In short: In Cruz v. Fernandez (2015), buyers paid a $90,000 deposit for a home that was never built, and the money went into an account mixed with other projects’ funds. They sued the company’s officer personally for fraud and conversion. A second judge granted him summary judgment, and the Third District affirmed without opinion.
The Facts
The Third District affirmed without an opinion, so the facts below come from the record and arguments as described in the oral argument, not from findings by the appellate court.
According to the argument, the buyers, Francisco A. Cruz and Mimi Ferrer-Cruz, signed a contract with Homestar At Sunset Cove, Inc. for a new home and paid a $90,000 deposit. The home was never built. The deposit had gone into an account mixed with funds from the company’s other projects. The buyers sued the company and also sued one of its officers personally, claiming fraud and conversion.
One circuit judge denied the officer’s motion for summary judgment. Later, a second judge granted it. On appeal the issues were whether a successor judge may grant a summary judgment motion a predecessor denied, whether a corporate officer is personally liable for the company’s handling of the deposit, whether commingled money can be the subject of a conversion claim, and the effect of a contract clause waiving the statutory protection requiring builders to escrow deposits up to 10 percent of the price.
The Decision
On September 30, 2015, the Third District affirmed per curiam without opinion. A per curiam affirmance without opinion (a PCA) is a one-word decision: the appellate court found no reversible error but gave no reasons, so it does not adopt any party’s argument and cannot be cited as precedent.
What the affirmance left standing: the summary judgment for the officer, so the buyers’ personal claims against him ended. The panel did not say whether it rejected the successor-judge argument, found no evidence of the officer’s personal participation, held that commingled funds could not support conversion, or relied on the escrow waiver. This case does not hold that a builder’s officer can never be personally liable.
The Law
Under section 501.1375, a builder or developer that builds or sells 10 or more one- or two-family homes a year must place deposits of up to 10 percent of the purchase price in escrow with a qualified escrow agent, unless the buyer waives that right in writing. The contract must disclose the right in conspicuous type. Deposits above 10 percent are not covered. Willful failure to comply is a third-degree felony, and the prevailing party in a civil action recovers fees and costs. A signed waiver, as the buyers faced here, removes that protection.
A corporate officer is not personally liable for the company’s contracts just because of the title, but can be liable for torts, such as fraud or conversion, in which the officer personally participated. Conversion of money generally requires a specific, identifiable fund the defendant was obligated to return, which is harder to show once money is mixed with other funds. Florida courts also generally allow a successor judge to revisit a predecessor’s interlocutory ruling, such as the denial of summary judgment, before final judgment.
Current law (2026): s. 501.1375, Fla. Stat. (2026): builders/developers of 10+ one- or two-family units per year must escrow deposits up to 10% of the purchase price unless waived in writing; conspicuous contract disclosure required; willful violation is a third-degree felony; prevailing-party fees in civil actions.
Lessons
- Read the deposit and escrow paragraphs of a new-construction contract before signing; do not waive the section 501.1375 escrow right unless you understand the risk.
- Keep large deposits small or insist they be held by an independent escrow agent or title company.
- Suing an officer personally requires evidence of what that person did, not just that the company failed.
- Winning a denial of summary judgment does not end the fight; a later judge may revisit it.
Source: Cruz v. Fernandez, No. 3D14-1227 — Fla. 3d DCA (September 30, 2015).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
$90K Home Deposit Vanished — Can Buyers Sue the Builder's Officer? | Cruz v. Fernandez, 3D14-1227
Go Deeper
- Florida's Summary Judgment Rule: How Rule 1.510 Ends Cases Without a Trial
- How Appeals Work in Florida: The 30-Day Deadline, Costs, and What a PCA Means
Frequently Asked Questions
Does a Florida builder have to put my deposit in escrow?
If the builder sells 10 or more one- or two-family homes a year, section 501.1375 requires deposits of up to 10 percent of the price to be held in escrow, unless you waive that right in writing. Read the contract carefully; many contracts include a waiver, as the buyers in Cruz v. Fernandez faced.
Can I sue a builder's owner or officer personally for my lost deposit?
Possibly, if the officer personally committed fraud, conversion or another tort. Being an officer is not enough. In Cruz v. Fernandez, buyers sued the officer over a $90,000 deposit, but the trial court granted him summary judgment and the Third District affirmed without opinion.
Is commingling a deposit conversion in Florida?
Not automatically. Conversion of money usually requires a specific, identifiable fund that had to be kept separate and returned. When a deposit is mixed with other funds, that is harder to prove, though statutes like section 501.1375 or the contract may require segregation. It was one of the issues argued in this case.
Can a new judge grant summary judgment after another judge denied it?
Generally yes. A denial of summary judgment is not a final ruling, and Florida courts allow a judge, including a successor judge, to reconsider it before final judgment. In Cruz v. Fernandez, a second judge granted the officer’s motion after the first had denied it, and the result was affirmed.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
