What happens when a trial judge grants a motion to amend a complaint, allowing the addition of a claim for punitive damages, but the evidence supporting the punitive damages claim is insufficient? Is immediate appellate review available? The Florida Supreme Court has answered that question with a clear and definitive “No.” But there is growing support from the bench—at least in the Third and Fourth District Courts of Appeal—that immediate review should be available.
Currently, under the Florida Supreme Court’s opinion in Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995), immediate appellate review (specifically certiorari review) of trial court orders granting the amendment of a complaint to include punitive damages is only available to determine whether a trial court complied with the procedural aspects of section 768.72, Florida Statutes. An appellate court can only determine whether the plaintiff (1) attached a proposed amended complaint to its motion to amend; (2) timely served record evidence supporting its punitive damages claim; and (3) whether the trial court made an affirmative finding that the plaintiff made a “reasonable showing by evidence” that provides a reasonable evidentiary basis for recovering punitive damages. Globe Newspaper Co., 658 So. 2d at 520.
But immediate appellate review is not available as far as reviewing the sufficiency of the evidence that the trial court considered in its punitive damages inquiry. Instead, a defendant must continue on in litigation, subject to financial worth discovery. Only after a final order is issued in the case can the defendant seek review of the sufficiency of the plaintiff’s proffered punitive damages evidence. Globe Newspaper Co., 658 So. 2d at 519–20.
According to the Florida Supreme Court, the reason behind the bifurcated review discussed above is that defendants have a substantive legal right to be free from a punitive damages claim and ensuing financial worth discovery until the trial court has followed the procedural requirements of section 768.72. Therefore, failing to adhere to the procedural requirements of section 768.72 is a departure from the essential requirements of law. But if the procedural requirements are followed and the trial court erroneously allows for punitive damages, the harm suffered by the defendant in the form of financial worth discovery is not a “material harm” or a “miscarriage of justice” meant to be addressed by certiorari review. The court also noted that allowing certiorari review at this...
