THE EVENT DEPOT CORP. v. ROBERT FRANK

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE EVENT DEPOT CORP.,
Petitioner,
v.
ROBERT FRANK and TERRI FRANK, Individually, and as Parents and
Natural Guardians of ELIZABETH FRANK, a Minor Child,
Respondents.
No. 4D18-2306
[April 24, 2019]
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Mily Rodriguez Powell, Judge; L.T. Case
No. CACE15-7393 03.
Eric C. Morales and Jason H. Klein of Wood, Smith, Henning & Berman,
LLP, Miami, for petitioner.
Daniel Mahfood and Bryan S. Gowdy of Creed & Gowdy, P.A.,
Jacksonville, and Jonathan R. Gdanski and David Silverman of
Schlesinger Law Offices, P.A., Fort Lauderdale, for respondents.
FORST, J.
Petitioner The Event Depot Corp., a defendant in the personal injury
lawsuit below, seeks certiorari review of an amended order allowing the
plaintiffs Robert and Terri Frank, individually and as parents and natural
guardians of their minor child, Elizabeth Frank (“Respondents”), to seek
punitive damages against Petitioner. Petitioner argues the order fails to
specify a finding of a reasonable evidentiary basis for recovering punitive
damages against a corporate defendant. 1 For the reasons explained below,
we deny the petition.
1 Petitioner also argues that Respondents’ fourth amended complaint, attached
to the second motion for leave to amend to seek punitive damages, was deficient
in alleging gross negligence under section 768.72(2)(b), Florida Statutes (2018).
Our review of the pleading refutes this argument, and we reject this point without
further discussion.
Background
In 2011, Elizabeth Frank was injured when she fell from the “Psycho
Swing” amusement ride at the Seminole Ball Park in Hollywood, Florida.
Petitioner owned the equipment involved. In 2016, Respondents filed a
nine-count amended complaint against Petitioner and other defendants,
alleging causes of action for strict liability and negligence. Allegations
included that the swing was missing crucial safety equipment, safety
instructions, etc. Defendant The Celebration Source was alleged to have
designed, manufactured, assembled, distributed, promoted, sold, leased,
serviced, repaired, and placed the subject swing into the stream of
commerce. Defendants Michael Campi, Paul Campi, David Campi, and
Jeremy Soto were named in the suit as employees or agents of The
Celebration Source. Defendant Timmy Hutson was purportedly operating
the swing when Elizabeth Frank was injured.
In July 2017, Respondents moved for leave to amend their complaint
to add a punitive damages claim against all defendants. The trial court
granted leave to amend as to all defendants except Petitioner. In April
2018, Respondents filed a second motion for leave to amend to seek
punitive damages against Petitioner. In July 2018, after a hearing, the
trial court granted the motion, allowing Respondents to file a fourth
amended complaint to seek punitive damages as to Petitioner. Petitioner
timely sought certiorari review. 2
In the order on review, the trial court said it considered the initial
evidentiary proffer made at the hearing on the first motion for leave to
amend. That proffer included: “(1) criminal charges for culpable
negligence against defendant M. Campi; (2) report of ADP & Associates,
Inc.; (3) mediation contractual agreement of M. Campi; (4) October 13,
2015 deposition of M. Campi; (5) Psycho Swing instruction manual and (6)
October 22, 2015 deposition of P. Campi.” Additionally, the trial court
considered the proffer made at the second hearing, which included the
deposition of Robert Murray, the Psycho Swing’s creator and developer.
The court pointed to additional information from the Murray deposition
2 While the petition was pending, the trial court amended its order on December
12, 2018. See Gibraltar Private Bank & Tr. v. Schacht, 220 So. 3d 1234, 1235
(Fla. 3d DCA 2017) (“While a trial court is without jurisdiction to vacate a non-
final order which has been appealed, a party’s filing of a certiorari petition
challenging an interlocutory . . . order does not divest the trial court of
jurisdiction.”) (footnote omitted). This amendment led to the amended petition
for writ of certiorari now before this court.
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offered by Respondents at the second hearing to show that Petitioner
“evinced a reckless disregard for the health and safety of human life by
lending out the Psycho Swing and permitting it to be used without required
safety harness, the owner’s manual, or adequate safety training.” This
information included Murray’s testimony that he invented, developed,
made and sold the Psycho Swing in the 1990s, and had knowledge in
operating the swing and developing its operating procedures, instruction
manual and safety protocol, as well as his explanation of “the critical
importance of the safety harness in its safe operation” and testimony that
providing the swing for use by another company without the safety
harness was “unconscionably something that you shouldn’t do.”
