After an attorney was sued for allegedly failing to satisfy a bank’s lien, resulting in the property being sold at a foreclosure sale and a claim being filed with the title insurer, the attorney filed suit against an employee. He alleged the failure to pay the bank lien was due to the employee’s theft of the funds. A lower court granted the attorney’s motion for summary judgment and the employee appealed.
The case is Tammy Campbell v. Jerry Riggs Sr. and Attorneys’ Title Insurance Fund Inc. (Fourth District Court of Appeal of Florida, No. 4D19-2327).
Attorneys’ Title Insurance Fund Inc. filed a complaint against Jerry Riggs Sr. It alleged Riggs failed to satisfy a bank’s lien while acting as a closing agent for the sale of property in Miami, Fla. As a result, the property was sold at a foreclosure sale. The purchasers of the property filed a claim with Attorneys’ Title Insurance Fund, which paid a $124,055.38 judgment held by the bank. Riggs was suspended from the practice of law.
Riggs filed an answer and affirmative defenses. He alleged the failure to pay the bank lien was because of the theft of funds by his employee, Tammy Campbell. He filed suit against Campbell and his suit was consolidated with Attorneys’ Title Insurance Fund’s lawsuit against Riggs. Attorneys’ Title Insurance Fund and Riggs resolved their lawsuit, but Riggs’ suit against Campbell remained pending.
In his amended complaint, Riggs alleged Campbell stole $84,071.40 from his trust account. He alleged she disguised the funds as proceeds from refinancing her home. He said she forged his signature on checks and a wire transfer and used those funds to make mortgage payments on her home. In a second amended complaint, Riggs alleged Campbell sold her home and purchased new property, which she transferred to a relative. The second amended complaint added the relative as a defendant and sought an equitable lien on the relative’s property.
Campbell answered the complaint and raised several affirmative defenses, including unclean hands because Riggs had been disbarred and was held responsible for the missing funds; failure to mitigate damages because any missing funds was due to Riggs’ own misconduct; and ratification because Riggs ratified and approved all withdrawals Campbell made. She also stated she had no personal knowledge of the sale of the Miami property because she was not involved in the closing.
The trial court found Riggs proved Campbell had committed a theft of funds and entered final summary judgment in favor of Riggs and awarded him $84,071.04, treble damages of $33,581.88, and an equitable lien on real property owned by Campbell’s relative. Campbell timely appealed.
The appellate court reversed and remanded the trial court’s decision, finding that disputed issues of material fact exist. It noted that to prevail in a civil theft action, a plaintiff must prove the defendant: “knowingly; obtained or used, or endeavored to obtain or use, the plaintiff’s property; with felonious intent; to deprive the plaintiff of its right to or a benefit from the property or appropriate the property to the defendant’s own use or to the use of a person not entitled to the use of the property.”
“We find the trial court erred in granting summary judgment because material issues of fact exist including, but not limited to, whether Campbell stole funds from the trust account, whether Campbell acted with felonious intent, and whether Campbell forged checks and a wire transfer,” the court stated. “Riggs’ chart of transactions that were allegedly forged is not clear and convincing evidence that Campbell committed a theft. Riggs’ affidavit that Campbell forged checks did not rebut the presumption of the validity of the checks. The disciplinary opinion did not determine that Campbell was responsible for the missing funds. In fact, the refinancing of Campbell’s home occurred over a month after the closing on the Miami property. The majority of the alleged stolen funds were withdrawn after the Miami closing. Further, Riggs did not file a police report until nearly two years after the Miami closing. Additionally, Riggs did not disprove Campbell’s affirmative defense or show they were legally insufficient.”