Downtown Towing Company v. Energy-Cargo MGT, LLC

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 28, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D23-2056 Lower Tribunal No. 20-16005 SP ________________

Downtown Towing Company, Appellant,

vs.

Energy-Cargo MGT, LLC, Appellee.

An appeal from a non-final order from the County Court for Miami- Dade County, Maria D. Ortiz, Judge.

Law Office of Gary A. Costales, P.A., and Gary A. Costales, for appellant.

Harold B. Klite Truppman, P.A., and Harold B. Klite Truppman, for appellee.

Before EMAS, MILLER, and BOKOR, JJ.

ON CONFESSION OF ERROR PER CURIAM.

Appellant, Downtown Towing Company, appeals from an order

granting a motion for leave to seek punitive damages against appellee,

Energy-Cargo MGT, LLC. We have jurisdiction. See Fla. R. App. P.

9.130(a)(5). Based upon Energy-Cargo’s proper and commendable

confession of error and our own independent review of the record, we

conclude Downtown Towing failed to comply with the predicate procedural

requirements of section 768.72, Florida Statutes (2023), before seeking

punitive damages. See Leinberger v. Magee, 226 So. 3d 899, 900–01 (Fla.

4th DCA 2017) (“First, the movant must attach the proposed amended

pleading to the motion seeking leave to amend, in compliance with Florida

Rule of Civil Procedure 1.190(a). . . . Second, . . . the ‘proffer’ or other

evidence of record to support the punitive damages claim must be served

prior to the hearing on the motion for leave to amend. . . . Third, the trial

court must make an affirmative finding that the plaintiff made a ‘“reasonable

showing by evidence,” which would provide a “reasonable evidentiary basis

for recovering such damages” if the motion to amend is granted.’”) (quoting

Varnedore v. Copeland, 210 So. 3d 741, 747–48 (Fla. 5th DCA 2017));

Varnedore, 210, So. 3d at 745 (“Moving to amend without attaching a copy

of the proposed amended pleading is insufficient.”); Taylor v. City of Lake

2 Worth, 964 So. 2d 243, 244 (Fla. 4th DCA 2007) (holding Florida Rule of Civil

Procedure 1.190(a)’s requirement of attaching proposed amended pleading

to motion to amend is mandatory); see also Caprio v. Castro, 299 So. 3d

1147, 1148 (Fla. 3d DCA 2020) (quashing trial court’s order due to “proper

and commendable confession of error” for failure to comply with

requirements of section 768.72). Given the procedural error, we reverse and

remand for further proceedings consistent herewith and express no opinion

on the propriety of punitive damages.

Reversed and remanded.