The trial court also cited evidence from Respondents’ initial proffer,
based on M. Campi’s deposition testimony, suggesting that Petitioner
“provided the Psycho Swing to The Celebration Source for use without
providing the required safety harness.”
The trial court ruled that the initial evidentiary proffer and the “newly
proffered testimony of Mr. Murray” provided a reasonable evidentiary basis
for recovery of punitive damages against Petitioner, and thus granted
Respondents’ motion.
Analysis
To invoke certiorari, a petitioner must demonstrate “(1) a departure
from the essential requirements of the law, (2) resulting in material injury
for the remainder of the case (3) that cannot be corrected on postjudgment
appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla.
2004) (citation omitted).
In the seminal case of Globe Newspaper Co. v. King, the Florida
Supreme Court held:
appellate courts do have certiorari jurisdiction to review
whether a trial judge has conformed with the procedural
requirements of section 768.72, but do not have certiorari
jurisdiction to review a decision of a trial judge granting leave
to amend a complaint to include a claim for punitive damages
when the trial judge has followed the procedural requirements
of section 768.72. Certiorari is not available to review a
determination that there is a reasonable showing by evidence
in the record or proffered by the claimant which would provide
a reasonable basis for recovery of such damages.
3
658 So. 2d 518, 519 (Fla. 1995) (emphasis added).
In Leinberger v. Magee, this court, relying on a decision of the Fifth
District, 3 explained what the procedural requirements of section 768.72
entail. 226 So. 3d 899, 900 (Fla. 4th DCA 2017). “First, the movant must
attach the proposed amended pleading to the motion seeking leave to
amend in compliance with Florida Rule of Civil Procedure 1.190(a).” Id.Second, “the ‘proffer’ or other evidence of record to support the punitive
damages claim must be served prior to the hearing on the motion for leave
to amend.” Id. “Third, the trial court must make an affirmative finding
that the plaintiff made a reasonable showing by evidence, which would
provide a reasonable evidentiary basis for recovering such damages if the
motion to amend is granted.” Id. at 901 (internal quotation marks
omitted).
Here, there was a proposed amended complaint, a timely proffer, and a
sufficient order. Thus, all three procedural steps were followed.
Yet, Petitioner contends that the trial court’s “fail[ure] to specify a
finding of a reasonable evidentiary basis for recovery of punitive damages
against a corporate defendant,” constituted a departure from the essential
requirements of law. Petitioner points to section 768.72(3), Florida
Statutes (2018), which provides that:
(3) In the case of an employer, principal, corporation, or other
legal entity, punitive damages may be imposed for the conduct
of an employee or agent only if the conduct of the employee or
agent meets the criteria specified in subsection (2) and:
(a) The employer, principal, corporation, or other
legal entity actively and knowingly participated in
such conduct;
(b) The officers, directors, or managers of the
employer, principal, corporation, or other legal
entity knowingly condoned, ratified, or consented
to such conduct; or
(c) The employer, principal, corporation, or other
legal entity engaged in conduct that constituted
gross negligence and that contributed to the loss,
damages, or injury suffered by the claimant.
3 Varnedore v. Copeland, 210 So. 3d 741 (Fla. 5th DCA 2017).
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(emphasis added).
Petitioner contends that the trial court’s order contains no finding of a
reasonable evidentiary basis consistent with the above statute. Petitioner
also contends that Respondents presented no evidence implicating
Petitioner’s managers, officers, directors or principals of knowingly
condoning, ratifying, or consenting to the alleged conduct.
Respondents have argued that Petitioner waived the right to raise
challenges under section 768.72(3), Florida Statutes, based on corporate
liability. The record refutes this position. Still, Petitioner’s argument is
flawed for two reasons. First, the second motion for leave to amend to seek
punitive damages did not allege liability of the Petitioner corporation based
on the conduct of any particular employee or agent. Rather, the basis for
the punitive damages claim was Petitioner’s alleged act of providing the
Psycho Swing to The Celebration Source (i.e., placing it into the stream of
commerce) without the safety harness, instruction manual and adequate
safety training. This supports a punitive damages claim against the
corporation under section 768.72(3)(c), Florida Statutes.
Second, this court is without jurisdiction to review the sufficiency of
Respondents’ evidentiary proffer. As discussed, the scope of this court’s
certiorari review is limited to whether the trial court has complied with the
procedural requirements of section 768.72, Florida Statutes. Fla. Hosp.
