         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                      NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED

BIRDIE M. VARNEDORE, M.D.,

              Petitioner,

 v.                                         Case No. 5D16-1831

TODD E. COPELAND, ESQUIRE,
O/B/O AND AS TRUSTEE FOR
KYONDA HACKSHAW AND
GUARDIAN AD LITEM
FOR K.C.F. AND J.L.S., MINORS,

              Respondents.

________________________________/

EDGARDO M. RODRIGUEZ, M.D.,

              Petitioner,

 v.                                         Case No. 5D16-1879

TODD E. COPELAND, ESQUIRE,
O/B/O AND AS TRUSTEE FOR
KYONDA HACKSHAW AND
GUARDIAN AD LITEM
FOR K.C.F. AND J.L.S., MINORS,

              Respondents.

________________________________/

Opinion filed February 10, 2017

Petition for Certiorari Review
of Order from the Circuit Court
for Orange County,
Keith F. White, Judge.
Christian P. Trowbridge, Craig S. Foels,
and Eric P. Gibbs, of Estes, Ingram, Foels
& Gibbs, P.A., Orlando, for Birdie M.
Varnedore, M.D., Petitioner.

T’anjuiming A. Marz, and Patrick H. Telan,
of Grower, Ketcham, Eide, Telan, & Meltz,
P.A., Orlando, for Edgardo M. Rodriguez,
M.D., Petitioner.

Carlos R. Diez-Arguelles, of Diez-
Arguelles, & Tejedor, P.A., Orlando, and
Susan W. Fox, and Heather M. Kolinsky, of
Fox & Loquasto, P.A., Orlando, for
Respondents.


EDWARDS, J.

       Claims for punitive damages can have significant, multi-faceted impacts on

litigation and litigants. The Florida Legislature enacted statutory thresholds and Florida’s

Supreme Court adopted complementary procedures that govern the proof and pleadings

required to pursue punitive damages. The statute and rule cast the trial court in the role

of gatekeeper. Here, the Petitioners and the defendants below, Dr. Rodriguez and Dr.

Varnedore, petition this court for a writ of certiorari to quash the trial court’s order

permitting Respondent, Todd Copeland on behalf of and as trustee for Kyonda Hackshaw

and her children, to amend the medical malpractice complaint by adding claims for

punitive damages against the Petitioners.1




       1 Although the underlying claims of medical negligence are different as to each
Petitioner, they arise out of related diagnosis and treatment, and the principles governing
the process of amending pleadings to assert punitive damage apply uniformly. We have
thus, sua sponte, consolidated the two cases for the purpose of discussing and resolving
them in a single opinion.


                                             2
       Respondent moved to amend his complaint to assert claims for punitive damages,

but did not attach a copy of the proposed amended complaint to his motion. Petitioners

objected to the lack of the proposed complaint. Respondent served an evidentiary proffer

in advance of the hearing, but also made additional, oral evidentiary proffers during the

hearing over Petitioners’ objections. At the conclusion of the five and a half hour hearing,

the trial court announced that it was granting Respondent’s motion to amend as to certain

defendants and denying it as to others. The trial court, however, did not provide a basis

for its rulings in its oral pronouncement or in its later written order. For the reasons

discussed below, we find that the trial court departed from the essential requirements of

law. The writ of certiorari is granted and the case is remanded for further proceedings.

                                     Certiorari review

       A writ of certiorari will issue if the trial court departed from the essential

requirements of the law, the departure resulted in material injury to the petitioner, and the

injury cannot be remedied in a postjudgment plenary appeal. Williams v. Oken, 62 So.

3d 1129, 1132 (Fla. 2011). The essential requirements of the law for seeking leave to file

a pleading asserting a claim for punitive damages in a civil action are enumerated in

section 768.72, Florida Statutes (2015), and Florida Rule of Civil Procedure 1.190.

       Section 768.72(1) provides that defendants in civil actions shall be free from claims

of punitive damages and related financial discovery unless the claimant makes “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. (2015).

