Third District Court of Appeal
State of Florida
Opinion filed October 6, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1413
Lower Tribunal No. 09-34621
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Philip J. Shechter, etc.,
Appellant,
vs.
R.V. Sales of Broward, Inc., etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Ivonne
Cuesta, Judge.
Rubinstein & Associates, P.A., and Jeffrey Rubinstein, for appellant.
Locke Law, P.A., and Wendell Locke (Plantation), for appellees.
Before EMAS, LINDSEY and GORDO, JJ.
EMAS, J.
Philip Shechter, a court-appointed receiver in the dissolution of
marriage proceedings below, appeals the trial court’s final judgment in favor
of third-party defendants, RV Sales of Broward, Inc., Broward RV, Inc., Gigi
Stetler and Ivan Kapchuk (collectively, “the RV Dealers”). For the reasons
that follow, we affirm in part, reverse in part, and remand for further
proceedings.
During the dissolution proceedings, the trial court appointed Shechter
as a receiver to assist in selling marital assets, including a recreational
vehicle (“the RV”). The Receiver entered into a consignment agreement
under which the RV Dealers agreed they would accept no less than $42,000
as the sales price for the RV. If a prospective buyer offered a lower amount,
the Dealers could accept it only with written authorization from the Receiver.
For more than three years, the RV did not sell, but eventually the RV
Dealers sold the RV for $22,000 after allegedly obtaining oral authorization
from the Receiver’s employee and brother, Hank Shechter. It is undisputed
the RV Dealers did not obtain written authorization to sell the RV for less
than $42,000. In addition, the Receiver asserted that the RV Dealers
repaired the RV twice without authorization and without complying with
Florida statutory law.
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The Receiver filed a third-party complaint against the RV Dealers, for
breach of contract (Count One); violation of Chapter 559, Part IX, Florida
Statutes, relating to practices of motor vehicle repair shops (Count Two);
violation of Chapter 501, Florida Statutes, relating to Florida Deceptive and
Unfair Trade Practices Act (FDUTPA) (Count Three); violation of Chapter
772, Florida Statutes, relating to civil remedy for theft (Count Four); and civil
conspiracy (Count Five). In each count, the Receiver’s prayer for relief
sought damages, court costs and (where applicable) attorney’s fees.
Prior to trial, the Receiver filed a motion for partial summary judgment
on Count One (breach of contract) and Count Two (Chapter 559 violation).
As to Count Two, the motion alleged that neither the Receiver nor anyone
on his behalf authorized the RV Dealers to make repairs to the RV. The
motion alleged that, in making such unauthorized repairs, the RV Dealers
violated Florida law by failing to provide a written estimate (and receiving
approval) before commencing the repairs, and by failing to provide the
Receiver with an invoice. See §§ 559.905, 559.911, Florida Statutes (2013).
In support of these allegations, the Receiver relied upon excerpts of the
deposition testimony of Gigi Stetler, the corporate representative of the RV
Dealers. In response to the Receiver’s motion for summary judgment, the
RV Dealers filed an affidavit from Stetler, wherein she averred that the
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Receiver’s agent had instructed RV Dealers to complete minor repairs to the
RV in order to “maximize the sale price,” and that the repair estimate was
forwarded to the Receiver following a discussion with him on the telephone.
The trial court denied the Receiver’s motion for partial summary
judgment on Counts One and Two. As to Count Two, however, the trial court
not only denied the Receiver’s motion; it also “granted” summary judgment
in favor of the RV Dealers (notwithstanding the absence of a motion), finding
that “as a matter of law,” the RV Dealers did not violate chapter 559 because
the requirements of that statute were “waived by [the Receiver] as evidenced
by the unrebutted Affidavit in Opposition of Gigi Stetler.” The trial court
entered judgment in favor of the RV Dealers on Count Two, later amending
the judgment to remove the word “unrebutted.”1
The case proceeded to a nonjury trial on the remaining four counts. At
the close of the Receiver’s case, the court directed a verdict in favor of one
of the RV Dealer defendants as to Count Four (civil theft), citing the
Receiver’s failure to strictly comply with the demand requirements under
section 772.11, Florida Statutes (2013). The court either reserved or denied
all other motions for direct verdict. The court ultimately found in favor of all
1
Both the partial summary judgment order and the amended order were
entered by a predecessor trial court judge. Judge Cuesta, the successor
judge, presided over the subsequent bench trial.
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RV Dealers on all remaining counts, determining that, while the Receiver
proved a material breach of the contract, he failed to prove damages. A final
judgment was entered in favor of the RV Dealers, and this appeal followed.
On appeal, the Receiver argues that the trial court erred in granting
partial summary judgment on Count Two, and further erred in finding in favor
of the RV Dealers on the remaining counts, following a trial, upon a
determination that the Receiver failed to prove damages.2
We reverse the trial court’s sua sponte entry of summary judgment in
favor of the RV Dealers on Count Two of the Receiver’s complaint, where
the RV Dealers never filed a motion for summary judgment and the Receiver
was provided neither timely notice that such affirmative relief was
contemplated, nor an opportunity to respond or present additional evidence
in opposition. See Fla. R. Civ. P. 1.510(f)(1) (providing: “Judgment
Independent of the Motion. After giving notice and a reasonable time to
respond, the court may: (1) grant summary judgment for a nonmovant”);
Hotel 71 Mezz Lender, LLC v. Tutt,
66 So. 3d 1051 (Fla. 3d DCA 2011)
2
Because we agree with the trial court that the Receiver’s failure to prove
damages was fatal to the remaining four counts that proceeded to trial
(including Count Four, the civil theft claim), we need not determine whether
the trial court erred in directing a verdict on that count in favor of the third-
party defendants, for failure to comply with the statutory requirements of the
civil theft statute.
