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Civil Theft has a Rigorous Burden of Proof

Florida has a cause of action known as civil theft.   It is a statutory cause of action under Florida Statute s. 772.11 (referenced at the bottom of this article) that, just like criminal theft, requires a party to prove criminal intent with clear and convincing evidence.   See Bailey v. Covington, 46 Fla.L.Weekly D776a (Fla. 3d DCA 2021) (“To establish a claim for civil theft, a party must prove 1) that a conversion has taken place and 2) that the accused party acted with criminal intent. Such intent must be proven by clear and convincing evidence.”) (internal citation omitted).  See also United Technologies Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009) (To prove civil theft, “[plaintiff] must allege that [defendant] (1) knowingly, (2) obtained or used, or endeavored to obtain or use, [plaintiff’s] property with (3) ‘felonious intent’ (4) either temporarily or permanently to (a) deprive [plaintiff] of its right to or a benefit from the property or (b) appropriate the property to [defendant’s] own use or to the use of any person not entitled to the property.”).   Civil theft is NOT an easy cause of action to prove because of this rigorous burden of proof that requires a party to prove criminal intent with clear and convincing evidence.

In Bailey, the plaintiff agreed to use her credit to assist her nephew and his girlfriend (the defendant) in obtaining a loan for a home where she would be listed on the deed as a tenant in common with the defendant.  The plaintiff, although using her credit, made no payments towards the property and never lived in the property.  Later, the property was sold and the balance was paid into a bank account owned by the defendant and the plaintiff.  After closing, the plaintiff agreed to remove her name from the account; however, she claimed she did so because she was told half of the balance would be given to her nephew.  Subsequently, there was an approximate $3,600 balance from closing issued by the lender in the name of the plaintiff and the defendant. The defendant signed her name and the plaintiff’s name and deposited the check into the account which she was now the sole accountholder.

Did the defendant’s signing plaintiff’s name on a joint check and depositing it into the account amount to civil theft?  The trial court thought so, but on appeal, the appellate court was not convinced and remanded back to the trial court based on civil theft’s rigorous burden of proof: “the trial court failed to determine whether there was clear and convincing evidence that 1) a conversion took place; 2) whether the check required both parties’ endorsements or could be signed by one party; and 3) whether there was any criminal intent on [defendant’s] part, for purposes of determining whether the elements of civil theft had been proven.”  Bailey, supra.


Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


Florida Statute s. 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.

(2) For purposes of a cause of action arising under this section, the term “property” does not include the rights of a patient or a resident or a claim for a violation of such rights.

(3) This section does not impose civil liability regarding the provision of health care, residential care, long-term care, or custodial care at a licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice.

(4) The death of an elderly or disabled person does not cause the court to lose jurisdiction of any claim for relief for theft or exploitation when the victim of the theft or exploitation is an elderly or disabled person.

(5) In a civil action under this section in which an elderly or disabled person is a party, the elderly or disabled person may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the civil complaint or at any time thereafter.




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