Simeon, Inc. v. Cox, 94-945

• Decision Date: 05 May 1995
• Docket Number: No. 94-945,94-945
• Citation: 655 So.2d 156
• Parties: 20 Fla. L. Weekly D1105 SIMEON, INC., d/b/a Mega Movies and Martin Traub, Petitioners, v. Donna COX and Michael Cox, Husband and Wife, and Juanita Arnold and Matthew Arnold, Husband and Wife, Respondents.
• Court: Florida District Court of Appeals

Page 156

655 So.2d 156

20 Fla. L. Weekly D1105

SIMEON, INC., d/b/a Mega Movies and Martin Traub, Petitioners, v. Donna COX and Michael Cox, Husband and Wife, and Juanita Arnold and Matthew Arnold, Husband and Wife, Respondents.

No. 94-945.

District Court of Appeal of Florida Fifth District.

May 5, 1995.

Rehearing Denied June 6, 1995.

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A., Fort Lauderdale, for petitioners.

Kurt Erlenbach of Erlenbach & Erlenbach, P.A., Titusville, for respondents.

HARRIS, Chief Judge.

Petitioner Simeon, Inc., the defendant below, seeks a writ of certiorari. Respondents' complaint included a claim for punitive damages, and Simeon contends that the trial court departed from the essential requirements of law in failing either to dismiss the complaint or to strike the claim for punitive damages. We deny the writ.

This court took the position in Sunrise Olds-Toyota, Inc. v. Monroe, 476 So.2d 240 (Fla. 5th DCA 1985), and Jaimot v. Media Leasing Corp., 457 So.2d 529 (Fla. 5th DCA 1984), that since it is improper to expose a defendant to the discovery of his financial worth, an otherwise private matter, before the plaintiff has properly pled or otherwise established a basis for punitive damages, it is a departure from the essential requirements of law when the trial court fails to strike or dismiss an unfounded claim for such damages. We held that certiorari was a proper vehicle to put the trial judge on the correct path before the defendant was improperly required to expose his private financial status because, if the court subsequently held the punitive damages claim insufficient, the defendant's private matters already would have become public information.

The supreme court rejected our position in Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987), in which the court held:

[W]e do not believe the harm that may result from discovery of litigant's finances is the type of "irreparable harm" contemplated by the standard of review for certiorari.

We therefore are bound by Martin-Johnson unless it has been superseded by section 768.72, Florida Statutes. The Fourth District in Kraft General Foods, Inc. v. Rosenblum, 635 So.2d 106 (Fla. 4th DCA), rev. denied, 642 So.2d 1363 (Fla.1994), held that to be the case. ¹ We, too, are tempted by the Kraft siren song:

On the other hand, a right not to be exposed to a mere claim for such extraordinary damages, without a judge first determining that a factual basis exists to allow the claim to be pleaded, would not be much of a right if one had to wait until the end of the case to take a final appeal to review the trial court's failure to strike an unauthorized pleading for such damages. Like some kinds of discovery, this cat would effectively be out of the bag before the bag was supposed to be opened.... Thus our refusal to grant extraordinary review of this class of orders would render this particular statutory right, in effect, mythical. [Emphasis theirs].

Kraft, 635 So.2d at 109.

This justification for certiorari is so enticing that we are saved from the rocky shoals only by the persistent whisper echoing through the surf: "What about the phrase, 'or proffered by the claimant' which appears in section 768.72?" Kraft holds that under section 768.72 it is improper for a plaintiff in his original complaint ever to plead a claim for punitive damages. Under Kraft, the plaintiff must first establish facts in the record and present them at a special hearing before the court and, if the court finds the proffered evidence sufficiently convincing, the court will grant the plaintiff leave to amend his or her pleadings in order to assert a punitive damage claim. This interpretation is arrived at by focusing on the words "no claim for punitive damages shall be permitted," and applying the statutory provision for liberal amendment and the statutory delay of financial discovery until "the pleading concerning punitive damages is permitted."

