Third District Court of Appeal State of Florida
Opinion filed June 18, 2025. Not final until disposition of timely filed motion for rehearing. ________________
No. 3D23-1625 Lower Tribunal No. 2019-37110-CA-01 ________________
Menada, Inc., etc., et al., Appellants,
vs.
Gabriela Arevalo, etc., Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lourdes Simon, Judge.
Lewis Brisbois Bisgaard & Smith LLP, and Todd R. Ehrenreich, and Jeffrey R. Geldens, for appellants.
Podhurst Orseck, P.A., and Christina H. Martinez; Scott M. Sandler P.A., and Scott M. Sandler and Logan W. Sandler, for appellee.
Before LINDSEY, MILLER, and GORDO, JJ.
LINDSEY, J.
Appellants Menada, Inc. and Belinda Meruelo appeal from a non-final
order granting Appellee Gabriela Arevalo’s motion for leave to amend to assert punitive damages.1 The trial court concluded that Arevalo satisfied
the punitive damages pleading standard set forth in section 768.72(1),
Florida Statutes (2024), which requires “a reasonable showing by evidence
in the record or proffered by the claimant which would provide a reasonable
basis for recovery of such damages.” We agree and therefore affirm.
I. BACKGROUND
The underlying wrongful death action stems from a fire at Seacoast
Suites, a multi-story Miami Beach hotel, that resulted in the death of
Arevalo’s legally blind adult son. Menada owns and operates Seacoast, and
Meruelo was Menada’s sole shareholder when the fire occurred. At all
relevant times, Arevalo and her son were long-term tenants at Seacoast.
According to the operative Complaint, the Defendants engaged in
intentional misconduct and gross negligence due to “flagrant and persistent
violations of applicable fire safety codes and orders of governing authorities.”
The Complaint traces the history of these violations from 1998, when
Seacoast was cited for operating without fire sprinklers, to the present. The
Complaint alleges that Seacoast ignored numerous administrative orders
1 We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(G) (authorizing appellate review of non-final orders that “grant or deny a motion for leave to amend to assert a claim for punitive damages”).
2 requiring it to install fire sprinklers, implement a fire watch, and warning that
the 15th floor, where the fire occurred, was not fire safe. This disregard for
the administrative orders resulted in millions of dollars in fines.
The Complaint also alleges that “[a]gainst this astonishingly dangerous
backdrop, [Defendants] proceeded to train [their] security guards to
acknowledge and then silence or disable the fire alarm system . . . .” This
resulted in the audible fire alarm being disabled and a delayed response from
the fire department on the day of the fire, which “ultimately caused Mr.
Arevalo’s death.”
Nearly 2,000 pages of proffered evidence were submitted in support of
the allegations in the Complaint, including filings and transcripts from the fire
code administrative proceedings. For example, a March 2010 Order
explains that due to safety concerns, Seacoast was required to have a fire
watch, but “Seacoast unilaterally had decided that it would end the fire watch
procedures” without the Special Master’s approval. The Order further
determines that “all evidence shows that the written Orders in this matter
have been intentionally disregarded or even directly flaunted by Seacoast.”
Moreover, the Order warned of “a critical safety issue” on floor 15, “and those
violations are still taking place, putting the renters in danger of loss of life . .
3 .” Consequently, Seacoast was ordered to “remove any and all persons”
from floor 15. 2
Arevalo’s proffer also contains numerous deposition transcripts,
affidavits, and various other documents, including the deposition of a
Seacoast security guard who was on duty when the fire occurred. The guard
testified that he had previously worked at the Hotel Deauville, a sister
property, where he was instructed “whenever the fire alarm goes off to
silence the alarm and then go and check.”3 The guard recounted an incident
where the alarm was silenced, and the fire chief showed up and told staff not
to silence the alarm because it was dangerous. After this incident, the
guard’s supervisor continued to instruct him to silence the fire alarms.
