362 So.3d 247
Fla. Dist. Ct. App.2023Background
- Richard John DeSanto, a disbarred attorney, was sued by former clients who sought to amend their complaint to add a claim for punitive damages.
- The clients moved to add punitive damages before any discovery; their motion was unverified and contained no affidavits.
- The only documentary attachments were records from disciplinary proceedings involving a different client (including the Florida Supreme Court disbarment order) and a website screenshot allegedly showing DeSanto still holding himself out as a lawyer.
- The trial court accepted the clients’ view that a statutory “proffer” need not be evidence and granted leave to plead punitive damages.
- On appeal the Fourth District reversed, holding that section 768.72(1) requires an actual evidentiary showing (in the record or properly proffered) providing a reasonable basis to recover punitive damages; mere allegations or anticipated evidence are insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a "proffer" under § 768.72(1) may be mere allegations or anticipated evidence | Proffer may consist of anticipated evidence or factual narrative; pleading + factual statement suffices | Proffer must be evidence (record or proffered) — allegations alone insufficient | Proffer must include actual evidence in the record or properly proffered to provide a reasonable basis for punitive damages |
| Whether pleadings alone can satisfy the statutory gatekeeping requirement | Pleadings and proposed factual narrative meet the statutory "reasonable showing" | Pleadings are not evidence and cannot supply the required showing | Pleadings alone are insufficient; allegations are not evidence |
| Whether disciplinary records from other proceedings suffice to support punitive damages | Such records show pattern/absence of mistake and support punitive claim | Such records, standing alone, do not create a prima facie evidentiary basis for punitive damages here | Disciplinary records alone do not establish a reasonable evidentiary basis for punitive damages in this case |
| Whether an unverified motion without affidavits or proffered evidence satisfies § 768.72(1) | Motion narrative suffices even if unverified and pre-discovery | An unverified motion without affidavits/proffered evidence fails to meet the statute's requirement | Unverified motion without supporting evidentiary proffer is inadequate; reversal required |
Key Cases Cited
- Progressive Select Ins. v. Ober, 353 So. 3d 1190 (Fla. 4th DCA 2023) (standard of review and § 768.72 gatekeeping)
- Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995) (recognizing a substantive right not to be subject to punitive damages absent a reasonable evidentiary basis)
- Bistline v. Rogers, 215 So. 3d 607 (Fla. 4th DCA 2017) (pleadings are not evidence; court must act as gatekeeper under § 768.72)
- Cat Cay Yacht Club, Inc. v. Diaz, 264 So. 3d 1071 (Fla. 3d DCA 2019) (bare allegations insufficient to support punitive damages)
- Marder v. Mueller, 358 So. 3d 1242 (Fla. 4th DCA 2023) (reversing allowance of punitive damages where proffer did not show intentional misconduct or gross negligence)