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finding a departure from the essential requirements of section 400.0237 where the trial court's order "does not apply the admissible evidence presented by the Estate to the criteria of the statute ... [nor] does the transcript of the hearing on the motion to amend reflect that the trial court applied the admissible evidence to the statutory criteria"
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Case No. 2D19-3040
07-08-2020
LIFE CARE CENTERS OF AMERICA, INC. a/k/a Life Care Centers of America, Inc. of Tennessee, Petitioner, v. Bill CROFT, Jr., as personal representative of the Estate of Bill Croft, Sr., deceased; and Ralph M. Jacobs, Respondents.
Marie A. Borland, Ethen R. Shapiro, and Ryan J. Leuthauser of Hill Ward Henderson, Tampa, for Petitioner. Megan L. Gisclar and Kathleen Clark Knight of Wilkes & McHugh, P.A., Tampa; and Joanna Greber Dettloff of Mendes, Reins & Wilander Law Group, PLLC, Tampa, for Respondent Bill Croft, Jr. No appearance for Respondent Ralph M. Jacobs.
Marie A. Borland, Ethen R. Shapiro, and Ryan J. Leuthauser of Hill Ward Henderson, Tampa, for Petitioner.
Megan L. Gisclar and Kathleen Clark Knight of Wilkes & McHugh, P.A., Tampa; and Joanna Greber Dettloff of Mendes, Reins & Wilander Law Group, PLLC, Tampa, for Respondent Bill Croft, Jr.
No appearance for Respondent Ralph M. Jacobs.
BLACK, Judge.
Life Care Centers of America, Inc., a/k/a Life Care Centers of America, Inc. of Tennessee, seeks certiorari review of the trial court's order granting the Estate of Bill Croft, Sr.'s motion to amend its complaint to add a count for punitive damages. We grant the petition.
In August 2016, Bill Croft, Sr., filed a complaint against Life Care Centers and Ralph M. Jacobs alleging violations of section 400.022, Florida Statutes (2014). In April 2018, Mr. Croft moved for leave to amend his complaint to state a claim for punitive damages against Life Care Centers. Mr. Croft alleged that there existed a reasonable basis, as required by section 400.0237, to support a claim for punitive damages and that he would produce evidence in support of his motion, as required by Florida Rule of Civil Procedure 1.190(f). Mr. Croft passed away before the court could consider his motion, and the Estate of Bill Croft, Sr., with Bill Croft, Jr., as personal representative, was substituted as plaintiff. The Estate thereafter filed a renewed motion for leave to amend and a proposed third amended complaint as well as evidence in support of its punitive damages claim. The trial court held a hearing on the motion, at which much of the Estate's 2000-page evidentiary proffer was discussed. The order granting the Estate's motion for leave to amend to add a claim for punitive damages was entered thereafter.
Mr. Croft did not seek to add a claim for punitive damages against Mr. Jacobs.
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Section 400.0237 sets forth the standard for amending a complaint to assert a claim for punitive damages in an action pursuant to chapter 400, part II. It provides, in pertinent part:
(1) A claim for punitive damages may not be brought under this part unless there is a showing by admissible evidence that has been submitted by the parties that provides a reasonable basis for recovery of such damages when the criteria in this section are applied.
....
(b) The court shall conduct a hearing to determine whether there is sufficient admissible evidence submitted by the parties to ensure that there is a reasonable basis to believe that the claimant, at trial, will be able to demonstrate by clear and convincing evidence that the recovery of such damages is warranted under a claim for direct liability as specified in subsection (2) or under a claim for vicarious liability as specified in subsection (3).
§ 400.0237(1)(b). Section 768.72, Florida Statutes (2014), the general negligence punitive damages statute, provides a similar but not identical standard:
In any civil action, no claim for punitive damages shall be permitted unless 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. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure.
§ 768.72(1). Rule 1.190(f) requires that a motion for leave to amend to add a claim for punitive damages "make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages." The motion must also "be served on all parties at least 20 days before the hearing." Fla. R. Civ. P. 1.190(f).
Section 400.0237 plainly includes requirements that section 768.72 does not: the evidence supporting a claim for punitive damages in a chapter 400 action must be admissible evidence, and the trial court must apply the criteria of section 400.0237(2) and (3) to that evidence. Thus, while case law discussing the language of section 768.72 is significant and applicable as it relates to the certiorari standard, the different procedural requirements of section 400.0237 compel our decision here.
In the context of section 768.72, the supreme court has held that appellate courts "have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements" of the statute. Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995). The court has also held that "[c]ertiorari 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." Id. (emphasis added). Specifically, certiorari may not be granted "to review the sufficiency of the evidence considered by a trial judge in a section 768.72 determination." Id. at 520. In reaching that conclusion, the supreme court approved the reasoning of Sports Products, Inc. of Fort Lauderdale v. Estate of Inalien, 658 So. 2d 1010, 1010 (Fla. 4th DCA 1994), that "an immediate review to determine whether the trial court has conducted the inquiry required by the statute does not also mean that we will exercise certiorari jurisdiction to conduct an immediate review of the findings of fact made in the course of that inquiry."
In 2011, the supreme court stated:
A review of Globe ... demonstrates three things: (1) that a defendant cannot demonstrate material harm required for certiorari review concerning whether a punitive damages claim is viable ... because [that] do[es] not deprive the defendant of the statutorily guaranteed process, (2) utilizing certiorari to review the trial court's findings regarding whether a claim for punitive damages exists ... amounts to reviewing the sufficiency of the evidence, and (3) that granting a petition for writ of certiorari to review the sufficiency of the evidence is inappropriate.
Williams v. Oken, 62 So. 3d 1129, 1135-36 (Fla. 2011) (citing Globe, 658 So. 2d at 519-20 ). It is thus well-settled that we do not have jurisdiction to consider the sufficiency of or "substantive merits" of the evidence in this certiorari proceeding. See Stock Dev., LLC v. Ulrich, 7 So. 3d 582, 583 (Fla. 2d DCA 2009) ; Event Depot Corp. v. Frank, 269 So. 3d 559, 562 (Fla. 4th DCA 2019) ; see also Am. Heritage Life Ins. Co. v. Smith, 263 So. 3d 133, 134 (Fla. 1st DCA 2018) ("[W]e do not have jurisdiction to review the sufficiency of the evidence proffered to support the punitive damages claim."); Delta Health Grp., Inc. v. Jackson, 798 So. 2d 857, 857 (Fla. 5th DCA 2001) ("[T]he [appellate] court does not have certiorari jurisdiction to determine whether there is sufficient evidence to allow a punitive claim."). "Simply put, a trial court's application of the correct law is not reviewable by certiorari, even if the appellate court were to disagree with the conclusion reached by the trial court." TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516, 520 (Fla. 3d DCA 2016) (citing Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000) ); see also Massey Servs., Inc. v. Brown, 801 So. 2d 307, 308 (Fla. 5th DCA 2001) ("The trial court determined that the Browns made a sufficient showing to allow a claim for punitive damages and we cannot review that decision by certiorari proceedings.").
To the extent that Life Care Centers seeks review of the substantive merits and sufficiency of the evidence presented at the hearing, we are without jurisdiction to do so. However, to the extent that Life Care Centers also seeks a determination that the trial court failed to apply the Estate's admissible evidence to the criteria set forth in section 400.0237(2) and (3), such a failure is procedural, and this court has previously exercised its certiorari jurisdiction to determine whether a trial court departed from the essential requirements of law in granting a motion to amend to add a claim for punitive damages. See Carpenters Home Estates, Inc. v. Sanders, 286 So. 3d 830, 831-32 (Fla. 2d DCA 2019) ("[W]e have certiorari jurisdiction to determine whether the trial court complied with the procedural requirements of section 400.0237 in granting [the plaintiff's] motion for leave to amend.").
The order on review, while quoting section 400.0237, does not apply the admissible evidence presented by the Estate to the criteria of the statute set forth in subsections (2) and (3). Neither does the transcript of the hearing on the motion to amend reflect that the trial court applied the admissible evidence to the statutory criteria. Life Care Centers has established that the trial court departed from the essential requirements of section 400.0237. Accordingly, we grant the petition for writ of certiorari and quash the order granting the Estate's motion to amend its complaint to add a claim for punitive damages.
We also take this opportunity to join the many judges of our sister courts who have expressed the impracticality and ineffectiveness of certiorari review of orders permitting punitive damages claims to be added to pleadings. See, e.g., E.R. Truck & Equip. Corp. v. Gomont, No. 3D20-42, ––– So.3d ––––, ––––, 2020 WL 1281021, at *1-2 (Fla. 3d DCA Mar. 18, 2020) (Scales, J., concurring and Gordo, J., concurring specially); Levin v. Pritchard, 258 So. 3d 545, 548 n.4 (Fla. 3d DCA 2018) ; TRG Desert Inn, 194 So. 3d at 520 n.5 ; see also Sapp v. Olivares, 288 So. 3d 714, 716 n.1 (Fla. 4th DCA 2020) (noting that "several appellate courts and individual judges have questioned the continued efficacy of Globe in modern litigation"). "[T]he 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, 194 So. 3d at 520 n.5. Such claims "can have significant, multi-faceted impacts on litigation and litigants," Varnedore v. Copeland, 210 So. 3d 741, 743 (Fla. 5th DCA 2017), and "can transform a lawsuit," Event Depot, 269 So. 3d at 563 (Kuntz, J., concurring specially). But, at present, immediate review of orders granting leave to add a punitive damages claim is limited to certiorari. And the narrow, exacting standard afforded by certiorari proceedings does nothing to mitigate the impacts of allowing a punitive damages claim to proceed. It is for that reason that we suggest, as the Third District has done, that the Florida Bar's Appellate Court Rules Committee consider amending Florida Rule of Appellate Procedure 9.130 to allow the immediate appeal from a nonfinal order granting leave to amend a pleading to add a claim for punitive damages, allowing the district courts de novo review of the trial court's findings.
Petition granted; order quashed.
ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.