Phlster LLC and the Activity Group, Inc. v. the Bernstein Firm LLC, Gun Dog Armory, Inc., Casey Hite And

• Court: District Court of Appeal of Florida
• Decided: October 3, 2025
• Docket: 6D2023-3806
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-3806 Lower Tribunal No. 2022-CA-006526-O _____________________________

PHLSTER LLC and THE ACTIVITY GROUP, INC.,

Appellants,

v.

THE BERNSTEIN FIRM, LLC, GUN DOG ARMORY, INC., CASEY HITE AND PHILIP LURIE,

Appellees. _____________________________

Appeal from the Circuit Court for Orange County. Eric J. Netcher, Judge.

October 3, 2025

PER CURIAM.

Appellants, PHLster LLC and The Activity Group, Inc. (collectively,

“Appellants”) appeal the trial court’s order dismissing with prejudice their second

amended complaint, which asserted the following claims: (1) violation of the federal

Racketeer Influenced and Corrupt Organizations Act (“RICO”); (2) violation of the

federal Computer Fraud Abuse Act (“CFAA”); (3) common law conversion against

Appellee The Bernstein Firm, LLC; and (4) common law conversion against

Appellee Gun Dog Armory, Inc. We find no error in the trial court’s dismissal with prejudice of the Appellants’

RICO and CFAA claims and affirm the dismissal of those claims without further

discussion. The trial court’s dismissal of the conversion claims, however, was error.

A trial court’s order granting a motion to dismiss with prejudice is reviewed

de novo. Royal v. Royal, 372 So. 3d 782, 783 (Fla. 6th DCA 2023). In ruling on a

motion to dismiss, a court must “accept all allegations of the complaint as true, and

construe all reasonable inferences from the allegations in favor of the plaintiff as the

non-moving party.” Baldwin v. Lab’y Corp. of Am., 396 So. 3d 798, 800 (Fla. 5th

DCA 2024), reh’g denied (Nov. 7, 2024). Further, subject to limited exceptions,

“[a] trial court must follow the ‘four corners rule’ and limit its review to the four

corners of the complaint and any attachments to the complaint.” Brugal v. City of

Naples, No. 6D2023-4088, 2025 WL 2178049, at *3 (Fla. 6th DCA Aug. 1, 2025).

“Conversion is an act of dominion wrongfully asserted over another’s

property inconsistent with his ownership therein.” Rosenthal as Tr. of Barry

Rosenthal Revocable Tr. UAD 11-17-2009 v. Equus Prop. Homeowners HOA, Inc.,

369 So. 3d 719, 722 (Fla. 4th DCA 2023) (quoting Edwards v. Landsman, 51 So. 3d

1208, 1213 (Fla. 4th DCA 2011) (internal quotations omitted)). “To state a claim

for conversion, one must (1) allege facts sufficient to show ownership of the subject

property and (2) facts that the other party wrongfully asserted dominion over that

property.” Id. (quoting Edwards, 51 So. 3d at 1213 (internal alterations omitted)).

2 While the allegations supporting Appellants’ conversion claims were not

overflowing with detail, accepting all of the allegations as true and drawing all

reasonable inferences from the allegations in favor of Appellants, they were

sufficient to state claims for conversion against Appellees, The Bernstein Firm, LLC

and Gun Dog Armory, Inc., respectively. The trial court’s order dismissing the

second amended complaint with prejudice is reversed as to Appellants’ claims for

conversion, and this case is remanded to the trial court for further proceedings.

AFFIRMED in part; REVERSED in part; and REMANDED for further

proceedings.

SMITH and MIZE, JJ., and ORFINGER, R.B., Associate Senior Judge, concur.

Zachary Z. Zermay, of Zermay Law, P.A., Key West, for Appellants.

Juliane M. Brumbaugh, of Nardella & Nardella PLLC, Orlando, for Appellee, The Bernstein Firm, LLC.

Nikie Popovich, of Popovich Law Firm, P.A., Orlando, for Appellees, Gun Dog Armory, Inc. and Casey Hite.

No Appearance for Appellee, Philip Lurie.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED