HORACE THRASHER AND ROSA THRASHER, APPELLANTS,
v.
FIRST NATIONAL BANK OF MIAMI, APPELLEE
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Thrasher appealed the dismissal of their complaint against First National Bank of Miami for repossessing their automobile. The trial court dismissed all counts, but the appellate court affirmed dismissal of the civil rights claim while reversing dismissal of the conversion and trespass counts, finding the complaint adequately pleaded those causes of action.
The court held that the dismissal of the civil rights count (Count I) was proper because no state action was alleged, as the repossession was a private self-help action. However, the court held that the dismissal of Counts II and III alleging conversion and trespass was improper because the amended complaint adequately pleaded those causes of action and alleged a wrongful trespass during repossession, which can render a repossession illegal.
[1] A private self-help repossession does not constitute state action for purposes of a civil rights claim under 42 U.S.C. …
[2] A complaint alleging conversion is not fatally defective for failing to state the monetary value of the converted property if the substance of the claim is otherwise expr…
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Join FLexlaw to unlock all legal intelligence“Upon a motion to dismiss a complaint for failure to state a cause of action, all allegations in the complaint are taken to be true and all reasonable inferences are permitted on behalf of the plaintiff.”
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Join FLexlaw to unlock all legal intelligenceAppellants Horace and Rosa Thrasher filed a complaint against First National Bank of Miami challenging the bank's repossession of their automobile. Th…
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HENDRY, Judge.
Appellants, plaintiffs in the trial court, seek review of an order by the trial court dismissing their amended complaint with prejudice.
The amended complaint in three counts charged appellee with a violation of appellants’ civil rights under 42 U.S.C. § 1983 and in Count II and III with trespass and conversion of appellants’ automobile. The trial court dismissed Count I because no state action was alleged entitling appellants to relief, inasmuch as this case involves a private self-help repossession. In this regard, the trial judge was correct. See Northside Motors of Florida Inc. v. Brinkley, Fla.1973, 282 So. 2d 617.
However, we cannot agree with the dismissal of Count II and III alleging conversion. The trial court concluded that the amended complaint did not plead facts showing that appellants possessed a present or immediate right of possession of the property in question.
Appellants contend that the amended complaint alleged all which is required of them by Form 1.939 of the Florida R. C.P., 31 F.S.A., entitled “Conversion,” and therefore a dismissal of the complaint with prejudice was improper. It is true that ap pellants’ amended complaint did not include the monetary value of the automobile allegedly converted as is requir'ed by the form. However, we do not think this is fatal to the complaint. Florida R.C.P. 1.-900, 31 F.S.A., entitled “Forms,” states in part:
“(b) The other forms are sufficient for the matters that are covered by them. So long as the substance is expressed without prolixity, the forms may be varied to meet the facts of a particular case.”
The appellants in addition to conversion alleged a wrongful trespass by the appellee in order to repossess the automobile. Earlier Florida cases have recognized the principle that where a repossession involves a trespass or assault, such repossession is illegal. McDowell v. Talcott, Fla.App.1966, 183 So. 2d 592; C. I. T. Corp. v. Brewer, 1941, 146 Fla. 247, 200 So. 910; C. I. T. Corp. v. Reeves, 1933, 112 Fla. 424, 150 So. 638. Also, the Florida Supreme Court in Northside Motors of Florida, Inc. v. Brinkley, supra, recognized that under Fla.Stat. § 679.503, F.S.A., a creditor may not undertake self-help repossession which results in a breach of the peace. Upon a motion to dismiss a complaint for failure to state a cause of action, all allegations in the complaint are taken to be true and all reasonable inferences are permitted on behalf of the plaintiff. Orlando Sports Stadium, Inc. v. State ex rel. Powell, Fla.1972, 262 So. 2d 881.
Therefore, for the reasons stated and upon the authorities cited, we hold that the court erred in dismissing Counts II and III of the amended complaint. Accordingly, the cause is affirmed as to the dismissal of Count I of the amended complaint and reversed and remanded for further proceedings as to Counts II and III.
Affirmed in part; reversed in part.
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Parnell v. Hartford Nat'l Bank & Tr. Co. of Hartford, 307 So. 2d 253 (Fla. 4th DCA 1975)…ht and breaking into an automobile for the purpose of towing it away which apparently was the fact situation below. See Northside Motors of Florida, Inc. v. Brinkley, Fla. 1973, 282 So. 2d 617; Thrasher v. First National Bank of Miami, Fla.App.1974, 288 So. 2d 288. Genuine issues of material fact exist as to: whether or not an unlawful trespass and conversion occurred; whether plaintiff was in arrears at the time of the repossession in light of an alleged agreement to extend plaintiff’s payments; whether a s…
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Authorities Cited
- Orlando Sports Stadium, Inc. v. The State of Fla. ex rel. Rom W. Powell, 262 So. 2d 881 (Fla. 1972)
- Northside Motors OF Fla., Inc. v. Brinkley, 282 So. 2d 617 (Fla. 1973)
- C. I. T. Corp. v. Reeves, 112 Fla. 424 (Fla. 1933)
- C. I. T. Corp. v. Brewer, 146 Fla. 247 (Fla. 1941)
- McDOWELL v. James Talcott, Inc., 183 So. 2d 592 (Fla. 3d DCA 1966)