Med. Servs., LLC v. Newsholme, 255 So. 3d 348, 350 (Fla. 4th DCA 2018)
(citing Tilton v. Wrobel, 198 So. 3d 909, 910 (Fla. 4th DCA 2016) (citing
Globe Newspaper Co., 658 So. 2d at 520))). Certiorari review is not
available “to review the sufficiency of the evidence.” KIS Grp., LLC v.
Moquin, 263 So. 3d 63 (Fla. 4th DCA 2019) (quoting Tilton, 198 So. 3d at
910); see also Melendez v. Eversole, 44 Fla. L. Weekly D491 (Fla. 1st DCA
Feb. 18, 2019); Am. Heritage Life Ins. Co. v. Smith, 263 So. 3d 133 (Fla. 1st
DCA 2018) (both citing Globe Newspaper Co., 658 So. 2d at 520).
Here, the trial court complied with the procedural requirements of the
statute. Respondents proffered evidence to support their punitive
damages claim and, after a hearing, the trial court entered an order finding
the proffer to be sufficient to support the claim. The petition for writ of
certiorari must therefore be denied. See Melendez; Am. Heritage Life Ins.
Co.
Conclusion
The trial court followed the procedures required to determine whether
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punitive damages may be pled. Because Petitioner has failed to
demonstrate that the trial court departed from the essential requirements
of law in allowing the fourth amended complaint to plead punitive damages
claims against Petitioner, we deny the petition.
Petition denied.
WARNER, J., concurs.
KUNTZ, J., concurs specially with opinion.
KUNTZ, J., concurring specially.
I join the Court’s denial of the petition for writ of certiorari. I am bound
by our case law to do so. See Fla. Hosp. Med. Servs., LLC v. Newsholme,
255 So. 3d 348, 350 (Fla. 4th DCA 2018) (citing Tilton v. Wrobel, 198 So.
3d 909, 910 (Fla. 4th DCA 2016) (citing Globe Newspaper Co. v. King, 658
So. 2d 518, 520 (Fla. 1995))).
The majority opinion correctly concludes that our certiorari jurisdiction
is limited by controlling precedent to “review whether a trial judge has
conformed with the procedural requirements of section 768.72.” Slip Op.
at 3 (quoting Globe Newspaper Co., 658 So. 2d at 519). But we lack
certiorari jurisdiction “to review a determination that there is a reasonable
showing by evidence in the record or proffered by the claimant which
would provide a reasonable basis for recovery of such damages.” Slip Op.
at 3 (quoting Globe Newspaper Co., 658 So. 2d at 519).
This provides the litigants only the narrowest review of an order that
can transform a lawsuit. As the Third District explained, “[f]rom a
practical perspective, the granting of a motion for leave to amend a
complaint to add a punitive damages claim can be a ‘game changer’ in
litigation.” TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516,
520 n.5 (Fla. 3d DCA 2016); see also Osechas v. Arcila, 44 Fla. L. Weekly
D389 (Fla. 3d DCA Feb. 6, 2019) (an order allowing a party to amend a
complaint to add a claim for punitive damages “materially alter[s] the
course of civil litigation” (Scales, J., specially concurring)). The litigation
is materially changed, in part, because “[a]llowing a plaintiff to proceed
with a punitive damages claim subjects the defendant to financial
discovery that would otherwise be off limits” and “potentially subjects the
defendant to uninsured losses.” Berezovsky, 194 So. 3d at 520 n.5; see
also Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071 (Fla. 3d DCA 2019)
(noting “[t]he prospect of intrusive financial discovery following a trial
court’s authorization for an amendment to add a claim for punitive
damages”).
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For these reasons, the Third District suggested the Florida Bar’s
Appellate Court Rules Committee should consider amending Florida Rule
of Appellate Procedure 9.130 to allow an appeal of an order deciding a
motion for leave to add a claim for punitive damages. See Osechas, 44
Fla. L. Weekly at D389; Levin v. Pritchard, 258 So. 3d 545, 548 n.4 (Fla.
3d DCA 2018); Berezovsky, 194 So. 3d at 520 n.5.
I share those concerns. Additionally, the cases limiting our certiorari
jurisdiction in the context of an order allowing a party to add a claim for
punitive damages derive from the Florida Supreme Court’s opinion in
Globe Newspaper Co. In that opinion, the Florida Supreme Court analyzed
section 768.72, Florida Statutes (1993), and held:
We conclude that appellate courts do have certiorari
jurisdiction to review whether a trial judge has conformed with
the procedural requirements of section 768.72, but do not
have certiorari jurisdiction to review a decision of a trial judge
granting leave to amend a complaint to include a claim for
punitive damages when the trial judge has followed the
procedural requirements of section 768.72.
