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BarJournal BUSINESS LITIGATION

JULY/AUGUST 2015
FEATURE LITIGATING CLAIMS UNDER THE

OHIO CIVIL THEFT ACT

BY MATTHEW K. SEELEY

hen lawyers hear are the victims of shoplifting can utilize these “whether or not any person has pleaded guilty
me mention the provisions before expending time and effort to or has been convicted of any criminal
Ohio Civil Theft Act on an immediate lawsuit. offense * * *.” R.C. §2307.61(G)(1). This
(OCTA), they usually only applies to claims brought under R.C.
W respond in one of two A. R.C. §2307.61(A)(2), Value Less Than §2307.61; non-theft claims brought solely
ways: most often, they have never heard of it; $5,000.00. under R.C. §2307.60 require an underlying
second, and much rarer, are those litigators In the event that the value of the stolen property criminal conviction in order to assert them
who have experience with cases involving the is less than $5,000.00, R.C. §2307.61(A) civilly. Ortiz v. Kazimer, N.D. Ohio No. 1:11
statute, see it being asserted more frequently in (2) mandates pre-filing notice requirements cv 01521, 2015 U.S. Dist. LEXIS 38496 at
employment and retail situations, and realize in order to take advantage of the statute’s *P16 (March 26, 2015).
its extraordinary scope and potency. As more full range of damages. In order to recover
OCTA cases are brought, and more decisions administrative costs in connection with the STANDARD OF PROOF
analyzing the statute are issued, litigators are collection, including reasonable attorneys’ In order to support an OCTA claim, the victim
quickly realizing that the OCTA’s damages fees, the property owner must make written must demonstrate “competent, credible”
provisions can impose serious consequences demand for compensation via certified mail evidence of a theft offense. Thus, even though
for parties involved in thefts, including those to the accused thirty days prior to filing an the underlying act would require proof beyond
who purchase stolen material without having action. If the accused does not compensate the a reasonable doubt in a criminal proceeding, the
had any role in the theft itself. Indeed, for those victim within thirty days after receipt of the burden in an OCTA action is less demanding.
th
who buy material in unusual settings or non- demand, the victim may maintain a civil action Sonis v. Rasner (8 Dist. Cuyahoga No. 101929),
standard transactions, acting unscrupulously and seek administrative costs, costs of suit and 2015-Ohio-3028 at *P52. As the OCTA “is a
or ignoring red flags can spell significant attorneys’ fees incurred in collection. However, civil remedy [that] is available even though
liability for these missteps, including treble if the collection proceeding is unsuccessful, the the defendant has not pled guilty to, or been
damages awarded to the victim of the theft. accused may recover from the victim his or her convicted of, any criminal offense in relation
attorneys’ fees, costs of defending the action to any act involving the owner’s property * *
OVERVIEW and any compensatory damages proven. * the ‘beyond a reasonable doubt’ standard is
The OCTA is a hybrid of two statutes, Ohio applicable only in criminal cases.” H&W Door
th
Revised Code §§2307.60 and 2307.61. The B. R.C. §2307.61(A)(1), Generally. Co. v. Stemple (11 Dist. Portage No. 93-P-0031,
former provides civil recovery to victims Otherwise, or if the value of the property 1994 Ohio App. LEXIS 1408 at *5 (March 31,
of any criminal act. It states that “anyone is greater than $5,000, a theft victim may 1994). As appellate courts will not overturn
injured in person or property by a criminal seek compensatory or liquidated damages. decisions which are based on competent,
act has, and may recover full damages in, a If the latter, subsection (A)(1)(b) permits credible evidence, a preponderance of the
civil action unless specifically excepted by the victim to seek liquidated damages in evidence standard is ostensibly the appropriate
law * * *.” R.C. §2307.61 goes further and the greater amount between $200 or three burden of proof in OCTA cases.
provides that if a claim brought under R.C. times the value of the property at the time
§2307.60 involves a theft offense (as defined it was stolen. When a claim is brought under RECEIVING STOLEN PROPERTY
by R.C. §2913.01), the victim may assert a R.C. §2307.61(A)(1) and the plaintiff is As indicated above, the OCTA permits a
civil action against the wrongdoer and seek unsuccessful, unlike subsection (A)(2) claims civil action for any theft offense as codified
compensatory or liquidated damages and, described above, there is no right provided in R.C. §2913.01. R.C. §2913.01(K)(1)
in certain situations, attorneys’ fees and to the wrongfully accused to recoup costs or defines “theft offense” to include, among
administrative costs. R.C. §2307.61 also fees incurred in defending the suit. other things, the receipt of stolen property.
provides authority for specific remedies Furthermore, a direct relationship
to victims of thefts under $5,000.00 who NO PREREQUISITE CRIMINAL between the victim and the defendant is
attempt to collect administratively prior to CONVICTION NECESSARY not necessary to assert an OCTA claim.
filing suit. Retailers and shop owners who Claims under R.C. §2307.61 may be asserted In Cuyahoga Heights Local Sch. Dist. v.
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