Opinion
Case No. 4D03-1634.
Opinion filed March 17, 2004.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Ilona M. Holmes, Judge, L.T. Case No. 01-18803 CACE 18.
Guy B. Bailey, Jr., and John E. Hughes, III, of Bailey Dawes, L.C., Miami, for appellant.
Cort A. Neimark of Neimark Nadel, P.A., Fort Lauderdale, for appellee Michael Gilbert.
Pursuant to section 68.065(1), Florida Statutes (2001), appellant Velecta Paramount brought an action against appellee Michael Gilbert, in his individual capacity. Section 68.065(1) applies in "any civil action brought for the purpose of collecting a check." Appellant's "civil action" to collect the check was based on section 673.4011(1), Florida Statutes (2001), which creates liability "on an instrument." The check at issue is an instrument. See § 673.1041(5)-(6), Fla. Stat. (2001). In this case, section 673.4021(3), Florida Statutes (2001) operates to relieve Gilbert of personal liability on the check. See Serna v. Milanese, Inc., 643 So.2d 36, 38 (Fla. 3d DCA 1994). If Gilbert is not liable on the check, section 68.065(1) does not create a separate cause of action which can be the basis of liability.
AFFIRMED.
STONE, GROSS and HAZOURI, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.