42
Fla. L. Weekly D360aTop of Form

Wrongful
death — Medical malpractice — Punitive damages — Trial court departed from
essential requirements of law by granting motion to amend complaint to assert
claim for punitive damages where plaintiff did not attach a copy of the
proposed amendment to the motion — Court also departed from essential
requirements of law by overruling defendants’ objections and permitting
plaintiff to make inappropriate oral proffers — If motion to amend is granted,
court is required to make an affirmative finding that plaintiff has made a
reasonable showing by evidence which would provide a reasonable evidentiary
basis for recovering punitive damages

BIRDIE
M. VARNEDORE, M.D., Petitioner, v. TODD E. COPELAND, ESQUIRE, O/B/O AND AS
TRUSTEE FOR KYONDA HACKSHAW AND GUARDIAN AD LITEM FOR K.C.F. AND J.L.S.,
MINORS, Respondents. 5th District. Case No. 5D16-1831. EDGARDO M. RODRIGUEZ,
M.D., Petitioner, v. TODD E. COPELAND, ESQUIRE, O/B/O AND AS TRUSTEE FOR KYONDA
HACKSHAW AND GUARDIAN AD LITEM FOR K.C.F. AND J.L.S., MINORS, Respondents. 5th
District. Case No. 5D16-1879. Opinion filed February 10, 2017. Petition for
Certiorari Review of Order from the Circuit Court for Orange County, Keith F.
White, Judge. Counsel: Christian P. Trowbridge, Craig S. Foels, and Eric P.
Gibbs, of Estes, Ingram, Foels & Gibbs, P.A., Orlando, for Birdie M.
Varnedore, M.D., Petitioner. T’anjuiming A. Marz, and Patrick H. Telan, of
Grower, Ketcham, Eide, Telan, & Meltz, P.A., Orlando, for Edgardo M.
Rodriguez, M.D., Petitioner. Carlos R. Diez-Arguelles, of Diez-Arguelles, &
Tejedor, P.A., Orlando, and Susan W. Fox, and Heather M. Kolinsky, of Fox &
Loquasto, P.A., Orlando, for Respondents.

(EDWARDS,
J.) Claims for punitive damages can have significant, multi-faceted impacts on
litigation and litigants. The Florida Legislature enacted statutory thresholds
and Florida’s Supreme Court adopted complementary procedures that govern the
proof and pleadings required to pursue punitive damages. The statute and rule
cast the trial court in the role of gatekeeper. Here, the Petitioners and the
defendants below, Dr. Rodriguez and Dr. Varnedore, petition this court for a
writ of certiorari to quash the trial court’s order permitting Respondent, Todd
Copeland on behalf of and as trustee for Kyonda Hackshaw and her children, to
amend the medical malpractice complaint by adding claims for punitive damages
against the Petitioners.1

Respondent
moved to amend his complaint to assert claims for punitive damages, but did not
attach a copy of the proposed amended complaint to his motion. Petitioners
objected to the lack of the proposed complaint. Respondent served an
evidentiary proffer in advance of the hearing, but also made additional, oral
evidentiary proffers during the hearing over Petitioners’ objections. At the
conclusion of the five and a half hour hearing, the trial court announced that
it was granting Respondent’s motion to amend as to certain defendants and
denying it as to others. The trial court, however, did not provide a basis for
its rulings in its oral pronouncement or in its later written order. For the
reasons discussed below, we find that the trial court departed from the
essential requirements of law. The writ of certiorari is granted and the case
is remanded for further proceedings.

Certiorari
review

A
writ of certiorari will issue if the trial court departed from the essential
requirements of the law, the departure resulted in material injury to the
petitioner, and the injury cannot be remedied in a postjudgment plenary appeal.
Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011). The essential
requirements of the law for seeking leave to file a pleading asserting a claim
for punitive damages in a civil action are enumerated in section 768.72,
Florida Statutes (2015), and Florida Rule of Civil Procedure 1.190.

