       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 31, 2018.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D17-2711
                         Lower Tribunal No. 15-20187
                             ________________


    Stephen A. Levin, Alfonso Fernandez, Gold Coast Beverage
Distributors, Inc., n/k/a RMET Holdings, Inc., Eran Holdings, Inc.,
                    and Gold Coast Holdings, Inc.,
                                   Petitioners,

                                        vs.

                         Wilbur B. Pritchard, III,
                                   Respondent.


     On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Samantha Ruiz-Cohen, Judge.

     Greenberg Traurig, P.A., and Hilarie Bass, Elliot H. Scherker, Brigid F.
Cech Samole, and Ian M. Ross, for petitioners.

      Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward, for
respondent.


Before SUAREZ, LAGOA, and SALTER, JJ.

     SUAREZ, J.
       Petitioners1 seek certiorari relief from the trial court’s order granting

Respondent Wilbur Pritchard’s (“Pritchard”) motion to amend his complaint to

assert a claim for punitive damages pursuant to section 768.72, Florida Statutes

(2018). Because we find that the trial court applied the correct law and complied

with the procedural requirements of section 768.72, we are compelled to deny the

petition.

       This case stems from Pritchard’s retirement from Gold Coast, a Florida beer

distributor. In May 2012, Pritchard, who was Gold Coast’s Vice President of

Facilities, notified Gold Coast of his intention to retire. Pritchard and Gold Coast

executed a separation agreement in June 2012. While Pritchard worked for Gold

Coast, he was granted units in an equity plan. Upon retirement, Pritchard was

awarded over one million dollars for those units.

       In 2014, Reyes Group, a national beer distributor, approached Gold Coast

about an acquisition. Gold Coast had rejected earlier acquisition attempts in 2010

and 2012, but this time, the parties entered into an asset purchase agreement

whereby a wholly owned subsidiary of Reyes would acquire Gold Coast. When

Pritchard learned of the acquisition, he sued Gold Coast, other corporate

defendants (Eran and GC Holdings), and individuals Stephen Levin and Alfonso
1 Stephen A. Levin; Alfonso Fernandez; Gold Coast Beverage Distributors, Inc.

(“Gold Coast”); n/k/a RMET Holdings, Inc.; Eran Holdings, Inc. (“Eran”); Gold
Coast Holdings, Inc. (“GC Holdings”).


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Fernandez2 because they did not notify him of Reyes Group’s acquisition attempts

before he retired. He claims that he would not have retired had he known about the

prior negotiations since his equity plan units would have been worth much more if

he had remained.

      In July 2017, Pritchard filed a motion to amend his complaint with a claim

for punitive damages pursuant to section 768.72.3 The trial court held two hearings

and ultimately granted Pritchard’s motion to amend. Petitioners now seek to quash

the trial court’s order, alleging that the court failed to comply with the

requirements of section 768.72.

      Generally, certiorari relief is appropriate only if a petitioner establishes a

departure from the essential requirements of the law resulting in material injury

that cannot be remedied on appeal. See Robins v. Colombo, 43 Fla. L. Weekly

D1821, at *1 (Fla. 3d DCA Aug. 8, 2018); Nieves v. Viera, 150 So. 3d 1236, 1238

(Fla. 3d DCA 2014). Because section 768.72 creates “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

2Levin was Gold Coast’s majority owner and Chairman; Fernandez was its Chief
Operating Officer.
3 Section 768.72(1) “requires a plaintiff to provide the court with a reasonable
evidentiary basis for punitive damages before the court may allow a claim for
punitive damages to be included in plaintiff’s complaint.” Globe Newspaper Co.
v. King, 658 So. 2d 518, 520 (Fla. 1995).


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basis for recovery of punitive damages . . . a plenary appeal cannot restore a

defendant’s statutory right under section 768.72 . . . .” Globe Newspaper Co. v.

King, 658 So. 2d 518, 520 (Fla. 1995). We therefore have certiorari jurisdiction to

review an order granting leave to amend a complaint to include punitive damages.

Id. at 519; TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So. 3d 516, 519 (Fla.

3d DCA 2016); see also Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)

(holding that material injury that cannot be remedied on appeal is a jurisdictional

requirement that must be analyzed before considering whether the trial court

departed from the essential requirements of the law”).

      In determining whether the trial court departed from the essential

requirements of the law when it granted Pritchard’s motion to amend, we must

limit our review to whether the court complied with the procedural requirements of

section 768.72. Globe, 658 So. 2d at 520; Robins, 43 Fla. L. Weekly D1821, at *1;

TRG Desert Inn Venture, 194 So. 3d at 519; Royal Caribbean Cruises, Ltd. v. Doe,

44 So. 3d 230, 233 (Fla. 3d DCA 2010). Moreover, we are not permitted “to

review the sufficiency of the evidence considered by the trial court in granting

leave to amend the complaint to add a claim for punitive damages.” Robins, 43

Fla. L. Weekly D1821, at *1 (quoting SAP Am., Inc. v. Royal Flowers, Inc., 187

So. 3d 946 (Fla. 3d DCA 2016)); see also Globe, 658 So. 2d at 520. Finally,

certiorari relief is only appropriate “when the record establishes that a trial court



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applied the incorrect law; certiorari relief is not available to remedy an incorrect

application of the correct law.” TRG Desert Inn Venture, 194 So. 3d at 519.

           Based on our review of the record below, we are unable to find that the trial

court failed to comply with the procedural requirements of section 768.72.

Pritchard’s motion to amend contained a detailed table outlining the record

evidence and sworn declarations that provided the basis for his punitive damages

claim.       Moreover, the trial court conducted two hearings on the motion and

requested supplemental memoranda as to the evidentiary basis for punitive

damages against the corporate defendants. Further, Petitioners presented their

arguments against Pritchard’s motion to amend in their written opposition, during

both hearings, and in their response to Pritchard’s court-ordered supplemental

memorandum. It is also clear from the record that the trial court applied the

correct law. The court, in its order granting the motion to amend, found—based on

Pritchard’s motion, the supplemental memoranda, and the arguments presented

during the two hearings—that Pritchard “made the requisite showing by evidence

in the record or proffered by plaintiff that would support a reasonable basis for

recovery of punitive damages as required by Fla. Stat. § 768.72 against defendants

. . . .”

           Although we may disagree that there was sufficient evidence to provide a

reasonable basis for Pritchard’s punitive damages claim, our narrow standard and



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scope of review prevent us from quashing the trial court’s order on that basis.4 We

therefore deny the petition for writ of certiorari.

      Petition denied.




4 As this Court observed in TRG Desert Inn Venture, “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 . . . and potentially subjects the defendant to uninsured losses.” 194 So. 3d
at 520 n.5 (citations omitted). Consequently, review by interlocutory appeal rather
than by way of a petition for writ of certiorari would perhaps be more appropriate.
See id. (“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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