Solis v. Calvo

• Decision Date: 19 February 1997
• Docket Number: No. 95-3585,95-3585
• Citation: 689 So. 2d 366
• Parties: 22 Fla. L. Weekly D457 Veronica SOLIS and Danilo Solis, Appellants, v. Ingrid CALVO, Appellee.
• Court: Florida District Court of Appeals

Page 366

689 So.2d 366

22 Fla. L. Weekly D457

Veronica SOLIS and Danilo Solis, Appellants, v.Ingrid CALVO, Appellee.

No. 95-3585.

District Court of Appeal of Florida Third District.

Feb. 19, 1997.

H. Scott Hecker, Ft. Lauderdale, for appellants.

Erwin Diaz-Solis and Mathew K. McDowell, Miami, for appellee.

Before JORGENSON and SHEVIN, JJ., and BARKDULL, Senior Judge.

BARKDULL, Senior Judge.

The appellee and plaintiff below Ingrid Calvo filed a complaint against the appellants Veronica and Danilo Solis alleging fraud in the inducement and conspiracy to defraud.Veronica Solis is Ingrid Calvo's cousin and she and her husband Danilo Solis operated travel agencies in Miami and Nicaragua.Calvo was planning a trip to Nicaragua and she asked Veronica to prepare a power of attorney naming Calvo's mother as guardian of Calvo's children in the event something happened to Calvo.A power of attorney was executed which contained additional language giving Danilo Solis the power to act as Calvo's representative in any judicial forum.Calvo signed the document, but later claimed that she had not requested or authorized this language.Danilo Solis took this power of attorney to Nicaragua and used it to transfer property belonging to Calvo to an individual by the name of Carmona.Calvo testified that she had never given any such instruction to Solis and did not know any person by the name of Carmona.Calvo subsequently brought suit in Nicaragua to recover the property.Calvo also filed suit in Dade Circuit Court against the Solis' alleging fraud in the inducement and conspiracy to defraud.

Calvo's complaint contained a claim for punitive damages.Just prior to jury selection, counsel for Calvo told the judge that he was seeking punitive damages and explained the facts of the case.The judge asked whether there had been a hearing on the entitlement to punitive damages.Counsel for Calvo answered that there had been no hearing and that opposing counsel had never filed a motion to strike the claim for punitive damages.Counsel for Solis voiced no objection to the claim for punitive damages at this time and the judge proceeded to pick the jury.After the close of all the evidence, counsel for Calvo raised the issue of punitive damages and requested that the judge clarify his previous ruling.The judge stated that the claim for punitives would remain on the verdict form.Counsel for the defendants did not object to this ruling.Later, during a discussion with the court concerning jury instructions, counsel for the defendants stated that the punitive damage instruction that involved the indifference to rights of others should remain on the verdict form and would apply in this case.The jury subsequently awarded Calvo $37,500 in punitive damages, in addition to a sum which equaled the market value of the property and the expenses incurred while attempting to recover the property.That judgment is the subject of this appeal.

The appellants assert four grounds for reversal.The first is the contention that the trial court erred in permitting the punitive damage claim to be submitted to the jury without first holding an evidentiary hearing.This claim is based upon Florida Statute section 768.72(1995) which provides in part:

In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by the Claimant which would provide a reasonable basis for recovery of such damages.The Claimant may move to amend his complaint to assert a claim for punitive damages as allowed by the Rules 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.

The Florida Supreme Court has held that this section, although procedural in nature, creates a substantive legal right not to be subjected to a punitive damage claim and the ensuing financial worth discovery until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages.Simeon, Inc. v. Cox, 671 So.2d 158, 160(Fla.1996);Globe Newspaper Co. v. King, 658 So.2d 518, 519(Fla.1995).The Court has also held that certiorari is appropriate to review whether a trial judge has complied with the procedural requirements of the section, but it is not so broad as to encompass review of the sufficiency of the evidence when the trial judge has complied with the procedural requirements of the section 768.72.Simeonat 160.This is due to the fact that a plenary appeal cannot restore the appellant's right not to be subjected to a punitive damage claim, in particular the often burdensome financial worth discovery.Consequently, if the procedures of the statute have not been followed, a defendant generally moves to strike or dismiss the punitive damage claim and if the motion is denied, then brings a petition for certiorari review.In these cases, the appellate courts will grant the petition if the procedures have not been followed.Potter v. S.A.K. Development Corp., 678 So.2d 472(Fla. 5th DCA1996);Walt Disney World Co. v. Noordhoek, 672 So.2d 98(Fla. 3d DCA1996);Kraft General Foods, Inc. v. Rosenblum, 635 So.2d 106(Fla. 4th DCA), review denied, 642 So.2d 1363(Fla.1994);Aerovias Nacionales De Colombia v. Tellez, 596 So.2d 1193(Fla. 3d DCA1992);Henn v. Sandler, 589 So.2d 1334(Fla. 4th DCA1991);Wolper Ross Ingham & Com., Inc. v. Liedman, 544 So.2d 307(Fla. 3d DCA1989).

In this case however, the defendant never objected to the punitive damage claim and never moved to strike or dismiss the claim.¹The claim was included in both the initial and the amended complaint and it is apparent that the defendants had ample notice of the claim since there was a discussion with the trial court concerning the issue early on in the case.The plaintiffs never requested any financial worth discovery and none was ever taken.In addition, counsel for the defendants admitted that the facts of the case supported the punitive damage instruction that was ultimately placed on the verdict form.The...