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Appellate Practice Section Chairs : JoeEagleton – Brannock & Humphries & ChanceLyman – BuchananIngersoll & Rooney , PC
Courtshaddescribed theadditionofa punitivedamages claimasalitigation “ gamechanger .”
The Florida Supreme Court is adding a new category of immediately appealable nonfinal orders .
Effective April 1 , 2022 , Florida Rule of Appellate Procedure 9.130 is amended to add subdivision ( a )( 3 )( G ), which allows district courts of appeal to review nonfinal orders that “ grant or deny a motion for leave to amend to assert a claim for punitive damages .” 1
Before the amendment , a petition for writ of certiorari was available to review a narrow class of nonfinal orders related to punitive damages . 2 However , the jurisdictional threshold — material injury that cannot be remedied on direct appeal — limited certiorari review to the trial court ’ s compliance with specific procedural steps : attachment of the proposed amended complaint to the motion to amend ; service of the proffer or other evidence to support the punitive damage claim ; and an affirmative finding by the trial court that the plaintiff made a reasonable showing by evidence to support a punitive damage claim . 3
The Florida Supreme Court considered the amendment with the benefit of oral argument from the Appellate Court Rules Committee and other commenters . 4 The
Committee noted recent appellate decisions recommending a rule amendment to replace the limited scope of certiorari review . 5 Courts had described the addition of a punitive damages claim as a litigation “ game changer .” 6 “ Such claims can have significant , multifaceted impacts on litigation and litigants , and can transform a lawsuit [,]” 7 because they “ subject [ ] the defendant to financial discovery that would otherwise be off limits , and potentially subject [ ] the defendant to uninsured losses .” 8
Justice Labarga ’ s dissent echoes some concerns of commenters opposing the amendment . It anticipates that immediate appeals on punitive damages will increase delay in trial court litigation and suggests that , as an alternative , confidentiality orders could protect privileged financial information sought during punitive damages discovery . 9
Once rule 9.130 ( a )( 3 )( G ) becomes effective , defendants can seek immediate review of “ the sufficiency of or ‘ substantive merits ’ of the evidence ” to support a claim for punitive damages . 10 Conversely , plaintiffs can immediately appeal orders denying leave to add a claim of punitive damages , for which certiorari review had been categorically unavailable . 11 n
1
In re Amendment to Fla . Rule of Appellate Procedure 9.130 , No . SC21- 129 , 2022 WL 57943 , at * 2 , * 8 ( Fla . Jan . 6 , 2022 ).
2
Globe Newspaper Co . v . King , 658 So . 2d 518 , 520 ( Fla . 1995 ).
3
Id . at 519-20 & n . 1 ; Event Depot Corp . v . Frank , 269 So . 3d 559 , 561-62 ( Fla . 4th DCA 2019 ).
4
In re Amendment , 2022 WL 57943 , at * 2 . 5
Report of the Appellate Court Rules Committee at 4 , In re Amendment to Fla . Rule of Appellate Procedure 9.130 , No . SC21-129 ( Fla . Feb . 1 , 2021 ).
6
TRG Desert Inn Venture , Ltd . v . Berezovsky , 194 So . 3d 516 , 520 n . 5 ( Fla . 3d DCA 2016 ).
7
Life Care Ctrs . of Am ., Inc . v . Croft , 299 So . 3d 588 , 592 ( Fla . 2d DCA 2020 ) ( quotation marks and citation omitted ).
8
Berezovsky , 194 So . 3d at 520 n . 5 ( citation omitted ).
9
In re Amendment , 2022 WL 57943 , at * 3 ( Labarga , J ., dissenting ).
10
Croft , 299 So . 3d at 592 .
11
High Five Products , Inc . v . Riddle , 286 So . 3d 890 , 890-91 ( Fla . 2d DCA 2019 ).
Author : Garrett A . Tozier - Shutts & Bowen LLP
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