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• Title: Stuart L. Stein v. Miller Industries
• Author : Court of Appeal of Florida
• Release Date : January 05, 1990
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 64 KB

Description

A substantial jury verdict and a final judgment arising from a civil theft action initiated in May of 1986 pursuant to Chapter
812, Florida Statutes (1983), were entered against Stuart L. Stein. The trial occurred from January 30 through February 1,
1989. In his challenge to the final judgment, Stein presents four points, each of which we have fully considered; only one
is meritorious. Embedded within his contention that the trial court erroneously denied his motion for a directed verdict is
the question of whether the trial court erred when it refused his requested jury instruction grounded upon the "clear and
convincing" standard of proof. "In a civil proceeding, if a party submits a written request for a jury instruction, and its
is rejected by the trial court, the issue is preserved for appellate review without more." Middelveen v. Sibson Realty, Inc.,
417 So.2d 275, 277 (Fla. 5th DCA 1982). To reach the pivotal question we answer in this proceeding does not require that we
recount the factual setting forming the claims asserted against Stein or to detail each of the events associated with the
trial. Following the filing of the amended complaint but before the commencement of the trial, the legislature amended section 812.035,
which at the time this action began provided a cause of action and a civil remedy to "any person . . . injured in any fashion
by reason of any violation of SS. 812.012 - 812.037. . . ." The statute's amendment, effective October 1, 1986, eliminated
reference to "any person" and confined the statutory civil action for damages to the "state, including any of its agencies,
instrumentalities, subdivisions, or municipalities. . . ." The amendatory process relocated that aspect of section 812.035
conferring the ability of "any person" to pursue a civil theft claim to section 772.104 and elevated the standard of proof
to the "clear and convincing" level. Hence, at the moment when Stein's trial began, the question was whether proof of the
alleged cause of action was governed by the then newly created section 772.104. The trial court, in rejecting Stein's proposed
instruction apparently concluded that section 772.104's "clear and convincing" standard was not applicable.

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