Shortly after the guard started working at Seacoast, there was another
fire alarm incident, unrelated to the one at issue here. The guard did not
silence the alarm, as instructed, and instead went directly to the floor where
2 According to Arevalo’s deposition, she and her son originally rented a room on the 10th floor when they became tenants in 2009. In 2018, Seacoast moved Arevalo and her son to the 15th floor. Arevalo alleges the critical safety issue on the 15th floor was still present when she moved and when the fire occurred because Seacoast had not installed fire sprinklers. 3 The proffer also includes the deposition transcript of another Deauville security guard, who likewise testified about the silencing policy.
4 the alarm was triggered to investigate the source. His deposition testimony
describes what happened when he returned to the lobby:
Mrs. Meruelo was down there in her nightgown, and the fire [department] went upstairs to check it out and that’s when she tell[s] me if I still wanted to work there to learn the system and silence the alarm.
And when she tell[s] me that I in turn let her know that it happened at the Deauville before and the fire chief was mad about it, said it’s not safe to do so ....
....
Her response was, “The Deauville is no more. This is the Seacoast Suites. If you want to continue to work here, you need to learn the system and silence the alarm.
The guard also testified about what happened with the fire alarm on
the night of the fire that resulted in Mr. Arevalo’s death:
At the time I was standing outside next to the valet booth and I heard a beeping sound coming from the alarm system, the panel . . . .
I went there, [took] a look at it, and [a housekeeper] was there and I told him not to let the alarms go off because the owner [didn’t] want the excitement at our building and that she had instructed me to silence it.
After silencing the fire alarm, the guard testified that he went up to the 15th
floor, noticed there was smoke in the halls, and called 911.
5 In opposition to Arevalo’s Motion to Amend, Menada and Meruelo
argued that the fire code violations only pertained to hotel operations not
apartment building operations for long-term tenants. They also argued there
was no causal relationship between the alleged silencing policy and the fire
department response time. And finally, they claimed that the alleged conduct
did not rise to the level of punitive conduct. In support, Menada and Meruelo
submitted an evidentiary counter-proffer.
Following a hearing, the trial court granted Arevalo’s Motion to Amend.
Menada and Meruelo timely appealed.
II. ANALYSIS
Our analysis is governed by the statutory framework in section
768.72(1), Florida Statutes (2024), which sets forth the pleading standard for
punitive damages:
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.
Our standard of review is de novo. See, e.g., McLane Foodservice Inc. v.
Wool, 400 So. 3d 757, 760 (Fla. 3d DCA 2024). “Our de novo review . . .
tests the sufficiency of the proffer in the light most favorable to the moving
6 party, without accepting conclusory legal conclusions or labels such as
‘gross misconduct’ at face value.” Id. at 761.
Section 768.72 creates “a substantive legal right not to be subject to a
punitive damages claim and ensuing financial worth discovery until the trial
court makes a determination that there is a reasonable evidentiary basis for
recovery of punitive damages.” Globe Newspaper Co. v. King, 658 So. 2d
518, 519 (Fla. 1995). “The statute requires the trial court to act as a
gatekeeper and precludes a claim for punitive damages where there is no
reasonable evidentiary basis for recovery.” Bistline v. Rogers, 215 So. 3d
607, 611 (Fla. 4th DCA 2017).
