       Third District Court of Appeal
                                State of Florida

                            Opinion filed June 15, 2016.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D15-424
                           Lower Tribunal No. 09-4953
                              ________________


                      TRG Desert Inn Venture, Ltd.,
                                     Petitioner,

                                         vs.

                             Michael Berezovsky,
                                    Respondent.


     On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Barbara Areces, Judge.

      Greenberg Traurig, P.A., and Elliot H. Scherker, Brigid F. Cech Samole, and
Jay A. Yagoda, for petitioner.

      Bennett Aiello & Cohen, and Michael P. Bennett and Jeremy R. Kreines, for
respondent.

Before SHEPHERD, ROTHENBERG and SCALES, JJ.

      SCALES, J.
      Petitioner TRG Desert Inn Venture, Ltd. (“TRG”) seeks certiorari review of

the trial court’s order granting Respondent Michael Berezovsky’s motion for leave

to add a claim for punitive damages against TRG (the “Motion”).

       Because our standard of review is limited to whether the trial court

conformed to the procedural requirements of section 768.72 of the Florida Statutes,

we are compelled to deny TRG’s petition.

      I. Facts

      In February of 2004, Berezovsky entered into a pre-construction purchase

and sale contract with TRG to purchase a condominium unit in Sunny Isles Beach,

Florida. Pursuant to the contract, Berezovsky made a $141,780 deposit on the unit.

      Almost a year later, in January of 2005, Berezovsky assigned his interest in

the contract to Boris Tarlo and Margarita Golkova, a married couple (collectively,

“Tarlo”), in exchange for $247,880 (an amount that includes the amount of

Berezovsky’s deposit).

      Berezovsky then requested of TRG a written Assignment and Assumption

Agreement to memorialize Berezovsky’s assignment to Tarlo. Via overnight

courier, a TRG employee, Karen Serzen,           sent TRG’s Assignment         and

Assumption Agreement form to Berezovsky for his signature. This form, which

did not memorialize the terms of the alleged agreement between Berezovsky and

Tarlo, was signed and returned to TRG that same day, January 26, 2005.



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      Five days later, however, Berezovsky faxed TRG a document captioned,

“Disclaimed Notice of Assignment and Assumption Agreement,” purporting to

repudiate and disclaim Berezovsky’s prior signed assignment. In this disclaimer

notice, Berezovsky stated that his mother mistakenly signed the Assignment and

Assumption Agreement on his behalf.

      The next day, February 1, 2005, TRG sent Berezovsky a standard letter

informing Berezovsky that the time had arrived for Berezovsky to select kitchen

cabinets and countertops, as well as countertops for the master bathroom.

Berezovsky signed off on his selections on February 9, 2005.

      On February 15, 2005, TRG sent both Berezovsky and Tarlo a fully

executed copy of the Assignment and Assumption Agreement, bearing the

signatures of a TRG representative, Tarlo, and, apparently, Berezovsky.1

Berezovsky responded by re-sending the “Disclaimed Notice of Assignment and

Assumption Agreement” document to TRG.

      In the ensuing months, Berezovsky and Tarlo (through their respective

attorneys) argued over several issues related to the assignment of the condominium

unit. In the meantime, TRG completed construction of the unit.




1 As indicated, supra, Berezovsky claimed that his mother inadvertently signed and
returned the form.

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       In February of 2007, TRG closed on the condominium unit by selling the

unit to Tarlo. TRG credited Berezovsky’s $141,780 deposit to Tarlo in the

transaction. Berezovsky claims that this transaction occurred surreptitiously and

without Berezovsky’s knowledge or consent.

       Berezovsky sued both TRG and Tarlo. In Berezovsky’s fifth amended

complaint, Berezovsky alleges that: (i) Tarlo is liable for breach of contract, unjust

enrichment, tortious interference, negligent misrepresentation, conversion and

fraud; and (ii) TRG is liable for breach of contract, negligence, conversion and

fraud. Essentially, Berezovsky alleges that TRG acted either in an intentional or

grossly negligent manner when, knowing that Berezovsky had disclaimed the

Assignment and Assumption Agreement, TRG sold the unit to Tarlo.

       The damages sought by Berezovsky in each count against TRG are virtually

identical.2

       On October 23, 2014, Berezovsky filed the Motion with the trial court

seeking leave to add a claim for punitive damages against both Tarlo and TRG.

An affidavit from TRG’s prior contract administrator, Karen Serzen, accompanied

the Motion. In that affidavit, Ms. Serzen recalls “an issue” regarding the


2 In Berezovsky’s Fifth Amended Complaint, his demand for damages as to TRG
in his tort counts – Counts V, VII and IX – is essentially the same as those sought
in his breach of contract claim against TRG (Count III). Specifically, Berezovsky
seeks recovery of his $141,780 deposit, plus benefit-of-the-bargain damages (i.e.,
the difference between the fair market value of the unit and the contract price).

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assignment of the unit from Berezovsky to Tarlo. Berezovsky’s own affidavit

accompanying the Motion asserts that, after TRG received Berezovsky’s purported

disclaimer of assignment, TRG assured Berezovsky that TRG would sell the

property to Berezovsky and not to Tarlo.

       TRG opposed the Motion on several grounds, including its assertion that

Florida’s independent tort rule precluded Berezovsky’s punitive damages claim.3

On February 12, 2015, the trial court entered an order granting the Motion. The

trial court’s order merely states the conclusion that: “Plaintiff has provided a

reasonable showing by proffer and/or by evidence in the record which provides a

reasonable basis for recovery of such damages, in accordance with Section

768.72(1), Florida Statutes.”

