AAGAARD-JUERGENSEN, INC., APPELLANT,
v.
JAMES LETTELIER, ET AL., APPELLEES

Fla. 5th DCA | 1991-05-23
No. 90-1512
GOSHORN and GRIFFIN, JJ., concur.
579 So. 2d 404 Florida District Court of Appeal, Fifth District (1991) Positive Treatment
Cited by 4 cases

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Synopsis

Aagaard-Juergensen, Inc. appealed a final judgment denying its motion to amend to include treble damages and attorney's fees in a civil theft case. The court reversed, holding that under Florida's civil theft statute, awards of treble damages and attorney's fees are mandatory, not discretionary, when a jury finds civil theft liability.


Holding

The trial court has no discretion to deny treble damages or attorney's fees in a civil theft case; these remedies are mandatory under section 812.035(7). The successor judge erred in concluding he lacked authority to amend the judgment, and the denial of A/J's motion to amend was improper.


Headnotes

[1] A successor judge has the authority to amend a final judgment entered by a predecessor judge when the motion to amend is timely filed.

[2] A jury's finding of civil theft under Florida Statutes section 812.035 mandates an award of treble damages.

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Key Quotes

“Any person who is injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 or s. 812.081 has a cause of action of threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200. Such person shall also recover court costs and reasonable attorneys' fees in the trial and appellate courts.”

Statutory language from section 812.035(7) establishing the mandatory nature of treble damages and attorney's fees in civil theft actions.

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Facts & Procedural History

A/J sued the Letteliers and their corporation for breach of contract, fraud, embezzlement, negligence, conspiracy, and civil theft. A jury returned a …

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Opinion of the Court
DIAMANTIS, Judge.

DIAMANTIS, Judge.

Appellant Aagaard-Juergensen, Inc. appeals a final order entered by a successor judge denying its motion to amend the trial judge’s final judgment. We reverse.

Aagaard-Juergensen, Inc. (A/J) instituted suit against appellees James and Mar-gott Lettelier (Letteliers) individually, and against the corporation owned by the Letteliers, JBC Electrical Wiring Contractors, Inc. A/J asserted several causes of action including breach of contract, fraud, statutory embezzlement, negligence, conspiracy, and civil theft. In the complaint A/J requested compensatory damages as well as attorney’s fees and treble damages on the civil theft claim.

The matter proceeded to trial and the jury returned a special verdict finding, among other things, that the Letteliers committed civil theft1 against A/J. The jury concluded that the amount of compensatory damages suffered by A/J totalled $69,602.33. The trial judge entered judgment in accordance with the jury’s verdict. The proposed final judgment provided language awarding attorney’s fees and treble damages, however, the trial judge struck through these provisions. Accordingly, the final judgment awards only compensatory damages and costs.

A/J filed and served a timely motion to amend the final judgment pursuant to Rule 1.530(g) of the Florida Rules of Civil Procedure. In the motion A/J requested an award of attorney’s fees and treble damages. Because in the interim period the trial judge retired, this matter was assigned to a successor judge who conducted a hearing on A/J’s motion to amend. Upon consideration of the motion the successor judge concluded that he was without authority to amend the final judgment entered by the trial judge. Therefore, the successor judge denied the motion for attorney’s fees and treble damages, and entered an order awarding only costs. This appeal followed.

As noted above, the jury entered a special verdict finding that the Letteliers had committed civil theft against A/J in violation of section 812.035 of the Florida Statutes (1985).2 Section 812.035 provides:

812.035 Civil remedies; limitation on civil and criminal actions.—

**

(7) Any person who is injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 or s. 812.081 has a cause of action of threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200. Such person shall also recover court costs and reasonable attorneys’ fees in the trial and appellate courts.

The record does not contain any indication as to why the trial judge struck through the provision in the final judgment awarding attorney’s fees and treble damages thereby denying A/J’s request for attorney’s fees and treble damages. The applicable case law clearly holds, however, that the award of treble damages under the Florida civil theft statute is mandatory. Alvarez v. Striegel, 471 So. 2d 1356 (Fla. 3d DCA 1985); Senfeld v. Bank of Nova Scotia Trust Company, 450 So. 2d 1157 (Fla. 3d DCA 1984). Consequently, the trial court had no discretion to decline to award treble damages in this case. As for A/J’s claim for attorney’s fees, A/J is entitled to such an award. Section 812.035 states that a victim of civil theft “shall ... recover court costs and reasonable attorneys’ fees in the trial and appellate courts.” Because this is a statutory authorization for an award of attorney’s fees, the trial court had no discretion to decline to enforce such a right.

Accordingly, we reverse the denial of A/J’s request for treble damages and reasonable attorney’s fees. We remand this case for entry of an award of treble damages and, after having a hearing, reasonable attorney’s fees.

REVERSED and REMANDED.

GOSHORN and GRIFFIN, JJ., concur. . § 812.035(7), Fla.Stat. (1985).

. Effective October 1, 1986 section 812.035 was amended to limit treble damages to the state or its agencies but at the same time section 772.11 of the Florida Statutes was amended to provide individual claimants with the remedy of treble damages which the new section 812.035 deleted. Here, however, the underlying civil theft committed by the Letteliers occurred prior to the amendment in October of 1986 and, therefore, the treble damages were available under the 1985 version of section 812.035. See Warren v. Monahan Beaches Jewelry Center, Inc., 548 So. 2d 870 (Fla. 1st DCA 1989).


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Citator

Cited By

  • Anton v. Anton, 763 So. 2d 404 (Fla. 4th DCA 2000)
    …n 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. See Aagaard-Juergensen, Inc. v. Lettelier, 579 So. 2d 404 (Fla. 5th DCA 1991)(statute providing for award of treble damages in the event of a determination of liability for civil theft is mandatory). In this case appellee, Jared Anton was charged with, and entered a plea of guilty to grand theft of Halper…
  • Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So. 2d 988 (Fla. 1st DCA 2002)
    …or a new trial, because the error is not one that would have been committed at that time. Finally, a motion to alter or amend may be used to correct a judgment to the extent that it was based on an error of law. See Aagaard-Juergensen v. Lettelier, 579 So. 2d 404, 405 (Fla. 5th DCA 1991); Barrios v. Draper, 423 So. 2d 1002, 1003 (Fla. 3d DCA 1982). As an Illustration of this point, if the trial court enters a judgment in excess of the legal limit of the defendant’s liability, the defendant can correct the er…

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