Here, the trial court determined, based on the extensive proffer, that
Arevalo made a reasonable showing by proffer that would provide a
reasonable basis for recovery of punitive damages. We agree. “This isn't
the time to prove the case, or even to determine that the evidence proffered
itself constitutes ‘clear and convincing evidence . . . that the defendant was
personally guilty of intentional misconduct or gross negligence.’” McLane,
400 So. 3d at 760 (Fla. 3d DCA 2024) (quoting § 768.72(2)).
We recognize that courts have taken different approaches in
determining whether and to what extent a trial court may weigh the evidence
at the punitive damages pleading stage. Compare Manheimer v. Fla. Power
7 & Light Co., 403 So. 3d 257, 261 (Fla. 3d DCA 2023) (“A trial court must
weigh both parties’ showings when considering whether the evidence or
proffer is sufficient to establish a reasonable evidentiary basis for recovery
of punitive damages.”), Gattorno v. Souto, 390 So. 3d 134, 137 (Fla. 3d DCA
2024) (same), and Comway Trade Logistics, LLC v. Curet, 404 So. 3d 596
(Fla. 3d DCA 2025) (same), with McLane, 400 So. 3d at 761 (Fla. 3d DCA
2024) (“The trial court’s gatekeeping function doesn’t ‘weigh evidence or
evaluate witness credibility,’ but it also must amount to more than ‘accept[ing]
[the plaintiff’s] gross misconduct allegations at face value.’” (alterations in
original) (quoting Mercer v. Saddle Creek Transp., Inc., 389 So. 3d 774, 777
(Fla. 6th DCA 2024))). 4
This is of no consequence here because whether we consider the
counter-proffer, as the trial court did, or only Arevalo’s proffer, we conclude
4 Compare also KIS Grp., LLC v. Moquin, 263 So. 3d 63, 66 (Fla. 4th DCA 2019) (“Unlike consideration of a motion for summary judgment which precludes the court from weighing the evidence or reaching conclusions therefrom, section 768.72 necessarily requires the court to weigh the evidence and act as a factfinder.”), with Fed. Ins. Co. v. Perlmutter, 376 So. 3d 24, 34 (Fla. 4th DCA 2023) (en banc), review granted, No. SC2024-0058, 2024 WL 4948685 (Fla. Dec. 3, 2024) (“We stress that the preliminary determination of whether the movant made a reasonable showing by evidence of a reasonable basis for allowing a punitive damages claim is to be made without weighing evidence or witness credibility.”).
8 that Arevalo made a reasonable showing that would provide a reasonable
basis for recovery. 5
III. CONCLUSION
Because Arevalo made a reasonable showing by proffer, which would
provide a reasonable basis for recovery of such damages, we affirm the
order granting leave to amend to assert claims for punitive damages.
5 Our opinion is limited to the issue before us, which is whether Arevalo satisfied the punitive damages pleading requirement. We express no opinion on the merits of Arevalo’s punitive damages claims. See § 768.725 (“In all civil actions, the plaintiff must establish at trial, by clear and convincing evidence, its entitlement to an award of punitive damages. The ‘greater weight of the evidence’ burden of proof applies to a determination of the amount of damages.”).
9 Menada, Inc., etc., et al. v. Gabriela Arevalo, etc. Case No. 3D23-1625 GORDO, J., specially concurring.
I agree with the majority that the trial court properly granted the motion
for leave to amend to assert punitive damages. I write separately to clarify
several issues which should be discussed.
First, we have often held that punitive damages are reserved for the
worst type of conduct. See BDO Seidman, LLP v. Banco Espirito Santo Int’l,
38 So. 3d 874, 876 (Fla. 3d DCA 2010) (“Punitive damages are a form of
extraordinary relief for acts and omissions so egregious as to jeopardize not
only the particular plaintiff in the lawsuit, but the public as a whole, such that
a punishment—not merely compensation—must be imposed to prevent
similar conduct in the future[.]”); KIS Grp., LLC v. Moquin, 263 So. 3d 63, 65-
66 (Fla. 4th DCA 2019) (“[P]unitive damages are reserved for truly culpable
behavior and are intended to ‘express society’s collective outrage.’” (quoting
Imperial Majesty Cruise Line, LLC v. Weitnauer Duty Free, Inc., 987 So. 2d
706, 708 (Fla. 4th DCA 2008))); Cleveland Clinic Fla. Health Sys. Nonprofit
Corp. v. Oriolo, 357 So. 3d 703, 706 (Fla. 4th DCA 2023) (“[P]unitive
damages are reserved for truly culpable conduct . . . . so outrageous in
character, and so extreme in degree that the facts of the case to an average
member of the community would arouse his resentment against the actor,
10 and lead him to exclaim, ‘Outrageous!’”) (internal quotation marks and
citations omitted); W.R. Grace & Co.—Conn. v. Waters, 638 So. 2d 502, 503
(Fla. 1994) (“Punitive damages are appropriate when a defendant engages
in conduct which is fraudulent, malicious, deliberately violent or oppressive,
or committed with such gross negligence as to indicate a wanton disregard
for the rights of others.”).