Section
768.72(1) provides that defendants in civil actions shall be free from claims
of punitive damages and related financial discovery unless the claimant makes
“a reasonable showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such damages.” §
768.72(1), Fla. Stat. (2015). The subsection further provides that a “claimant
may move to amend her or his complaint to assert a claim for punitive damages
as allowed by the rules of civil procedure.” Id. Rule 1.190(a) and (f)
describe the procedural requirements for amending a complaint to seek a claim
for punitive damages. Parties have a substantive right “not to be subjected to
a punitive damage claim and attendant discovery of financial worth until the
requisite showing under the statute has been made to the trial court.” Estate
of Despain v. Avante Grp., Inc., 900 So. 2d 637, 641 (Fla. 5th DCA 2005)
(citing Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla. 1996); Globe
Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995)).

Accordingly,
certiorari review is available to determine whether the trial court complied
with all applicable requirements and analysis before granting a motion to amend
pleadings to assert claims for punitive damages. See Globe Newspaper, 658
So. 2d at 520; Tilton v. Wrobel, 198 So. 3d 909, 910 (Fla. 4th DCA
2016); Munroe Reg’l Health Sys., Inc. v. Estate of Gonzalez, 795 So. 2d
1133, 1134 (Fla. 5th DCA 2001). Given the nature of the applicable statute and
rule, the court must consider both the pleading component and the evidentiary
component of each motion to amend to assert punitive damage claims. Henn v.
Sandler, 589 So. 2d 1334, 1335-36 (Fla. 4th DCA 1991).

Pleading
component of motion to add punitive damages

The
only basis for awarding punitive damages against individual defendants, such as
Petitioners, is “if the trier of fact, based on clear and convincing evidence,
finds that the defendant was personally guilty of intentional misconduct or
gross negligence.” § 768.72(2), Fla. Stat. (2015). In this case, Respondent
relies on claims of gross negligence to justify recovery of punitive damages.
“Gross negligence means that the defendant’s conduct was so reckless or wanting
in care that it constituted a conscious disregard or indifference to the life,
safety, or rights of persons exposed to such conduct.” Id. at §
768.72(2)(b) (internal quotation marks omitted).

As
previously stated, a party wishing to pursue punitive damages must first file a
motion seeking leave of court to file an amended complaint and then make “a
reasonable showing by evidence in the record or proffered by the claimant which
would provide a reasonable basis for recovery of such damages.” Id. at §
768.72(1); see also Fla. R. Civ. P. 1.190(f).

In
this case, Respondent filed a motion to amend his pleadings to seek punitive
damages; however, he did not attach a proposed amended complaint to his motion,
nor did he file the proposed amended complaint prior to the hearing on his
motion to amend. Pursuant to rule 1.190(a), “[i]f a party files a motion to
amend a pleading, the party shall attach the proposed amended pleading to the
motion.” Fla. R. Civ. P. 1.190(a). Moving to amend without attaching a copy of
the proposed amended pleading is insufficient. See Taylor v. City of Lake
Worth, 964 So. 2d 243, 244 (Fla. 4th DCA 2007) (holding that the rule
1.190(a) requirement of attaching a proposed amended pleading to the motion to
amend is mandatory).

Respondent
argues that rule 1.190(f) does not require a plaintiff to attach a proposed
amended complaint to its motion. The requirement of rule 1.190(a), however, was
adopted by the Florida Supreme Court in the same opinion in which it created
rule 1.190(f). Amends. to the Fla. R. of Civ. P. (Two-year cycle), 858
So. 2d 1013, 1013-14 (Fla. 2003) (“Therefore, to make [Florida Rules of Civil
Procedure] 1.070(j) and 1.190(a) consistent and avoid confusion, we adopt the
proposed corresponding amendment to rule 1.190(a), which requires a party that
files a motion to amend a pleading to attach the proposed amended pleading.”).
In the same opinion, the Florida Supreme Court amended rule 1.190 to add
subdivision (f), in order to ensure that the parties opposing motions to amend
a pleading to assert a claim for punitive damages had adequate prehearing
notice of the record evidence and proffered evidence relied on by the plaintiff
in the motion to amend. Id. at 1014-15. Thus, filing the proposed
amended complaint with the motion to amend is an essential legal requirement of
moving to amend to add claims for punitive damages.

