Florida’s Civil Theft Statute is a powerful tool to recover damages for theft and theft related civil actions which enables the Plaintiffs to seek attorney’s fees and treble (triple) damages. However, there are some nuances in Florida Law which should be reviewed before filing an action for Civil Theft. First, the economic loss doctrine is generally a defense( with exceptions) to a claim for civil theft. Second, you will need to plead and prove specific facts seting forth the claim for civil theft to establish that there is “substantial fact or legal support” for your claim, or a Plaintiff could be liable for the Defendant’s attorney’s fees. Finally, make sure that you send the statutory notice.
The Statute (Fla. Stat. 772.11)
Fla. Stat. 772.11
1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.
Civil Theft and Economic Loss
What is an Economic Loss?
Economic losses are, “damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits-without any claim of personal injury or damage to other property.” Casa Clara Condominium Ass’n, Inc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244, 1246 (Fla.1993). And Florida has agreed with the majority of jurisdictions in holding that “economic losses are ‘disappointed economic expectations,’ which are protected by contract law, rather than tort law.” Id.; see Florida Power & Light Co. v. Westinghouse Elec.Corp., 510 So.2d 899, 902 (Fla.1987). Simply put, a simple breach of contract is not tantamount to a civil theft.
In HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239 (Fla.1996) the supreme court concluded that both a contract and civil theft action may arise in tandem, stating:
“The economic loss rule has not eliminated causes of action based upon torts independent of contractual breach even though there exists a breach of contract action. Where a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract. Thus, in the proper circumstance, no doubt, claims for civil theft and breach of contract can coexist.”
Generally, to state a claim of Civil Theft in contractually related scenario a Plaintiff needs to set forth facts which demonstrate a separate a distinct loss aside from a contractual expectation not met. O’Donnell v. Arcoiries, Inc. 561 So.2d 344, Fla.App. 4 Dist.,1990.
An example of this distinction is detailed in Burke v. Napieracz, 674 So.2d 756 (Fla. 1st DCA 1996), where the court held that the economic loss rule did not preclude a cause of action for a tort [civil theft] distinguishable from, or independent of, breach of contract. In that case the defendant was to receive specifically identifiable social security funds, deposit those funds in an identifiable bank account, and forward the funds to plaintiff. The defendant was not authorized to withdraw monies from the account except as specifically authorized by Burke. The First District noted that breach of the agreement would have resulted from the defendant’s failure either to properly deposit the social security funds or to provide the funds to Burke as requested. A tort was committed because, not only did the defendant fail to perform his contractual obligations, he took the funds for his personal use. The court held that an “affirmative and intentional act of converting the funds to his own use by allegedly stealing the monies to which he was entrusted” gave rise to a tort separate and independent from the breach of contract. Florida Desk, Inc. v. Mitchell Intern., Inc.,817 So.2d 1059, Fla.App. 5 Dist.,2002.
Demonstration that Plaintiff lacked “Substantial Fact or Legal Support” for Prevailing Defendant Attorney’s Fees
One great benefit of Florida’s Civil Theft statute is that it provides prevailing Plaintiffs with its attorneys fees (Plaintiffs must prove civil theft by clear and convincing evidence.) However, for a defendant to be entitled to his fees he needs to demonstrate that the Plaintiff’s claim was without “substantial fact or legal support.” This is a tougher standard than simple prevailing party.Skubal v. Cooley, 650 So. 2d 169, 170 (Fla. 4th D.C.A. 1995); see also Schellenbarger v. Merlich, 622 So. 2d 148 (Fla. 3d D.C.A. 1993) (since plaintiff’s original claim was not without substantial fact or legal support, the trial court’s award of attorneys’ fees to the defendant was incorrect) See also Osherow,Counsel Beware: Considerations Before Implementing Florida’s Civil Theft Statute, Fla Bar Journal March 2003.
Fla. Stat. 772.11 provides that”…before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section.”
Under Florida law, before action for civil theft is filed, potential plaintiff must first make written demand for payment on defendant and cannot commence suit until 30 days later, in event no payment is made. In re Naturally Beautiful Nails, Inc., Bkrtcy.M.D.Fla.2001, 262 B.R. 131.
Ames v. Provident Life & Acc. Ins. Co., 942 F.Supp. 551, 560 (S.D.Fla.1994) (“The instruction given also failed to include any mention of the state of mind required for civil theft. The intent necessary for larceny is animus furandi, which means intent to steal, or felonious intent.”). Florida Statutes § 812.014 defines theft for purposes of Fla. Stat. § 772.11 as follows: “A person commits theft if he or she knowingly obtains or uses … the property of another with intent to, either temporarily or permanently (a) Deprive the other person of a right to the property or a benefit from the property; or (b) Appropriate the property … to the use of any person not entitled to the use of the property.” Fla. Stat. § 812.014(1).