Third District Court of Appeal

State of Florida 

Opinion filed February 15, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-203

Lower Tribunal No. 19-9386

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World Cellphones Distributors Corp., etc., et al.,

Appellants,

vs.

De Surinaamsche Bank, N.V., etc.,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Carlos 

Guzman, Judge.

Sordo & Associates, P.A., and Cesar R. Sordo, for appellants.

Maeder Infantolino, LLC, and Dayna Maeder and Camille Infantolino 

(Jupiter), for appellee.

Before LOGUE, MILLER, and BOKOR, JJ. 

LOGUE, J.

World Cellphones Distributors Corp. (“World Cellphones”) and Ileana 

Calderon (collectively, “Appellants”) appeal a final summary judgment 
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entered in favor of De Surinaamsche Bank, N.V. (“DSB”) on DSB’s claims of 

conversion, civil theft, and unjust enrichment. We affirm the trial court’s grant 

of summary judgment as it pertains to DSB’s claim of conversion because 

Appellants stipulated to the key facts that establish their liability as a matter 

of law. We reverse, however, as to DSB’s claim of civil theft because the 

record reflects a lack of clear and convincing evidence regarding the 

felonious intent necessary to establish Appellants’ liability.1 Accordingly, we 

remand for further proceedings on the civil theft claim.

Factual and Procedural History

The underlying action arose from an erroneous duplicative wire 

transfer sent by DSB to World Cellphones. DSB alleged in its Complaint that 

in December 2017, Prestige Imports, N.V., a DSB business banking 

customer, initiated a payment order containing international wire transfer 

instructions. The wire transfer served as payment for wholesale goods 

Prestige purchased from World Cellphones, which totaled $119,490.00.

According to the payment order, DSB was to transfer $119,490.00 from 

Prestige’s account at DSB into World Cellphones’ account at Regions Bank. 

This initial wire transfer was successfully executed on December 17, 2017, 

1 Because the record sufficiently supports a finding of conversion, we need 

not reach the merits of the unjust enrichment claim. 
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and World Cellphones’ account at Regions Bank was credited in the amount 

of $119,490.00. On December 18, 2017, Prestige notified DSB of an error 

on the international wire transfer request, stating that Regions Bank was the 

incorrect beneficiary bank, that the correct beneficiary bank was Bank of 

America, and that the funds should have been credited into World 

Cellphones’ account at Bank of America.

Based on Prestige’s notification, DSB immediately recalled the initial 

wire transfer and initiated wire transfer instructions for the deposit of funds 

into World Cellphones’ account at Bank of America. This second wire 

transfer was successfully executed on December 19, 2017, and World

Cellphones’ account at Bank of America was credited in the amount of 

$119,490.00.

About a month later, DSB discovered that the initial wire transfer was 

never successfully recalled and reached out to Regions Bank. Regions Bank 

responded and confirmed a credit to World Cellphones’ account in the 

amount of $119,490.00 on December 17, 2017, but advised it was unable to 

credit back the funds because the account was closed on December 20, 

2017. At DSB’s request, Bank of America, as beneficiary bank for the second 

wire transfer, contacted World Cellphones’ account owner, Ileana Calderon, 

notifying her of the duplicative wire transfer and requesting that funds be 
4

credited back to DSB’s account. Ms. Calderon refused debit authority, stating 

that World Cellphones had already provided Prestige with goods.

Appellants filed an Answer and Affirmative Defenses and admitted 

receiving various demands from DSB explaining the banking error and 

requesting return of the duplicate wire transfer. Appellants nevertheless 

alleged in their affirmative defenses that the funds received from DSB were 

sent on behalf of Prestige and were used by Prestige to purchase 

merchandise from World Cellphones. Appellants further alleged, in pertinent 

part, that World Cellphones lacked intent to defraud and that there was no 

cause of action against Ms. Calderon while acting in her corporate capacity.

On November 2, 2020, DSB moved for summary judgment and argued 

it was undisputed that Appellants received duplicate wire transfers in the 

amount of $119,490.00 and that they tortiously and inequitably kept both 

amounts despite having knowledge that DSB was the rightful owner of the 

duplicate funds. DSB also argued that Ms. Calderon personally participated 

in the tortious and inequitable conduct, having retained and converted DSB’s 

funds and then refused debit authority for the return of the funds. Among 

other things, DSB attached to its motion for summary judgment electronic 

correspondences reflecting the information received from Regions Bank 

stating that the initial wire transfer could not be recalled because the account 
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had been closed and the account balance had been issued to the account 

owner, and the information received from Bank of America stating that Ms. 

