Jonathan P. Cohen, P.A.
Call (954) 462-8850
Jonathan P. Cohen, P.A.
Call (954) 462-8850

500 East Broward Blvd., Suite 1710
Fort Lauderdale, Florida 33394
Phone: (954) 462-8850
Fax: (954) 848-2987

Can You Pursue a Civil Theft Claim When a Contractor Fails to Perform?

Fails to Perform

Contractor Not Performing? Get Help from an Experienced Fort Lauderdale Construction Lawyer

Property owners that hire contractors to perform work on projects sometimes pay money upfront for the job, only for the contractors to fail to perform the work. When that occurs, the property owner might pursue legal remedies by filing a breach of contract claim. A contractor not performing after taking money might also be the basis for a claim for civil theft, opening up the potential for triple damages. However, civil theft causes of action based on construction contracts are complex and should be handled by an experienced Fort Lauderdale construction lawyer to avoid potential problems. Attorney Jonathan P. Cohen handles all types of construction disputes and can help you understand the potential remedies that might be available to you.

Importance of Contracts

Whenever property owners hire contracting companies or independent contractors, it is essential to have a legally binding, written contract outlining the duties and responsibilities of each contractual party. If the contracting company or independent contractor has received payment but fails to perform under the contract, the property owner can pursue a claim for breach of contract. An action for a contractual breach might allow the property owner to recover damages for the contractor’s failure to perform.

Breach of Contract Claims for Nonperformance

In some cases, a contractor might have issues completing a project for a valid reason such as needing to acquire additional materials, which is a heightened concern these days with the supply chain issues resulting from COVID. However, if the contractor does not have a valid reason for the failure to perform after receiving payment from the property owner, it could form the basis for a breach of contract action. If your contractor fails to return calls and stops coming to the worksite, making it clear that he or she has abandoned the project, the property owner should contact a Fort Lauderdale construction lawyer for help.

A well-drafted contract will contain clauses that allow the property owner to hold the contractor liable for damages for breaching the contract and failing to perform. A properly drafted breach of contract clause will explain how the dispute should be handled. A typical first step would be a demand addressing the incomplete work and then taking further steps based on the contractor’s response.

Civil Theft Claim for Contractor Not Performing

Another potential claim that might be filed against a contractor that absconds with a property owner’s funds and does not perform the work is a civil theft claim. This type of claim provides the potential to recover treble damages against the contractor. However, a civil theft claim requires specific steps and the ability to prove criminal intent to commit the underlying theft beyond the confines of the contract. Property owners should not attempt to file civil theft claims without the help of an experienced Fort Lauderdale construction lawyer to avoid potential problems.

The civil theft statute is found at § 772.11, Fla. Stat. (2021). Under this statute, you must prove by clear and convincing evidence that the contractor committed the underlying theft offense before you can pursue damages through a civil theft claim. If successful, you can recover treble damages or a minimum of $200 plus reasonable attorney’s fees.

The clear and convincing burden of proof is a higher standard than the preponderance of the evidence standard, with is the operative burden of proof in most civil lawsuits. This means that you must present more evidence that the contractor had the requisite criminal intent to commit theft before you can prevail on a civil theft claim. The courts have also held that the loss contemplated in civil theft causes of action must have been something beyond the contract. In Rolls v. Bliss Niyatray, Inc., 408 So.2d 229 (Fla.3d DCA 1981), the court found that when the compensatory damages for the civil theft claim are identical to those of the breach of contract claim, a plaintiff cannot recover under the civil theft statute.

If a plaintiff files a claim for civil theft and is unsuccessful in proving the requisite criminal intent, the defendant can file a motion for attorney’s fees. In Island Travel & Tours Ltd. Co. v. MYR Indep., Inc., No. 3D16-2085 (Fla. 3d DCA Sept. 2, 2020), the District Court found that the defendant should have been awarded attorney’s fees after proving that the plaintiff could not prove the required criminal intent to commit theft.

Get Help from an Experienced Fort Lauderdale Construction Lawyer

While it is possible to pursue both types of claims when a contractor fails to perform and absconds with money paid by a property owner upfront, there are specific evidentiary requirements that must be met before a claim for civil theft will lie. If you are dealing with a similar legal issue with a contractor, you should speak to an experienced Fort Lauderdale construction lawyer Jonathan P. Cohen. Contact us today to request a consultation at (954) 462-8850.

The information provided in this article does not, and is not intended to, constitute legal advice. The content in this article is presented for general informational purposes only.