INFRAX SYSTEMS, INC., APPELLANT,
v.
PIERCE GLEN WOOD, APPELLEE

Fla. 2d DCA | 2015-01-07
No. 2D13-3228
CASANUEVA and SLEET, JJ., Concur.
155 So. 3d 426 Florida District Court of Appeal, Second District (2015)

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Synopsis

Infrax Systems appeals a bench trial judgment for $68,575.38 in favor of employee Pierce Glen Wood. The court reverses the treble damages and processing fees awarded under Florida Statute 68.065 because Wood never presented the unpaid checks to the bank for payment, thus no dishonor occurred, but affirms and remands for entry of judgment limited to unpaid wages and unreimbursed business expenses.


Holding

The court reversed the award of treble damages and processing fees under section 68.065 because presentment and dishonor of the checks are prerequisites to liability under that statute, and Wood never presented the checks to the bank. The court affirmed liability for unpaid wages of $26,228.95 and unreimbursed business expenses of $5,733, with prejudgment interest and potential attorney's fees.


Headnotes

[1] A payee is not entitled to treble damages and processing fees under section 68.065, Florida Statutes, for unpaid checks unless the checks were presented to the drawee ban…

[2] An inquiry to a drawee bank about the sufficiency of funds in a drawer's account does not constitute presentment of a check for payment.

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Key Quotes

“A civil action pursuant to section 68.065, Florida Statutes requires proof that: (a) a check was made and delivered to the plaintiff and (b) the 'payment was refused by the drawee bank because of the lack of funds.'”

Establishes the statutory requirements for treble damages under section 68.065

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Facts & Procedural History

Pierce Glen Wood was an employee of Infrax Systems. Infrax delivered checks to Wood that were not paid. Wood never presented these checks to the bank …

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Opinion of the Court
WALLACE, Judge.

WALLACE, Judge.

After a bench trial, the trial court entered a money judgment in favor of Pierce Glen Wood and against Infrax Systems, Inc. (Infrax).1 The amount of the judgment is $68,575.38. On Infrax’s appeal from the judgment, we reverse the portion of the judgment representing treble dam*427ages and processing fees awarded under section 68.065, Florida Statutes (2011), because there was no presentment and dishonor of the checks at issue.

Mr. Wood was an employee of Infrax. A portion of the judgment amount comprises wages and unreimbursed business expenses due from Infrax to Mr. Wood. The major portion of the judgment amount represents treble damages and processing fees awarded under section 68.065 for checks delivered by Infrax to Mr. Wood that were not paid.

With regard to the claim arising from the checks delivered by Infrax to Mr. Wood, the analysis is straightforward. Mr. Wood never presented.the checks to the bank upon which they were drawn for payment; thus the checks were not dishonored. See §§ 673.5011; 673.5021, Fla. Stat. (2011). It follows that Mr. Wood was not entitled to claim treble damages or processing fees on the checks in accordance with section 68.065. See Schneider v. Slichter, 917 So.2d 299, 301 (Fla. 4th DCA 2005) (Gunther, J., dissenting) (“A civil action pursuant to section 68.065, Florida Statutes requires proof that: (a) a check was made and delivered to the plaintiff and (b) the ‘payment was refused by the drawee bank because of the lack of funds.’ ”); Tepper v. Citizens Fed. Sav. & Loan Ass’n, 448 So.2d 1138, 1140 (Fla. 3d DCA 1984) (“The normal conditions precedent [to a drawer’s liability on an instrument] include presentment to the drawee, dishonor, and notice of dishonor.”). Where, as in this case, the payee merely inquires of the drawee bank concerning whether there are sufficient funds in the drawer’s account to cover a check, there is no presentment. See Hart v. Sims, 702 F.2d 574, 578 n. 7 (5th Cir.1983); Kirby v. Bergfield, 186 Neb. 242, 182 N.W.2d 205, 208 (1970); Ford v. Hagel, 83 Wash.App. 318, 920 P.2d 260, 263 (1996).

However, Mr. Wood did present sufficient evidence at the hearing to establish Infrax’s liability on his unreimbursed business expenses claim and a portion of his wage claim.2 Accordingly, we reverse the final judgment and remand this case to the trial court for the entry of an amended final judgment in favor of Mr. Wood and against Infrax limited to the unpaid wages proven at the final hearing of $26,228.953 and unreimbursed business expenses of $5733, together with prejudgment interest on these amounts. On remand, the trial court may also consider and enter an award of attorney's fees and costs in favor of Mr. Wood in accordance with its reservation of jurisdiction.

Reversed and remanded with directions.

CASANUEVA and SLEET, JJ., Concur.


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