          Third District Court of Appeal
                               State of Florida

                         Opinion filed September 6, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-1315
                         Lower Tribunal No. 15-013964

                             Fetlar, LLC, et al.,
                                   Petitioners,

                                        vs.

                         Kerry Suarez, etc., et al.,
                                  Respondents.


      A Writ of Certiorari to the Circuit Court for Miami-Dade County, 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



                                          2
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 proposed

amended pleading to the motion to amend. Varnedore v. Copeland, 210 So. 3d

741, 745 (Fla. 5th DCA 2017).

      In responding to a motion to amend to add punitive damages, this procedure

allows the non-moving party to address the amended complaint in the specific



                                         3
form the movant actually intends to file if leave to amend is granted. In the present

case, a proposed amended complaint drawn with greater specificity might have

avoided the shortcomings described below regarding (1) the lack of differentiation

among the four corporate petitioner/defendants, and (2) the lack of allegations and

evidence or proffers directed to section 768.72(3) and the attribution of intentional

misconduct or gross negligence of individual employees to the corporate

employer/defendants.

      The plaintiffs also failed to file and serve one of the deposition transcripts

comprising part of their proffer at least twenty days before the hearing on the

motion to amend, an additional requirement of Rule 1.190(f).

      Section 768.72(3)

      The plaintiffs sued the four limited liability companies that are the

petitioners in this case, but not the individual employees who are alleged by name

to have engaged in “intentional misconduct” or “gross negligence” as defined in

section 768.72(2)(a) and (b), respectively.       Three subparagraphs of section

768.72(3) state the factual prerequisites for establishing punitive damages claims

against an employer or corporate entity:

      (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

                                           4
       (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.

      The plaintiffs assume that the alleged misconduct of the individual

construction managers, superintendents, construction workers—who were not, on

the record before us, officers or managing members of the limited liability

companies—is,      without       more,   misconduct   of    the   four    corporate

petitioner/defendants for purposes of section 768.72. But that is contrary to the

plain language of the statute.

      A second shortcoming is that the plaintiffs’ allegations, including the

information proffered to show intentional misconduct or gross negligence, lump

together the three primary individual employee actors and the five limited liability

company defendants.1 According to the plaintiffs’ proffer, Franz Randall was a

construction superintendent for defendant Sway Management, LLC, doing

business as Waypoint Homes, but there is no indication that he played any role in

corporate management. Alex Pierce was a construction manager for defendant

Stellar Homes, but there is no indication that his acts or omissions should be

imputed to the other limited liability company defendants. Angel Ramirez was a

project manager for Stellar Homes, but there is no indication that his conduct


1 The fifth limited liability company defendant, Stellar Homes Group, LLC, is not
a petitioner in this case.

                                          5
should be imputed to Stellar Homes, much less the other corporate defendants.

      Based on such shortcomings in the record before us, the claim for punitive

damages should not have been allowed. Coronado Condo. Ass’n. Inc. v. La Corte,

103 So. 3d 239 (Fla. 3d DCA 2012). For these reasons, and in accordance with

Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995), we grant the four

corporate defendants’ petition and quash the order granting the plaintiffs leave to

amend to plead punitive damages.

      Petition granted; order quashed.




                                         6
