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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DEAN DELLINGER,

Plaintiff,

vs. CASE NO. 3:10cv323/RS-EMT

INTERNATIONAL RARITIES

CORPORATION,

Defendant.

_________________________________/

ORDER

Before me is Defendant International Rarities Corporation’s motion to 

dismiss (Doc. 14). 

I. STANDARD OF REVIEW

In order to overcome a motion to dismiss, a plaintiff must allege enough 

facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). Granting a motion to dismiss is 

appropriate if it is clear that no relief could be granted under any set of facts that 

could be proven consistent with the allegations of the complaint. Hishon v. King & 

Spalding, 467 U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all 

allegations in the complaint as true and in the light most favorable to the plaintiff. 

Shands Teaching Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 
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1310 (11th Cir. 2000), citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 

1229 (11th Cir. 1999). 

II. BACKGROUND

Between 1975 and 2009, Plaintiff invested in gold bullion coins. Plaintiff 

amassed nearly 430 ounces of gold bullion coins, with an approximate worth of 

over $400,000. In January of 2009, Defendant began to solicit Plaintiff, through 

the mail and telephone calls, to exchange his gold bullion coins for what Defendant

represented to be rare gold and silver coins. In response to these solicitations, 

Plaintiff sent approximately $377,282.65 worth of gold bullion coins to Defendant. 

In exchange, Defendant provided Plaintiff with what it represented to be 

$379,282.65 in rare gold coins. 

Defendant continued to solicit Plaintiff, advising Plaintiff to convert his cash 

savings account into a safer asset such as Defendant’s rare gold coins. As a result, 

Plaintiff transferred $99,100.00 to Defendant in exchange for more gold coins. In 

July of 2009, Defendant sent Plaintiff an evaluation of all the coins it had provided 

him, alleging their total value to be $563,990.00. Plaintiff had these coins 

appraised at the beginning of 2010, and the actual average value of the coins from 

Defendant was $228,538.83. 

Plaintiff brings four counts against Defendant: 

1. civil theft pursuant to Fla. Stat. §772.11,
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2. conversion, 

3. negligent hiring, training, and/or supervision, and 

4. negligent misrepresentation.

Defendant’s motion seeks dismissal of counts two and three.

III. ANALYSIS

Count Two: Conversion

Under Florida law, conversion is defined as an act of dominion wrongfully 

asserted over another’s property inconsistent with his ownership of it. Belford 

Trucking Co. v. Zagar, 243 So.2d 646,648 (Fla. 4th DCA 1970)(citation omitted). 

Defendant argues that Plaintiff’s claim for conversion fails because the property 

Plaintiff alleges was converted is money, and in a conversion claim the property 

must be identified specifically. 

What constitutes “property” which may be the subject of conversion has 

been the subject of considerable discussion, especially where the property alleged 

to have been converted consists of money or intangibles. Belford Trucking Co. v. 

Zagar, 243 So.2d 646,648 (Fla. 4th DCA 1970). The general rule is that an 

obligation to pay money cannot be enforced through an action for conversion. BelBel International Corp. v. Community Bank of Homestead, 162 F.3d 1101, 1109 

(11th Cir. 1998)(citing Capital Bank v. G & J Invs. Corp., 468 So.2d 534, 535 (Fla. 

3d DCA 1985). However, the “specific fund requirement” is an exception to this 
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rule. Id. at 1108. A claim for the conversion of money will stand when there is a 

specific fund capable of separate identification. Id. (citing Bankest Imports, Inc. v. 

ISCA Corp., 717 F.Supp. 1537, 1542 (S.D. Fla. 1989)). 

In this case, Plaintiff has specifically identified the type and amount of 

currency he gave to Defendant, thus satisfying the specific fund requirement. 

Furthermore, Plaintiff has alleged that the gold bullion coins are worth more than 

their face value as currency. See Doc. 9 at ¶14. Thus, the coins are more 

analogous to personal chattel than fungible currency, and the “specific fund”

analysis is irrelevant. Therefore, dismissal of count two is not warranted.

Count Three: Negligent Hiring, Training, and/or Supervision

Defendant has also moved for dismissal of count three, arguing that this tort 

claim is barred by Florida’s economic loss rule. The economic loss rule is a 

judicially created doctrine that prohibits parties in privity of contract from 

recovering in tort for purely economic damages. Indemnity Ins. Co. of North 

America v. American Aviation, Inc., 891 So.2d 532, 536 (Fla. 2004). This rule was 

designed to prevent parties to a contract from circumventing the allocation of 

losses set forth in the contract by bringing an action for economic loss in tort. Id. 

Thus, parties to a contract cannot seek tort damages unless the conduct alleged is

independent and distinct from the breach of contract. All Care Nursing Service, 
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Inc. v. High Tech Staffing Services, Inc., 153 F.3d 740, 745 (11th Cir. 

1998)(citation omitted).

Plaintiff argues that the parties are not in privity of contract because there 

was no written agreement between the parties, and therefore the economic loss rule 

does not apply. However, the statute of frauds is only relevant to the enforcement 

of a contract, not its existence. See AMJUR STATUTE FRD § 425. Furthermore, 

Plaintiff has submitted with his complaint numerous writings, including

solicitations or “offers” from Defendant to Plaintiff. Plaintiff accepted these offers

through his admitted actions in sending his gold coins to Defendant. Plaintiff 

further admits that a sale that took place. To argue that there was never an 

agreement between the parties defies all logic. 

Thus, it is clear that even under Plaintiff’s version of the facts an agreement 

existed between the parties, and therefore the economic loss rule applies. Count

three is inextricably intertwined with issues arising out of the contract. Plaintiff’s 

decision not to bring a breach of contract claim does not change the fact that the 

parties are in contractual privity and therefore prohibited from bringing a tort claim

for matters arising out of the contract. Accordingly, count three is dismissed.
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IV. CONCLUSION

IT IS ORDERED:

1. Defendant’s motion is denied as to count two of the complaint.

2. Defendant’s motion is granted as to count three of the complaint, and

count three is dismissed.

ORDERED on January 7, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE