IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA STACEY R. LEAVINS, JAMES B. SMITH, and ARAMARK CORRECTIONAL SERVICES, LLC., Petitioners, v. KEVIN WADE CRYSTAL, Respondent. ___________________________/ Opinion filed March 10, 2009. Petition for Writ of Certiorari – Original Jurisdiction. Bruce C. Fehr, of Vernis & Bowling of Northwest Florida, P.A., Pensacola, for Petitioners. Kevin Wade Crystal, pro se, for Respondent. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D08-4836
BROWNING, J. Petitioners seek a writ of certiorari to quash the circuit court’s order denying Petitioners’ motions to strike and/or dismiss Respondent’s claim for punitive damages arising from his third amended complaint. We grant the petition and quash the order
denying the motions as to punitive damages. Kevin Wade Crystal (Respondent) filed a third amended complaint naming Petitioners as the defendants. The pleading alleged that pursuant to a contract with the Florida Department of Corrections, Aramark Correctional Services, LLC (Aramark), provided food service operations at the Holmes Correctional Institution, where Respondent was incarcerated and was assigned a job in food service. Petitioners Leavins and Smith were employees of Aramark. The pleading alleged that Respondent had sustained injuries to his wrists and back and had reported them to the appropriate personnel; and that Petitioners were negligent in following the procedures for reporting and documenting injuries sustained by him while under their supervision and care: specifically, that Petitioners breached their duty to him under section 945.04, Florida Statutes (2008), by failing to report and document Respondent’s injuries after receiving oral and written notice. Respondent sought compensatory damages. One section of the third amended complaint itself is titled “Claim for Punitive Damages.” Petitioners filed a motion to dismiss the third amended complaint, together with a motion to strike that portion of the complaint titled “Claim for Punitive Damages,” on the grounds that this claim violated section 768.72, Florida Statutes (2008), and the rules of civil procedure, and failed to allege sufficient facts to state a cause of action. The hearing on the motions to dismiss and/or strike is unreported. 2
The circuit court granted the motion to dismiss to the extent that the third amended complaint failed to allege the cause of injury to Respondent’s wrists or Petitioners’ liability for these alleged injuries. The court denied the motion to dismiss based on findings that Respondent properly pled a cause of action for the alleged back injury; the court denied the motion to dismiss and/or strike the claim for punitive damages. “[T]o plead a claim for punitive damages, a plaintiff must comply with section 768.72(1), Florida Statutes.” Estate of Despain v. Avante Group, Inc., 900 So. 2d 637, 641 (Fla. 5th DCA 2005). “[S]ection 768.72 has created a substantive legal right not to be subject to a punitive damage claim until the trial court rules that there is a reasonable evidentiary basis for punitive damages. Globe Newspaper Co. v. King, 658 So. 2d 518 (Fla. 1995).” Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 (Fla. 4th DCA 2005); see Estate of Despain, 900 So. 2d at 641-42. Petitioners note that Respondent failed to follow the proper procedures in section 768.72(1), Florida Statutes (2008), and Florida Rules of Civil Procedure 1.100(a)-(b) and 1.110(b) for seeking leave of the circuit court to allege a claim for punitive damages. This statutory section states: (1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend his or her complaint to assert a claim for punitive damages as allowed by the rules 3
of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. To support certiorari relief, Petitioners rely on the following language in Simeon, Inc. v. Cox, 671 So. 2d 158 (Fla. 1996): [C]ertiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section 768.72 but not so broad as to encompass review of the sufficiency of the evidence when the trial judge has followed the procedural requirements of section 768.72 . . . . [A]ppellate courts should grant certiorari in instances where there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed. Id. at 160; see King, 658 So. 2d at 520; Potter v. S.A.K. Dev. Corp., 678 So. 2d 472 (Fla. 5th DCA 1996). Respondent’s purported “motion” contained within the third amended complaint is procedurally and substantively insufficient to satisfy the requirements of law. See King, 658 So. 2d at 520 (noting that the failure to follow the procedure set out in section 768.72 “departs from the essential requirements of the law”); Reinoso v. Fuentes, 932 So. 2d 536 (Fla. 3d DCA 2007) (granting certiorari relief where plaintiffs’ failure to obtain leave of circuit court prior to making claim for punitive damages in their negligence complaint mandated dismissal of claim). Because the circuit court did not comply with the procedural requirements of section 768.72, allowing Respondent to skip a step and allege a claim for punitive damages without 4
first properly seeking and receiving the court’s permission to do so, Cox and Reinoso compel us to grant the petition for writ of certiorari. See Cox, 671 So. 2d at 160; Reinoso, 932 So. 2d at 536. The punitive damages claim must be stricken. Given the fact that Respondent already has been allowed to file multiple amended complaints, we leave it to the sound discretion of the circuit court to determine whether to allow Respondent another attempt to comply with the statute and rules. See Carter v. Ferrell, 666 So. 2d 556, 557 (Fla. 2d DCA 1995). We GRANT the petition for writ of certiorari and QUASH the order denying the motion to dismiss and/or strike the claim for punitive damages. WEBSTER and LEWIS, JJ,. CONCUR.