At first glance, the words civil and theft appear to be incongruous. Most of us understand that theft is a criminal act involving the unlawful taking of someone else’s possessions, property, or valuables. Yet, in Florida there is a statute (772.11) that governs civil actions involving theft including any exploitation of an elderly person.
As a victim of such theft myself, a civil theft claim may be a legal avenue for the recovery of damages sustained by the theft. In fact, if a civil theft claim prevails, the victim may be awarded triple (treble) damages and attorneys’ fees.
While this sounds like a good remedy for any victim of theft, the civil theft claim requires strict adherence to the statutory requirements which are more difficult to prove than similar claims of action. For instance, civil theft claims require a showing of “clear and convincing evidence” rather than simply a preponderance of the evidence standard required in most civil claims. Clear and convincing evidence generally falls somewhere in between the preponderance of the evidence and beyond a reasonable doubt which is the criminal standard. The key words are “clear” and “convincing”. The evidence proffered must be so clear that there can be no confusion or doubt about it. It must also be so important and relevant as to establish the basis for a firm judgment.
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. If felonious intent can’t be established, the civil theft claim fails.
Prior to the filing of a civil theft claim, the aggrieved party must serve a pre-suit demand letter to the person liable for the damages. The letter must contain a demand for $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, if the civil theft claim lacks substance or a legal basis, the victim may have to pay the thief legal fees he incurred as a result of the claim.