Masvidal v. Ochoa, 505 So. 2d 555 (Fla. 3d DCA 1987). · Go Syfert
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Masvidal v. Ochoa, 505 So. 2d 555 (Fla. 3d DCA 1987). Cases Citing This Book View Copy Cite
38 citation events (19 in the last 25 years) across 9 distinct courts.
Strongest positive: Melanie Nicole Moore v. Pooches of Largo, Inc. (ca11, 2025-05-20)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 19 distinct citers.
cited Cited as authority (rule) Melanie Nicole Moore v. Pooches of Largo, Inc.
11th Cir. · 2025 · confidence medium
Ct. App. 2008); Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. Dist.
discussed Cited as authority (rule) Alexander Bostic v. Matari Bodie
11th Cir. · 2025 · confidence medium
The easiest cases of monetary conversion occur when one must hold specific funds in escrow, see, e.g., Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. 3d DCA 1987), like when a bank receives ac- crued interest “in a fiduciary capacity under specific instructions” on how to deliver the interest, Aero Int’l Corp. v. Fla. Nat.
cited Cited as authority (rule) Orkin v. Albert
D. Mass. · 2024 · confidence medium
Ct. App. 1983); Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. Dist.
cited Cited as authority (rule) Orkin v. Albert
D. Mass. · 2024 · confidence medium
Ct. App. 1983); Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. Dist.
cited Cited as authority (rule) IberiaBank v. Coconut 41, LLC
M.D. Ala. · 2013 · confidence medium
Masvidal v. Ochoa, 505 So.2d 555, 556 (Fla. 3d DCA 1987) (conversion can be asserted where a party embezzles funds from an escrow account).
discussed Cited as authority (rule) Lesti v. Wells Fargo Bank, N.A.
M.D. Fla. · 2013 · confidence medium
On the other hand, Florida case law has also upheld a verdict of conversion where there was a contractual relationship and evidence of “a classic embezzlement.” Masvidal v. Ochoa, 505 So.2d 555, 556 (Fla. 3d DCA 1987).
discussed Cited as authority (rule) Burger v. Hartley (2×) also: Cited "see"
S.D. Fla. · 2012 · confidence medium
That is, the defendant lawfully obtained possession of the plaintiffs funds to set up the escrow fund and thereafter converted the funds for his own use,” liability for civil theft had been established. 505 So.2d 555, 556 (Fla.Dist.Ct.App.1987).
cited Cited as authority (rule) COMPTECH INTERN. v. Milam Commerce Park
Fla. Dist. Ct. App. · 1998 · confidence medium
See id.; Masvidal v. Ochoa, 505 So.2d 555, 556 (Fla. 3d DCA 1987).
discussed Cited as authority (rule) Hofrichter v. Zuckerman & Venditti
Fla. Dist. Ct. App. · 1998 · confidence medium
We do not read Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA), pet. for review denied, 494 So.2d 1151 (Fla.1986) to preclude this result because there, unlike this case, the parties had a legitimate contractual dispute over the amount of a debt owed, and no embezzlement whatever occurred in that case. 505 So.2d at 556 (citations omitted). [3] More recently, again in a non-economicloss context, this court considered whether an action for civil theft would lie where the defendant misappropriated proceeds of a certificate of deposit which, pursuant to a marital settlement agreement, were to have be…
discussed Cited as authority (rule) Escudero v. Hasbun
Fla. Dist. Ct. App. · 1997 · confidence medium
Co., 814 F.Supp. at 1098 (citing Masvidal v. Ochoa, 505 So.2d 555, 556 (Fla. 3d DCA 1987)); Tinwood, N.V. v. Sun Banks, Inc., 570 So.2d 955, 960 (Fla. 5th DCA 1990) ("An embezzlement whereby defendant lawfully obtains possession of the plaintiff's funds and thereafter converts said funds to his own use will justify action for civil theft.") (citations omitted), disapproved on other grounds, State v. Lucas, 600 So.2d 1093 (Fla.1992).
cited Cited as authority (rule) Coulter Corp. v. Leinert
E.D. Mo. · 1994 · confidence medium
Masvidal v. Ochoa, 505 So.2d 555, 556 (Fla.Dist.Ct.App.1987).
cited Cited as authority (rule) Trend Setter Villas of Deer Creek v. VILLAS ON GREEN, INC.
Fla. Dist. Ct. App. · 1990 · confidence medium
Id. at 556.
cited Cited "see" Burke v. Napieracz
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See Masvidal v. Ochoa, 505 So.2d 555 (Fla. 3d DCA 1987).
cited Cited "see" Taurus Construction, Inc. v. Germania of America, Inc.
Fla. Dist. Ct. App. · 1991 · signal: see · confidence high
See Masvidal v. Ochoa, 505 So.2d 555 (Fla. 3d DCA 1987).
cited Cited "see" Korman v. Iglesias
S.D. Fla. · 1990 · signal: see · confidence high
See Masvidal v. Ochoa, 505 So.2d 555, 556 (Fla.App. 3d Dist.1987); cf. Refined Sugars, Inc. v. Southern Commodity Corp., 709 F.Supp. 1117, 1122 (S.D.Fla. 1988).
discussed Cited "see, e.g." CLEAN-TEX SERVICES, INC. v. JENSEN USA INC.
D.N.J. · 2024 · signal: see, e.g. · confidence medium
App’x at 272; see, e.g., Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. Dist.
discussed Cited "see, e.g." EDUARDO OROZCO v. MCCORMICK 105, LLC
Fla. Dist. Ct. App. · 2021 · signal: see also · confidence medium
See McCormack v. Flens, 27 So. 3d 179, 181 (Fla. 2d DCA 2010) (affirming jury verdict and finding that defendant’s refusal to return funds after acknowledging that they belonged to plaintiff satisfied the felonious intent requirement); see also Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. 3d DCA 1987) (holding that that the defendant committed embezzlement, conversion, and civil theft where “the defendant lawfully obtained possession of the plaintiff’s funds to set up the escrow fund and thereafter converted the funds for his own use”). 2
discussed Cited "see, e.g." Walker v. Figarola
Fla. Dist. Ct. App. · 2011 · signal: see also · confidence medium
First, in order for there to be a conversion where money is involved, “‘there must be an obligation to keep intact or deliver the specific money in question, so that money can be identified.’” Id. at 1056 (quoting Futch v. Head, 511 So.2d 314, 320 (Fla. 1st DCA 1987)); see also Masvidal v. Ochoa, 505 So.2d 555, 556 (Fla. 3d DCA 1987) (specifying that civil theft and conversion can be asserted where a party embezzles funds from an escrow account).
discussed Cited "see, e.g." Zinn v. Zinn
Fla. Dist. Ct. App. · 1989 · signal: compare · confidence low
Cf. Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd., 450 So.2d 1157 , 1161 n. 4 (Fla. 3d DCA 1984); compare, Masvidal v. Ochoa, 505 So.2d 555 (Fla. 3d DCA 1987) (civil theft and conversion possible in a contractual relationship where there is evidence of embezzlement).
Alberto Diaz MASVIDAL, Appellant,
v.
Alfonso Andrade OCHOA, Appellee.
86-1244.
District Court of Appeal of Florida, Third District.
Apr 7, 1987.
505 So. 2d 555
Barkdull, Hubbart and Baskin.
Cited by 30 opinions  |  Published