The subsection further provides that a “claimant may move to amend her or his complaint

to assert a claim for punitive damages as allowed by the rules of civil procedure.” Id.




                                             3
Rule 1.190(a) and (f) describe the procedural requirements for amending a complaint to

seek a claim for punitive damages. Parties have a substantive right “not to be subjected

to a punitive damage claim and attendant discovery of financial worth until the requisite

showing under the statute has been made to the trial court.” Estate of Despain v. Avante

Grp., Inc., 900 So. 2d 637, 641 (Fla. 5th DCA 2005) (citing Simeon, Inc. v. Cox, 671 So.

2d 158, 160 (Fla. 1996); Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995)).

       Accordingly, certiorari review is available to determine whether the trial court

complied with all applicable requirements and analysis before granting a motion to amend

pleadings to assert claims for punitive damages. See Globe Newspaper, 658 So. 2d at

520; Tilton v. Wrobel, 198 So. 3d 909, 910 (Fla. 4th DCA 2016); Munroe Reg’l Health

Sys., Inc. v. Estate of Gonzalez, 795 So. 2d 1133, 1134 (Fla. 5th DCA 2001). Given the

nature of the applicable statute and rule, the court must consider both the pleading

component and the evidentiary component of each motion to amend to assert punitive

damage claims. Henn v. Sandler, 589 So. 2d 1334, 1335-36 (Fla. 4th DCA 1991).

              Pleading component of motion to add punitive damages

       The only basis for awarding punitive damages against individual defendants, such

as Petitioners, is “if the trier of fact, based on clear and convincing evidence, finds that

the defendant was personally guilty of intentional misconduct or gross negligence.”

§ 768.72(2), Fla. Stat. (2015).     In this case, Respondent relies on claims of gross

negligence to justify recovery of punitive damages. “Gross negligence means that the

defendant’s conduct was so reckless or wanting in care that it constituted a conscious

disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”

Id. at § 768.72(2)(b) (internal quotation marks omitted).




                                             4
       As previously stated, a party wishing to pursue punitive damages must first file a

motion seeking leave of court to file an amended complaint and then make “a reasonable

showing by evidence in the record or proffered by the claimant which would provide a

reasonable basis for recovery of such damages.” Id. at § 768.72(1); see also Fla. R. Civ.

P. 1.190(f).

       In this case, Respondent filed a motion to amend his pleadings to seek punitive

damages; however, he did not attach a proposed amended complaint to his motion, nor

did he file the proposed amended complaint prior to the hearing on his motion to amend.

Pursuant to rule 1.190(a), “[i]f a party files a motion to amend a pleading, the party shall

attach the proposed amended pleading to the motion.” Fla. R. Civ. P. 1.190(a). Moving

to amend without attaching a copy of the proposed amended pleading is insufficient. See

Taylor v. City of Lake Worth, 964 So. 2d 243, 244 (Fla. 4th DCA 2007) (holding that the

rule 1.190(a) requirement of attaching a proposed amended pleading to the motion to

amend is mandatory).

       Respondent argues that rule 1.190(f) does not require a plaintiff to attach a

proposed amended complaint to its motion. The requirement of rule 1.190(a), however,

was adopted by the Florida Supreme Court in the same opinion in which it created rule

1.190(f). Amends. to the Fla. R. of Civ. P. (Two-year cycle), 858 So. 2d 1013, 1013-14

(Fla. 2003) (“Therefore, to make [Florida Rules of Civil Procedure] 1.070(j) and 1.190(a)

consistent and avoid confusion, we adopt the proposed corresponding amendment to rule

1.190(a), which requires a party that files a motion to amend a pleading to attach the

proposed amended pleading.”).        In the same opinion, the Florida Supreme Court

amended rule 1.190 to add subdivision (f), in order to ensure that the parties opposing




                                             5
       Respondent’s unexplained failure to file the proposed complaint resulted in

confusion, made it unreasonably difficult for Petitioners to prepare and argue their

position, and hampered the trial court in its effort to fulfill its role as gatekeeper. We find

that the trial court departed from the essential requirements of the law when it heard and

ruled on Respondent’s motion to amend when Respondent did not attach a proposed

amended complaint to its motion as required by rule 1.190(a). We grant the writ, quash

the order, and remand for further proceedings.

