Kovacs v. Williams

WILLIAM KOVACS, Petitioner, v. TAI WILLIAMS, Respondent.

No. 5D21-1099

Florida Court of Appeals, Fifth District

December 10, 2021

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Petition for Certiorari Review of Order from the Circuit Court for Brevard County LT Case No. 2019-CA-039425, Dale Curtis Jacobus, Judge.

Kimberly K. Berman and Holly M. Hamilton, of Marshall Dennehey Warner Coleman & Goggin, Fort Lauderdale, for Petitioner.

Brian J. Lee, of Morgan &Morgan, Jacksonville, for Respondent.

PER CURIAM.

Petitioner William Kovacs seeks certiorari review of an order granting Respondent Tai Williams' motion to amend his complaint to add a claim for punitive damages ("Punitive Damages Order"). Petitioner argues that the Punitive Damages Order departs from the essential requirements of law because the trial court failed to make an affirmative finding required by our precedent when it granted Respondent's motion.^[1] If we were writing on a blank slate, we would disagree with Petitioner, since there is no operative statute or rule requiring the trial court to make an affirmative finding. Bound by precedent though, we grant the petition, quash the Punitive Damages Order, and remand for further proceedings. We also certify conflict with the First District Court of Appeal's decision in Watt v Lo, 302 So.3d 1021 (Fla. 1st DCA 2020).

The underlying case arises from a motor vehicle accident that occurred on May 4, 2018. On November 6, 2020, Respondent moved for leave to amend his complaint to add a claim for punitive damages alleging that the Petitioner rear-ended the Respondent's vehicle while intoxicated and then left the scene of the accident before exchanging information.

To assert a claim for punitive damages, Respondent must meet the requirements of section 768.72(1), Florida Statutes (2020). This statute provides:

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.

After a hearing was held on Respondent's motion, the trial court entered the Punitive Damages Order without finding that Respondent carried his burden under section 768.72(1). That is, the trial court did not state for the record or in the Punitive Damages Order that Respondent made a "reasonable showing by evidence," which would provide a "reasonable basis for recovering of such damages." Because the alleged error is procedural, this Court has jurisdiction to review the Petitioner's request. Globe Newspaper Co. v. King, 658 So.2d 518 520 (Fla. 1995); Life Care Ctrs. of Am., Inc. v. Croft, 299 So.3d 588, 590 (Fla. 2d DCA 2020).

To support the proposition that the trial court was required to make an affirmative finding, either orally or in the Punitive Damages Order, Petitioner cites this Court's opinion in Varnedore v. Copeland, 210 So.3d 741, 747-48 (Fla. 5th DCA 2017), as well as opinions from the Second, Third, and Fourth District Court of Appeal. In Varnedore, the trial court made several errors in granting a motion for leave to amend to add a claim for punitive damages. One of the errors held by our Court to be a basis for reversal was the trial court's failure to comply with section 768.72(1), which our Court found required a trial court to "make an affirmative finding that [the] plaintiff has made a reasonable showing by evidence which would provide a reasonable evidentiary basis for recovering [punitive] damages." Id. at 748 (internal quotations omitted).

Like the trial court in Varnedore, the trial court here made no express or affirmative finding in the unelaborated Punitive Damages Order. We find that the trial court also failed to make the required affirmative finding during the hearing. The closest the trial court came to meeting the requirements of Varnedore is when it identified the theory of recovery, stating that "[i]t's gross negligence, that's what I'm basing it on."

Our decision in Varnedore does not require the trial court to identify the theory of recovery. Rather, it requires the trial court to make an affirmative finding about the evidence presented. Id. at 744-45. Our Court stated that "the trial court, serving as a gatekeeper, is required to make an affirmative finding that plaintiff has made a 'reasonable showing by...