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Fetlar, LLC v. Suarez

Florida Court of Appeals, Third District

September 6, 2017

Fetlar, LLC, et al., Petitioners,
v.
Kerry Suarez, etc., et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

         A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lower Tribunal No. 15-013964 Rodney Smith, Judge.

          Lewis Brisbois Bisgaard & Smith and Todd Ehrenreich, Seth V. Alhadeff and Ravika Rameshwar, for petitioners.

          Loreen I. Kreizinger and Justine S. Anagnos (Fort Lauderdale), for respondents.

          Before SALTER, FERNANDEZ and SCALES, JJ.

          SALTER, J.

         Fetlar, LLC, Sway 204-1 Borrower, LLC, Sway Management, LLC (doing business as "Waypoint Homes"), and SRP Sub, LLC, defendants in the wrongful death lawsuit below, petition for a writ of certiorari quashing a circuit court order granting the plaintiffs' motion to amend to add a claim for punitive damages. The plaintiffs, respondents here, are the co-personal representatives of the estate of their son, Alfredo Suarez. Alfredo, then eight years old, died when a driveway gate gave way and fell on him. The four defendants are companies which owned, managed, or maintained the rented residence where Alfredo and his family lived and where the incident occurred.

         Because the respondents failed to comply with the procedure applicable to motions to amend to add claims for punitive damages, Florida Rule of Civil Procedure 1.190(f), and failed to make the proffer required to assert such claims against corporate defendants under section 768.72(3), Florida Statutes (2016), we grant the petition and quash the order.

         A claimant's failure to comply with the procedural requirements of the punitive damages statute may be redressed via certiorari. Royal Caribbean Cruises, Ltd. v. Doe, 44 So.3d 230 (Fla. 3d DCA 2010).

         Rule 1.190(f)

         The plaintiffs filed a motion to amend to add a claim for punitive damages, but they did not attach to their motion their proposed amended complaint. Instead, they included in the body of their motion the facts asserted to meet the proffer required by section 768.72. The plaintiffs did not file their amended complaint containing the claims for punitive damages until after the trial court granted their motion to amend.

         Florida Rule of Civil Procedure 1.190(a) specifies that a party filing a motion to amend "shall" attach the proposed amended pleading to the motion. The plaintiffs argue that it is permissible to file a motion to amend "separately" when the proposed amendment only adds the punitive damages claims, based on their interpretation of Rule 1.190(f):

(f) Claims for Punitive Damages. A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

         The plain meaning of Rule 1.190(f) does not support the plaintiffs' argument. The Rule allows the motion to amend (attaching, as Rule 1.190(a) requires, the proposed amended pleading) to be filed separately from the evidence or proffer asserted to satisfy the statutory requirements of section 768.72. Rule 1.190(f) does not waive or dispense with the requirement to attach the ...


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