Fill and Sign the Joint and Several Liability for Breach of Fiduciary Duty Form

3.2 Civil Theft The Plaintiff's [next] claim is for civil theft. The Defendant is liable for civil theft if the Plaintiff proves by clear and convincing evidence: First: That the Defendant made to the Plaintiff a knowing and willful misrepresentation, or knowing and willful omission, of material facts; Second: That the Defendant made such misrepresentation or omission with the unlawful intent to commit a theft of the Plaintiff’s property by deceit and by depriving the Plaintiff of the property, either temporarily or permanently, or by appropriating the property to the Defendant's use or the use of someone else not entitled thereto; and Third: That the Plaintiff was thereby induced to part with or give up or convey the property with resulting damage or injury to the Plaintiff. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] You will notice that the civil theft claim must be proved by clear and convincing evidence - - not just a preponderance of the evidence. Clear and convincing evidence is something more than a preponderance of the evidence; it is evidence that leaves you with a firm conviction that the claim is true. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: [State or enumerate the elements of recoverable damages] [The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff's rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. If you find for the Plaintiff, and if you further find that the Defendant did act with malice, or reckless indifference to the rights of others, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts].] 3.2 Civil Theft SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Defendant made to the Plaintiff a knowing and willful misrepresentation, or knowing and willful omission, of material facts? Answer Yes or No 2. That the Defendant made such misrepresentation or omission with the unlawful intent to commit a theft of the Plaintiff’s property by deceit and by depriving the Plaintiff of the property, either temporarily or permanently, or by appropriating the property to the Defendant’s use or the use of someone else not entitled thereto? Answer Yes or No 3. That the Plaintiff was thereby induced to part with or give up or convey the property with resulting damage or injury to the Plaintiff? Answer Yes or No [Note: If you answered No to any of the preceding Questions you need not answer any Questions following or coming after the Question to which you gave No as the answer.] 4. That the Plaintiff should be awarded damages as follows: [State or enumerate the elements of recoverable damages] SO SAY WE ALL. Foreperson DATED: ANNOTATIONS AND COMMENTS Alabama has no general civil theft statute creating a civil cause of action for property taken by fraud or theft. Fla. Stat. § 772.11 provides a civil cause of action for any form of theft, embezzlement, conversion or larceny, including obtaining property by fraud, willful misrepresentation of a future act or false promise. The statute requires proof by “clear and convincing evidence,” provides for treble damages and attorney’s fees, but precludes punitive damages. Ga. Code § 51-10-6(a) also provides a civil cause of action for theft, including theft by deception. Unlike the Florida statutory scheme, there is no provision for treble damages, but punitive damages are recoverable.