658 So. 2d at 519. In dissent, Justice Anstead explained that when section
768.72 was enacted, the legislature “specifically granted the petitioner a
substantive right to be free of financial discovery, absent a particularized
evidentiary showing.” Id. at 521 (Anstead, J., dissenting). Because of that
legislative grant, Justice Anstead would not have limited the scope of our
certiorari jurisdiction and would have permitted review of orders allowing
a party to add a claim for punitive damages. Id. (Anstead, J., dissenting).
Four years after Globe Newspaper Co., the legislature made substantive
revisions to section 768.72. See Ch. 99-225, Laws of Fla. 4 The legislature
amended the statute to provide definitions, require “clear and convincing
evidence of gross negligence or intentional misconduct to support the
recovery of” punitive damages, and provide standards for the imposition of
punitive damages in certain instances. Id. Within Chapter 99-225, the
legislature also made substantive revisions to section 768.73, Florida
4 The Florida State University College of Law has digitized the Florida Statutes
for 1941 and 1955 to 1996. See Digitized Legal Collections, Florida State
University College of Law, https://fall.law.fsu.edu/ (last visited Feb. 25,
2019). The Florida Legislature provides a digital version of the Florida
Statutes for 1997 through the present. See Florida Statutes, Online
Sunshine, http://www.leg.state.fl.us/statutes/ (last visited Feb. 25, 2019).
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Statutes, stating in the introductory portion of the enacted legislation that
it was “revising provisions with respect to limitations on punitive damages;
providing monetary limitations; providing for the effect of certain previous
punitive damages awards.” Ch. 99-225, Laws of Fla. It also enacted
sections 768.725, .735, .736, and .737, Florida Statutes. Ch. 99-225,
Laws of Fla. Relevant here, section 768.725 was enacted to “provid[e] for
evidentiary standards for an award of punitive damages.” Ch. 99-225,
Laws of Fla.
These revisions were substantive and many. But many courts continue
to apply the test set forth four years earlier in Globe Newspaper Co. That
test was established at a time when the court explained that the “plain
meaning of section 768.72 . . . require[d] a plaintiff to provide the court
with a reasonable evidentiary basis for punitive damages before the court
may allow a claim for punitive damages to be included in a plaintiff’s
complaint.” Globe Newspaper Co., 658 So. 2d at 520.
It is true that the language quoted in Globe Newspaper Co. remains in
the statute. But the statute now requires more than adherence to the
procedural requirements. For example, a defendant may “be held liable
for punitive damages only 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. (2018). And for
an employer, punitive damages can be imposed for the conduct of an
employee only if the plaintiff meets certain conditions. See § 768.72(3),
Fla. Stat. Thus, strictly applying the Globe Newspaper Co. test might
preclude our certiorari jurisdiction even when a circuit court allows a claim
for punitive damages to proceed but recovery is otherwise barred by the
statute. But see Varnedore v. Copeland, 210 So. 3d 741, 745 (Fla. 5th DCA
2017).
These statutory amendments add substantive hurdles that did not exist
when the court rejected Justice Anstead’s view that certiorari review
should be available to review an order allowing a party to plead a claim for
punitive damages. See Globe Newspaper Co., 658 So. 2d at 521 (Anstead,
J., dissenting).
As explained by the Third District, allowing a party leave to amend a
complaint to seek punitive damages “can be a ‘game changer’ in litigation.”
Berezovsky, 194 So. 3d at 520 n.5. And it is an order that can, at present,
be reviewed only on appeal of a final judgment. But on review of the final
judgment, the circuit court’s finding that a reasonable basis existed to
allow the claim for punitive damages will be reviewed de novo. Estate of
Despain v. Avante Grp., Inc., 900 So. 2d 637, 642 (Fla. 5th DCA 2005)
8
(citing Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 (Fla.
4th DCA 2005)). That de novo review might be more appropriate before
implementation of the game-changing order.
So I join the Third District in suggesting that the Florida Bar’s Appellate
Court Rules Committee consider amending Rule 9.130 to allow the appeal
of a non-final order determining the right of a party to amend a complaint
to add a claim for punitive damages. Alternatively, now almost twenty-five
years later, the Florida Supreme Court may wish to consider whether
Justice Anstead’s dissent in Globe Newspaper Co. was correct.
* * *
Not final until disposition of timely filed motion for rehearing.
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