      TRG timely filed the instant petition seeking certiorari review of the trial

court’s order. The parties’ briefs and oral argument focused on whether the trial

court departed from the essential requirements of law by allowing Berezovsky’s

punitive damages claim to proceed against TRG, which is a legal entity (that is,

whether Berezovsky had made the requisite evidentiary showing required by

3 Florida’s independent tort rule precludes the recovery of punitive damages for a
breach of contract claim unless the claimant has asserted a tort independent of the
alleged breach of contract. Ferguson Transp., Inc. v. N. Am. Van Lines, Inc., 687
So. 2d 821, 822-23 (Fla. 1996). TRG argues that Berezovsky’s breach of contract
claim and tort claims arise from the same conduct; thus, Berezovsky may not
recover identical damages in both tort and contract. Ghodrati v. Miami Paneling
Corp., 770 So. 2d 181 (Fla. 3d DCA 2000).


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section 768.72(3) of the Florida Statutes to assert a punitive damages claim against

a legal entity).

       After oral argument, we ordered the parties to provide supplemental briefing

on a different issue: whether the torts alleged in Berezovsky’s complaint

constituted “independent torts” that are distinct from TRG’s alleged breach of its

contract with Berezovsky.

       II. Standard of Review

       Certiorari is the appropriate remedy to challenge a trial court’s order

allowing a punitive damages claim to proceed when the essential requirements of

law, as embodied in section 768.72, have not been followed. Globe Newspaper Co.

v. King, 658 So. 2d 518 (Fla. 1995); Coronado Condo. Ass’n v. La Corte, 103 So.

3d 239 (Fla. 3d DCA 2012).

       Certiorari relief is appropriate, however, only when the record establishes

that a trial court applied the incorrect law; certiorari relief is not available to

remedy an incorrect application of the correct law. See Haines City Cmty. Dev. v.

Heggs, 658 So. 2d 523 (Fla. 1995).

       III. Analysis

       In their supplemental briefs to this Court, both TRG and Berezovsky

commendably recognize that the issue identified by this Court in its supplemental

briefing order is simply not subject to certiorari review. As stated previously, on



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certiorari review our inquiry is limited to whether the trial court conformed with

the procedural requirements of section 768.72. Globe Newspaper Co., 658 So. 2d

at 519-20.

      Although in Club Eden Roc, Inc. v. Fortune Cookie Restaurant, Inc., 490 So.

2d 210 (Fla. 3d DCA 1986), this Court entertained a petition for certiorari to

review an order denying a motion to dismiss a claim for punitive damages based

on Florida’s independent tort rule, this decision predates both section 768.72 and

the Florida Supreme Court’s determination that certiorari jurisdiction is reserved

for orders granting leave to plead punitive damages claims when the trial court has

failed to comply with the statute’s procedural requirements. Martin-Johnson, Inc.

v. Savage, 509 So. 2d 1097, 1098-99, 1098 n.1 (Fla. 1987) (holding that certiorari

is not a proper vehicle for reviewing a denial of a motion to strike a claim for

punitive damages, notwithstanding that such a claim can serve as a basis for an

inquiry into protected matters).

      Consequently, although we might quarrel with the trial court’s determination

that Florida’s independent tort rule is not a bar to Berezovsky’s punitive damage

claim, our limited certiorari jurisdiction prevents us from quashing the trial court’s

order on this basis.

      These same restraints on our certiorari jurisdiction prevent us from quashing

the trial court’s order on the basis initially argued by TRG: that Berezovsky had



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failed to make the required, reasonable showing that would subject TRG, a legal

entity, to a punitive damages claim. While section 768.72(3) requires a specific

evidentiary showing that TRG, a legal entity, either (i) actively or knowingly

participated in intentional misconduct, (ii) ratified such misconduct, or, (iii) itself

engaged in conduct that constituted gross negligence and that contributed to

Berezovsky’s loss4 (for which the record contains scant evidence), we are unable

to conclude on this record that the trial court failed to apply the correct law.

        Simply put, a trial court’s application of the correct law is not reviewable by

certiorari, even if the appellate court were to disagree with the conclusion reached

by the trial court. Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000). Therefore,

we deny TRG’s petition.5

        So ordered.

4   Coronado Condo Ass’n, 103 So. 3d at 240-41.
5 From a practical perspective, the granting of a motion for leave to amend a
complaint to add a punitive damages claim can be a “game changer” in litigation.
Allowing a plaintiff to proceed with a punitive damages claim subjects the
defendant to financial discovery that would otherwise be off limits, Walt Disney
World Co. v. Noordhoek, 672 So. 2d 98, 99 (Fla. 3d DCA 1996), and potentially
subjects the defendant to uninsured losses. Morgan Int’l Realty, Inc. v. Dade
Underwriters Ins. Agency, Inc., 617 So. 2d 455, 459 (Fla. 3d DCA 1993)
(“[P]ublic policy in Florida prohibits liability insurance coverage for punitive
damages assessed against a person because of his own wrongful conduct.”). We
urge the Florida Bar’s Appellate Court Rules Committee to review rule 9.130(a)(3)
of the Florida Rules of Appellate Procedure to consider whether to include in the
rule’s catalogue of appealable, non-final orders a trial court’s order granting a
motion for leave to add a punitive damages claim.


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