194 So. 3d 516
Fla. Dist. Ct. App.2016Background
- In Feb. 2004 Berezovsky contracted to buy a pre-construction condominium from TRG and paid a $141,780 deposit.
- In Jan. 2005 Berezovsky assigned the contract to Tarlo for $247,880; TRG sent an Assignment & Assumption form which Berezovsky (or his mother) signed and returned.
- Berezovsky soon sent TRG a “Disclaimed Notice” repudiating the assignment, yet TRG proceeded with communications regarding unit selections and later executed an Assignment accepted by Tarlo.
- TRG closed and sold the completed unit to Tarlo in Feb. 2007, crediting Berezovsky’s deposit; Berezovsky sued TRG and Tarlo for contract and tort claims, alleging TRG knowingly sold despite the disclaimer.
- In Oct. 2014 Berezovsky moved for leave to add punitive damages against TRG; the trial court granted the motion, finding a reasonable evidentiary showing under section 768.72(1), Florida Statutes.
- TRG sought certiorari review arguing (1) Berezovsky failed to meet the evidentiary threshold required to assert punitive damages against a legal entity under §768.72(3) and (2) Florida’s independent tort rule barred punitive damages; the appellate court denied certiorari.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court complied with §768.72 procedural requirements when granting leave to plead punitive damages | Berezovsky argued he made a reasonable evidentiary showing (proffers and affidavits) to warrant leave | TRG argued the statutory procedural/evidentiary standard was not met for a legal entity and independent tort rule bars punitive damages | Denied certiorari — record shows trial court applied correct law; certiorari not available to reweigh or substitute appellate judgment |
| Whether punitive damages may be asserted against TRG (a legal entity) under §768.72(3) | Berezovsky asserted facts suggesting TRG knowingly participated or ratified misconduct | TRG argued no specific evidentiary showing of active/knowing participation, ratification, or gross negligence that contributed to loss | Court declined to review merits on certiorari; could not conclude trial court misapplied law, so denial of review stands |
| Whether Florida’s independent tort rule bars punitive damages here | Berezovsky contended his tort claims were independent of the contract | TRG contended tort and contract claims arise from same conduct, precluding punitive damages | Appellate panel said issue not properly reviewable via certiorari in this posture; refusal to quash order despite possible disagreement |
| Availability of certiorari as remedy for orders granting leave to plead punitive damages | Berezovsky urged that trial court ruling complied; no separate procedural defect | TRG sought certiorari relief asserting statutory noncompliance | Certiorari appropriate only to review procedural compliance with §768.72; on this record court found no departure from correct law and denied relief |
Key Cases Cited
- Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995) (certiorari appropriate to review trial court orders granting leave to plead punitive damages when §768.72 procedural requirements not followed)
- Coronado Condo. Ass’n v. La Corte, 103 So. 3d 239 (Fla. 3d DCA 2012) (application of §768.72 in punitive-damages proceedings)
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987) (limits on certiorari review for punitive-damage pleading challenges)
- Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) (trial court’s correct application of law is not reviewable by certiorari simply because an appellate court disagrees)
- Club Eden Roc, Inc. v. Fortune Cookie Restaurant, Inc., 490 So. 2d 210 (Fla. 3d DCA 1986) (older decision reviewing denial of motion to dismiss punitive damages; precedes §768.72 and modern certiorari limits)
- Walt Disney World Co. v. Noordhoek, 672 So. 2d 98 (Fla. 3d DCA 1996) (allowing punitive-damages claim opens financial discovery into defendant’s assets)
- Morgan Int’l Realty, Inc. v. Dade Underwriters Ins. Agency, Inc., 617 So. 2d 455 (Fla. 3d DCA 1993) (punitive damages generally non-insurable under Florida law)
- Ferguson Transp., Inc. v. N. Am. Van Lines, Inc., 687 So. 2d 821 (Fla. 1996) (Florida’s independent tort rule bars punitive damages for breach of contract absent an independent tort)
- Ghodrati v. Miami Paneling Corp., 770 So. 2d 181 (Fla. 3d DCA 2000) (discussion of overlap between contract damages and tort claims under the independent tort rule)