You may not know that there exists a powerful civil remedy to punish anyone who has unlawfully taken money or merchandize from a business. Anyone injured in any style because of any violation of the theft statute, or by someone else's acceptance of funds by a pattern of criminal activity, has a right to file a lawsuit for three times the amount of actual damages they suffered (with a minimum of $200), plus attorney fees, and court costs. The treble damage award component is not in addition to actual damages, but is instead a total of three times actual damages. Prejudgment interest accrues on only the actual damages-not the treble damages.Elements to Claim
Under § 812.014, Fla. Stat, the elements of a claim for civil theft in Florida are:
- Obtained or used, or endeavored to obtain or use, the plaintiff's property
- With felonious intent;
- Either temporarily or permanently to a) deprive plaintiff of its right to or a benefit from the property, or b)appropriate the property to the defendant's own use or to the use of a person not entitled to the property.
The legal standard of clear and convincing proof is required in a civil theft lawsuit. The statute of limitations to file a civil theft claim is five years from the time when the conversion or theft was or should have been discovered. A defendant who files for bankruptcy may not eliminate judgment for civil theft as it is typically non-dischargeable. A civil theft action cannot lie against the state or its subdivisions.Pre-Suit Notice
Florida's civil theft requires that before filing an action for damages under it that the person claiming injury shall make a written demand for the minimum of $200 or the treble ("triple") damage amount. If the person who receives the written demand complies with the demand within 30 days then he/she is given a written release of civil liability for the specific act of theft or exploitation by the person who made the written demand. It has been held that a plaintiff need not wait the thirty days to expire before filing suit, although it is widely viewed as best practice to wait the allotted period to allow the defendant sufficient time to comply with the demand. Generally, Florida courts have refused to dismiss civil theft claims based upon the plaintiff's failure to make the written demand required by the statute, unless the applicable statute of limitations expired before the demand was furnished.Civil Theft Claims in the Business Context
A civil theft claim can be filed against an officer of a corporation for theft committed by the officer while acting on behalf of the corporation. However, if the corporate officer is not proven to have personally participated in the theft, the claim would be improper against him/her. If a non-managerial employee of a business is the person who steals or converts items, and the employer is also guilty of some fault which foreseeably contributed to the injury, the employer may be held liable for the triple damages.
Civil remedies may also have direct application to contractors and subcontractors who divert payment. However, civil theft does not apply to recovery of damages for a simple breach of contract. For example, a plaintiff sued for civil theft alleging that she loaned the defendant money based on an oral promise to repay; and at the time of the promise the defendant had no intention of repaying the loan was found to insufficient to state a claim for civil theft. However, where the theft occurs outside of the contract (such that what is stolen is not performance contemplated under the contract, the contract being incidental), the contractual relationship between the parties does not prevent recovery. Case in point, a contractor was found to be liable for civil theft where the contractor admitted to removing doors from the improvement which had already been installed. The court held that the contractual relationship between the parties to the claim did not prevent recovery because the stealing of the doors was distinct from the contractual arrangement.Attorney's Fees
A party may be able to recover its attorney's fees in either successfully prosecuting or defending a civil theft claim. For example, If a plaintiff's claim is found to be without substantial fact or legal support, a defendant may be awarded his/her reasonable court costs and attorney fees. However, the standard looks to be stronger than a simply "prevailing party" standard. The standard for awarding entitlement to attorney fees under § 772.104, Fla. Stat. is less stringent than under Florida's statute that governs sanctions for meritless actions- § 57.105, Fla. Stat. For example, where plaintiff voluntarily dismissed its claim for civil theft, the trial court denied defendant entitlement to attorney fees under the civil theft statute, § 772.11, Fla. Stat., since it was unable to make findings to support defendant's argument that the plaintiff's claim lacked substantial fact or legal support. The appellate court then ordered the trial court to consider defendant's entitlement to attorney fees and allow the parties to present evidence regarding the merit of the civil theft action. In another case, the Florida Supreme Court held that a defendant who was found guilty in a criminal case was collaterally estopped from defending a civil theft claim. In another case that involved underreporting of payroll on workers' compensation audits, the defendant pled guilty to grand theft and was required to make restitution to the insurer for over half a million dollars. The insurer then sued the defendant for civil theft to recover premiums on the under-reported payroll, and the defendant was estopped from denying the essential allegations of the conviction and summary judgment was properly entered.Have You Been a Victim of Theft?
If someone stole from you or your business, contact Miami business lawyer Andrew J. Pascale today to review your civil theft case.