Treble Damages for Civil Theft in Colorado After Itin v. Ungar

• Publication year: 2002
• Pages: 49
• Citation: Vol. 31 No. 2 Pg. 49

31 Colo.Law. 49 Colorado Lawyer 2002.

2002, March, Pg. 49. Treble Damages for Civil Theft in Colorado After Itin v. Ungar

---

49

Vol. 31, No. 2, Pg. 49

The Colorado Lawyer
March 2002
Vol. 31, No. 3 [Page 49]

Specialty Law Columns
The Civil Litigator
Treble Damages for Civil Theft in Colorado After Itin v Ungar
by John M. Anderson, J. Thomas Wolf

The Civil Litigator column addresses issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year

This month's article was written by John M. Anderson Denver, an associate with the firm of Myer, Swanson, Adams & Wolf, P.C. - (303) 866-9800, and Thomas J. Wolf, Denver, an officer and shareholder of the same firm - (303) 866-9800.

The authors' firm represented the plaintiff, Thomas W. Itin, in the Itin v. Ungar case discussed in this article.

The Colorado Supreme Court decision in Itin v. Ungar

clarified the required elements to obtain treble damages under the state's Civil Theft Statute. Although the elements of theft must be proven, a prior criminal conviction is not required.

The Colorado General Assembly amended the Rights in Stolen Property Statute1 in 1973 to include the remedy of treble damages. CRS § 18-4-405 ("Civil Theft Statute") provides, in part, that property obtained by theft, robbery, or burglary shall be restored to the owner. The owner has the right to sue the person who stole the property, as well as anyone in whose possession it is found. Under the Civil Theft Statute, the owner may be permitted to recover treble damages, costs, and attorney fees.

The remedy was added in response to witnesses in the trucking industry who testified that an award of treble damages would provide them a private right of enforcement in cases where the government failed or refused to prosecute the crime.2 However, until the Colorado Supreme Court's decision in Itin v. Ungar ("Itin II"),3 different panels of the Colorado Court of Appeals had opposing views regarding how the Civil Theft Statute should be applied.4 This article reviews why the Colorado Supreme Court in Itin II reversed the Court of Appeals.5

Civil Theft Statute
Addressed by
Court of Appeals

The Colorado Court of Appeals' panels disagreed as to whether the Civil Theft Statute required a conviction of the original taker of the property as an element of the claim.6 This issue took two turns in a trio of cases decided after 1997.7

The Court of Appeals first appeared to address the issue in Becker & Tenenbaum v. Eagle Restaurant Company, Inc.8 In Becker, a settlement agreement was entered into between plaintiffs and defendants, and the defendants subsequently issued a check pursuant to the terms of the agreement.9 Plaintiffs returned the check to the defendants for certification, but the defendants...