The Week in Torts – Cases From the Week of April 26, 2021
Can’t Just Take Your Word For It…
FLORIDA LAW WEEKLY
VOLUME 46, NUMBER 15
CASES FROM THE WEEK APRIL 26, 2021
CERTIORARI GRANTED – TRIAL COURT APPLIED WRONG STANDARD IN ALLOWING PLAINTIFFS TO AMEND THEIR COMPLAINT FOR PUNITIVE DAMAGES
White v. Boire, 46 Fla. L. Weekly D773 (Fla. 2nd DCA April 7, 2021):
Plaintiffs sued their neighbors for equitable relief and compensatory damages based on allegations that the defendants had engaged in intentional misconduct, in connection with an agreement between them and the plaintiffs to jointly purchase land adjacent to their respective properties.
The plaintiffs moved for leave to amend their complaint to seek punitive damages in connection with the claims for fraud and breach of fiduciary duty. The motion proffered facts that plaintiffs argued constituted circumstantial evidence showing that the defendants never intended to purchase the property jointly, but rather intended to negotiate to purchase the land for themselves.
Plaintiffs presented their proffer in narrative form, consisting entirely of counsel’s representations. Although the proffer contained some facts from the testimony of particular witnesses and referred to numerous documents, counsel did not submit any depositions or documentary evidence with the motion, except for one document that was an exhibit to the complaint.
The defendants objected to the proffer arguing it was supported by the evidence. Plaintiffs asserted that the defendants improperly argued the counter-evidence, and were asking the trial court to weigh the evidence.
Section 768.72(1) provides that a claim for punitive damages will not be permitted unless there is a reasonable showing by record evidence or proffered by the claimant which would provide a reasonable basis for recovery of damages. Subsection (2) of the statute sets forth the plaintiff’s burden at trial and states that the plaintiff must provide a reasonable basis for showing that the defendant was personally guilty of intentional misconduct or gross negligence to support recovery. Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72.
While the trial court’s written order suggests that the court applied the proper evidentiary standard in granting the motion to amend, its statements at the hearing concerning the sufficiency of the allegations persuaded the appellate court otherwise, particularly because plaintiffs’ proffer consisted solely of their attorney’s representations notwithstanding the defendants’ repeated and unaddressed objections.
COURT REMANDED ATTORNEYS’ FEE AWARD, INSTRUCTING THE TRIAL COURT TO MAKE THE NECESSARY ANALYSIS AND DETERMINE THE PROPER AMOUNT OF FEES WITH WRITTEN FINDINGS.
Debernardo v. Villanova Homeowners Association, 46 Fla. L. Weekly D791 (Fla. 4th DCA April 7, 2021):
While the trial court awarded almost $30,000.00 in fees to the plaintiff, it failed to set forth specific findings regarding the time reasonably expended, the hourly rate, and other factors. The failure to do so constituted reversible error, and made it impossible for the appellate court to review the propriety of the award.
The court remanded for the trial judge to apply the necessary analysis, determine the proper amount of fees, and make the required written findings.
NO ERROR IN FINAL ORDER OF DISMISSAL BASED ON CONCLUSION THAT PLAINTIFFS’ ACTION FOR MENTAL ANGUISH BASED ON NEGLIGENT HANDLING OF DEAD BODY REQUIRED PROOF OF EITHER PHYSICAL INJURY OR WANTON MISCONDUCT, AND THAT PLAINTIFFS FAILED TO ALLEGE ANY PHYSICAL INJURY–DEFENDANTS HAD SOVEREIGN IMMUNITY FOR WILLFUL AND WANTON CONDUCT ANYWAY
Sharkey v. Wagner, 46 Fla. L. Weekly DS91 (Fla. 4th DCA April 7, 2021):
An action for mental anguish based on the negligent handling of a dead body requires proof of either physical injury or willful and wanton misconduct. Because the plaintiffs, in this case, failed to allege any physical injury, the trial court properly dismissed the claims with prejudice.
Additionally, the defendants had sovereign immunity from liability for the willful or wanton conduct of its employees, thereby supporting dismissal of the other counts.