Myers, Florida, this
January, 2019.
21
17th
day of
Copies: Counsel of record
22
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