Calderon had refused to give debit authorization for return of the second wire 

transfer because “she already gave merchandise to the client.” DSB did not 

submit any affidavit in support of its motion for summary judgment.

Appellants did not file a written response in opposition to DSB’s motion 

for summary judgment, but filed an affidavit of World Cellphones’ Vice 

President, Alex Calderon, on December 31, 2020. In his affidavit, Mr. 

Calderon stated that Prestige and a related company, Flex Wholesale & 

Retail, N.V. (“Flex”), both owned and operated by Richanand Dassasingh, 

were customers of World Cellphones and that between December 15, 2017 

and January 29, 2018 World Cellphones sold to Prestige and Flex a total of 

$366,057.00 in products. Mr. Calderon attested to receiving the two wire 

transfers, each for $119,490.00, from Prestige and stated that at the direction 

of Mr. Dassasingh the two wire transfers were applied to the invoices due 

from Flex. Mr. Calderon further stated that Ms. Calderon “had absolutely 

nothing to do with any transactions of either Prestige and Flex as they [were] 

both [Mr. Calderon’s] customer and [he] was the person handling those 

accounts.”
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On January 5, 2021, the trial court held a hearing on DSB’s motion for 

summary judgment. During the hearing Appellants expressly stated that they 

did not dispute the fact that World Cellphones received duplicate wire 

transfers of $119,490.00 and that Ms. Calderon refused debit authority for a 

return of the duplicate wire transfer. Appellants’ position, essentially, was 

that the wire transfers had been credited to Prestige and Flex’s accounts for 

goods provided to them. DSB argued the duplicate wire transfer did not 

belong to Prestige but rather DSB, that DSB advised World Cellphones of 

this and demanded the return of its money, and that World Cellphones

refused to return the funds and kept the funds.

On February 17, 2021, the trial court issued its Order granting DSB’s 

motion for summary judgment. The trial court found it was undisputed by the 

parties that a banking error occurred; that DSB failed to successfully recall 

the initial wire transfer; that DSB’s account remained debited in the amount 

of $119,490.00; that among the invoices produced by World Cellphones

there was only one invoice to Prestige in the amount of $119,490.00; that 

World Cellphones received two wire transfers, each in the amount of 

$119,490.00; that Ms. Calderon was the owner and authorized individual on 

World Cellphones’ Regions Bank and Bank of America accounts; that Ms. 

Calderon had knowledge of the banking error and refused debit authority to 
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return the funds; that World Cellphones applied the funds to Flex’s invoices; 

and that upon DSB’s written demands, World Cellphones and Ms. Calderon 

failed to return the duplicate funds based on World Cellphones’ application 

of the funds to Flex’s invoices.

DSB moved for entry of final judgment after the trial court granted its 

motion for summary judgment and attached an affidavit stating that the 

copies of the correspondences, International Transfer Request and Wire 

Transaction Instructions attached to its Complaint and motion for summary 

judgment were true and correct copies of DSB’s business records.

Appellants moved for rehearing and argued DSB failed to support its motion 

for summary judgment with any affidavits or other admissible evidence. 

Appellants also argued DSB failed to refute their various affirmative 

defenses. The trial court denied rehearing and final judgment was rendered.

Analysis

We review a trial court’s order on a motion for summary judgment de 

novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 

130 (Fla. 2000).

I. Conversion

The tort of conversion “constitutes the exercise of wrongful dominion 

and control over [ ] property to the detriment of the rights of its actual owner.” 
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Envases Venezolanos, S.A. v. Collazo, 559 So. 2d 651, 652 (Fla. 3d DCA 

1990). “Where a person having a right to possession of property makes 

demand for its return and the property is not relinquished, a conversion has 

occurred.” Senfeld v. Bank of Nova Scotia Tr. Co. (Cayman) Ltd., 450 So. 2d 

1157, 1161 (Fla. 3d DCA 1984). “[T]he intentional tort of conversion . . . does 

not contain malice as one of its essential elements, as the tort may be 

established upon a showing of the taking by the defendant of personal 

property belonging to the plaintiff upon a mistaken belief as to the legal right 

of the defendant to the converted property.” Ciamar Marcy, Inc. v. Monteiro 

Da Costa, 508 So. 2d 1282, 1283–84 (Fla. 3d DCA 1987).

