         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-2426
                  _____________________________

TALLAHASSEE MEMORIAL
HEALTHCARE, INC.,

    Petitioner,

    v.

CHERELLE DUKES,

    Respondent.
                  _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                          May 16, 2019

OSTERHAUS, J.

     Tallahassee Memorial Healthcare, Inc. seeks certiorari review
of an order granting Cherelle Dukes’s motion to assert a punitive
damages claim against it in her defamation suit. TMH argues that
the order should be quashed because Ms. Dukes’s claim and the
evidence proffer supporting her motion didn’t comply with the
statutory requirements for alleging punitive damages. We agree
and grant the petition.

                                I.

     Ms. Dukes worked for TMH as a patient care assistant in the
emergency room until she resigned in lieu of formal termination in
September 2015. After resigning, she sued TMH for whistleblower
retaliation and defamation. Ms. Dukes based her defamation claim
on the conduct of an emergency room supervisor. The supervisor
allegedly told co-workers that Ms. Dukes had been terminated for
“stealing,” and not that Ms. Dukes had resigned after being
confronted about making personal long-distance calls using TMH’s
telephone codes.

     In October 2018, Ms. Dukes filed a motion to amend her
defamation count against TMH to assert a punitive damages
claim. She attached an amended complaint alleging that the
emergency room supervisor “as agent to a principal/employer,
published caused to be published or allowed to be published false
statements about Plaintiff to third parties.” At a subsequent
hearing, Ms. Dukes claimed that her motion should be granted
because she had been defamed by the “director” of TMH’s
emergency room. TMH argued that the motion should be denied
because Ms. Dukes didn’t claim or proffer evidence that either
TMH or its corporate management participated or condoned the
alleged defamation. TMH argued that

    you cannot equate the director of the emergency room,
    which is Ms. Dukes’ second-level supervisor, to the board
    of directors or the CEO, which is what the case law holds.
    [To prevail under the statute,] [y]ou have to have the
    employee/alleged bad actor in addition to ratification by
    the corporation.

     The court ultimately granted Ms. Dukes’s motion to amend
the complaint and add a punitive damages claim. TMH then timely
filed a petition for writ of certiorari seeking to quash the trial
court’s order.

                               II.

     Certiorari relief is available where the procedural
requirements of the punitive damages statute aren’t followed.
Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995);
Fetlar, LLC v. Suarez, 230 So. 3d 97, 99 (Fla. 3d DCA 2017). A
defendant has a substantive legal right not to be subject to
punitive damages claims if there is no reasonable basis for
recovery. Globe Newspaper Co., 658 So. 2d at 519. Our standard of
review is de novo. Wayne Frier Home Center of Pensacola, Inc. v.


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Cadlerock Joint Venture, L.P., 16 So. 3d 1006, 1008 (Fla. 1st DCA
2009).

     A plaintiff’s ability to bring a punitive damages claim in a civil
action in Florida is governed by § 768.72, Florida Statutes. A
punitive damages claim can be added only after making a
“reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of
such damages.” § 768.72(1), Fla. Stat.; Fla. R. Civ. P. 1.190(f). If a
plaintiff wants to add a punitive damages claim against a
corporate entity based on an employee’s conduct, a reasonable
showing must be made that:

    (a) The employer, principal, corporation, or other legal
    entity actively and knowingly participated in such
    conduct;

    (b) The officers, directors, or managers of the employer,
    principal, corporation, or other legal entity knowingly
    condoned, ratified, or consented to such conduct; or

    (c) The employer, principal, corporation, or other legal
    entity engaged in conduct that constituted gross
    negligence and that contributed to the loss, damages, or
    injury suffered by the claimant.

§ 768.72(3), Fla. Stat.

     In this case, Ms. Dukes sought to add a punitive damages
claim against TMH based upon the conduct of the “director” of the
emergency room. Ms. Dukes argued that her motion should be
granted because § 768.72(3)(b) specifically includes misconduct
condoned by the “directors” of a corporation.

     What is missing from Ms. Dukes’s motion and proffer,
however, is an allegation or evidence that corporate management
knowingly condoned, ratified or consented to the alleged
misconduct. Ms. Dukes didn’t allege that the emergency room
employee had a role in corporate management. Nor did she allege
or provide evidence that corporate management knew about the
alleged defamatory conduct by its emergency room director. On
this basis, TMH argues that Ms. Dukes’s punitive damages claim

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could not go forward in the absence of claiming or providing
evidence that TMH’s corporate management “knowingly condoned,
ratified, or consented to [the] conduct,” as required by
§ 768.72(3)(b). And we agree. Under these circumstances, Ms.
Dukes’s motion to add the punitive damages claim fails on its face
to comport with the statute’s requirements.

     This case is similar to the Third District’s opinion in Fetlar,
LLC v. Suarez. There, plaintiffs also sought to add punitive
damages claims against corporate defendants based upon
allegations of misconduct by employees—construction managers,
superintendents, and workers—“who were not, on the record
before us, officers or managing members of the . . . companies.”
Fetlar, LLC, 230 So. 3d at 100. The court found these allegations
against non-management personnel to be contrary to the plain
language of § 768.72 and quashed the trial court’s order that had
allowed punitive damages to be pleaded. Id.; see also Coronado
Condo. Ass’n. Inc. v. La Corte, 103 So. 3d 239, 241 (Fla. 3d DCA
2012) (finding misconduct allegations against a property manager,
workers, and a single unnamed board member to be insufficient in
the absence of allegations that corporate management knowingly
participated or consented to the misconduct); cf. Wayne Frier Home
Center of Pensacola, Inc., 16 So. 3d at 1009 (concluding that the
evidence could support a finding that management participated in
or condoned an employee’s misconduct).

     Similarly, here, Ms. Dukes’s motion failed to meet
§ 768.72(3)’s requirements for pleading a punitive damages claim.
Because the motion in this case did not allege or cite evidence that
corporate management knowingly condoned, ratified, or consented
to the alleged defamation, Ms. Dukes’s motion should have been
denied.

                                III.

    Accordingly, we grant the petition and quash the order
granting leave to amend the complaint to include a claim for
punitive damages.

    PETITION GRANTED; ORDER QUASHED.

ROWE and KELSEY, JJ., concur.

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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


S. Austin Cattani and Brandice D. Dickson of Pennington, P.A.,
Tallahassee, for Petitioner.

Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for
Respondent.




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