In
order to perform its function as a gatekeeper, the trial court must understand
the specific claim proposed by the plaintiff that may justify an award of
punitive damages. “Litigants in civil controversies must state their legal
positions within a particular document, a pleading, so that the parties and the
court are absolutely clear what the issues to be adjudicated are.” Bank of
Am. Nat’l Ass’n v. Asbury, 165 So. 3d 808, 809 (Fla 2d DCA 2015). Thus,
when entertaining a motion to amend in order to add a claim for punitive
damages, the trial court must first consider whether the proposed amended
complaint actually sets forth a claim that the defendants’ conduct was grossly
negligent, as defined by statute. Absent sufficient allegations, there would be
neither a reason nor a framework for analyzing the proffered evidentiary basis
for a punitive damages claim.

Because
there was no proposed amended complaint on file at the time of the hearing, the
trial court repeatedly asked Respondent to state what claims he was making and
against whom he was making such claims. At some point during the hearing,
Respondent finally provided a copy of a proposed amended complaint. Hearings on
motions to add punitive damages can be complex and contentious. It is patently
unfair to allow Respondent’s failure to comply with the requirements of rule
1.190(a) to force Petitioners’ counsel to choose whether to read the just-provided
proposed amended complaint or to actively participate in the hearing.

Respondent’s
unexplained failure to file the proposed complaint resulted in confusion, made
it unreasonably difficult for Petitioners to prepare and argue their position,
and hampered the trial court in its effort to fulfill its role as gatekeeper.
We find that the trial court departed from the essential requirements of the
law when it heard and ruled on Respondent’s motion to amend when Respondent did
not attach a proposed amended complaint to its motion as required by rule
1.190(a). We grant the writ, quash the order, and remand for further
proceedings.

Evidentiary
component of motion to add punitive damages

Because
Respondent, on remand, may choose to file another motion to amend, we believe
it would be helpful to the parties and to the trial court to complete our
analysis of the additional requirements of section 768.72 and rule 1.190(f).

If
the proposed amended complaint contains sufficient allegations of gross
negligence, the trial court must next consider whether plaintiff has
established a reasonable factual basis for its punitive damage claims. The
factual basis relied on by the moving party may consist of evidence of record,
proffered evidence, or both. Fla. R. Civ. P. 1.190(f). During the hearing in
this case, Respondent sometimes relied on record evidence, such as deposition
testimony and, at other times, Respondent relied on witness testimony
anticipated at the upcoming trial. Petitioners objected to the oral proffers,
arguing that the proffers did not comply with the requirements of section
768.72 or rule 1.190(f). Petitioners also asserted that some of the proffers
put forward new liability theories, which were not alleged in the operative,
second amended complaint, and not discussed in any expert witnesses’
depositions.

When
the Florida Supreme Court adopted rule 1.190(f), it referred to Beverly
Health and Rehabilitation Services, Inc. v. Meeks, 778 So. 2d 322 (Fla. 2d
DCA 2000). Amendments, 858 So. 2d at 1014. The plaintiff in Meeks filed
a bare bones motion, completely lacking any factual bases, to amend its
pleading to add punitive damage claims against the defendant nursing home. 778
So. 2d at 323. On the day of the hearing, the plaintiff filed 200 pages of
exhibits supporting its motion to amend. Id. at 324. The trial court
went forward with the hearing, but advised defense counsel that it could have
additional time to respond if needed; however, no such request was made. Id.
at 324. The Second District Court of Appeal suggested that “to require
written proffers to be filed a reasonable time prior to future hearings would
appear to be a reasonable method to assure that such hearings do satisfy the
spirit of the statute [section 768.72] and the requirements of due process.” Id.
at 325. By adopting rule 1.190(f), the Florida Supreme Court reinforced
“the committee’s intent of requiring the motion and the supporting evidence or
proffer to be served on all parties at least twenty days before the hearing.” Amendments,
858 So. 2d at 1014.

