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Florida law concerning a claim of civil theft is a double-edged sword.   A company that prevails on a business litigation claim of civil theft can be awarded treble damages and attorneys’ fees.  However, a company claiming civil theft risks having to pay the opposing side’s attorney’s fees for failure to prove the required element of “criminal intent.”  Peter Mavrick is a Miami business litigation lawyer, and also represents clients in business litigation in Fort Lauderale, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

Florida’s civil theft statutes provide a tempting cause of action in business litigation.  A cause of action for civil theft can provide an opportunity for a litigant to be awarded remedies not found in most other causes of action.  Particularly, a party prevailing on its claim of civil theft may recover three times the amount which was stolen as well as the attorneys’ fees expended pursuing the civil theft claim.  § 772.11(1), Florida Statutes (“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 [theft statutes] 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”).

In business litigation, it may often seem as if the opposing party is a thief for what they did.  Civil theft requires that a party prove more than something was wrongfully taken.  To prevail on a claim of civil theft, a plaintiff must prove that the opposing party had the criminal intent to steal.  Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986) (“Under Florida law, a necessary element for establishing the crime of theft is that the defendant had, prior to the commission of the act, an intent to commit a theft”).  This legal principle was discussed in a previous article.  Proving what a person is thinking can be exceptionally difficult.

Criminal intent is even more difficult to prove in circumstances where the parties are in a contractual relationship. “Where the property at issue is also the subject of a contract between the parties, a civil theft claim requires additional proof of ‘an intricate sophisticated scheme of deceit and theft.’” Gersh v. Cofman, 769 So. 2d 407 (Fla. 4th DCA 2000).  “[F]or an alleged misrepresentation regarding a contract to be actionable, the damages stemming from that misrepresentation must be independent, separate and distinct from the damages sustained from the contract’s breach” Peebles v. Puig, 223 So. 3d 1065 (Fla. 3d DCA 2017).  When a business litigation claim of civil theft concerns conversion of money being held by an opposing party, the claimant must show that the money was intended to be kept “segregated and identifiable.”  Opus Group, LLC. v. Int’l Gourmet Corp., 11-23803-CIV, 2013 WL 12383485 (S.D. Fla. July 26, 2013).

A claimant improperly filing a civil theft claim is exposed to the legal consequence of an adverse award of attorneys’ fees being entered against it.  “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.” § 772.11, Florida Statutes.  Because the award of civil theft attorneys’ fees is claim specific, a business litigation claimant can prevail on some of its claims and still be subject to potentially paying the opposing side’s attorneys fees because of a failure of the civil theft claim.  Friedman v. Lauderdale Med. Equip. Serv., Inc., 591 So. 2d 328 (Fla. 4th DCA 1992) (explaining that civil theft attorneys’ fee shifting provision is “claim specific”).

The attorneys’ fee shifting rule exposes a business litigant to an adverse award of attorneys’ fees if the claimant is unable to ultimately show evidence of criminal intent.  Moore Bus. Forms, Inc. v. Iberoamerican Elecs., S.R.L., 698 So. 2d 611 (Fla. 3d DCA 1997) (“because plaintiff’s action was missing the essential elements of a claim for civil theft, the defendant was entitled to its attorney’s fees”).

A defendant that prevails in a “directed verdict” against a plaintiff’s civil theft claim will also prevail in a claim for attorneys’ fees.  Florida’s Fourth District Court of Appeal in Friedman v. Lauderdale Med. Equip. Serv., Inc., 591 So. 2d 328 (Fla. 4th DCA 1992), explained this principle: “By the grant of a directed verdict on the grounds that there was no showing of criminal intent, the trial court determined that no evidence was presented to support an essential element of the civil theft claim. Therefore, the claim of civil theft was by definition without any factual evidentiary support, let alone substantial fact, because it was missing an essential element of the claim.”

In the recent case, Island Travel & Tours Ltd. Co. v. MYR Indep., Inc., 3D16-2085, 2020 WL 5223767 (Fla. 3d DCA Sept. 2, 2020), Miami’s Third District Court of Appeal determined whether the trial court properly denied a defendant’s motion for attorneys’ fees.  The defendant in Island Travel won a motion for directed verdict by proving the plaintiff never introduced evidence of criminal intent.  However, the trial court refused the defendant’s request for attorneys’ fees.  Island Travel reversed, concluding that the directed verdict entered against the plaintiff necessarily means that the civil theft claim was “without substantial fact or legal support.”  Therefore, the business litigation defendant would be entitled to attorneys’ fees pursuant to § 772.11, Florida Statutes.

When a civil theft claim is appropriate, it can result in a greater recovery than would otherwise be possible with another cause of action.  However, a claimant risks an adverse attorneys’ fees award if the claimant cannot prove the element of criminal intent.  Peter Mavrick is a Miami business litigation attorney who also practices business litigation in Fort Lauderdale, Boca Raton, and Palm Beach.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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