Katryna Santa Cruz

Prior to January 6, 2022, trial court orders granting or denying leave to amend a complaint to assert a claim for punitive damages were reviewable by the appellate court only by petition for writ of certiorari. The standard for granting leave was whether the seeking party “proffered sufficient evidence to establish a reasonable basis for a punitive damages claim. . . .”[i] However, certiorari was not available to “review a determination that there is . . . a reasonable basis for recovery of such damages[]” – instead, certiorari review was limited to “whether a trial judge has conformed with the procedural requirements of” section 768.72, Florida Statutes (2019), the statute governing claims for punitive damages in civil actions.[ii]

Pursuant to a letter from the Clerk of the Florida Supreme Court[iii] asking the Florida Bar’s Appellate Court Rules Committee “to propose rule amendments to provide for the interlocutory appeal of nonfinal orders granting or denying leave to amend a complaint to assert a claim for punitive damages[,]” the Committee proposed the following amendment to Florida Rule of Appellate Procedure 9.130, underlined below:


(a) Applicability.

(1) – (2) [No Change]

(3) Appeals to the district courts of appeal of nonfinal orders are limited to those that:

(A) – (F) [No Change]

(G) grant or deny a motion for leave to amend to assert a claim for punitive damages.

(4) – (5) [No Change]

(b) – (i) [No Change]

Committee Notes

[No Change][iv]

The Committee unanimously approved the amendment, along with the Board of Governors of The Florida Bar, who approved the amendment by a vote of 33–2.[v]

Elaine D. Walter, Esq., representing the Committee at oral argument, explained that the proposed amendment was made for two reasons: (1) pursuant to Globe Newspaper Company v. King, 658 So. 2d 518 (Fla. 1995), the appellate court’s jurisdiction for reviewing orders granting or denying leave to amend a complaint to assert a claim for punitive damages was strictly limited to determining whether the lower court followed the procedural requirements of section 768.72, Florida Statutes (2019); and (2) even though no discovery is allowed to continue while such a request is under consideration, there is no other avenue for relief once the lower court makes its decision.[vi]

The Committee received two comments in opposition to the amendment, one from the Florida Justice Association (“FJA”) and another from Mr. Bryan Gowdy, Esq. and Ms. Maegen Peek Luka, Esq. The FJA argued that “certiorari is a fair and efficient remedy, which promotes a faster resolution of cases” and that “the amendment would impose an immense burden on an overloaded court system that would lead to substantially more appeals and delays in nearly every civil case in which punitive damages were sought.”[vii] Mr. Gowdy and Ms. Luka’s comments expressed similar concerns, adding that “disposition of nonfinal appeals under rule 9.130 takes longer than certiorari as a result of the applicable deadlines for filing briefs and the generous agreed-upon extensions that apply to nonfinal order appeals in three of the five district courts of appeal.”[viii]

After reviewing the Committee’s proposal, responses, comments, and having oral argument, a majority of the Florida Supreme Court adopted the proposed amendment to Rule 9.130 on January 6, 2022.[ix]

Justice Labarga dissented with opinion, largely echoing the comments of the FJA, Mr. Gowdy, and Ms. Luka, and focusing on the “unnecessary and unwarranted delays in civil actions with claims for punitive damages.”[x] Finding it “not unreasonable” to expect that most, if not all, losing parties will choose to immediately appeal the trial court’s order, Justice Labarga anticipates that the caseload of appellate courts will be inevitably increased and the case at the trial level will be inevitably stalled.[xi] Due to the unavoidable delay that these appeals will cause, Justice Labarga painted an ominous picture of the future where “some claimants in civil cases may reluctantly forgo meritorious claims . . . in order to avoid delay in bringing their cases to a final resolution.”[xii]

Justice Labarga also noted that the majority’s decision was motivated by a concern for the privacy of financial discovery. He cited section 768.72(1), Florida Statutes, which provides that “[n]o discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.” The natural consequence of this rule, Justice Labarga explained, is that once the trial court approves the addition of a punitive damages claim, the claimant is entitled to financial discovery to determine the defendant’s financial worth. Notwithstanding the apprehension underlying the majority’s decision, Justice Labarga explained that this consequence is not reason enough to “abandon the existing fair and efficient certiorari review of these rulings[,]” explaining that these privacy concerns can be adequately addressed by a confidentiality order.[xiii]

Justice Labarga’s final point was that although the Committee approved the proposed amendment, it “did so grudgingly.”[xiv] This point is fully supported by the Committee’s report, which noted that “[b]y a vote of 15–2, [the Committee’s civil practice subcommittee] determined that the Court’s referral directed the Committee to propose a rule amendment and that, but for that directive, the subcommittee would not have approved the amendment.”[xv] By a vote of 25–9, a majority of the Committee “felt constrained to approve the amendment—consistent with section IV(c)(3) of its Internal Operation Procedures and rule 2.140(f)(2)—because the Court directed the Committee to propose an amendment as opposed to merely requesting the Committee to consider the issue.”[xvi]

The amendment is to take effect on April 1, 2022, at 12:01 a.m.

[i] Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995).

[ii] Id.

[iii] Letter from John A. Tomasino, Clerk of Court, Supreme Court of Florida, to Honorable Stephanie W. Ray, Chair, Appellate Rules Committee (July 6, 2020) (on file with the Supreme Court of Florida).

[iv] In Re: Amendment to Florida Rule of Appellate Procedure 9.130, No. SC21-129 at 8 (Fla. Jan. 6, 2022).

[v] Report of the Appellate Rules Committee at 2-3, In Re: Amendment to Florida Rule of Appellate Procedure 9.130, No. SC21-129 (Fla. Jan. 6, 2022) [hereinafter Report].

[vi] Oral Argument at 1:06, In Re: Amendment to Florida Rule of Appellate Procedure 9.130, No. SC21-129 (Fla. Jan. 6, 2022), https://wfsu.org/gavel2gavel/viewcase.php?eid=2761.

[vii] Report, supra note iii, at 3.

[viii] Id. at 3.

[ix] In Re: Amendment to Florida Rule of Appellate Procedure 9.130, No. SC21-129 at 2 (Fla. Jan. 6, 2022).

[x] Id. at 3 (Labarga, J., dissenting).

[xi] Id.

[xii] Id. at 4.

[xiii] Id. at 5.

[xiv] Id.

[xv] Report, supra note iii, at 4.

[xvi] Id. at 4-5.