After the amendment of Florida Rule of Appellate Procedure 9.130,
which permitted our appellate courts to review interlocutory orders that “grant
or deny a motion for leave to amend to assert a claim for punitive damages,”
we have seen a significant increase in nonfinal appeals from these types of
orders. Fla. R. App. P. 9.130(a)(3)(G); In re Amend. to Fla. Rule of App.
Proc. 9.130, 345 So. 3d 725, 726 (Fla. 2022). In my view, this case presents
a perfect example of the kind of allegations that, if proven to be true, not only
shock the conscience but are likely to merit punitive damages.
The proffer by the plaintiff in this case included evidence that the
appellants:
• Engaged in fire safety violations that date back decades and
which continued through the date of the subject fire resulting in
repeated fines and reprimands from authorities;
11 • Have been fined at least $6.5 million for fire related violations,
including the imposition of a daily fine of $1,000.00 for each day
of noncompliance starting from April 1, 2018 through the date of
the subject fire;
• Failed to meet their own submitted compliance deadlines and the
City of Miami Beach’s compliance deadlines to install legally
required sprinklers in all units on multiple floors, including the unit
where the appellants moved the plaintiff and the decedent;
• Implemented a life-threatening policy whereby security guards
and employees were instructed and required to acknowledge
and then silence fire alarms immediately upon them sounding;
• Specifically and consciously placed the decedent, who was
legally blind, in a unit on the fifteenth floor—a floor the City of
Miami Beach Special Master had previously determined to be
unsafe and on which the appellants were prohibited from placing
tenants;
• Specifically and consciously placed the decedent in a unit on the
fifteenth floor which lacked, among other things: (1) fire
sprinklers, (2) the minimum number of code-compliant smoke
alarms and/or detectors, (3) code-compliant smoke alarms
12 and/or detectors (the subject smoke detection device expired in
2005) and (4) adequately maintained standpipes which provide
a water supply; and
• Continued to conduct hotel operations in violation of applicable
codes, laws and administrative orders.
If the alleged conduct is proven to be true at trial, it could rise to the
level of outrageous behavior of the sort warranting recovery of punitive
damages. Indeed, it could cause the average person in the community to
exclaim, “Outrageous!”
Second, I do not believe a discussion related to the plaintiff’s burden
of proof at the pleading stage is warranted in this case. That issue was not
briefed by the parties or considered below. We are affirming the challenged
order on grounds other than the issue certified in Federal Insurance
Company v. Perlmutter, 376 So. 3d 24 (Fla. 4th DCA 2023) (en banc), review
granted, No. SC2024-0058, 2024 WL 4948685 (Fla. Dec. 3, 2024), which is
currently under review. 6
6 The Perlmutter court certified a question of great public importance regarding the issue of whether a trial court, in adjudicating a motion for leave to assert a claim for punitive damages, must make a preliminary determination of whether a jury could find by clear and convincing evidence that punitive damages are warranted. Perlmutter, 376 So. 3d at 38. It is noteworthy that this Court has never applied that standard.
13 Third, while the majority calls into question the “different approaches
in determining whether and to what extent a trial court may weigh the
evidence at the punitive damages pleading stage,” Majority at 7-8, the parties
have not raised any argument in this Court suggesting that such issue is of
consequence here. Addressing issues not briefed by the parties is a
departure from fundamental party-presentation principles. “In our adversary
system, in both civil and criminal cases, in the first instance and on appeal,
we follow the principle of party presentation.” Greenlaw v. U.S., 554 U.S.
237, 243 (2008). “That is, we rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of matters the parties
present.” Id. “The premise of our adversarial system is that appellate courts
do not sit as self-directed boards of legal inquiry and research, but essentially
as arbiters of legal questions presented and argued by the parties before
them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). “Failure to
enforce this requirement will ultimately deprive us in substantial measure of
that assistance of counsel which the system assumes—a deficiency that we
can perhaps supply by other means, but not without altering the character of
our institution.” Id.
Moreover, “[courts] do not, or should not, sally forth each day looking
for wrongs to right.” U.S. v Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987)
14 (Arnold, J., concurring in denial of reh’g en banc). “We wait for cases to
come to us, and when they do we normally decide only questions presented
by the parties.” Id.; see also U.S. v. Sineneng-Smith, 590 U.S. 371, 375-76
(2020) (“[O]ur system ‘is designed around the premise that parties
represented by competent counsel know what is best for them, and are
responsible for advancing the facts and argument entitling them to relief.’”
