Florida’s Civil Theft Statute

Florida’s Civil Theft statute is an attractive claim to many plaintiffs because, if successful, it allows recovery of treble damages and attorney fees.  See 772.11 of the Florida Statutes.  Civil theft claims can be asserted by individuals and businesses alike, and are meant to create civil liability for criminal practices that are violations of 812.012-812.037 or 825.103(1) of the Florida Statutes (i.e. crimes of theft, robbery, and exploitation of elderly persons).  A party contemplating asserting a civil theft claim under Florida law must be aware of its nuances and pleading a proof requirements before asserting the claim.

Most importantly, a civil theft claim is more difficult to prove than other similar causes of action.  Indeed, civil theft claims require a showing of “clear and convincing evidence” rather than simply a preponderance of the evidence standard.  Clear and convincing evidence generally falls somewhere in between the preponderance of the evidence and beyond a reasonable doubt.  See Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4^th DCA 1983) (“clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.”).

In addition, civil theft claims require proof of “felonious intent.” Simply put, this means a plaintiff must prove that one “knowingly obtained or used or endeavored to obtain or use” plaintiff’s property with felonious intent to either temporarily or permanently deprive plaintiff of its use of the property.  Almeida v. Amazon.com, 456 F.3d 1316 (11th Cir. 2006).  Therefore, just because someone owes you money under a contract, and fails to pay, does not equate to civil theft.

Second, and prior to filing a lawsuit for civil theft, a party must serve a pre-suit demand letter to the person liable for the damages.  See 772.11 of the Florida Statutes.  The demand letter must demand $200 or the treble damage amount of the claim.  If the recipient of the demand letter complies and pays the money within 30-days of receipt of the letter, the person is relieved of any further civil liability and shall be given a written release of the claim.

Finally, a civil theft claim that lacks substantial fact or legal support can result in the claimant paying legal fees and costs to the alleged thief.  Ciaramello v. D’Ambra, 590 So. 2d 946 (Fla. 2^nd DCA 1991).  This standard is less stringent that the frivolous lawsuit standard of section 57.105 of the Florida Statutes.  Standafer v. Schaller, 726 So. 2d 352 (Fla. 2^nd DCA 1999).   This provision of the statute is an important consideration and should result in weeding out unsubstantiated civil theft claims before they are filed.

Prior to asserting a civil theft claim, parties must understand the pleading and notice requirements of such a claim and that, if unsuccessful, the party may be liable for the other party’s attorney fees and costs.