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Law Educator, Esq.
Law Educator, Esq., Attorney
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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In Florida Civil Law, actions brought for Civil Theft, Conversion

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In Florida Civil Law, actions brought for Civil Theft, Conversion and Unjust Enrichment where a Breach of Contract was involved, are defended in a Motion to Dismiss on the basis that such Torts cannot be alleged if they are resultant from a Breach of Contract. In arguing such defense, Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 3d DCA 2008) is cited.
Is that true, and what (if any) exceptions (case law) is there to counter this?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

You are bringing alternative theories seeking relief in your case which is permissible. The FL courts hold, conversion claims are independent of a breach of contract. See: Duncan v. Kasim, Inc., 810 So. 2d 968 (Fla. App., 2002).

The court cited Alex Hofrichter, P.A. v. Zuckerman & Venditti, P.A., 710 So.2d 127 (Fla. App. 3 Dist., 1998) and stated, "In our view, an action for conversion and civil theft will lie where there is a claim that the defendant has misappropriated or embezzled trust funds, and such a claim amounts to an independent tort." In Zuckerman & Venditti, the court stated where intent can be proven, "we are not persuaded by the argument that no civil theft or conversion occurred in this case because there was a contractual relationship between the parties."



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Customer: replied 3 years ago.

Sorry for my confusion, and thanks for your answer. But my POV is as a Plaintiff, where such a defense is being argued; so I'm looking for the nitty-gritty to defeating such logic for Defense's Motion To Dismiss, because there was contracts. In fact, and perhaps ironically, the agreement was a confidentiality agreement with specific language that "upon demand" all materials submitted will be returned. These materials were not returned, and hence both the breach and the civil theft, converstion, etc. Does this change your answer, or did I misread something in it that I should return to?

Thank you for your response.

I believe you have misread something or misunderstood it. The case law I provided you above does not matter if you are plaintiff or defendant, the issue the court addressed above still applies. The court stated that if the conduct was willful and intentional, the torts of conversion, enrichment and theft could be independent torts from breach of contract. You said the defense is arguing you cannot raise those as independent torts, but the courts in FL state if you can prove willful intent you can indeed raise them as independent torts and that is what the cases above state (even if their fact patterns are not the same as your's, they are cited for the issue not the fact pattern per se and the issue is the same as you stated and they address that issue).
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Customer: replied 3 years ago.

Double thanks. I am glad at least to know I suspected I was missing something, and you've done a great job pointing out what I was looking for in your original answer by clarifying my oversight with your second answer. Thanks also for your patience and promptness. Now I need to deal with the ratings. Ciao.

Thank you very much. Best of luck with your case.