Senate Bill 2389

AN ACT TO DEFINE "POSITION OF TRUST" AND TO TRIPLE THE DAMAGES AVAILABLE IN A CIVIL ACTION AGAINST A PERSON WHO USES HIS POSITION OF TRUST OR A FIDUCIARY OR CONFIDENTIAL RELATIONSHIP WITH AN OWNER TO CONVERT THE OWNER'S PROPERTY TO HIS OWN USE, OR TO DECEIVE, INTIMIDATE, EXPLOIT, OR UNDULY INFLUENCE THE OWNER SO AS TO OBTAIN CONTROL OVER PROPERTY WITH THE INTENT TO PERMANENTLY DEPRIVE THE OWNER OF THE OWNERSHIP, BENEFIT, OR POSSESSION THEREOF, OR WHO IS PROVEN BY CLEAR AND CONVINCING EVIDENCE TO HAVE EMBEZZLED, EXTORTED, STOLEN, OR TAKEN THE OWNER'S PROPERTY BY FRAUD OR FALSE PRETENSES WHILE HOLDING A POSITION OF TRUST OR BEING IN A FIDUCIARY OR CONFIDENTIAL RELATIONSHIP WITH THE OWNER; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) In any civil action against a person who held a position of trust or was in a fiduciary or confidential relationship and who is proven by a preponderance of the evidence to have used such position of trust or relationship with the owner to convert property of the owner to his own use, or to obtain control over or title to the money, assets, or property of the owner through deception, breach of fiduciary duty, intimidation, or undue influence with the intent to permanently deprive the owner of the ownership, benefit, or possession thereof, and in any action to recover property in which it is proven by clear and convincing evidence that a person took property of the owner by exploitation, as defined in Section 43-47-5, or by embezzlement, false pretenses, fraud, extortion or theft, or while such person held a position of trust or was in a fiduciary or confidential relationship with the owner, whether the action be to recover property or damages in lieu thereof, or both, damages shall be recoverable up to three (3) times the amount of the monetary damages or value of the property obtained, converted, or taken, in addition to any other damages.

(2) For the purposes of this section:

(a) "Position of trust" includes a person who:

(i) Has assumed a duty to provide care to the owner of the property;

(ii) Is in a fiduciary relationship with the owner of the property including a de facto guardian or de facto conservator;

(iii) Is a joint tenant or tenant in common with the owner; or

(iv) Is a financial planning or investment professional consulted by the owner.

(b) "Undue influence" does not include the normal influence that one member of a family has over another.

(3) Damages awarded under this section are remedial and not punitive, and do not limit and are not limited by any criminal action or any other provision of law. Any civil damages paid by the civil defendant shall reduce the amount such defendant, upon conviction, is ordered to pay in restitution, and any restitution paid under a criminal penalty shall reduce any civil damages owed. Civil remedies provided under this section shall be supplemental and cumulative, and not exclusive of other remedies afforded under any other law.

(4) The cause of action, the right to bring a cause of action, or the right to seek treble damages pursuant to this section shall not be limited or affected by the death of the owner.

SECTION 2. This act shall take effect and be in force from and after July 1, 2006.