Certainly this is a logical interpretation. But what about the additional language: "... or proffered by the claimant which would provide a reasonable basis for recovery of such damages"? We must give meaning, if possible, to all parts of the statute. Terrinoni v. Westward Ho!, 418 So.2d 1143 (Fla. 1st DCA 1982). Focusing on this language, the statute reads: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence ... proffered by the claimant which would provide a reasonable basis for recovery of such damages...." In other words, general allegations in a complaint are insufficient. Also, if the plaintiff must rely on the testimony of others or documents not within his or her control, then such evidence must be established "in the record" before a claim for punitive damages is permissible. But what if sufficient evidence to support a claim for punitive damages is within the personal knowledge of the plaintiff? Does section 768.72 really contemplate that the plaintiff's "proffer" must be in response to a deposition, in answers to interrogatories, or in a filed affidavit? Why can't such a proffer be made in a sworn complaint?

In our case, the plaintiff alleged under oath that she is entitled to punitive damages based on the repeated assaults on her which occurred when the defendant threw bar stools, staplers, movie videotapes, etc. at her. She urges that punitive damages should be awarded based on the defendant's intentional infliction of emotional distress in that he (among other allegations) constantly, in the presence of customers and coemployees, referred to her as "an idiotic bitch," "thief," "stupid fucking bitch" and "continually falsely accused [her] of stealing money." She further claims punitive damages based on malicious prosecution in that the defendant filed a "false and malicious criminal complaint" in which he alleged that the plaintiff had stolen merchandise from her employer. Although no charges were actually brought, it was because the defendant subsequently filed an affidavit of non-prosecution after the plaintiff had been confronted by a uniformed police officer who read the allegation to her in the presence of her children and others.

Why do these allegations contained in a sworn complaint not satisfy the statutory requirement of a "proffer"? Although section 768.72 requires that the court "permit" a pleading for punitive damages, it does not specify that the permission can only be sought in a hearing on a motion to amend. The defense moved to strike the claim for punitive damages and the court, after considering the sworn allegations in the complaint, refused to do so. Did not the court, therefore, meet its obligation to review the record and, in this case, "permit the pleading concerning punitive damages"?

We may disagree with the trial court that the allegations in the complaint sufficiently justify a claim for punitive damages. But are we willing to intervene by certiorari anytime a judge decides that the claim for punitive damages is sufficient? Martin-Johnson simply does not permit us to do so.

In short, section 768.72 is little more than a codification of the law predating it: the defendant should not be exposed to financial discovery until the plaintiff has properly pleaded a claim for punitive damages and has proffered evidence sufficient to create a prima facie entitlement to such damages to the satisfaction of the trial court. Because section 768.72 did not dramatically change the prior law, it has not superseded Martin-Johnson.

The writ is DENIED.

GRIFFIN, J., concurs and concurs specially, with opinion.

PETERSON, J., dissents, with opinion.

GRIFFIN, Judge, concurring and concurring specially.

In Martin-Johnson, the Supreme Court of Florida explicitly held that orders denying motions to strike claims for punitive damages are not reviewable by certiorari. The attempt to sound the death knell of Martin-Johnson on the basis that the supreme court's July 1, 1987 decision arose out of a case that predated the July 1, 1986 effective date of the tort reform act does not persuade. As I understand the argument, because the enactment in 1986 of section 768.72, Florida Statutes, established conditions precedent to the maintenance of a claim for punitive damages, orders of the lower court that ostensibly do not protect the rights conferred by this statute should be reviewed by certiorari. See Kraft General Foods, Inc. v. Rosenblum, 635 So.2d 106, 110 (Fla. 4th DCA), review denied, 642 So.2d 1363 (Fla.1994). ¹

As a member of the panel in this court's Harley Hotels decision, I can testify that it is counter-instinctual for an appellate judge to refrain from reviewing a marginal punitive damage claim or an order compelling discovery into the financial affairs of the defendant flowing from the lower court's (unreviewable) decision to allow such a claim. Nevertheless, although decided in a close vote on a difficult issue, I have finally concluded Martin-Johnson is a sound decision. And when Martin-Johnson was issued in July 1987, the supreme court plainly was aware that the legislature had entered the field of pleading requirements for punitive damages. Some six weeks earlier, they had expressly held this provision to be constitutional. Smith v. Department of Insurance, 507 So.2d 1080, 1092 (Fla.1987). Although section 768.72 alters the...