Although Appellants challenge the admissibility, and thereby the 

sufficiency, of DSB’s summary judgment evidence on appeal, the record 

reflects that key facts were indeed undisputed. First, Appellants expressly 

admitted receiving duplicate wire transfers for $119,490.00 and exercising 

dominion and control over the wire transfers. Second, Appellants admitted 

receiving various demands from DSB explaining the banking error and 

requesting return of the duplicate wire transfer. Third, Appellants did not 

dispute that they refused to return the duplicate wire transfer.

These undisputed facts are sufficient to support the trial court’s 

conclusion that Appellants were liable for conversion as a matter of law. See
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Senfeld, 450 So. 2d at 1161. See also Barak v. ACS Int'l Projects, Ltd., 347 

So. 3d 81, 82 n.1 (Fla. 3d DCA 2021) (“Under Florida law, an officer of a 

corporation who commits or participates in a tort, whether or not it is in 

furtherance of corporate business and whether or not it is by authority of the 

corporation, is liable to the injured party whether or not the corporation is 

also liable.” (internal citations and quotation marks omitted)).

Moreover, while Appellants may have been under the mistaken belief 

that they had a legal right to the duplicate wire transfer based on their 

subsequent sale of goods to Flex, this affirmative defense is insufficient as a 

matter of law to preclude a finding of conversion. See Ciamar Marcy, Inc., 

508 So. 2d at 1283-84. Accordingly, Appellants’ claim of error regarding the 

admissibility and sufficiency of DSB’s summary judgment evidence does not 

require reversal.

II. Civil Theft

Civil theft, on the other hand, is a statutory form of conversion that 

essentially consists of “conversion plus criminal intent.” Gokalp v. Unsal, 284 

So. 3d 1097, 1099 (Fla. 4th DCA 2019) (emphasis added). To maintain a 

cause of action under the civil theft statute a plaintiff must show, by “clear 

and convincing evidence,” an injury caused by the defendant’s violation of 

one or more of the provisions of the criminal theft laws found in sections 
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812.012-037 or section 825.103(1), Florida Statutes. § 772.11(1), Fla. Stat.

Section 812.014(1), Florida Statutes, provides:

A person commits theft if he or she knowingly obtains 

or uses, or endeavors to obtain or to use, the 

property of another with intent to, either temporarily 

or permanently:

(a) Deprive the other person of a right to the property 

or a benefit from the property.

(b) Appropriate the property to his or her own use or 

to the use of any person not entitled to the use of the 

property.

In order to establish a violation of section 812.014(1), a plaintiff must 

show that the defendant knowingly obtained or used the plaintiff’s property 

with the felonious intent to appropriate the property to the defendant’s own 

use or the use of any person not entitled to the use of the property. See

Orozco v. McCormick 105, LLC, 276 So. 3d 932, 935 (Fla. 3d DCA 2019).

“Theft is a specific intent crime, requiring actual knowledge on the part of the 

defendant.” Healy v. Suntrust Serv. Corp., 569 So. 2d 458, 460 (Fla. 5th DCA 

1990).

Here, the record reflects a lack of clear and convincing evidence

regarding the felonious intent necessary to establish Appellants’ liability for 

civil theft. In its Complaint, DSB alleged Appellants’ felonious intent was 

established “[b]y [Appellants’] withdrawing the funds credited by the Initial 
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Wire Transfer and immediately closing its Regions Bank account one day 

after having accepted and received a secondary account credit in its Bank of 

America account for the exact same dollar amount as the Initial Wire 

Transfer[.]” DSB argued this demonstrated Appellants’ “felonious intent to 

deprive DSB of its right to, or benefit from, the property; or it display[ed 

Appellants’] felonious intent to appropriate DSB’s property for [Appellants’] 

own use.”

In order to establish this, however, it was necessary for DSB to produce 

evidence showing that Appellants closed the Regions Bank account. The 

subpoenaed bank records submitted in support of the summary judgment 

motion establish only that the account was closed. Appellants disputed, 

however, that they voluntarily closed the account and contended Regions 

Bank involuntarily closed the account. It was DSB’s burden to establish 

felonious intent and it failed to establish this necessary element by clear and 

convincing evidence in the record showing that it was Appellants that closed 

the Regions Bank account the day after they received the second wire 

transfer into their Bank of America account. Furthermore, Appellants’ 

affidavit in opposition to summary judgment calls into question whether 

Appellants had the intent to deprive DSB of its property or whether 

Appellants were under the (mistaken) belief that the funds came from their 
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client Prestige and that they were to credit those funds to the future 

purchases of Prestige and Flex. Accordingly, we reverse as to DSB’s claim 

of civil theft and remand for further proceedings.

Reversed and remanded.