A growing area of inheritance litigation is sibling feuds over bank accounts jointly titled in the names of a decedent’s children. In a common fact pattern, one sibling absconds with the account after the parent’s death and refuses to share the account with the other joint account owners. Fortunately, Florida law provides a remedy to the joint account holders who are victimized by this conduct.
Florida’s Civil Theft statute affords a Plaintiff the opportunity to augment his or her recovery three-fold based on the availability of treble damages and attorney fees. Pursuant to Section 772.11, Florida Statutes, civil theft claims may be asserted by an individual to impose civil liability upon another for criminal practices (e.g., robbery, crimes of theft, and exploitation of elderly persons). While enticing on the damages front, it is important to garner an understanding of the intricacies of this statute and its proof and notice requirements before asserting the claim.
Safe-Harbor Provision: Prior to filing a lawsuit alleging civil theft, a party must serve a demand letter alleging the treble damage of the claim. The recipient of this pre-suit demand letter has thirty (30) days from the date of receipt of the letter to pay the money to avoid further civil liability. Should the recipient pay the treble damages alleged, a written release of the claim shall be provided by the person making the written demand.
Felonious Intent: An additional prerequisite for a civil theft cause of action is that the Plaintiff must plead and prove that the defendant acted with “felonious intent to steal.” If the pleading fails to allege “felonious intent to steal,” a civil theft cause of action fails. Pursuant to section 812.014(1), Florida Statutes, “theft” is defined as follows:
A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, 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.
(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.
Proof: Unlike many other civil causes of action which rely upon a preponderance of the evidence standard of proof, civil theft claims in Florida require a showing of “clear and convincing evidence.” To better aid your understanding, this standard lies somewhere in between the preponderance of evidence and beyond a reasonable doubt standards. In Slomowitz v. Estate of Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983) the District Court of Appeal for the Fourth District held that the “the clear and convincing evidence [standard] 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.” By way of example, civil theft claims are often asserted with claims for conversion, which is defined as the wrongful dominion or control over property to the detriment of the rights of the actual owner. In a conversion claim, the Plaintiff need only establish his or her claim by the “preponderance of the evidence.”
Statutory-Caution on Unsubstantiated Allegations: Civil theft claims should be initiated and handled with caution. As provided by statute, 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.”
As noted above, a party pursuing a civil theft claim should gain a full understanding of this cause of action. If such a claim is unsuccessful, they may be liable for the other party’s reasonable attorney’s fees and costs.