More punishment over punitives…

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 50

CASES FROM THE WEEK DECEMBER 17, 2021

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW IN GRANTING PLAINTIFF’S MOTION TO AMEND FOR PUNITIVE DAMAGES WITHOUT MAKING AFFIRMATIVE FINDING THAT PLAINTIFF MADE A REASONABLE SHOWING BY EVIDENCE PROVIDING A REASONABLE BASIS FOR RECOVERING PUNITIVE DAMAGES

Kovacs v. Williams, 46 Fla. L. Weekly D2632 (Fla. 5th DCA Dec. 10, 2021):

§768.72(1) requires the plaintiff to make a reasonable showing by proffer, or evidence in the record that provides a reasonable basis for recovery of such damages, and then move to amend his/her complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.

The trial court granted the motion seeking punitive damages without finding that the plaintiff carried his burden under §768.72(1).  In other words, the trial court did not state that the plaintiff had made a reasonable showing by the evidence to provide a reasonable basis for recovering such damages. Because that error was procedural, the court had jurisdiction to review it on certiorari.

To support the proposition that the trial court was required to make an affirmative finding, the defendant cited to a prior Fifth District case, Varnedore v. Copeland, as well as opinions from the Second, Third and Fourth Districts. In Varnedore, the Fifth District found that the trial court failed to make the affirmative finding needed.  

The court observed that Varnedore does not require the trial court to identify the theory of recovery, but simply requires it to make an affirmative finding about the evidence presented.  The Fifth District observed that if it were writing on a blank slate, it would not compel this result because nothing in the statute or rule requires such a finding.  However, its prior precedent (along with precedent in the other districts) does. 

The court certified conflict with the First District, where that court held that there is no statutory requirement for the trial court to make an express finding when determining whether a reasonable evidentiary basis for recovery of punitive damages exists.

DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW TO CONDITION AN AWARD OF ATTORNEY’S FEES ON THE PARTY PREVAILING AT TRIAL, INSTEAD OF BASED ON SATISFYING THE REQUIREMENTS OF §768.79

Superior Auto Glass of Tampa v. Gilbo, 46 Fla. L. Weekly D2601 (Fla. 2nd DCA Dec. 8, 2021):

The order granting appellate fees stated it was conditioned upon the party prevailing in the underlying proceeding.  

However, the offer of settlement statute requires a party seeking an award of fees to satisfy a number of requirements independent of prevailing at trial. 

Thus, it was a departure from the essential requirements of law to condition the award of fees on prevailing at trial, instead of on satisfying all of the requirements of the offer of settlement statute.

PETITION TO REVIEW ORDER DENYING MOTION TO DETERMINE ENTITLEMENT TO ATTORNEY’S FEES AND TAXABLE COSTS IS NEITHER FINAL NOR A NON-FINAL ORDER PURSUANT TO RULE 9.130(1)(3), AND NOT APPEALABLE

GR Rehab Center v. GEICO, 46 Fla. L. Weekly D2618 (Fla. 3rd DCA Dec. 8, 2021):

When judicial labor remains on an order issued, it is not final.  The court has jurisdiction during the progress of the case, to satisfy or modify an interlocutory order before final judgment.

Because this order denying entitlement to attorney’s fees and taxable costs was neither final nor included in Florida Rule of Appellate Procedure 9.130(a)(3) (the schedule of appealable non-final orders), there was no jurisdiction to review it.