             Evidentiary component of motion to add punitive damages

       Because Respondent, on remand, may choose to file another motion to amend,

we believe it would be helpful to the parties and to the trial court to complete our analysis

of the additional requirements of section 768.72 and rule 1.190(f).

       If the proposed amended complaint contains sufficient allegations of gross

negligence, the trial court must next consider whether plaintiff has established a

reasonable factual basis for its punitive damage claims. The factual basis relied on by

the moving party may consist of evidence of record, proffered evidence, or both. Fla. R.

Civ. P. 1.190(f). During the hearing in this case, Respondent sometimes relied on record

evidence, such as deposition testimony and, at other times, Respondent relied on witness

testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers,

arguing that the proffers did not comply with the requirements of section 768.72 or rule

1.190(f). Petitioners also asserted that some of the proffers put forward new liability

theories, which were not alleged in the operative, second amended complaint, and not

discussed in any expert witnesses’ depositions.




                                              7
       Respondent’s unexplained failure to file the proposed complaint resulted in

confusion, made it unreasonably difficult for Petitioners to prepare and argue their

position, and hampered the trial court in its effort to fulfill its role as gatekeeper. We find

that the trial court departed from the essential requirements of the law when it heard and

ruled on Respondent’s motion to amend when Respondent did not attach a proposed

amended complaint to its motion as required by rule 1.190(a). We grant the writ, quash

the order, and remand for further proceedings.

             Evidentiary component of motion to add punitive damages

       Because Respondent, on remand, may choose to file another motion to amend,

we believe it would be helpful to the parties and to the trial court to complete our analysis

of the additional requirements of section 768.72 and rule 1.190(f).

       If the proposed amended complaint contains sufficient allegations of gross

negligence, the trial court must next consider whether plaintiff has established a

reasonable factual basis for its punitive damage claims. The factual basis relied on by

the moving party may consist of evidence of record, proffered evidence, or both. Fla. R.

Civ. P. 1.190(f). During the hearing in this case, Respondent sometimes relied on record

evidence, such as deposition testimony and, at other times, Respondent relied on witness

testimony anticipated at the upcoming trial. Petitioners objected to the oral proffers,

arguing that the proffers did not comply with the requirements of section 768.72 or rule

1.190(f). Petitioners also asserted that some of the proffers put forward new liability

theories, which were not alleged in the operative, second amended complaint, and not

discussed in any expert witnesses’ depositions.




                                              7
       When the Florida Supreme Court adopted rule 1.190(f), it referred to Beverly

Health and Rehabilitation Services, Inc. v. Meeks, 778 So. 2d 322 (Fla. 2d DCA 2000).

Amendments, 858 So. 2d at 1014. The plaintiff in Meeks filed a bare bones motion,

completely lacking any factual bases, to amend its pleading to add punitive damage

claims against the defendant nursing home. 778 So. 2d at 323. On the day of the hearing,

the plaintiff filed 200 pages of exhibits supporting its motion to amend. Id. at 324. The

trial court went forward with the hearing, but advised defense counsel that it could have

additional time to respond if needed; however, no such request was made. Id. at 324.

The Second District Court of Appeal suggested that “to require written proffers to be filed

a reasonable time prior to future hearings would appear to be a reasonable method to

assure that such hearings do satisfy the spirit of the statute [section 768.72] and the

requirements of due process.” Id. at 325. By adopting rule 1.190(f), the Florida Supreme

Court reinforced “the committee’s intent of requiring the motion and the supporting

evidence or proffer to be served on all parties at least twenty days before the hearing.”

Amendments, 858 So. 2d at 1014.