McDermott, Will & Emery and Lydia A. Fernandez, Miami, for appellant.

Hertzberg & Malinski and Deborah Marks, Miami, for appellee.

Before BARKDULL, HUBBART and BASKIN, JJ.

PER CURIAM.

This is an appeal by the defendant from a final judgment entered below on an adverse jury verdict in an action sounding in breach of contract, conversion and civil theft. The defendant Alberto Diaz Masvidal raises three points on appeal. We find no merit in these points and affirm, based on the following briefly stated legal analysis.

First, we see no error in the trial court's denial of defense motions for a directed verdict and new trial because the plaintiff Alfonso Andrade Ochoa's proof at[*556] trial did not, as urged, materially vary from the pleadings. The plaintiff sued, inter alia, for breach of a subscription agreement, and the evidence adduced at trial was sufficient to support a jury finding of such a breach. The fact that the plaintiff testified he considered a prior agreement, which agreement did not conflict with the subscription agreement, to constitute the essential relationship between the parties does not, as urged, amount to a repudiation of the subscription agreement which the evidence showed the defendant breached.

Moreover, we are not persuaded by the argument that no civil theft or conversion occurred in this case because there was a contractual relationship between the parties. The evidence shows a classic embezzlement by the defendant of an escrow fund set up under the subscription agreement between the parties. That is, the defendant lawfully obtained possession of the plaintiff's funds to set up the escrow fund and thereafter converted the funds for his own use. This being so, the defendant, by his actions, committed an embezzlement, a civil theft and a conversion as well as a breach of contract. See Senfeld v. Bank of Nova Scotia Trust Co. (Cayman), 450 So.2d 1157, 1161 (Fla. 3d DCA 1984); Aero Int'l Corp. v. Florida Nat'l Bank of Miami, 437 So.2d 156, 159 (Fla. 3d DCA 1983), pet. for review denied, 449 So.2d 264 (Fla. 1984); see also Berney v. State, 38 So.2d 55, 56 (Fla. 1948) (elements of the crime of embezzlement; each of which is supported by the evidence herein). We do not read Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA), pet. for review denied, 494 So.2d 1151 (Fla. 1986) to preclude this result because there, unlike this case, the parties had a legitimate contractual dispute over the amount of a debt owed, and no embezzlement whatever occurred in that case.

Second, we see no error in the trial court's grant of a directed verdict against the defendant on his counterclaim for breach of contract. No evidence was presented to support a claim that the plaintiff breached any agreement between the parties. This being so, there was no obligation to charge the jury on this claim. See Smith v. Whidden, 87 So.2d 42, 44 (Fla. 1956); C.A. Davis, Inc. v. City of Miami, 400 So.2d 536, 539 (Fla. 3d DCA), pet. for review dismissed, 411 So.2d 380 (Fla. 1981); City of Miami v. Fletcher, 167 So.2d 638, 639 (Fla. 3d DCA 1964).

Third, we see no error in excluding evidence of a separate oral agreement between the parties that the defendant was to receive a $75,000 salary as bank president. Proof of this oral agreement, we think, was barred by the parol evidence rule as it was inconsistent with a prior written agreement between the parties which required the bank's board of directors to approve any management contract with the defendant. See C.H. Robinson Co. v. L & M Brokerage Co., 344 So.2d 894, 895 (Fla. 1st DCA 1977); C.I.P. Studios, Ltd. v. Spa Health Club, Inc., 337 So.2d 1009, 1010 (Fla. 3d DCA 1976); Seaway Yacht Sales, Inc. v. Brunswick Corp., 242 So.2d 192, 193 (Fla. 3d DCA 1970).

The final judgment under review is, therefore, in all respects,

Affirmed.