A civil claim based upon conversion is akin, from a civil perspective, to “stealing.” In order to prove a conversion claim, which is considered to be a tort under Florida law, a plaintiff must establish, by a preponderance of the evidence, a specific and identifiable piece of property or money, possession or an immediate right to possess that property or money, an unauthorized act which deprives the plaintiff of that money, and a demand for return of the money and a refusal to do so.
Very often, however, plaintiff choose to “up the stakes,” when money or property has been unlawfully taken, by bringing a statutory claim under § 772.11, Florida Statutes and § 812.035, Florida Statutes. These claims, known as “civil theft” claims, substantially raise the stakes for the parties involve. Among other potential remedies, a claim for damages under the civil theft statute, § 772.11, Florida Statutes, entitles the plaintiff to an award of treble damages, plus reasonable attorneys fees and court costs in the trial and appellate courts. Perhaps the most significant difference between a claim based upon conversion and one based upon civil theft is the requirement of “felonious intent” to commit a conversion, which is required to allege a claim for civil theft.
A claim for civil theft, however, must be made with extreme care. First, the statute requires a “pre-suit” notice, which provides a potential defendant with a “safe harbor”. The plaintiff is required to provide the defendant with a written demand for $200 or the treble amount of the damages sought before bringing a claim under the statute. If a claim is then brought under the statute, a plaintiff must establish the elements of the claim by “clear and convincing” evidence, rather than the “preponderance of evidence” standard applicable to a regular conversion count. Moreover, and critically, a civil theft count is not available for a simple contract dispute.
Florida law does not bar civil theft claims simply because a contractual relationship is involved. However, where a contractual relationship exists, the alleged loss which result from the theft must be “separate and distinct” from any loss alleged to have resulted from the breach of contract. In this regard, the plaintiff must identify and establish a legally recognized interest in the property stolen. Moreover, a somewhat complicated doctrine known as the “economic loss rule,” which, under many circumstances, bars a “tort” recovery for essentially contractual damages, may also apply to bar a recovery under the civil theft statute, when the loss is essentially an economic loss which is more akin to a breach of contract claim.
Plaintiff or Defendant Attorney Fees in Civil Theft Claims
Although treble damages, attorneys fees, and costs are available under the civil theft statute, punitive damages are not. Perhaps more significantly, however, another statute, § 812.035, Florida Statutes, provides certain extremely severe “equitable” sanctions, such as injunctions, forfeitures, and the like, upon enterprises which have been deemed to have engaged in civil theft. Of particular note, in this regard, are the sanctions that may be imposed based upon the misappropriation of “trade secrets,” pursuant to 812.081, Florida Statutes, which are defined both by the criminal statute, 812.081, as well as the Uniform Trade Secrets Act, § 688.004, Florida Statutes. Unlike a claim based upon the common law count of conversion, which has a four year statute of limitations, a claim based upon civil theft, pursuant to § 812.035, Florida Statutes, may be brought at any time within five (5) years after the cause of action accrues.
Finally, in a cautionary note to a prospective plaintiff, the plaintiff, himself, may become subject to an attorneys fee award at the hands of the defendant, if the defendant can establish that the claim was brought “without substantial factual or legal support.” Unlike other attorneys fees statutes under Florida law, such as § 57,105, Florida Statutes, it is unnecessary for a court to find a complete absence of legal and factual support for a civil theft claim before it awards attorneys fees to the successful defendant. Rather, a defendant is entitled to attorneys fees in defending a claim of civil theft if the claim was brought without “substantial” factual or legal support.
If you have a situation concerning civil theft or conversion of property, please contact FL commercial litigation attorney Fred Zinober at 1-866-969-2889