A
similar requirement to file documents in advance of a hearing is found in
Florida Rule of Civil Procedure 1.510(c). Rule 1.510(c) requires the party
moving for summary judgment to serve its notice identifying and/or attaching
record evidence at least twenty days prior to the hearing. Fla. R. Civ. P.
1510(c). The opposing party must serve its disclosure of opposing record
evidence at least five days prior to the hearing. Fla. R. Civ. P. 1.510(c).
Neither the movant nor the opponent may rely upon any evidence, even if already
on file, unless it was identified in its timely filed notice. State Farm
Mut. Auto. Ins. Co. v. Figler Family Chiropractic, P.A., 189 So. 3d 970,
974 (Fla. 4th DCA 2016). “Determination of the appropriateness of the motion is
better facilitated when issues and evidence are clearly identified in advance
of the hearing on the motion.” Id.

We
conclude that the term “proffer” for purposes of rule 1.190(f) refers only to
timely filed documents and excludes oral representations of additional evidence
made during the hearing. Thus, the trial court cannot properly consider
plaintiff’s counsel’s oral or other proffers of evidence which are first
presented during the hearing. Counsel, however, is free to suggest inferences
that may be drawn from the timely filed evidence and proffers. After all, the
decision of whether to grant the motion to add punitive damages will be based,
at least in part, upon the trial court’s determination of whether a reasonable
jury could infer from the evidence and proffer that a defendant’s conduct
amounted to reckless or careless indifference to the plaintiff’s life or
safety. Because the trial court did not state its basis for granting the
motion, we cannot determine to what extent the trial court improperly relied on
Respondent’s untimely and inappropriate oral proffers. Petion v. State, 48
So. 3d 726, 735 (Fla. 2010). Respondent additionally has not attempted to prove
that the court’s error was harmless. See Special v. W. Boca Med. Ctr.,
160 So. 3d 1251, 1256 (Fla. 2014). The trial court departed from the essential
requirements of the law by overruling Petitioners’ objections and permitting
Respondent to make inappropriate oral proffers. For this additional reason, we
grant the writ, quash the order, and remand for further proceedings.

Stating
basis for granting motion to amend

Petitioners
further assert that the trial court erred by failing to state the bases upon
which it granted Respondent’s motion to assert punitive damages. Because
punitive damages may only be pursued after the trial court finds the plaintiff
has met or exceeded the section 768.72(1) threshold, it follows that the trial
court, serving as a gatekeeper, is required to make an affirmative finding that
plaintiff has made a “reasonable showing by evidence,” which would provide a
“reasonable evidentiary basis for recovering such damages” if the motion to
amend is granted. SAP Am. Inc. v. Royal Flowers, Inc., 187 So. 3d 946,
947 (Fla. 3d DCA 2016); see also Petri Positive Pest Control, Inc. v. CCM
Condo. Ass’n, 174 So. 3d 1122, 1122 (Fla. 4th DCA 2015); Royal Caribbean
Cruises, Ltd. v. Doe, 44 So. 3d 230, 235-36 (Fla. 3d DCA 2010); Henn,
589 So. 2d at 1335. We agree that when granting a motion to amend to add
punitive damages, the trial court must make the aforementioned affirmative
finding. However, because we are remanding this case to the trial court for
further proceedings, we will not at this time address Petitioners’ additional,
related argument that the trial court must make detailed factual findings.2

PETITION
GRANTED, ORDER QUASHED, REMANDED FOR FURTHER PROCEEDINGS. (SAWAYA and LAMBERT,
JJ., concur.)

__________________

1Although
the underlying claims of medical negligence are different as to each
Petitioner, they arise out of related diagnosis and treatment, and the
principles governing the process of amending pleadings to assert punitive
damage apply uniformly. We have thus, sua sponte, consolidated the two cases
for the purpose of discussing and resolving them in a single opinion.

2In Estate
of Despain v. Avante Group, Inc., 900 So. 2d 637, 642-44 (Fla. 5th DCA
2005), we held that appellate courts would review, de novo, a trial court’s
finding that a section 768.72(1) reasonable basis exists for asserting punitive
damages. Because the evidence of record and proffered evidence upon which
plaintiff relies must be timely filed in advance of the hearing, the trial
court does not have a superior vantage point to this court.

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