BEACH COMMUNITY BANK , Appellant,

v. DISPOSAL SERVICES, LLC , Appellee

. IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CASE NO. 1D 15

- 5330

_____________________________/ Opinion filed September 21, 2016. An appeal from the Circuit Court for Okaloosa County

. William F. Stone , Judge

. Charles F. Beall, Jr. , of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
B ill R. Hutto of Hutto & Bodiford, Panama City , for Appellee.

B.L. THOMAS, J. Appellant , Beach Community Bank (Beach) , appeal s the trial court’s order granting final sum mary judgment in favor of Appellee , Disposal Services, LLC (Disposal) , with re spect to Beach’s claim of conversion, and the trial court’s denial of Beach’s motion to amend its complaint to add a cause of action for replevin

. Beach contends that the trial court erred in interpreting section 679.3151, Florida2 Statutes , to preclude a claim for conversion where replevin is still an available remedy. Beach argues that a claim for conversion is appropriate when the elements for conversion are satisfied , regardless of whether replevin is an available remedy

. We reverse the trial court’s order granting final summary judgment, because conversion remains a valid cause of action here. In light of our reversal of final summary judgment, w e decline to address Beach’s argument that the trial court abused its discretion in denyin g Beach’s motio n to amend

. Beach is the successor in interest of creditors that made loans to Solid Waste Haulers of Florid a (Debtor), which were secured by 308 roll

- off containers (Containers) worth a total of $400,800. 1 The original creditor properly filed a UCC

- 1 with the Florida Secretary of State perfecting its security interest in the Containers. Through a series of transactions , and without notice to Beach, Debtor sold the Containers to Disposal ; however, Debtor did not apply the sale proceeds to the loans and subsequently defaulted on its loan obligations to Beach

. Following Disposal ’ s acquisition of the C ontainers and Debtor’s default on the loans, Beach made written demand to Disposal for either repayment of the loans in full or return of the Containers

. W hen Disposal neither p aid Beach nor returned the C ontainers, Beach filed a complaint against Disposal alleging that Disposal converted

1 This court a grees that these Containers are non

- fungible goods.3 the Containers. In response, Disposal filed a motion for summary judgment. The trial court granted the motion , findin g that Beach could not sue for conversion as a matter of law , because the option of replevin was still available as a remedy , as the Containers a re non - fungible goods that could be located and subject to repossession . In response, Beach moved for rehearin g and leave to amend its complaint to add a cause of action for replevin. Both motions were denied

. The trial court ac cepted the facts as alleged in Beach’s complaint , but found, as a matter of law, that Beach could not pursue a cause of action for conve rsion. When reviewing a trial court’s grant of final summary judgment , the standard of review is de novo

. S. Nat’l Track Servs. v. Gilley , 15 2 So. 3d 1 3, 16 (Fla. 1st DCA 201 4 ). Furthermore, “ [i] t is well settled that when ruling on a motion for summa ry judgment, courts must construe the facts in a light most favorable to the non

- moving party

. ” Courtney v. Fla. Transformer, Inc. , 549 So. 2d 1061, 1065 (Fla. 1st DCA 1989)

. “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.” Black Bus. Inv. Fund of Cent. Fl a . , Inc. v. State , Dep’t of Econ. Opportunity , 178 S o. 3d 931, 933 (Fla. 1st DCA 2015 )

.

“ A conversion claim is based on a ‘positive, overt act or acts of dominion or4 authority over the money or property inconsistent with and adverse to the rights of the true owner.’” Columbia Bank v. Turbeville , 143 So. 3d 964, 969 (Fla. 1st DCA 2014) (quoting S.S. Jacobs Co. v. Weyrick , 164 So. 2d 246, 250 (Fla. 1st
DCA 1 964)). In Turbeville , this court held that a bank’s allegations were sufficient to allege conversion when the bank pled that “‘[the defendant] intentionally engaged in un authorized conduct when she (a) withdrew funds from the accounts at is sue’ depriving [the victim] of her ‘ immediate right to possess the funds’ and (b) failed to return the funds upon demand .” 143 So. 3d at 969 (emphasis added). Generally , before a conversion can occur when a pa rty was previously in rightful possession of another’s prope rty , the following three factors must be present: first, the party in possession must be informed that continued possession of the property is no longer permitted; second, the rightful owner must demand the return of the property; and third, the party hol ding the property must fail to comply with the demand. Black Bus. Inv. Fund , 178 So. 3d at 937. 2 In the context of secured transactions, once default has occurred, a secured creditor has the right to possess the collateral and is authorized to take posse ssion of the collateral. Spellman v. Indep. Bankers’ Bank of Fl a . , 161 So. 3d 505, 508 (Fla. 5th DCA

