Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT NATHAN WHITE and SERENA ) WHITE, ) ) Petitioners, ) ) v. ) Case No. 2D20-2021 ) MARTIN C. BOIRE and JANET ) L. BOIRE, ) ) Respondents. ) ) Opinion filed April 7, 2021. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Richard A. Nielsen, Judge. Thamir A.R. Kaddouri, Jr., and Penelope Rowlett, of Law Office of Thamir A. R. Kaddouri, Jr., P.A., Tampa, for Petitioners. G. Donovan Conwell, Jr., of Conwell Business Law, LLLP, Tampa, for Respondents. ROTHSTEIN-YOUAKIM, Judge. Nathan and Serena White timely seek certiorari review of the trial court's order granting Martin and Janet Boire's motion for leave to amend their complaint to seek punitive damages pursuant to section 768.72, Florida Statutes (2019). Because the court appears to have relied on an incorrect legal standard in granting the motion, we grant the Whites' petition for a writ of certiorari and quash the order. The Boires filed a complaint against their neighbors, the Whites, seeking equitable relief and compensatory damages based on allegations that the Whites had engaged in intentional misconduct in connection with an agreement between them and the Boires to jointly purchase land adjacent to the couples' properties. During the litigation, the Boires moved for leave to amend their complaint to seek punitive damages in connection with their claims for fraud, breach of fiduciary duty, and constructive fraud. The motion proffered facts that the Boires argued constituted circumstantial evidence that the Whites had never intended to purchase the property jointly; rather, their intent all along had been to mislead the Boires into inaction so that they could negotiate for and purchase the property themselves. The proffer was presented in a narrative form and consisted entirely of the representations of counsel. Although it attributed some facts to the prior testimony of particular people and referred to numerous documents, counsel did not submit any depositions or documentary evidence with the motion, and apart from one document that was an exhibit to the complaint, none appear to have been previously filed in the court record. At the hearing on the motion, the Whites objected to the Boires' reliance on the proffer, arguing that many of the representations were not supported by the evidence or, particularly with respect to damages, were actually contradicted by the evidence. The Boires responded that the Whites were improperly "arguing the counter- evidence and asking the court to weigh the evidence." -2- The trial court did not address the Whites' objection. At the conclusion of the parties' arguments, the court stated, "The court is aware that the standard here is that there has to be a reasonable showing either—it's an either/or here, evidence in the record or by proffer, a reasonable showing to provide a reasonable basis for recovery of the punitive damages." The court then concluded "that there has been [a] sufficient proffer of at least the Plaintiffs' view," and it stated further: I think the case law is clear as well that on a motion to amend, there is not to be the counter evidence presented. And on this record, of course it wasn't presented on pleadings or notices of filing, but, rather, by argument at the hearing. But whether in one form or another, the court doesn't make some evidentiary findings on a motion to amend, the court simply accepts the allegations as it would in a motion to dismiss. And on that basis is there sufficient allegations appropriate for the relief being sought to support a claim for punitive damages. The court notes that there are a number of cases cited in the moving papers establishing that a claim for fraud is—fraud in the inducement is sufficient with enough allegations of the motive, if you will, again alleged. Whether, in fact, the proof is there is a matter for trial. Thereafter, the trial court rendered a written order granting the Boires' motion for leave to amend their complaint and stating, "Plaintiffs' proffer of evidence [is] sufficient to establish a reasonable evidentiary basis for recovery of punitive damages." The Whites' timely petition followed. Section 768.72(1) provides that a claim for punitive damages will not 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." Subsection (2), which sets forth the plaintiff's burden at trial, establishes that the -3- "reasonable basis for recovery" is a showing that the defendant "was personally guilty of intentional misconduct or gross negligence." § 768.72(2) ("A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence."). Section 768.72 "create[s] a substantive legal right not to be subject to a punitive damages claim and ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages." Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995). Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72. Id. at 519–20. "The prospect of intrusive financial discovery following a trial court's authorization for an amendment to add a claim for punitive damages is the irremediable injury . . . required for . . . [the] exercise of . . . certiorari jurisdiction." Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071, 1076 (Fla. 3d DCA 2019) (citing TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516, 520 n.5 (Fla. 3d DCA 2016)). Although the trial court's written order suggests that the court applied the correct, evidentiary standard in granting the motion to amend, its statements at the hearing concerning the sufficiency of the "allegations" persuade us otherwise, particularly given that the Boires' proffer consisted solely of their counsel's representations notwithstanding the Whites' repeated (and unaddressed) objection. Accordingly, the order granting the Whites' motion for leave to amend their complaint to seek punitive damages must be quashed. See Bistline v. Rogers, 215 So. 3d 607, 609– -4- 10 (Fla. 4th DCA 2017) (quashing an order granting the plaintiff's motion to amend because although the order stated that the trial court had "reviewed and considered the evidentiary proffer," it was clear from the order as a whole that the court had improperly accepted the plaintiff's allegations as true and granted the motion on that basis); cf. Tilton v. Wrobel, 198 So. 3d 909, 910–11 (Fla. 4th DCA 2016) (quashing an order granting the plaintiff's motion to amend because the trial court's statements at the hearing indicated that rather than making a decision concerning the sufficiency of the evidentiary proffer, the court appeared to have concluded that the complaint's allegations of defamation entitled the plaintiff to seek punitive damages as a matter of law). Petition granted; order quashed. VILLANTI and STARGEL, JJ., Concur. -5-