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(reversing summary judgment in favor of nonmoving party where opposing
party was not given an opportunity to respond and prepare for hearing); Ness
Racquet Club, LLC, v. Ocean Four 2108, LLC,
88 So. 3d 200, 202 (Fla. 3d
DCA 2011) (holding: “Where a party has not filed a summary judgment
motion or where no notice or opportunity to be heard has been given to the
opposing side to present opposing affidavits, a trial court may not sua sponte
grant summary judgment in favor of the non-movant”); Jockey Club, Inc. v.
Blake,
297 So. 2d 44, 45 (Fla. 3d DCA 1974) (reversing summary judgment
in favor of non-moving party where it was “apparent that the plaintiff did not
have an opportunity to defend against defendants’ motion by the
presentation of evidentiary facts which may have been relevant to such a
defense”); First Union Nat’l Bank of Fla. v. Maurer,
597 So. 2d 429, 430 (Fla.
2d DCA 1992) (reversing dismissal which was, in effect, a summary
judgment in favor of non-moving party where opposing party “could not
reasonably have anticipated” such an outcome).
Further, and as noted by the Receiver, the affidavit filed by the RV
Dealers in opposition to the Receiver’s motion for summary judgment at most
created a genuine issue of disputed fact as to Count Two, requiring denial of
any motion for summary judgment at that point. See e.g., Tutt,
66 So. 3d at
1054 (holding entry of summary judgment in favor of non-moving party was
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also error because there were several factual issues remaining); Univ. of
Miami v. Sosa,
629 So. 2d 172 (Fla. 3d DCA 1993) (holding that “it is not
generally accepted practice to enter summary judgment in favor of a
nonmoving party . . . [which is] particularly true in a cause with a number of
issues).
As to the remaining counts which proceeded to trial, we affirm the trial
court’s determination that the Receiver failed to prove damages, an essential
element of all those counts in the Receiver’s complaint. See Asset Mgmt.
Holdings, LLC v. Asset Recovery Ctr. Invs., LLC,
238 So. 3d 908, 912 (Fla.
2d DCA 2018) (damages are an essential element of a claim for breach of
contract); Ahearn v. Mayo Clinic,
180 So. 3d 165 (Fla. 1st DCA 2015) (actual
damages must be proven under FDUTPA); Kent v. Sullivan,
793 So. 2d 1027
(Fla. 5th DCA 2001) (a failure to prove damages is fatal to a claim for civil
theft); Raimi v. Furlong,
702 So. 2d 1273, 1284 (Fla. 3d DCA 1997) (holding:
“A civil conspiracy requires: (a) an agreement between two or more parties,
(b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing
of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff
as a result of the acts done under the conspiracy”); Blatt v. Green, Rose,
Kahn & Piotrkowski,
456 So. 2d 949, 950 (Fla. 3d DCA 1984) (noting: “The
gist of a civil action for conspiracy is not the conspiracy itself, but the civil
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wrong which is done pursuant to the conspiracy and which results in damage
to the plaintiff”). See also Regions Bank v. Maroone Chevrolet, L.L.C.,
118
So. 3d 251, 257 (Fla. 3d DCA 2013) (holding: “It is axiomatic that a plaintiff
must prove damages resulting from the defendant’s wrongdoing to be
entitled to recover”); Bank of Miami Beach v. Newman,
163 So. 2d 333, 333
(Fla. 3d DCA 1964) (noting: “It is fundamental that a person is not entitled to
recover damages if he has suffered no injury”).
The RV Dealers sold the RV for $22,000. The Receiver failed to
present competent substantial evidence that the RV was worth more than
that. Indeed, the Receiver testified that the former husband believed the RV
was worth “in the neighborhood of $20,000” and the Receiver himself
testified that he agreed with that assessment. Although the former wife
believed the RV was worth more than $20,000, she did not obtain an
appraisal or present other evidence of the RV’s fair market value. The trial
court, in its final judgment, concluded that the only credible evidence
presented in this regard was “that the vehicle’s value was $22,000—the
sales price.” We do not disturb that factual finding, as it is supported by
competent, substantial evidence. Based upon this finding of fact, see G&G
Fashion Design, Inc. v. Garcia,
870 So. 2d 870 (Fla. 3d DCA 2004), the trial
court properly determined the Receiver failed to prove damages, and
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properly entered final judgment in favor of the RV Dealers on those
remaining counts. We find the Receiver’s additional arguments
unpersuasive and do not merit further discussion.
We therefore affirm the final judgment in favor of the RV Dealers on
Counts One, Three, Four and Five. We reverse the summary judgment
entered in favor of the RV Dealers on Count Two, and remand with directions
to vacate that order and for further proceedings on that count.
Affirmed in part, reversed in part, and remanded with directions.
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