2 We do not address whether Disposal was previously in rightf ul possession of Beach’s property.5 2014)

. See also Bel

- Bel Int’l Corp. v. Cmty. Bank of Homestead , 162 F.3d 1101, 1108 (11th Cir. 1998) (holding that , under Florida law, a lienholder is co nsidered to be the “owner” of property for the purposes of conversion if he has the present right to possession)

. In Spellman , a trustee a ppeal ed a summary judgment on a claim for conversion. T he trustee pledged stock certificates to the Bank as collater al for securing a loan. After default , the b ank sued the trust for a mone tary judgment

. The trustee objected on the grounds that the bank should be required to sell or otherwise dispose of the collateral and then pursue a deficiency judgment against the trust

. Spellman , 161 So. 3d at 507. The court rejected the trustee’s argument , interpreting section 679.601 , Florida Statutes , as neither dictating nor proscribing the election of a particular remedy . The court held that a secured creditor with present rights to possession c ould repossess collateral whi le concurrently pursuing a monetary judgment to recover the full amount due and then dispose of the collateral. Id. at 508. 3 Here, the following six facts were pled by Beach in its complaint and not refuted in Disposal’s motion for summary judgment : (1) Debtor borrowed $400,800 , giving the Containers as security for the loan; (2) Beach , as the

3 However, a secured creditor “can obtain only one satisfaction of the debt.” 68A Am. Jur. 2d Secured Transactions § 445 (2016).6 successor in interest of the creditor that made the loan, ha s a valid and enforceable lien in the Containers ; (3) without Beach’s authorization, Debtor sold the Containers to Disposal; (4) some time after the unauthorized sal e, Debtor defaulted on its loan; (5) after becoming aware of the sale of the Containers , Beach demanded that Disposal either turn over the Containers or pay the balance of the loan in full; and finally (6) Disposal failed to comply with Beach’s demand. Taken
as true, these allegations are sufficient to plead an actionable claim for conversion.
R egardless of whether Disposal acquired rightfu l possession of the Containers when it purchased them from Debtor , once the Debtor defaulted on its loan obligations, Beach gained the right to possess the Containers as collateral securing the debt

. Once Beach informed Disposal that Beach wa s a creditor wit h rights to possess the Containers and demand ed th eir return , Disposal had the opportunity to comply with the proper demand. By refusing to comply with Beach’s lawful demand, Disposal took an overt action inconsistent with Beach’s possessory rights , th ereby complet ing the necessary elements for a claim of conversion. When an unauthorized disposition of collateral occur s , a secured party has numerous cumulative remedies at its disposal; it is not forced to elect a single remedy

. See Taylor Rental Corp. v. J.I. Case Co. , 749 F.2d 1526, 1529 (11th Cir.7 1985). Furthermore, merely because Disposal still has the Containers in its possession and c an return them to Beach does not preclude Beach from pursuing conversion. See Seibel v. Soc’y Lease, Inc. , 969 F . Supp

. 713, 719 (M.D. Fla. 1997) (holding that debtor’s petition alleging that repossession agency wrongfully took their truck and had control over it for period of time stated cause of action under Florida law for conversion , even though agency did not p ermanently deprive debtors of their truck and returned it in the same condition as it was at the time of repossession); Mayo v. Allen , 973 So. 2d 1257, 1258 (Fla. 1st DCA 2008) (noting the well

- settled principle that “conversion is an unauthorized act whic h deprives another of his property permanen tly or for an indefinite time”). Here, once Disposal failed to comply with Beach ’s demand to either return the C ontainers or repay the balance of the loan, the alleged act of conversion was complete. Thus ,

we re verse the trial court’s order granting final summary judgment

. RE VERSED and REMANDED. WETHERELL and WINSOR, JJ., CONCUR.