In Re: Amendment to Florida Rule of Appellate Procedure 9.130

• Court: Supreme Court of Florida
• Decided: January 6, 2022
• Docket: SC21-129
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC21-129 ____________

IN RE: AMENDMENT TO FLORIDA RULE OF APPELLATE PROCEDURE 9.130.

January 6, 2022

PER CURIAM.

This matter is before the Court for consideration of a proposed

amendment to Florida Rule of Appellate Procedure 9.130

(Proceedings to Review Nonfinal Orders and Specified Final Orders).

See Fla. R. Gen. Prac. & Jud. Admin. 2.140(f). We have

jurisdiction. 1

The Florida Bar’s Appellate Court Rules Committee

(Committee) filed a report proposing an amendment to Florida Rule

of Appellate Procedure 9.130. The Committee’s proposal follows a

referral by the Court asking the Committee to propose rule

amendments to provide for the interlocutory appeal of nonfinal

1. See art. V, § 2(a), Fla. Const.

-1- orders granting or denying leave to amend a complaint to assert a

claim for punitive damages.

The Committee and the Board of Governors of The Florida Bar

approved the proposed amendment. The Committee published its

proposal for comment prior to filing it with the Court and received

two comments. After the Committee filed its report, the Court

published the proposal for comment and received three comments.

After reviewing the proposal, considering the comments and

response filed, and having had the benefit of oral argument, we

adopt the proposed amendment to rule 9.130. Specifically, new

subdivision (a)(3)(G) is added to authorize appeals of nonfinal orders

that grant or deny a motion for leave to amend to assert a claim for

punitive damages.

Accordingly, Florida Rule of Appellate Procedure 9.130 is

amended as reflected in the appendix to this opinion. New

language is indicated by underscoring. The amendment shall take

effect on April 1, 2022, at 12:01 a.m.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., dissents with an opinion. -2- THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THIS AMENDMENT.

LABARGA, J., dissenting.

Today, the majority abandons our long-standing certiorari

procedure for appealing orders that grant leave to include a claim

for punitive damages in civil cases. In its place, through an

amendment to Florida Rule of Appellate Procedure 9.130, the

majority has authorized the classification of such orders as nonfinal

in nature, thereby clearing the way for immediate interlocutory

appeal.

The unfortunate consequence of this drastic change in

appellate procedure will be unnecessary and unwarranted delays in

civil actions with claims for punitive damages. Undoubtedly, once

the interlocutory vehicle of appellate review is available, it is not

unreasonable to expect that the losing party will choose to pursue

an immediate appeal of the trial court’s order in most, if not all,

cases, adding to the caseload of appellate courts. Once the trial

court’s ruling is appealed, the case will necessarily stall at the trial

level until the district court renders a ruling on whether the claim

for punitive damages was properly permitted.

-3- Given this additional delay, it is also not unreasonable to

anticipate that some claimants in civil cases may reluctantly forgo

meritorious claims for punitive damages in order to avoid delay in

bringing their cases to a final resolution. Of particular concern are

tort cases involving personal injury, where claims for much needed

medical and economic relief will stall until the question of punitive

damages is resolved. Access to our judicial system with claims

authorized by law should not be impeded by unnecessary delay and

resulting additional expense.

Tellingly, during oral argument on August 31, 2021, counsel

for the Appellate Court Rules Committee of The Florida Bar

(Committee) noted that in a 2018 fifty-state survey, no state had a

rule like the one adopted today by the majority.2 Oral Argument at

4:43, https://wfsu.org/gavel2gavel/viewcase.php?eid=2761.

At the heart of the majority’s decision is a concern for the

privacy of financial discovery. Section 768.72(1), Florida Statutes

2. Recently, in In re Amendment to Florida Rule of Civil Procedure 1.280, 324 So. 3d 459 (Fla. 2021), we noted that analysis of other states’ practices is relevant when reviewing our own state’s rules.

-4- (2019), specifically provides that “[n]o discovery of financial worth

shall proceed until after the pleading concerning punitive damages

is permitted.” Thus, once the trial court approves the addition of a

claim for punitive damages, the claimant is entitled to conduct

financial discovery to determine the financial worth of the

defendant. This process has been the subject of much discussion

throughout the years, with the right to privacy of financial

information as the major concern. However, the privacy of the

financial information disclosed during discovery can be effectively

protected by a confidentiality order entered upon the request of the

disclosing party. Thus, there is no reason to abandon the existing

fair and efficient certiorari review of these rulings.

Finally, while the majority is correct that “[t]he Committee and

the Board of Governors of The Florida Bar approved the proposed

amendment,” majority op. at 2, the Committee did so grudgingly.

Upon receipt of the Court’s referral letter, the matter was first

evaluated by the Committee’s civil practice subcommittee

(subcommittee). Although the subcommittee recommended the

amendment to rule 9.130, it acknowledged that the Committee had

previously voted to not recommend an amendment to the rule based -5- on similar referrals in recent years. In this instance, however, the

subcommittee felt constrained to propose an amendment upon

concluding that the Court’s referral was a directive to do so. Report

of the Appellate Court Rules Committee, app. at G-15. During its

January 2021 meeting, the full Committee approved the

amendment, while also approving the subcommittee’s

recommendation that “it would not [have supported the

amendment] but for the mandate from the Court.” Id.

Accordingly, because there is no reason for the majority’s

drastic, unnecessary, and consequential rule change, I respectfully

dissent.

Original Proceeding – Florida Rules of Appellate Procedure

Laura A. Roe, Chair, Appellate Court Rules Committee, St. Petersburg, Florida, Elaine D. Walter, Vice Chair, Appellate Court Rules Committee, Miami, Florida, Honorable Stephanie Williams Ray, Past Chair, Appellate Court Rules Committee, Tallahassee, Florida, Joshua E. Doyle, Executive Director, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner

Kansas R. Gooden on behalf of the Florida Defense Lawyers Association, Miami, Florida; Maegen Peek Luka of Newsome Melton, Orlando, Florida, and Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, Florida; and William T. Cotterall on behalf of the Florida Justice Association, Inc., Tallahassee, Florida,

-6- Responding with comments

-7- APPENDIX

RULE 9.130. PROCEEDINGS TO REVIEW NONFINAL ORDERS AND SPECIFIED FINAL ORDERS

(a) Applicability.

(1) - (2) [No Change]

(3) Appeals to the district courts of appeal of nonfinal orders are limited to those that:

(A) - (F) [No Change]

(G) grant or deny a motion for leave to amend to assert a claim for punitive damages.

(4) - (5) [No Change]

(b) - (i) [No Change]

Committee Notes

[No Change]

-8-