Littman v. Commercial Bank & Trust Company

425 So. 2d 636, 35 U.C.C. Rep. Serv. (West) 678
CourtDistrict Court of Appeal of Florida
DecidedJanuary 25, 1983
Docket81-847, 81-1690
StatusPublished
Cited by29 cases

This text of 425 So. 2d 636 (Littman v. Commercial Bank & Trust Company) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Littman v. Commercial Bank & Trust Company, 425 So. 2d 636, 35 U.C.C. Rep. Serv. (West) 678 (Fla. Ct. App. 1983).

Opinion

425 So.2d 636 (1983)

Irving LITTMAN, Individually, and Park Lane Enterprises, Inc., a Corporation, Appellants,
v.
COMMERCIAL BANK & TRUST COMPANY, a Florida Banking Corporation, Appellee.

Nos. 81-847, 81-1690.

District Court of Appeal of Florida, Third District.

January 25, 1983.

*637 George & McQuade and Walter F. McQuade, North Miami, for appellants.

Schultz & Hollander and Steven A. Schultz, Miami, for appellee.

Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.

HENDRY, Judge.

Appellants Irving Littman and Park Lane Enterprises, Incorporated, defendants below, appeal from an adverse final summary judgment in Commercial Bank & Trust Company's action for damages resulting from appellants' transfer of a fork lift which was subject to a security lien in favor of the bank.

Commercial Bank held a security interest on the fork lift under the Uniform Commercial Code (UCC) pursuant to an agreement with the debtor. When the debtor was adjudicated bankrupt, the fork lift was sold at public auction to Park Lane for $110, subject to the bank's lien of $12,057.31. One month later, having received no payments under the security agreement, the bank demanded that the appellants produce the fork lift. Littman, an officer of Park Lane, advised the bank that it had been resold for $850, subject to the bank's lien. The bank was unable to locate either the alleged purchaser or the fork lift.

The bank then filed suit seeking damages for violation of sections 818.01 and 818.03, Florida Statutes (1979). Appellants entered a general denial to the bank's complaint. After entry of partial summary judgment for the bank, the appellants sought rehearing and filed affidavits. The motion for rehearing was denied and on May 14, 1981, the court entered a final summary judgment for the bank awarding damages in the amount of $12,057.31, plus interest and costs against the appellants jointly and severally, and denying the bank's claim for attorney's fees. Judgment was also entered for the bank on Littman's counterclaim. Rehearing was denied and the appellants filed this appeal. The bank filed a cross-appeal which was abandoned, and a motion to dismiss appeal No. 81-847 as having been taken from a non-final order. The appeals were consolidated and the motion to dismiss was granted, but the order of dismissal was vacated upon motion for rehearing and the appeals reinstated. Three main issues are raised by this appeal.

I

The first issue appellants raise is that the court below erred in entering summary judgment predicated on alleged violations of Chapter 818, Florida Statutes (1979), as section 818.01, which declares it a misdemeanor to dispose of property subject to a lien without consent of the vendor, directly conflicts with and has been impliedly repealed by section 679.311, Florida Statutes (1979)[1] of the Uniform Commercial Code, *638 which allows for transfer of a debtor's rights in collateral notwithstanding a prohibition in the security agreement. Appellants further allege that neither section 818.01[2] nor 818.03[3], on which this action is founded, apply to a successor in interest to the original debtor; that there was no evidence in the instant case establishing the necessary elements set forth in the statutes; and that genuine issues of material fact exist precluding summary judgment. Appellants' contention that section 818.01 is inconsistent with and was therefore repealed by enactment of section 679.311 of the UCC is based on a comment in Florida Statutes Annotated and an unpublished Florida Attorney General Opinion, No. 071-6, suggesting that such a conflict may exist.

At the outset we observe that this court has previously held that a violation of penal statutes 818.01 and 818.03, Florida Statutes, may give rise to a civil cause of action for compensatory and punitive damages as well as criminal penalties. Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla.3d DCA 1964). Turning then, to the issues raised, we find that a resolution of appellants' first contention involves construction and application of provisions of the UCC and other Florida Statutes.

In the absence of a showing to the contrary, it is presumed that all laws are consistent with each other and that the legislature would not effect a repeal of a statute without expressing an intention to do so. Woodgate Development Corp. v. Hamilton Investment Trust, 351 So.2d 14 (Fla. 1977); State ex rel. School Board of Martin County v. Department of Education, 317 So.2d 68 (Fla. 1975); Mann v. Goodyear Tire and Rubber Co., 300 So.2d 666 (Fla. 1974). Courts must assume that later statutes were passed with knowledge of prior existing laws, and will favor a construction that gives a field of operation to both rather than construe one statute as being meaningless or repealed by implication unless such a result is inevitable. Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla. 1980); State v. Zimmerman, 370 So.2d 1179 (Fla. 4th DCA 1979); State Department of Public Welfare v. Galilean Children's Home, 102 So.2d 388 (Fla.2d *639 DCA 1958). Where statutory provisions are irreconcilable, however, the general rule is that specific statutes on a subject take precedence over another statute covering the same subject in general terms. Bryan v. Landis, 106 Fla. 19, 142 So. 650 (1932); State v. Young, 357 So.2d 416 (Fla.2d DCA 1978), rev'd on other grounds, 371 So.2d 1029 (Fla. 1979).

Applying these principles to the instant case, we initially observe that many of the provisions of the UCC interact, and although section 679.311 states that a "debtor's rights in collateral may be voluntarily or involuntarily transferred," this provision must be read together with section 679.306(2) which states that:

Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange, or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.

Thus, section 679.311, while providing that the debtor has an interest which he can dispose of and which his creditors can reach, was also intended to protect the secured creditor's interest by insuring that any transfer of the collateral does not destroy or affect a prior perfected security interest. Earthmovers, Inc. v. Clarence L. Boyd Co., Inc., 554 P.2d 877 (Okl.Ct.App. 1976); see First National Commerce and Finance Co. v. Indiana National Bank, 360 So.2d 791 (Fla.3d DCA 1978); Altec Lansing v. Friedman Sound, Inc., 204 So.2d 740 (Fla.3d DCA 1967); accord American Heritage Bank & Trust Co. v. O. & E., Inc., 40 Colo. App. 306, 576 P.2d 566 (Colo.Ct.App. 1978); Filker v. Honda Motor Co., Ltd., 87 Ill. App.3d 865, 42 Ill.Dec. 880, 409 N.E.2d 495 (Ill. App.Ct. 1980); Memphis Bank & Trust Co. v. Pate, 362 So.2d 1245 (Miss. 1978); Fliegel v. Associates Capital Co. of Delaware, Inc., 272 Or. 434, 537 P.2d 1144 (Or. 1975). This is so even in cases where the secured creditor has consented to the transfer. See, e.g., R.I.D.C. Industrial Development Fund v. Snyder, 387 F. Supp. 466 (M.D.Fla. 1975),

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425 So. 2d 636, 35 U.C.C. Rep. Serv. (West) 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/littman-v-commercial-bank-trust-company-fladistctapp-1983.