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
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.”
Leinberger, the Fourth DCA adopted the
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
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