If a plaintiff has suffered damages as a result of the theft of property, altered property, or stolen property by a defendant, Florida law provides the plaintiff with a powerful litigation tool: the statutory civil theft claim. "Property" is defined broadly and means anything of value, including (a) money, (b) real property, including things growing on, affixed to, and found in land, (c) tangible or intangible personal property, including rights, privileges, interests, and claims, and (d) services. Pursuant to the provisions of Florida Statutes (F.S.) Section 772.11, the plaintiff who prevails on a civil theft claim may recover, upon proper proof, three times the actual damages sustained and reasonable attorney’s fees and costs. Some of the key issues involved in a civil theft claim include:
- Pre-suit notice. Before filing a civil theft claim for damages, the plaintiff must first give 30 days written notice to the defendant. In the notice, the plaintiff must make a demand for the treble damage amount (i.e., three times the actual damages) on the defendant. If the defendant complies with the demand within 30 days after receipt of the demand, the defendant must be given a written release from further civil liability for the specific act of theft by the defendant.
- Burden of proof. A civil theft claim is subject to a higher burden of proof than other civil claims. The plaintiff must prove his claim by clear and convincing evidence. “Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. “Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction without hesitation about the matter in issue. On the other hand, “greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.
- Evidence. A jury considers the following matters when deciding the merits of a civil theft claim, depending on the nature of the conduct at issue:
Violation of F.S. 812.014 (Theft): whether the defendant obtained or used (or attempted to obtain or use) the plaintiff's property with criminal intent; that is, with the intent to deprive the plaintiff, either temporarily or permanently, of a right to the property or a benefit from it or to appropriate, either temporarily or permanently, the property to the use of any person not entitled to it; and, if so, whether defendant’s actions were a legal cause of damage to the plaintiff.
Violation of F.S. 812.016 (Possession of altered property): whether the defendant was in the business of buying and selling property and in possession of property which he knew, or should have known, had identifying features which had been removed or altered without the consent of the manufacturer; and, if so, whether the defendant’s actions were a legal cause of damage to the plaintiff.
Violation of F.S. 812.019 (Dealing in stolen property): whether the defendant trafficked or attempted to traffic in property and knew or should have known the property was stolen; and, if so, whether the defendant’s actions were a legal cause of damage to the plaintiff. To “traffic” means to: (1) sell or otherwise dispose of property or (2) obtain property with the intent to sell or otherwise dispose of it.
- Damages and attorney fees. The jury determines the actual damages and the court applies the statutory formula (i.e., three times the actual damages) after the verdict. The court also makes the determination as to the amount of attorney’s fees and interest to be assessed and included in any judgment.
Civil theft claims may arise in a variety of contexts and scenarios in light of the broad definition of property. If you believe that you have a claim for civil theft or if you have been served with a pre-suit notice or lawsuit for civil theft, please contact Joel Ewusiak for assistance.