Opinion
No. 90-1125.
February 12, 1991. As corrected June 4, 1991. Rehearing Denied June 4, 1991.
Appeal from the Circuit Court for Dade County, Francis J. Christie, J.
Steel Hector Davis Burns Middleton, and Robert W. Goldman, West Palm Beach, for appellant/cross-appellee.
Warren P. Gammill, Miami, for appellee/cross-appellant.
Before HUBBART, FERGUSON and GERSTEN, JJ.
The evidence supports the trial court's extensive findings of fact that the appellee was defrauded by the appellant of $50,566.84 from a Totten Trust, and the court's award of $25,000 in punitive damages. Findings of fact by a trial judge in a nonjury case will not be set aside on review unless they are totally unsupported by competent and substantial evidence. Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).
No reversible error is shown in the trial court's refusal to award treble damages in addition to punitive damages. The cross-appellee, a relative of the cross-appellant, induced the latter into executing bank documents which effectively divided the account equally among the three heirs of the settlor. Although the court concluded in its written judgment that the cross-appellee "committed theft . . . in the form of a larceny by trick," evidence of the criminal mens rea necessary to theft is not to be found in the record. Proof of a fraud, alone, does not justify an award of treble damages under the civil theft statute. See Bertoglio v. American Sav. Loan Ass'n of Fla., 491 So.2d 1216 (Fla. 3d DCA 1986) (finding of conversion alone does not justify an award of treble damages).
Affirmed.