(quoting Castro v. U.S., 540 U.S. 375, 386 (2003) (Scalia, J., concurring in
part and concurring in the judgment))); D.H. v. Adept Cmty. Servs., Inc., 271
So. 3d 870, 888 (Fla. 2018) (Canady, C.J., dissenting) (“This requirement of
specific argument and briefing is one of the most important concepts of the
appellate process. Indeed, it is not the role of the appellate court to act as
standby counsel for the parties.”).
Nevertheless, here the majority cites to several cases, including
Manheimer v. Florida Power & Light Company, 403 So. 3d 257 (Fla. 3d DCA
2023), to highlight the so-called “different approaches.” I reject any
suggestion that this Court’s holding in Manheimer deviates from the
established principle that when ruling on a motion for leave to amend to
assert punitive damages, the trial court does not weigh competing evidence
15 or make assessments of witness credibility. 7 See Perlmutter, 376 So. 3d at
34 (“[T]he preliminary determination of whether the movant made a
reasonable showing by evidence of a reasonable basis for allowing a punitive
damages claim is to be made without weighing evidence or witness
credibility.”) (footnote omitted); McLane Foodservice Inc. v. Wool, 400 So.
3d 757, 761 (Fla. 3d DCA 2024) (“The trial court’s gatekeeping function
doesn’t ‘weigh evidence or evaluate witness credibility,’ but it also must
amount to more than ‘accepting the plaintiff’s gross misconduct allegations
at face value.’” (quoting Mercer v. Saddle Creek Transp., Inc., 389 So. 3d
774, 777 (Fla. 6th DCA 2024))).
7 To the extent any portion of Manheimer could be construed as doing so, “[a]ny statement of law in a judicial opinion that is not a holding is dictum.” Pedroza v. State, 291 So. 3d 541, 547 (Fla. 2020); see also Lewis v. State, 34 So. 3d 183, 186 (Fla. 1st DCA 2010) (“When a court makes a pronouncement of law that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding in the case.”); Churchill v. DBI Servs., LLC, 361 So. 3d 896, 904 (Fla. 1st DCA 2023) (“We are not bound by dicta, only holdings.”). It is inappropriate to invoke our extraordinary en banc jurisdiction where dicta is the basis for en banc consideration. See Fla. R. App. P. 9.331(a) (“En banc hearings and rehearings shall not be ordered unless the case or issue is of exceptional importance or unless necessary to maintain uniformity in the court’s decisions.”); Fleischer v. Hi-Rise Homes, Inc., 536 So. 2d 1101, 1102 (Fla. 4th DCA 1988) (“[S]ince the offending language was not the holding . . . it is not necessary to consider excising that language en banc, in order to ‘maintain uniformity in the court’s decisions.’” (quoting Fla. R. App. P. 9.331(a))).
16 The governing statute, section 768.72, Florida Statutes, provides that
“[i]n 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.” § 768.72(1), Fla. Stat. In reading the plain language of the
statute, this requires the trial court to serve as a “gatekeeper” and preclude
a claim for punitive damages where there is no reasonable evidentiary basis
for recovery. Manheimer, 403 So. 3d at 261; Gattorno v. Souto, 390 So. 3d
134, 137 (Fla. 3d DCA 2024); Palm Bay Towers Condo. Ass’n, Inc. v.
Marrazza, 404 So. 3d 552, 556 (Fla. 3d DCA 2025). Paramount in this
analysis is that the trial court must weigh the claimant’s proffer and any
evidence in the record for sufficiency—NOT credibility. If in reviewing the
claimant’s proffer and the record evidence the trial court finds there is an
insufficient basis for recovery of punitive damages, the claim should be
disallowed. The gatekeeping function of the trial court, therefore, looks at
sufficiency of the evidence in the record or proffered but does not weigh
competing evidence or evaluate witness credibility.
In sum, the majority raises arguments unlike those advanced in the
case before us. In my view, those discussions are better left for a different
case and day.