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Leinberger and Foreman v. Magee, 42 Fla. L. Weekly D1852c (4th DCA, Aug. 23, 2017)

In Leinberger, petitioner sought review of a trial court order granting respondent’s motion for leave to claim punitive damages. In quashing the trial court’s order, the Fourth DCA concluded that the trial court failed to comport with the procedural requirements for entertaining and ruling on a motion to amend under Fla. Stat. §768.72(1) and Fla. R. Civ. P. 1.190(a) and related case law.

The trial court held a hearing on respondent’s motion for leave to amend, but no court reporter was present and therefore no transcript was ever available. The trial court’s order granting the motion did not explain its rationale or which counts it intended to allow a punitive damages claim.

Pursuant to Fla. Stat. §768.72(1), a punitive damages claim is only permitted on a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.”

In Leinberger, the Fourth DCA adopted the Varnedore v. Copeland 2017 decision by the Fifth DCA framing of procedural requirements for a motion for leave to amend to seek punitive damages as follows:

First, the movant must attach the proposed amended pleading to the motion seeking leave to amend. Since no proposed was amended by the respondent, the failure warranted certiorari relief.

Second, the “proffer” or other evidence of record to support the punitive damages claim must be served at least 20 days prior to the hearing on the motion for leave to amend. There was no evidence of this on the record.

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. Here, no such finding was contained or referenced in the subject order.

Therefore, the Fourth DCA granted the petition based solely on procedural matters and without reweighing or considering the sufficiency of the evidence presented.

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