       A similar requirement to file documents in advance of a hearing is found in Florida

Rule of Civil Procedure 1.510(c). Rule 1.510(c) requires the party moving for summary

judgment to serve its notice identifying and/or attaching record evidence at least twenty

days prior to the hearing. Fla. R. Civ. P. 1510(c). The opposing party must serve its

disclosure of opposing record evidence at least five days prior to the hearing. Fla. R. Civ.

P. 1.510(c). Neither the movant nor the opponent may rely upon any evidence, even if

already on file, unless it was identified in its timely filed notice. State Farm Mut. Auto. Ins.

Co. v. Figler Family Chiropractic, P.A., 189 So. 3d 970, 974 (Fla. 4th DCA 2016).




                                               8
“Determination of the appropriateness of the motion is better facilitated when issues and

evidence are clearly identified in advance of the hearing on the motion.” Id.

       We conclude that the term “proffer” for purposes of rule 1.190(f) refers only to

timely filed documents and excludes oral representations of additional evidence made

during the hearing. Thus, the trial court cannot properly consider plaintiff’s counsel’s oral

or other proffers of evidence which are first presented during the hearing. Counsel,

however, is free to suggest inferences that may be drawn from the timely filed evidence

and proffers. After all, the decision of whether to grant the motion to add punitive

damages will be based, at least in part, upon the trial court’s determination of whether a

reasonable jury could infer from the evidence and proffer that a defendant’s conduct

amounted to reckless or careless indifference to the plaintiff’s life or safety. Because the

trial court did not state its basis for granting the motion, we cannot determine to what

extent the trial court improperly relied on Respondent’s untimely and inappropriate oral

proffers. Petion v. State, 48 So. 3d 726, 735 (Fla. 2010). Respondent additionally has

not attempted to prove that the court’s error was harmless. See Special v. W. Boca Med.

Ctr., 160 So. 3d 1251, 1256 (Fla. 2014). The trial court departed from the essential

requirements of the law by overruling Petitioners’ objections and permitting Respondent

to make inappropriate oral proffers. For this additional reason, we grant the writ, quash

the order, and remand for further proceedings.

                      Stating basis for granting motion to amend

       Petitioners further assert that the trial court erred by failing to state the bases upon

which it granted Respondent’s motion to assert punitive damages. Because punitive

damages may only be pursued after the trial court finds the plaintiff has met or exceeded




                                              9
the section 768.72(1) threshold, it follows that the trial court, serving as a gatekeeper, is

required to make an affirmative finding that plaintiff has made a “reasonable showing by

evidence,” which would provide a “reasonable evidentiary basis for recovering such

damages” if the motion to amend is granted. SAP Am. Inc. v. Royal Flowers, Inc., 187

So. 3d 946, 947 (Fla. 3d DCA 2016); see also Petri Positive Pest Control, Inc. v. CCM

Condo. Ass’n, 174 So. 3d 1122, 1122 (Fla. 4th DCA 2015); Royal Caribbean Cruises,

Ltd. v. Doe, 44 So. 3d 230, 235-36 (Fla. 3d DCA 2010); Henn, 589 So. 2d at 1335. We

agree that when granting a motion to amend to add punitive damages, the trial court must

make the aforementioned affirmative finding. However, because we are remanding this

case to the trial court for further proceedings, we will not at this time address Petitioners’

additional, related argument that the trial court must make detailed factual findings.2

       PETITION GRANTED, ORDER QUASHED, REMANDED FOR FURTHER

PROCEEDINGS.



SAWAYA and LAMBERT, JJ., concur.




       2In Estate of Despain v. Avante Group, Inc., 900 So. 2d 637, 642-44 (Fla. 5th DCA
2005), we held that appellate courts would review, de novo, a trial court’s finding that a
section 768.72(1) reasonable basis exists for asserting punitive damages. Because the
evidence of record and proffered evidence upon which plaintiff relies must be timely filed
in advance of the hearing, the trial court does not have a superior vantage point to this
court.


                                             10
